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Ordinance No. 65-17-39 vORDINANCE NO. 65-17-39 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF ATLANTIC BEACH, FLORIDA RELATING TO THE USE OF AND CONSTRUCTION WITHIN PUBLIC RIGHTS OF WAY; REPEALING CERTAIN PORTIONS OF EXISTING CHAPTER 19 OF THE CODE OF ORDINANCES, "STREETS, SIDEWALKS AND OTHER PUBLIC PLACES", CITY OF ATLANTIC BEACH, FLORIDA; ADOPTING NEW PROVISIONS IN CHAPTER 19 OF SAID CODE; CLARIFYING RIGHT OF WAY PERMITTING; CREATING NEW REGULATIONS IN CHAPTER 19 TO BE ENTITLED "COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS OF WAY"; PROVIDING FINDINGS & INTENT; PROVIDING DEFINITIONS; PROVIDING FOR REGISTRATION OF COMMUNICATION SERVICE PROVIDERS; PROVIDING FOR REVOCATION AND SUSPENSION; PROVIDING FOR TERMINATION; PROVIDING FOR APPEALS; PROVIDING FOR APPLICATION OF THESE RULES TO EXISTING COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS OF WAY; PROVIDING FOR INSURANCE; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR CONSTRUCTION BOND; 4. PROVIDING FOR ABANDONMENT OF A COMMUNICATIONS FACILITY; PROVIDING FOR PASS-THROUGH PROVIDER FEES AND FEES FOR USE OF CITY UTILITY POLES; PROVIDING FOR RESERVATION OF RIGHTS AND REMEDIES; PROVIDING FOR THE INCLUSION OF SUCH AMENDED ORDINANCE IN THE CODE OF ORDINANCES OF THE CITY OF ATLANTIC BEACH, FLORIDA; PROVIDING FOR REPEAL OF ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH TO THE EXTENT OF SUCH CONFLICT; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, this Ordinance promotes the public health, safety and general welfare by regulating the siting of utilities, communications facilities and utility poles within the public rights of ways and WHEREAS, this Ordinance accommodates the growing needs and demand for communications services; and WHEREAS, this Ordinance seeks to expressly address utility and new communications facilities technologies, while also protecting, preserving, and maintaining the aesthetic character of areas where such rights of way exist; and WHEREAS, Section 337.401, Florida Statutes, addresses inter alfa, the authority of local governments to regulate the placement and maintenance of utilities and communications facilities in the public rights of way; and WHEREAS, rules and regulations imposed by a local government relating to communications service providers that desire to place or maintain communications facilities in its rights of way must be generally nondiscriminatory and competitively neutral; and 00904259-6 WHEREAS, Section 337.401(3)(g), Florida Statutes, provides that a local government may not use its authority over the placement of facilities in its rights of way as a basis for asserting or exercising regulatory control over a provider of communications services regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a provider of communications services; and WHEREAS, Section 337.401(7), Florida Statutes, addresses inter alfa, the authority of local governments to adopt by ordinance objective design standards requiring a small wireless facility to meet reasonable location context, color, stealth, and concealment requirements, objective design standards requiring a new utility pole intended to support the collocation of small wireless facilities that replaces an existing facility to be of substantially similar design, material, and color, and reasonable spacing requirements concerning the location of ground -mounted equipment; and WHEREAS, Section 337.401(7)(d)(12), Florida Statutes, provides that a local government may adopt by ordinance provisions for placement of communications facilities in the rights of way for insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, municipal liability, and municipal warranties provided such provisions are reasonable and nondiscriminatory; and WHEREAS, it is the City's intent to exercise its authority over communications services providers, wireless infrastructure providers and pass-through providers' placement and maintenance of communications facilities in the City's rights of way; and WHEREAS, it is the City's further intent to treat each such communications services provider in a reasonable, nondiscriminatory and competitively neutral manner in exercising such authority; and WHEREAS, the City's rights of way are essential for the travel of persons and the transport of goods throughout the City and are a unique and physically limited resource requiring proper management by the City in order to ensure public safety, maximize efficiency, minimize costs to City taxpayers for the foregoing uses, reasonably balance the potential inconvenience to and negative effects upon the public from the placement and maintenance of communications facilities in the rights of way against the substantial benefits that accrue from such placement and maintenance, and promote the public health, safety and general welfare; and WHEREAS, it is the City's intent to implement the Advanced Wireless Infrastructure Deployment Act as provided in Section 337.401(7), Florida Statutes; and WHEREAS, it is the further intent of the City to exercise its authority to adopt reasonable and nondiscriminatory rules and regulations to the fullest extent allowed by Federal and State law; and WHEREAS, the City has reviewed its Ordinances, and has received input from citizens and other interested stakeholders, and as a result of the foregoing has concluded that the City Code should be updated, in conformance with Federal and State laws and rules, in order to adequately regulate the 200904259-6 City's rights of way regarding placement and maintenance of utility infrastructure, and existing, new and expanded communications facilities in the City's rights of way; and WHEREAS, adoption of the following Ordinance is necessary to satisfy the above objectives. NOW, THEREFORE, BE IT ORDAINED by the City Commission on behalf of the people of the City of Atlantic Beach, Florida: SECTION 1. Sections 19-1 and 19-2 of Chapter 19 are hereby deleted in their entirety and new Sections 19-1 and 19-2 are hereby adopted to read as follows: ARTICLE I. GENERAL PROVISIONS Section 19-1. Construction within and/or use of City Rights of Way. (a) Except as expressly set forth below in Article II of this Chapter regulating utilities, and in Article III of this Chapter regulating communication services, the provisions in this Article I shall apply to any construction within and/or use of City rights of way. (b) The following terms and phrases shall have the meanings given herein for purposes of this Chapter 19. Words not otherwise defined shall be construed to mean the common and ordinary meaning. "Construction " means any use of, activity, placement, replacement, repair or installation performed by any person or entity other than the City within the boundaries of any City right of way, including, but not limited to, curb cuts; driveways; excavation activities; installation of pavers, poles, conduits, wires, cables, fencing, signage and sidewalks; structures or other improvements or fixtures; and landscaping activities. The term does not include pedestrian, bicyclist or vehicular use of the Rights of Way. "Rights of Way" or "Public Rights of Way" means land in which the City owns the fee or has an easement devoted to vehicular, bicycle and/or pedestrian movement, or required for use as a transportation facility, as that term is defined in § 334.03(21), Florida Statutes, and may lawfully grant access pursuant to applicable law and includes the surface, airspace over the surface and the area below the surface of such Rights of Way. "Public Rights of Way" shall not include (a) county, state or federal rights of way, (b) property owned by any Person other than the City, (c) service entrances or driveways leading from the road or street onto adjacent property, or (d) except as described above, any real or personal property of the City, such as, but not limited to, City parks, buildings, fixtures, conduits, water lines, sewer lines, facilities or other structures or improvements, regardless of whether they are situated in the Public Rights of Way. (c) Except as may be permitted in accordance with Section 19-2 hereof, no person or entity shall undertake any use of or any type of construction within City Rights of Way, including without limitation, the following: 300904259-6 (1) Installation of mailboxes other than units prescribed by U.S. Postal Service Standards and Florida Department of Transportation Parking and Traffic Design Standards. (2) Decorative walls. (3) Retaining walls. (4) Buildings or structures of any kind. (5) Barriers or obstructions of any kind. (6) Basketball goals. (7) . Skateboard ramps. (8) Recreational structures of any kind, whether temporary or permanent. (9) Fences. (10) Swimming pools. (11) Parking spaces or lots. (12) Landscaping of any kind, except sod, which is permitted provided the adjoining landowner maintains the sod. (13) Any other improvement, object or item requiring a permanent foundation or which cannot be removed readily. (14) Any improvement, object or item designed and intended for personal or private use and not for public use. (15) Security lights and street lights. (16) Any work, construction activity or item which creates an obstruction, whether permanent or temporary, to the free and complete use of the Right of Way. (17) Driveways, new, modified or replaced (see Section 19-7). Section 19-2. Permits and revocable licenses required. (a) Any person or entity desiring to undertake construction within and/or use of a Right of Way shall obtain, prior to commencement of any work, a permit for such activity issued by the City Manager or his designee on terms and conditions as described herein, or in accordance with Subsection (f) herein, the issuance of a revocable license. (b) Any such person or entity shall complete and file an application for such approval in the form prescribed by the City. (c) Fees for permits and revocable licenses shall be determined by resolution of the City Commission. (d) No use of or construction in a Right of Way shall be permitted or licensed if that use or construction creates an obstruction barrier or safety hazard as defined by generally accepted engineering practices. (e) All requests for use of or construction within a Right of Way shall be evaluated based on the benefit of said use or construction to the general public and the degree to which the benefit to and convenience gained by a private property owner conflicts with or outweighs the benefit to the general public for the use of the affected Right of Way. 400904259-6 (f) Revocable licenses are required for all improvements in the Right of Way which are not accepted for maintenance by the City. (g) All requests for revocable license agreements require approval by the City Manager or his designee. (h) The permit or revocable license applicant shall be the owner or owners of the real property located adjacent to the affected right of way or a person designated by affidavit of said owner or owners. (i) Time limitations. (1) In no case shall construction commence on any improvement within any Right of Way before a permit and, if required, a license is issued. A permit issued by the City shall be valid for a period of up to one hundred eighty (180) days from the date of issuance. If a period in excess of one hundred eighty (180) days is required because of the scope of work, approval shall be obtained in advance of the issuance of the permit and the permit validation period shall reflect such extension. A permit shall not be extended more than three (3) times or for more than one (1) year from the date of issuance. (2) After issuance of the permit, the permittee shall notify the Building Department a minimum of two (2) business days prior to commencing construction. This notification will allow for scheduling of inspections. If a road closure is required, the permittee shall submit with the permit application a maintenance of traffic (MOT) plan to include all proposed road closures and an expected time duration for each closing. Road closures shall require separate approval by the Public Works Department and Public Safety Department and a minimum of three (3) business days' prior notification before the commencement or construction. Road closures of fewer than fifteen (15) minutes shall not require notification. 0) Application and other requirements. (1) Any person legally entitled to apply for and receive a permit and/or license under the provisions of this Article shall make such application in writing to the City in a form/format provided for that purpose. Every applicant for a permit/license shall give a description of the character of the work proposed to be done and the location, ownership, occupancy and use of the premises in connection therewith. The City may require plans, specifications or drawings and such other information as it may deem necessary and pertinent prior to the granting of a permit/license. If the City determines that the plans, specifications, drawings, descriptions or other information furnished by the applicant are in compliance with this Article, the rules and regulations of any other department having jurisdiction and any other laws, rules and regulations 500904259-6 pertaining to work proposed to be done, it shall issue the permit/license applied for upon payment of the required fee. (2) The order, sequence and prerequisites for making applications shall be as designated by the City. (3) The applicant shall determine all potential utility conflicts during the design stage and shall show same on the plan and profile drawings submitted with the application. The plan and profile drawings shall be in accordance with utility plan guidelines or as specified by the City. (4) If it is determined that such work or activity within any Right of Way will not unreasonably interfere with the rights of the public or City, the City may issue a permit/license for such construction work or activity, upon such reasonable conditions as the City deems necessary for the protection of the rights of the public and the City. (5) Under all conditions prescribed in this section, the construction shall not proceed unless the statewide one -call toll-free telephone notification system or such other method established under the Underground Facility Damage Prevention and Safety Act, as now or hereafter amended, is notified not less than forty-eight (48) hours nor more than five (5) days in advance of beginning construction. Advance notification is waived when it is documented to the City that the excavation work is of an emergency nature involving the public health, safety or welfare. (6) All applicants shall give the full name, address, electronic mail address and telephone number of the person or organization making such application and all contractors expected to participate in the construction of the work; shall designate the place, extent, nature and purpose of such work or activity; and, if any paving, curbing, sidewalk, drainage feature, sewer or water main will be disturbed by such work, the City Manager or designee may require that the application be accompanied by a deposit of money in such amount as shall in the opinion of the City Manager of designee be sufficient to pay for the expense of repairing or restoring the same. Pavement replacement shall be in accordance with the conditions set forth in the permit and other standards of the City. Failure or neglect on the part of the applicant to carry out all work in compliance with the conditions set forth in the permit/license and other standards of the city shall be reason for revocation of the permit/license. (7) All applicants shall restore the Rights of Way to its previous condition. (8) All applicants shall verify the location and elevation of all underground facilities and shall protect said facilities from damage; in the event that any facilities are damaged, the applicant or applicants shall, at their sole expense, 600904259-6 repair or cause to be repaired the damaged facilities to the satisfaction of the owner or operator of said facilities." (9) Upon the completion of the work authorized by a permit/license hereunder, the permittee/licensee shall refill all trenches and excavations. All openings in Rights of Way must be promptly filled with suitable material, free from rubbish and perishable matter, and thoroughly and evenly compacted throughout, ramming in thin layers while being put in or by flooding with water. Upon completion of the backfill, the permittee/licensee shall immediately place pavement, if applicable, in a safe condition for traffic by laying a temporary pavement, properly supported, having the top of the pavement flush with the pavement surface. Immediately after completion of work or any consecutive portion of it, the permittee/licensee shall remove from such street or sidewalk all unused material, refuse and dirt placed in the vicinity of the work resulting from its prosecution and restore the Right of Way to a condition satisfactory to the City, notifying the City of such action. In case the work is not completed within the time limited in the permit/license, the City may, if it deems necessary, take steps to return the surface to a safe condition. If an extension of time beyond such date is necessary for completion of the work, a new application must be obtained. All persons in charge of any work in the Rights of Way must retain and have in possession at all times while so engaged the permit/license as described in this section. If the City shall at any time within thirty (30) days after the sidewalks and/or pavement have been replaced or repaired determine that the work has not been completed in a workmanlike manner or otherwise fails to meet City standards, then, and in that event, the City shall cause the sidewalks, pavement or other surfaces within the Right of Way so defectively replaced and repaired to be properly replaced and repaired. All costs and expenses of so replacing and repairing such work shall be charged against the fund deposited by the person to whom the permit was granted to cut, disturb and excavate the pavement or sidewalks, for a period of one (1) year against defect. (k) Each applicant for a permit and/or license, as may be applicable, under this Article shall: (1) Agree to save the City, its officers, employees and agents harmless from any and all costs, damages and liabilities which may accrue or be claimed to accrue by reason of any work performed or existence of any improvement under such permit or revocable license. The acceptance of any permit or revocable license under this Article shall constitute such an agreement by the applicant whether such acceptance is expressed or not. (2) Pay a permit and engineering review fee and security deposit. Developers of major subdivisions may request to pledge assurances to the City in lieu of cash or check, and the city, in the sole exercise of the City Manager's judgment and discretion, may accept or reject such assurances. 700904259-6 (3) Furnish a certificate of insurance. (4) Keep the original copy of the permit or revocable license and an approved copy of the plan in the possession of the party actually doing the work and, when requested, exhibit such copy to the Building Official, duly authorized inspectors or, in the instances of county and state roads, to the respective inspectors representing these authorities. (5) Agree to perform the work in accord with the permit and/or revocable license conditions and the regulations established under this Article. (1) Bond. A performance bond, or other financial security, in form, content and execution approved by the City, may be required to protect the City in the event the specified work is not completed or does not conform to the City's requirements, or when damages to the Right of Way have occurred. (m) Permit/license revocation. The City may revoke permits and licenses issued upon finding that: (1) The permit/license was issued by mistake of law or fact; (2) The permit/license is for work which violates the provisions of this Article; (3) The permit/license was issued upon a false statement or misrepresentation by the applicant; (4) The permit/license violates any ordinance of the City or any state or federal law, rule or regulation; (5) The work is not being performed in accordance with the provisions of this Article; (6) The certificate of competency or license of the permittee has become invalid by reason of expiration, suspension, revocation or otherwise; (7) The work is not being performed under the supervision of the holder of the certificate or license upon which the same was issued; (8) The work is not being done in accordance with the terms of the permit/license, the plans or the application upon which the same was issued; (9) Payment of the fees was not effected due to insufficient funds or any other reason; 800904259-6 (10) The work performed is threatening or interfering with public welfare and safety; (11) The work performed is not in compliance with this Article and/or City Code; or (12) The permittee is not in compliance with this Article and/or City Code." SECTION 2. No Changes to Sections 19-3 through 19-7. No changes are hereby made to Sections 19-3 through 19-7, inclusive, of Chapter 19 of the City's Code of Ordinances. SECTION 3. Deletion of Section 19-8. Section 19-8 of Chapter 19 of the City's Code of Ordinances is hereby deleted in its entirety. SECTION 4. Creation of Article II, Chapter 19, Code of Ordinances. New Article II of Chapter 19 of the City's Code of Ordinances is hereby created to read as follows: ARTICLE II. UTILITY PLACEMENT WITHIN CITY RIGHTS OF WAY Section 19-20. Applicability. This Article shall apply to any public or private entity who seeks to construct, maintain, repair, operate and/or remove lines for the transmission of public utilities that are not providing communications services as defined in Section 202.11 (1), Florida Statutes, under, on, over, across or within the public Rights of Way, including but not limited to, water, sewage, gas, power and television, or as regulated by a franchise, as applicable. The transmission of communications services as defined in Sections 202.11 and 202.11(1), Florida Statutes, and the construction, placement, installation, maintenance and operation of a communications facility or utility pole in the Rights of Way, shall be governed by the provisions of Chapter 19, Article III. Sec. 19-21. Permit Required. Any person who desires to construct, maintain, repair, operate-, or remove lines for the transmission of water, sewage, gas, power, other public utilities, and television under, on, over, across, or within the Rights of Way of the City shall be required to obtain a permit from the City. The provisions of Sections 19-20) and (m) of Article I of this Chapter shall be applicable to any such permit. Sec. 19-22. Provisions of Permit. In addition to the provisions of Section 19-2(k) of Article I of this Chapter, any such permit granted by the City shall contain adequate provisions: (a) To prevent the creation of any obstructions or conditions which are or may become dangerous to the traveling public; 900904259-6 (b) To require the permittee to repair any damage or injury to the road or highway created during the installation of a utility facility and to repair said road or highway promptly, restoring it to a condition at least equal to that immediately prior to the infliction of such damage or injury; (c) Whereby the permittee shall hold the City Commission of Atlantic Beach, Florida, members and officers, agents, and employees thereof harmless from the payment of any compensation or damages resulting from the exercise of the privileges granted in any such permit; and (d) As may be reasonably necessary for the protection of the City and the public. Sec. 19-23. When bond may be required. The City Manager or designee may require the permittee to furnish performance bonds, maintenance bonds, and/or a security fund to ensure compliance with the provisions of this Article. Sec. 19-24. Fees authorized. The City Commission may adopt by resolution a fee schedule relating to the issuance of permits hereunder. Sec. 19-25. Moving or removal of utility lines. In the event of widening., repair_, or reconstruction of any road, the permittee shall move or remove any water, gas, sewage, power, video service, and other utility lines, at no cost to the City should they be found by the City to be interfering with said work, except as provided in Section 337.403, Florida Statutes, as amended. Sec. 19-26. Authority to implement Article. The City Manager or designee is authorized to adopt, modify, and repeal rules and regulations to carry out the intent and purposes of this Article to the extent allowed by law. Sec. 19-27. Noncompliance unlawful. It shall be unlawful for any person to construct, maintain, repair, operate., or remove lines for the transmission of water, sewage, gas, power, television and other public utilities under, on, over, across, or within the Rights of Way of the City without fully complying with this Article or the permits, rules and regulations promulgated hereunder. Sections 19-28 and 29 are hereby reserved. SECTION 5. Creation of Article III, Chapter 19, Code of Ordinances. New Article III of Chapter 19 of the City's Code of Ordinances is hereby created to read as follows: 1 Ooo9o4259-e ARTICLE III. COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS OF WAY Section 19-30. Short Title. This Article III shall be known, and may be cited, as the "Atlantic Beach Communications Facilities in Public Rights of Way Ordinance." Section 19-31. Findings, Intent and Scope. (a) The City hereby makes and declares the following findings and declares its legislative intent as follows: (1) The Public Rights of Way within the City of Atlantic Beach are a unique and physically limited resource and important amenity that are critical to the travel and transport of persons and property in the City. (2) The demand for telecommunications services has grown exponentially in recent years, requiring the continual upgrading of telecommunications equipment and services to satisfy such demand. (3) The placement of telecommunications equipment and facilities in the public rights of way to satisfy the demand for telecommunications services raises important issues with respect to the City's responsibility to manage its public rights of way. (4) The Public Rights of Way must be managed and controlled in a manner that enhances the health, safety and general welfare of the City and its citizens. (5) The use and occupancy of the Public Rights of Way by providers of communications services must be subject to regulation which can ensure minimal inconvenience to the public, coordinate users, maximize available space, reduce maintenance and costs to the public, and facilitate entry of an optimal number of providers of cable, telecommunications, and other services in the public interest. (6) Section 166.041, Florida Statutes, provides for procedures for adoption of an ordinance which is a regulation of general and permanent nature and enforceable as local law. (7) Section 337.401, Florida Statutes, addresses the authority of municipalities to regulate the placement and maintenance of communication facilities, and other utilities, in the public rights of way. (8) In 2017, Florida passed Chapter 2017-136, Laws of Florida, which inter alia, amends § 337.401, Florida Statutes, to create the new Subsection (7) known as the Advanced Wireless Infrastructure Deployment Act ("Wireless Deployment 1100904259-6 Act"), effective July 1, 2017, to address municipalities' regulation of access to the public rights of way for wireless communications facilities and wireless support structures. (9) The Wireless Deployment Act provides that municipalities may require a registration process in accordance with § 337.401(3), Florida Statutes, may adopt by ordinance provisions performance for insurance coverage, bonds, security funds, indemnification, force majeure, abandonment, municipality liability or municipal warranties and further provides that, for any applications filed before the effective date of ordinances implementing this subsection, an authority may apply current ordinances relating to the placement of communications facilities in the right of way related to registration, permitting, insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, municipality liability or municipal warranties. (10) The communication industry is in a constant state of emerging technology that includes the infrastructure required to support the increased demand and capacity to receive and to transmit increased data and voice communications. (11) A new network of wireless communications infrastructure has emerged comprised of a series of small individual antenna ("Small Cells"), or nodes ("Distributed Antenna Systems" or "DAS"), and wireless backhaul networks that are linked to a larger hub site. (12) The City has received requests to place wireless communications facilities and wireless support structures within the Public Rights of Way. (13) The current City Code does not contain requirements for registration, insurance, permitting, insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, municipality liability or municipal warranties that address sufficiently the placement or maintenance within the Public Rights of Way for wireline and wireless communications facilities or wireless support structures. (14) The City fords that, to promote the public health, safety and general welfare, it is necessary to (i) provide for the placement or maintenance of Communications Facilities in the Public Rights of Way within the City limits, (ii) adopt and administer reasonable rules, regulations and general conditions not inconsistent with applicable state and federal law, (iii) manage the placement and maintenance of Communications Facilities in the Public Rights of Way by all Communications Services Providers, (iv) minimize disruption to the Public Rights of Way, and (v) require the restoration of the Public Rights of Way to original condition. (15) It is the intent of the City to require that the placement or maintenance of any wireline or wireless communications facility in the Public Rights of Way must 1200904259.6 have an effective registration which satisfies the requirements set forth herein for such registration, to the extent not inconsistent with applicable federal and state laws and regulations. (16) It is also the City's intent to exercise the City's retained authority to regulate and manage the City's roads and rights of way in exercising its police power over Communications Services Providers' placement and maintenance of facilities in the Public Rights of Way in a nondiscriminatory and competitively neutral manner. (17) The City Manager or designee may promulgate rules, regulations and policies to implement this Article, and consistent with this Article and other applicable federal and state laws. (b) This Article shall apply to any person or public or private entity who seeks to construct, place, install, maintain or operate a Communications System or Facilities, as such terms are defined herein, in the Public Rights of Way, unless otherwise exempt by operation of applicable state or federal laws or regulations. This Article shall equally apply to a City owned or controlled Communications System except to the extent such Facilities are utilized on an internal, non- commercial basis by the City or any of its agencies, departments or bureaus. Sec. 19-32. Definitions. (a) For purposes of this Article III, the following terms, phrases, words and their derivations shall have the meanings ascribed herein. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural. The words "shall," "will" and "must" are mandatory, and "may" is permissive. Words not otherwise defined herein or in any permit that might be granted hereunder shall be given the meaning set forth in the Communications Act of 1934, 47 U.S.C. §§ 151 et seq., as amended (collectively the "Communications Act"), and, if not defined therein, as defined by Chapter 202, Florida Statutes, or Chapter 337, Florida Statutes, and, if not defined therein, be construed to mean the common and ordinary meaning. Abandonment means the cessation of all uses of a Communications Facility or Utility Pole for a period of one hundred eighty (180) or more consecutive days, provided that this term shall not include cessation of all use of a Facility or Pole within a physical structure where the physical structure continues to be used for some purpose or use accessory to the Communications Facility. By way of example, and not limitation, cessation of all use of a cable within a conduit, where the conduit continues to be used for some purpose of use accessory to the Communications Facility, shall not be "Abandonment" of a Facility in the Public Rights of Way. Adjacent property or property adjacent means (i) lot or parcel that abuts or is contiguous to a Communications Facility site or proposed site; and (ii) lots or parcels that would be contiguous to a Communications Facility site or proposed site but for an intervening Public Rights of Way. 1300904259-e Affiliate means each person, directly or indirectly, controlling, controlled by, or under common control with a Communications Services Provider that is registered with the City; provided that Affiliate shall in no event mean any limited partner, member, or shareholder holding an interest of less than 15 percent in such Communications Services Provider. Antenna means communications equipment that transmits or receives electromagnetic radio frequency signals used in providing Wireless Services or other Communications Services. Article means the Atlantic Beach Communications Facilities in Public Rights of Way Ordinance, codified as Article III of Chapter 19 of the City Code pursuant to that Ordinance enacted by City Commission effective on December 11, 2017, as may be amended or supplemented from time to time. At -grade Facility means a Communications Facility, the structure of which is affixed to the ground at -grade with a portion of the structure extending vertically above grade. At -grade Facilities may also, but need not necessarily, extend vertically below grade. Poles and ground mounted equipment installed as part of a Small Wireless Facility shall not be considered At -grade Facilities. Below -grade Facility means a Communications Facility, including manholes or access points, that are entirely contained below -grade within the Public Rights of Way. A Below -grade Facility is a type of Wireline Facility. City means the City of Atlantic Beach, Florida, a municipal corporation organized and existing under the laws of the State of Florida. City Code or Code of Ordinances means the Code of Ordinances of the City of Atlantic Beach, Florida. City Commission means the governing body for the City. City Utility Pole means a Utility Pole owned by the City in the Public Right of Way. Collocate or Collocation means to install, mount, maintain, modify, operate, or replace one or more wireless facilities on, under, within, or adjacent to a wireless support structure or Utility Pole. The term does not include the installation of a new Utility Pole or Wireless Support Structure in the public Rights of Way, nor does it include interconnection of Communications Facilities or the sale or purchase of capacity (whether bundled or unbundled). Communications Facility, Facilities or Systems means any facility, equipment or property, including, but not limited to, cables, conduits, converters, splice boxes, cabinets, handholds, manholes, vaults, equipment, drains, surface location markers, appurtenances, wireless facilities, wireless support structure, wireline backhaul facilities, located, to be located, used, or intended to be used, in the Public Rights of Way of the City to deliver, route, transmit, amplify or distribute Communications Services. This term includes Wireless Facilities and Wireline Facilities. 1400904259-6 Communications Services shall include, without limitation, the transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, by and through electronic, radio, satellite, cable optical; microwave, or other medium or method now in existence or hereafter devised, including Wireless Services, regardless of the protocol used for such transmission or conveyance, open video system, cable service. Communications Services Provider shall refer to any person making available or providing Communications Services, as defined herein, including without limitation a Wireless Infrastructure Provider and a Pass -Through Provider. Development Permit means the permit required under Section 19-35, City Code, prior to commencement of any placement or maintenance of Communication Facilities in the Public Rights of Way. Existing Structure means a Utility Pole with the Public Rights of Way that exists at the time an application to Place a Communications Facility on that Utility Pole is filed with the City. The term includes Repurposed Structures. The term does not include At -grade Facilities, Below -grade Facilities, or Wireline Facilities. An Existing Structure is not transformed into a Communications Facility by the Collocation of a Wireless Facility. In the Public Rights of Way means in, along, on, over, under, across or through the Public Rights of Way. Law or code means any local, state or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff, guideline or other requirements, as amended, now in effect or subsequently enacted or issued including, but not limited to, the Communications Act of 1934, 47 USC §§ 151 et seq. as amended, all orders, rules, tariffs, guidelines and regulations issued by the Federal Communications Council or the governing state authority pursuant thereto, Section 337.401, Florida Statutes, as amended, and all state statutes and regulations issued by state agencies pursuant thereto. Micro Wireless Facility means a Small Wireless Facility having dimensions no larger than twenty-four (24) inches in length, fifteen (15) inches in width, and twelve (12) inches in height and an exterior Antenna, if any, no longer than eleven (11) inches. Pass -Through Facilities means the Facilities for a Communication System that merely pass through the City from one point to another point and from which no revenues are directly attributable to subscribers or other carriers within the City. Pass-through Provider means any Person, municipality or county that places or maintains a Communications System or Communications Facilities in the Public Rights of Way but who does not provide Communications Services, including for example a company that places "dark fiber" or conduit In The Public Rights of Way and leases or otherwise provides those facilities to another company that does provide Communications Services to an end user. This definition of "Pass-through Provider" is intended to include any Person that places or maintains "Pass -Through Facilities" in the 1500904259-6 Public Rights of Way, but does not provide Communications Services to an end user within the corporate limits of the City. Person means any individual, firm, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, association, corporation, company, organization or legal entity of any kind, including any Affiliate, successor, assignee, transferee or personal representative thereof, and all other groups or combinations, and shall include the City to the extent that the City acts as a Provider. Placement or maintenance or placing or maintaining or other similar formulation of that term means to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A 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. To the extent required by applicable law, a party providing service only through resale or only through use of a third parry's unbundled network elements is not "placing or maintaining" the Communications Facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the Public Rights of Way is not placing or maintaining Facilities in the Public Rights of Way. Pole Attachment means any attachment of a Communications Facility by a Provider to an Existing Structure within a Public Rights of Way. This term includes aerial wireline attachments that serve as Wireline Facilities. Private Utility Pole means a Utility Pole owned by a municipal electric authority, a Utility Pole used to support municipally -owned or operated electric distribution facilities, or a Utility Pole owned by a person other than the City within the Public Rights of Way. Provider means a Communications Service Provider, Wireless Infrastructure Provider or Pass-through Provider. Public Service Commission or PSC means the agency for the State of Florida charged with the powers and duties conferred upon it by Chapter 364, Florida Statutes. Registrant or Facility Owner means a Provider or other person which seeks to use or occupy the Public Rights of Way that has registered with the City in accordance with the provisions of this Article. Registration or Register or other similar formulation of that term means the process described in § 19-33 herein whereby a Communications Services Provider provides certain information to the City. Repurposed Structure means an Existing Structure that has been renovated, reconfigured, or replaced with a similar structure so as to continue serving its primary existing purpose while also supporting the attachment of Communications Facilities that is approximately in the same location as the Existing Structure and in such a manner that does not result in a net increase in the number of Utility Poles located within the Public Rights of Way and does not interfere with pedestrian or vehicular access, and is compliant with applicable codes. The Repurposed Structure remains the 1600904259-e property of the owner of the Existing Structure prior to the repurposing, unless ownership otherwise lawfully changes. Shroud means a covering or enclosure of pole -mounted equipment associated with a Small Wireless Facility. Small Wireless Facility means a Wireless Facility that meets the following qualifications: (a) Each Antenna associated with the facility is located inside an enclosure of no more than six (6) cubic feet in volume or, in the case of Antennas that have exposed elements, each Antenna and all of its exposed elements could fit within an enclosure of no more than six (6) cubic feet in volume; and (b) All other wireless equipment associated with the facility is cumulatively no more than twenty-eight (28) cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters; concealment elements; telecommunications demarcation boxes; ground-based enclosures; grounding equipment; power transfer switches; cutoff switches; vertical cable runs for the connection of power and other services, and Utility poles or other support structures. Surrounding Neighborhood means the area within a five hundred (500) foot radius of a Communications Facility site or proposed Communications Facility site. Utility Pole means a pole or similar structure used in whole or in part to provide Communications Services or for electric distribution, lighting, traffic control, signage, or a similar function. The term includes the vertical support structure for traffic lights, but does not include any horizontal structures upon which are attached signal lights or other traffic control devices and does not include any pole or similar structure 15 feet in height or less unless the City grants a waiver for the pole. The term does not include a Utility Pole owned by the City, nor does it include any other Utility Pole exempt from such term pursuant to § 337.401, Florida Statutes. Wireless Facility means Communications Facility at a fixed location which enables wireless communications between user equipment and a communications network, including radio transceivers, Antennas, wires, coaxial or fiber-optic cable or other cables, regular and backup powers supplies, and comparable equipment, regardless of technological configuration, and equipment associated with wireless communication. This term includes Small Wireless Facilities. This term does not include: (a) The structure or improvements on, under, within, or adjacent to the structure on which the equipment is Collocated; (b) Wireline backhaul facilities; or 1700904259-6 (c) Coaxial or fiber-optic cable that is between wireless structures or Utility Poles or that is otherwise not immediately adjacent to or directly associated with a particular Antenna. Wireless Infrastructure Provider means a Person who has been certified to provide Communications Services in the State and who builds or installs wireless communication transmission equipment, Wireless Facilities, or Wireless Support Structures but is not a Wireless Services Provider. Wireless Services means any services provided using licensed or unlicensed spectrum, whether at a fixed location or mobile, using Wireless Facilities. Wireless Services Provider means a Person who provides Wireless Services. A Wireless Services Provider is a type of Communications Services Provider. Wireless Support Structure means a freestanding structure, such as a monopole, a guyed or self-supporting tower, or another existing or proposed structure designed to support or capable of supporting Wireless Facilities. The term does not include a Utility Pole. Wireline Facility means an aerial facility used to provide Communications Services or a Below -grade Facility. The term includes wireline backhaul facilities associated with a Wireless Facility and coaxial or fiber-optic cable that is between wireless structures or Utility Poles or that is otherwise not immediately adjacent to or directly associated with a particular Antenna of a Wireless Facility. Wrap means an aesthetic covering approved by the City depicting scenic imagery such as vegetation, which blends with the surrounding area. A wrap design may also be proposed by an applicant by requesting a waiver pursuant to Sections 19-36.2 and 19-37.5. Imagery in a wrap may not contain signage of any type. Section 19-33. Registration. Every Communications Services Provider that desires to place or maintain a Communications System or any Communications Facilities in the Public Rights of Way, including any Pass Through Facilities,' shall first Register with the City in accordance with this Section 19-33. Subject to the provisions prescribed in this Article, a Communications Services Provider that has properly Registered may apply for Development Permits to place or maintain a Communications System or Facilities in the Public Rights of Way. (a) Every Communications Services Provider that desires to place or maintain Communications Facilities in the Public Rights of Way, including any Pass Through Facilities, shall Register with the City Manager or his designee and shall submit the following information and documentation: (1) the name of the applicant under which it will transact business in the City and, if different, in the State of Florida; and 18W)04259-6 (2) the address and telephone number of the applicant's principal place of business in the State of Florida and any branch office located in the City and the name, address, electronic mail address and telephone number of the applicant's national headquarters and its registered agent in Florida; and (3) the name, address, electronic mail address and telephone number of the applicant's primary contact person and the person to contact in case of an emergency; and (4) for Registrations submitted on or after December 12, 2017, a copy of both the applicant's resale certificate and certificate of registration issued by the Florida Department of Revenue to engage in the business of providing Communications Services in the State of Florida; and (5) a copy of the applicant's certificate of authorization, public convenience and necessity or other similar certification issued by the Florida Public Service Commission; and (6) the number of the applicant's certificate of authorization or license to provide Communications Services issued by the Florida Public Service Commission, the Department, the FCC, or other Federal authority, if any; and (7) for an applicant that is a Pass-through Provider, in lieu of paragraphs (5), (6) and (7) above, the applicant shall provide a certified copy of the certificate or license issued by the Florida Department of State, or other appropriate state agency or department, authorizing the company to do business in the State of Florida; and (8) evidence of the applicant's insurance coverage as required under this Article. (b) The City shall review the information submitted by the applicant. Such review shall be by the City Manager or his designee. If it is found that the applicant complies with the requirements in subsection (a) above, the Registration shall be effective and the City shall notify the applicant of the effectiveness of Registration in writing. If the City determines that the applicant is not in compliance, the City shall notify the applicant in writing of the non -effectiveness and denial of Registration and the reasons therefor. The City shall so reply to an applicant within thirty (30) days after receipt of the Registration and required information from the applicant. Non -effectiveness and denial of Registration shall not preclude an applicant from reapplying or filing subsequent applications for Registration under the provisions of this Section. (c) An effective Registration does not, and shall not be construed to, convey equitable or legal title in the Public Rights of Way to any Communications Services Provider. Registration under this Section governs only the placement or maintenance of a Communications System or Communications Facilities in the Public Rights of Way. Other ordinances, codes or regulations may apply to the placement or maintenance in the Public Rights of Way of facilities that are not part of a 1900904259-6 Communications System. Registration does not excuse a Communications Services Provider from obtaining appropriate access or pole attachment agreements before locating its Facilities on those facilities or property belonging to the City or another Person. Registration does not excuse a Communications Services Provider from complying with all other applicable City ordinances, codes or regulations, including the rules, regulations and general conditions set forth in this Article. (d) A Communications Services Provider may cancel a Registration upon written notice to the City stating that it will no longer place or maintain a Communications System or any Communications Facilities in the Public Rights of Way and will no longer have a need to apply for Development Permits to perform construction or other work in the Public Rights of Way. A Communications Services Provider cannot cancel a Registration if it intends to continue placing or maintaining a Communications System or any Communications Facilities in the Public Rights of Way. (e) Registration, in and of itself, does not establish a right to place or maintain or a priority for the placement�or maintenance of a Communications System or any Facility in the Public Rights of Way, but shall establish for the Communications Services Provider a right to apply for an Development Permit from the City. Registrations are expressly subject to any future amendment to or replacement of this Article and further subject to any additional City ordinances, as well as any State or Federal laws that may be enacted. Registration does not excuse or exempt a Communications Services Provider from having to obtain on Business Tax License from the City in accordance with the City Code. (f) A Communications Services Provider shall renew its Registration with the City by April 1 of even numbered years in accordance with the Registration requirements in this Article, except that any Communications Services Provider 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 its Registration until the next even numbered year. Within thirty (30) days of any change in the information required to be submitted pursuant to subsection (a), a Communications Services Provider shall provide updated information to the City. 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 City restricting the issuance of additional Development Permits until the Communications Services Provider has complied with the Registration requirements of this Article. (g) In accordance with applicable City ordinances, codes or regulations, a Development Permit is required for a Communications Services Provider to place or maintain a Communications Facility in the Public Rights of Way. An effective Registration shall be a condition of obtaining such a Permit. Notwithstanding an effective Registration, all permitting requirements shall apply, including the requirement to pay for any such permits unless otherwise provided by resolution or ordinance of the City. A permit may be obtained by or on behalf of the Communications Services Provider having an effective Registration if all permitting requirements of the City and other provisions of this Article are met. (h) A reseller, which by definition does not place or maintain Communications Facilities in the Public Rights of Way, is not required to Register with the City; provided, however, within 2000904259-6 thirty (30) days of any Registered Communications Services Provider using its Facilities to carry the Communication Services of any reseller, shall notify the City of the name and address of such reseller. Any such reseller does not have any right, claim or cause of action to impede the lawful exercise of the City's rights or police powers, including but not limited to, requiring the Registered Communications Services Provider to remove such Facilities from the Public Rights of Way. Section 19-34. Notice of Transfer, Sale or Assignment of Assets. If a Communications Services Provider transfers, sells or assigns its System or any Facilities located in the Public Rights of Way incident to a transfer, sale or assignment of the Communications Services Provider's assets, the transferee, buyer or assignee shall be obligated to comply with the provisions set forth in this Article. Written notice of any such transfer, sale or assignment shall be provided by the Communications Services Provider to the City within thirty (30) days after the effective date of such transfer, sale or assignment. If the transferee, buyer or assignee is not currently Registered with the City, then the transferee, buyer or assignee must Register as provided in § 19-33 within sixty (60) days of the effective date of such transfer, sale or assignment. If any applications for Development Permits are pending under the Communications Services Provider's name as of the date the City receives written notice of the transfer, sale or assignment, then the City shall consider the transferee, buyer or assignee as the new applicant unless otherwise notified by the Communications Services Provider, provided the transferee, buyer or assignee is properly Registered with the City. Section 19-35. Rules, Regulations and General Conditions to Placement of and Use of Communications Systems and Facilities and Utility Poles in the Public Right of Way. As a condition of allowing the placement or maintenance of a Communications System or any Communications Facility or a Utility Pole in the Public Rights of Way, and under additional authority granted pursuant to Chapter 337, Florida Statutes, the City hereby imposes the following rules, regulations and general conditions. Unless otherwise provided in this Article III, these rules, regulations and general conditions shall apply to all Communications Services Providers, including those that are Pass-through Providers irrespective of whether they place and maintain only conduit, dark fiber or Pass -Through Facilities in the City. (a) Rules on Utilization of the Public Rights of Way. (1) Compliance with Laws. A Communications Services Provider shall at all times be in full compliance with and abide by all applicable Federal, State and local laws, codes and regulations in placing or maintaining a Communications System and Facilities and Utility Poles in the Public Rights of Way. (2) Due Care. A Communications Services Provider shall use and exercise due caution, care and skill in performing work in the Public Rights of Way and shall take all reasonable steps to safeguard work site areas. (3) Permits. A Communications Services Provider shall not commence to place or maintain a Communications Facility or Utility Pole in Public Rights of Way until all applicable permits have been issued by the City and other appropriate 2 100904259-6 authority, except in the case of an emergency. The term "emergency" shall mean a condition that affects the public's health, safety or general welfare, which includes an unplanned out -of -service condition of a pre-existing service. The Communications Services Provider shall provide prompt notice to the City of the placement or maintenance of a Communications Facility or Utility Pole in the Public Rights of Way in the event of an emergency and shall, after the fact, be required to submit plans and Record Drawings and As -Built Surveys, if required by the City Manager or his designee, showing the placement or relocation of a Communications Facility or Utility Pole undertaken in connection with the emergency. (4) Application for Development Permit. Prior to the issuance of a Development Permit to allow the placement or maintenance of a Communications System or Facility or Utility Pole in the Public Rights of Way, an applicant shall submit an application for a Development Permit. In addition to any information required pursuant to Section 19-20) of Article I of this Chapter 19, the Communications Services Provider shall provide all of the following: a. Engineering plan. An engineering plan that includes: 1. The type of proposed Facility, location of the proposed Facility or Utility Pole, and the dimensions, height, footprint, stealth design, and concealment features of the proposed Facility or Utility Pole; 2. The distances between the proposed Facility or Utility Pole and pavement, sidewalks, driveways, ramps, trees, underground Utilities and other above -grade and below -grade structures and Utilities located within 500 feet from the proposed Facility or Pole and within the Public Rights of Way; 3. Sufficient specificity demonstrating compliance with the Florida Building Code, the Florida Department of Transportation's Manual of Minimum Standards, the Utility Accommodation Guide, the Trench Safety Act (Chapter 553, Florida Statutes), the Underground Facility Damage Prevention & Safety Act (Chapter 556, Florida Statutes), the "Safety Rules for the Installation & Maintenance of Electrical Supply & Communication Lines" established by the U.S. Department of Commerce, Bureau of Standards and the National Electric Safety Code, as amended and as applicable; 4. For Utility Poles, the Global Positioning System (GPS) coordinates of the proposed Utility Pole. The GPS coordinates shall be based on the reading from a handheld mobile GPS unit set to Datum NAD 83 or WGS84. GPS coordinates based on Google Earth or similar application may be used where areas of shading occur due to overhead canopy. GPS coordinates shall be provided in decimal degrees at a six (6) decimal point precision; 2200904259-6 5. Attestation that the proposed Facility or Utility Pole is located within the Public Rights of Way, except that if the City Manager or his designee reasonably disagrees the applicant must submit a survey; and 6. Trees or landscaping to be removed or impacted upon the placement or maintenance of the proposed Facility or Utility Pole. If the placement or maintenance of a Facility or Utility Pole that impacts or removes a Regulated Tree in accordance with Chapter 23 of the City Code, the applicant shall provide additional information and documentation in accordance with Chapter 23 of the City Code and comply with said Chapter 23. b. Description of installation or Construction. The applicant shall provide a description of the manner in which the Facility or Utility Pole will be installed and/or modified (i.e. anticipated Construction methods or techniques). c. Temporary sidewalk closure plan. The applicant shall provide a temporary sidewalk closure plan, if applicable, to accommodate placement or maintenance of the Facility or Utility Pole. d. Temporary maintenance of traffic (MOT) plan. The applicant shall provide a temporary traffic lane closure and maintenance of traffic (MOT) plan, if applicable, to accommodate placement or maintenance of the Facility or Utility Pole. e. Restoration plan and estimated cost of restoration of the Public Rights of Way. A restoration plan and a good faith estimate of the cost of restoration of the Public Rights of Way to the condition prior to commencing work in the Public Rights of Way. Such good faith estimate shall be accepted by the City unless the City determines such estimated costs are not representative of the actual costs of the restoration of the Public Rights of Way. Estimates of the cost to restore the Public Rights of Way shall include all costs necessary to restore the Public Rights of Way to its original condition. Such good faith estimate may include, but shall not be limited to, costs to restore the paving, curbs/gutters, sidewalks, multi- purpose trails, and landscaping. All planted or naturally occurring shrubbery or vegetation, including sod, damaged or destroyed during work in the Public Rights of Way shall be replaced. Tree removal shown on the permit shall not be considered damage or impairment to be restored to the original condition provided the person complies with the approved mitigation plan, if any. f. Timetable for Construction or installation. The timetable for construction, placement or maintenance of the proposed Facility or Utility Pole or each phase thereof. 2300904259-e g. Indemnification. A statement shall be included within the permit application that by execution of the application, the applicant shall be bound to the City with respect to the indemnification provisions set forth in Section 19-44. h. Airport airspace protection. Applicant shall comply with Chapter 333, F.S., and all State and federal laws and regulations pertaining to airport airspace protections. Attestation. For Utility Poles that are intended to support the Collocation of Small Wireless Facilities, the applicant shall provide an attestation by an officer of the Registrant that a Small Wireless Communications Facility will be Collocated on the Utility Pole and will be used by a Wireless Services Provider to provide service within nine (9) months after the date the application is approved. j. Information regarding height limitations. For Utility Poles intended to support the Collocation of Small Wireless Facilities, the applicant shall provide information regarding the heights of other Utility Poles located in the same Public Rights of Way, measured from grade in place within five hundred (500) feet of the proposed location of the Utility Pole. If there is no Utility Pole within five hundred (500) feet of the proposed location of the Utility Pole intended to support the Collocation of Small Wireless Facilities, the applicant shall certify such. k. Additional information as reasonably required for review of permit application. Such additional information as the City Manager or his designee finds reasonably necessary to demonstrate the applicant's compliance with applicable codes, local laws and regulations, and State and federal laws with respect to the placement or maintenance of the proposed Facility or Utility Pole that is the subject of the permit application. (b) Application review timeframes. An application for a permit for an At -grade Facility, Below -grade Facility, Wireline Facility or Utility Pole not intended to support the Collocation of Small Wireless Facilities in the Public Rights of Way shall be reviewed by the City as follows: (1) Notice of application deficiency. Within thirty (30) days after the date of filing an application, the City Manager or his designee shall determine whether the application is complete. If an application is deemed incomplete, the City Manager of his designee shall notify the applicant by electronic mail and specifically identify the missing information. 2400904259-e (2) Application review period. Within sixty (60) days after the date of filing an application, the City Manager or his designee shall approve or deny the application. (3) Notice of denial; resubmission. Should the application be denied, the City Manager or his designee shall notify the applicant by electronic mail and specify the basis for denial, including the specific code provisions on which the denial is based. The applicant may cure the deficiencies identified by the City Manager or his designee and resubmit the application within thirty (30) days after the notice of denial is sent. The City Manager or his designee shall approve or deny the revised application within thirty (30) days after the date of filing the revised application. A denial of a permit may be appealed pursuant to Section 19-40. (4) Repurposed Structures and Utility Poles intended to support the Collocation of Small Wireless Facilities. An application for a Repurposed Structure or Utility Pole intended to support the Collocation of Small Wireless Facilities shall be reviewed by the City pursuant to the application review timeframes set forth in Section 19-37.2. (c) A permit application for a Repurposed Structure or a Utility Pole intended to support the Collocation of Small Wireless Facilities shall be submitted prior to or contemporaneously with a permit application for a Small Wireless Facility. Section 19-36. At -grade Facility, Below -Grade Facility, Wireline Facility, and Utility Pole Permit Conditions. (a) At -grade Facilities, Below -grade Facilities, Wireline Facilities, and Utility Poles, may be placed and maintained within the Public Rights of Way subject to the City's consideration of the following standards and minimum requirements: (1) Sufficiency of space to accommodate present and pending applications for use of the Public Rights of Way. The sufficiency of space to accommodate all of the present and pending applications to place other Communications Facilities, Utility Poles, Utilities, and other structures within the subject area of the Public Rights of Way; (2) Sufficiency of space to accommodate the need for projected public improvements. The sufficiency of space to accommodate budgeted City plans for public improvements or projects adopted as part of the Atlantic Beach Capital Improvements Schedule or other approved capital improvements lists as part of the Atlantic Beach Comprehensive Plan; (3) Impact on traffic and traffic and pedestrian safety. The impact on traffic and traffic and pedestrian safety. Such impact evaluation will include, without limitation, potential traffic and pedestrian interference, interference with the 2500904259-6 efficient movement of people and property, interference with sight lines or clear zones for transportation, pedestrians or public safety purposes; and (4) Applicable Codes. Applicable codes and State and federal laws and regulations, including the general permit conditions in Section 19-35 and the Objective Design Standards in Section 19-36.1. (b) A permit for a proposed At -grade Facility, Below -grade Facility, Wireline Facility, or Utility Pole shall remain effective for and construction must be completed within sixty (60) days. The City Manager or his designee may extend the expiration date of the permit for good cause. (c) A permit for a proposed Repurposed Structure or Utility Pole intended to support the Collocation of Small Wireless Facilities shall remain effective for and construction must be completed within one (1) year. The City Manager or his designee may extend the expiration date of the permit for good cause. (d) A newly constructed Utility Pole permitted by the City to support the Collocation of Small Wireless Facilities may only contain Small Wireless Facilities, except as provided herein. Unless otherwise exempted by State or federal law or this Article, antennas, wires, or other facilities may not be mounted on the Utility Pole intended to support the Collocation of Small Wireless Facilities without a permit or authorization from the City. (e) The following additional general permit conditions shall apply: (1) Revised Plans. If the plans or drawings submitted showing the proposed location for installation of the Facility in the Public Rights of Way require revision for any reason prior to commencing construction, the Communications Services Provider shall promptly submit revised plans and drawings to the City Manager or his designee. (2) Limited Purpose of Development Permit. A Development Permit issued by the City constitutes authorization to undertake only certain activities in Public Rights of Way in accordance with this Article, and does not create any property right or other vested interest, or grant authority to impinge upon the rights of others who may have an interest in the Public Rights of Way. Development Permits shall be granted only for specific routes or locations in the Public Rights of Way and for such term as described in the Permit. The City's issuance of a Development Permit shall not be construed as a warranty that the placement of any Communications Facility is in compliance with applicable codes, regulations or laws. (3) Responsibility for Contractors. Every Communications Services Provider that is Registered with the City shall be liable for the actions of contractor(s) hired by them to perform the placement or maintenance of Facilities in the Public Rights of Way and shall be responsible for making sure that such contractor 2600904259-6 meets and complies fully with the rules, regulations and general conditions set forth in this Article. (4) Provision and Form of Record Drawings and As -Built Surveys. Within forty five (45) days after completion of any placement or maintenance of a Communications Facility in the Public Rights of Way, the Communications Services Provider shall provide the City with Record Drawings showing the final location of such Facility in the Public Rights of Way. The Communications Services Provider shall also provide the City with As -Built Surveys within forty five (45) days after completion of any placement or maintenance of a Communications Facility in the Public Rights of Way. The Record Drawings and As -Built Surveys shall be provided to the City at no cost. (5) Production and Filing of As-Builts. Every Communications Services Provider that is Registered with the City shall produce and keep on file at its principal place of business an accurate and complete set of As-Builts of all Facilities placed and maintained in the Public Rights of Way. The location and identification of Facilities and the production of As-Builts shall be at the sole expense of the Communications Services Provider. Within thirty (30) days of completion of As-Builts, the Communications Services Provider must provide to the City, at no cost, copies of complete sets of As-Builts for the indicated Public Rights of Way. The failure of the Communications Services Provider to produce, keep on file, or provide to the City As-Builts as required is sufficient grounds for the City to deny the issuance of Development Permits in the future. (6) Removal of Facilities Placed Without Permit. Any Communications Facilities placed in the Public Rights of Way by the Communications Services Provider without first having obtained the required Development Permits shall be removed within thirty (30) days of written notice from the City to remove the same, and if not timely removed in compliance with such notice, such Facilities may be removed by order of the City Manager or his designee and the cost of removal shall be borne and paid by the Communications Services Provider upon demand. (7) Sunshine State One -Call. Every Communications Services Provider shall utilize, and if permissible, maintain membership in the utility notification one call system administered by Sunshine State One -Call of Florida, Inc. (8) Safety and Minimal Interference. All placement and maintenance of Communication Facilities in the Public Rights of Way shall be subject to the City Code and other regulations of the City pertaining thereto, and shall be performed with the least possible interference with the use and appearance of the Public Rights of Way and the rights and reasonable convenience of the property owners who abut or adjoin the Public Rights of Way and in compliance with the rules and regulations of the Florida Department of Transportation. The Communications Services Provider shall at all times 2700904259-6 employ reasonable care and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injury or be a nuisance to the public. Suitable barricades, flags, lights, flares, or other devices shall be used at such times and places as are reasonably required for the safety of all members of the public. All placement and maintenance shall be done in such a manner as to minimize to the greatest extent any interference with the usual travel on such Public Rights of Way. The use of trenchless technology (i.e., microtunneling and horizontal directional drilling techniques) for the installation of Communications Facilities in the Public Rights of Way as well as joint trenching or the co -location of facilities in existing conduit is strongly encouraged, and should be employed wherever and whenever feasible. (9) Correction of Harmful Conditions. If, at any time, the City or other authority of competent jurisdiction reasonably determines that any Communications Facility is, or has caused a condition that is, harmful to the health, safety or general welfare of any Person, then the Communications Services Provider shall, at its own expense, promptly correct or eliminate all such Facilities and conditions. In an emergency, as determined by the City Manager or his designee, when the Communications Services Provider is not immediately available or is unable to provide the necessary immediate repairs to any Communications Facility that is damaged or malfunctioning, or has caused a sunken area or other condition and, in the City Manager or his designee's sole discretion, is deemed a threat to public safety, then the City, when apprised of such an emergency, shall have the right to remove, make repairs to or eliminate same with the total cost being charged to and paid for by the Communications Services Provider upon demand. (10) Remedy of Hazardous Conditions. If, at any time, a condition exists that the City or other authority of competent jurisdiction reasonably determines is an emergency that is potentially hazardous or life threatening to any person or is a threat to the health or safety of the general public, and to remedy such condition the City or other authority of competent jurisdiction reasonably determines that a Communications Services Provider must temporarily relocate or temporarily shut off service or transmissions through a specific Facility, then the City, as an appropriate exercise of its police powers, may order the Communications Services Provider to immediately perform such temporary relocation or shut off until the condition has been remedied, and to do so at its own expense and without liability to or recourse against the City. In such an emergency, when the Communications Services Provider is not immediately available or is unable to provide the necessary immediate relocation or shut off of the specific Communications Facility, then the City shall have the right to perform, or cause to be performed, such temporary relocation or shut off until the condition has been remedied with the total cost being charged to and paid for by the Communications Services Provider upon demand. 2000904259-6 (11) Interference with Other Facilities. A Communications Services Provider shall not, in violation of any applicable laws or regulatory standards, design, place or maintain its Communications Facilities in a manner that will interfere with the signals or facilities of any municipal or county police, fire or rescue department, the facilities of any public utility, or the Communications Facilities of another Communications Service Provider, including any cable service provider. (12) Relocation or Removal of Facilities. Except in cases of emergency, a Communications Services Provider, at its own expense, shall: a. Upon thirty (30) days written notice, relocate or remove, as specified in said notice, its Communications Facility in the event the City finds that the particular Facility is unreasonably interfering in some way with the convenient, safe or continuous use, or the maintenance, improvement, extension or expansion of any Public Rights of Way. The City shall provide the Communications Services Provider with a notice and order as provided for in § 337.404, Florida Statutes, or any subsequently enacted law of the State of Florida, in the event it charges the Communications Services Provider for the cost and expense of relocating or removing such Facility pursuant to this paragraph. b. Within a reasonable period of time from the date of written notice from the City, but not more than one hundred twenty (120) days thereafter, relocate or remove, as specified in said notice, its Communications Facility in the event the City Manager or his designee determines it necessary for the construction, completion, repair, relocation or maintenance of a City project, because the particular Communications Facility is interfering with or adversely affecting the proper operation of street light poles, traffic signals, or any communications system belonging to the City or an agency thereof or because the particular Communications Facility is interfering with the signals or facilities of the Atlantic Beach Police Department, the Jacksonville Sheriff's Office, City of Jacksonville Fire and Rescue Department, the JEA or the City's municipal public utility or any other City or County public entity. In the event the City issues any such written notice to the Communications Services Provider pursuant to this paragraph, and the Communications Services Provider fails to cause the aforementioned relocation or removal as required herein, the City shall be entitled to relocate or remove such Facilities without further notice to the Communications Services Provider and the total cost and expense shall be charged to the Communications Services Provider. (13) Temporary Raising or Lowering of Facilities. A Communications Services Provider, upon request of any Person holding a validly issued building or moving permit from the City to temporarily encroach on or perform moving operations in or across the Public Rights of Way, shall temporarily raise or 2900904259-6 lower its Communications Facilities to accommodate such temporary encroachment or move. The expense of such temporary raising or lowering of Facilities shall be paid by the Person requesting the same, and the Communications Services Provider shall have the authority to require such payment in advance. The Communications Services Provider shall be given not less than twenty (20) days advance written notice from such Person to arrange for the temporary relocation, which notice must detail the time and location of the permitted activity, and not less than twenty four (24) hours advance notice from the permit holder advising of the actual operation. The City is not subject to, nor shall it be liable for, any such expense or notice requirement for the moving of houses or structures performed by the City or its contractors. (14) Coordination. In an effort to minimize the adverse impact on the Public Rights of Way and other municipal improvements, a Communications Services Provider may be required by the City Manager or his designee to coordinate the placement or maintenance of its Facilities with any work, construction, installation in or repairs of the subject Public Rights of Way or other Facilities therein that is occurring or is scheduled to occur within a reasonable time from application for a Development Permit as determined by the City Manager or his designee. Every Communications Services Provider shall make space in its trench and/or conduit within the Public Rights of Way available to other providers consistent with the federal requirements of 47 U.S.C. § 224. Every Communications Services Provider shall utilize existing conduits, pathways and other Facilities whenever possible, and shall not place or maintain any new, different, or additional poles, conduits, pathways or other Facilities, whether in the Public Rights of Way or on privately -owned property, until written approval is obtained from the City or other appropriate governmental authority, and, where applicable, from the private property owner. (15) Collocation and Joint Use. A Communications Services Provider, in an effort to minimize the adverse impact on the useful life of the Public Rights of Way, shall, whenever possible, enter into joint use agreements with the City and other parties who have Registered with, or who are expressly authorized by, the City to use its Public Rights of Way; provided that the terms of such agreements are satisfactory to the Communications Services Provider. Nothing herein contained shall mandate that the Communications Services Provider enter into joint use agreements with parties other than the City or an agency of the City. However, prior to placement of any new or additional underground conduit in the Public Rights of Way, a Communications Services Provider is required to certify in writing to the City Manager or his designee that it has made appropriate inquiry to all existing utilities and other entities possessing a right to occupy the Public Rights of Way as to the availability of existing or planned conduit that the particular Communications Services Provider could reasonably utilize to meet its needs, and that no such conduit is available or planned at a reasonable cost by any other entity on the time schedule reasonably needed. The Communications Services Provider shall not be 3000904259-6 permitted to perform any placement or maintenance of Facilities in those segments of the Public Rights of Way where there exists vacant or available conduit, dark fiber or surplus fiber owned by the City, an agency of the City or another governmental body which is or, through a reasonable amount of effort and expense, can be made compatible with the Communications Services Provider's System or network. Under such circumstances the Communications Services Provider shall have the opportunity to enter into a use agreement or lease arrangement with the City or an agency of the City at or below reasonable and prevailing market rates for such conduit or fiber or, where owned by another governmental body, shall, in good faith, first exhaust all means of obtaining use of such conduit or fiber before applying for an Development Permit from the City. (16) City Not Liable. Except for acts of willful misconduct or gross negligence and to the extent permitted by applicable law, neither the City nor its officials, boards, councils, consultants, agents, employees or independent contractors shall have any liability to the Communications Services Provider for any claims for any damages, costs, expenses or losses resulting from the City's breakage, removal, alteration or relocation of any Facilities of any Communications Services Provider which arose out of or in connection with any emergency or disaster situation or was, in the sole discretion of the City Manager or his designee, deemed necessary to facilitate any public works project, public improvement, alteration of a City structure, change in the grade or line of any Public Rights of Way, or the elimination, abandonment or closure of any Public Rights of Way or was found by City Commission to be in the best interest of the health, safety or general welfare of the public; nor shall any charge be made by the Communications Services Provider against the City for any damages, costs, expenses or losses related thereto. (17) No Exemption from Permits. Nothing in this Chapter shall exempt any Communications Services Provider from obtaining Development Permits for work done within the Public Rights of Way. (18) Subject to Police Powers. The rights of the Communications Services Provider shall be subject to all lawful exercise of police power by the City, and to such other reasonable regulation of the Public Rights of Way as the City shall hereafter by resolution or ordinance provide in the interest of the health, safety and general welfare of the public. Any inconsistency or ambiguity between the provisions of this Chapter 19 and any lawful exercise of the City's police power shall be resolved in favor of the latter. (19) City Inspection. The City shall have the right to make such inspections of a Communications System or Facilities placed or maintained in the Public Rights of Way as it finds necessary to ensure compliance with this Chapter. This Chapter shall not be construed to create or hold the City responsible or liable for any damage to persons or property by reason of any inspection by the City 3100904259-6 of the placement or maintenance of a Communications System or Facility as authorized herein or failure by the City to so inspect. (20) Access to Manholes. The City, in the proper exercise of its municipal powers and duties with respect to the Public Rights of Way, shall have access at any time to all hand holes and manholes in the City belonging to a Communications Services Provider. Before accessing any manhole, the City will make a reasonable good faith effort to provide the Communications Services Provider prior notice to afford an opportunity to have trained personnel present, unless determined by the City to be an emergency situation. (21) Compatibility, Capacity and Interference Issues. To properly manage and control the use of the Public Rights of Way, and to protect the health, safety and general welfare of the public, the City, in its legislative and regulatory role, shall be the final authority on permitting a Communications System or Facility to be placed in the Public Rights of Way and shall exercise such authority in a non-discriminatory manner. It shall be in the sole discretion of the City Manager whether an easement is compatible with or allows for its use by a Communications System or Facility. It shall be in the sole discretion of the City Manager or his designee, based on the nature, design, size, configuration or proposed location of any Communications System or Facility, whether there is sufficient Capacity in a particular section of the Public Rights of Way or whether such System or Facility will interfere with the Facilities or equipment of any municipality, county, public utility, cable operator, or other Communications Service Provider. (22) No Warranty of Fitness or Suitability. The City makes no express or implied warranties or representations regarding the fitness, suitability, or availability of the Public Rights of Way for any Communications System or Facility or its right to authorize the placement or maintenance of any Communications System or Facility in the Public Rights of Way. Any performance of work, costs incurred or services rendered by a Communications Services Provider shall be at such Provider's sole risk. Nothing in this Chapter shall affect the City's authority to acquire or add Public Rights of Way, or to vacate or abandon Public Rights of Way as provided for in the City Code or applicable law. The City makes no express or implied warranties or representations regarding the availability of any acquired, added, vacated or abandoned Public Rights of Way for a Communications System or Facility. (23) Annexations. Upon the annexation of any territory to the City of Atlantic Beach, the provisions of this Article III, Chapter 19 and the rules, regulations and general conditions contained herein shall extend to the territories so annexed; and all Facilities placed, maintained, owned or operated by any Communications Services Provider extending into or already located in the Public Rights of Way of the territory so annexed, shall thereafter be subject to all terms hereof, as the same may be amended from time to time. 3200904259-6 Section 19-36.1. Objective Design Standards (a) Intent and purpose. At -grade Facilities, Below -grade Facilities, Wireline Facilities, and Utility Poles shall be designed in such a manner to ensure such Facilities and Utility Poles are placed in a safe location that do not interfere with the traveling public, and shall be designed to maximize compatibility with the Surrounding Neighborhood and to minimize any negative visual impact on the Surrounding Neighborhood. As used in this Section, the term Facility shall be used to collectively refer to At -grade Facilities, Below -grade Facilities, and Wireline Facilities. The following design standards shall apply, unless waived pursuant to Section 19-36.2. (b) Stealth design. Utility Poles shall be made of substantially the same material, color, and design, including diameter, as other Utility Poles within the same Public Rights of Way; however, a Utility Pole made of a steel, concrete, or fiberglass, and black or gray in color, shall not require a waiver if the Utility Poles within the same Public Rights of Way are wood. A Repurposed Structure shall be of substantially similar design, including diameter, material, and color of the Existing Structure being replaced by the Repurposed Structure. The Repurposed Structure shall be located in approximately the same location as the Existing Structure. The Repurposed Structure shall continue to serve its primary function. If the City has a planned project to replace Utility Poles in the same Public Rights of Way, the Repurposed Structure shall conform to the City's updated design, material, and color. (c) Concealment. The following concealment standards shall apply to proposed Facilities and Utility Poles. (1) Signage shall not be placed or maintained on any Facility or Utility Pole within the Public Rights of Way, unless otherwise required by State or federal laws or regulations, or as permitted by the City; provided however, that Existing Structures that lawfully supported signage before being repurposed may continue to support signage as otherwise permitted by law. (2) A Facility or Utility Pole shall not have any type of lighted signal, lights, or illuminations unless required by an applicable State or federal laws or regulations, or as permitted by the City. (3) At -grade Facilities shall be located in areas with existing foliage or other aesthetic features to obscure the view of the At -grade Facility or shall be designed to appear similar to other At -grade Facilities in the same Public Rights of Way. Any additional plantings proposed pursuant to this subsection shall be approved by the City. An applicant may also utilize a wrap for At - grade Facilities. An applicant may propose a wrap design not previously approved by the City by applying for and obtaining a waiver pursuant to Section 19-36.2. Wraps shall be maintained by the applicant such that the wrap does not peel or significantly fade. 3300904259-e (d) Maximum height restrictions. The height of a Utility Pole, including without limitation any Utility Pole intended to support the Collocation of Small Wireless Facilities, is limited to the tallest existing Utility Pole as of July 1, 2017, located in the same City Public Rights of Way, other than a Utility Pole for which a waiver has previously been granted, measured from grade in place within five hundred (500) feet of the proposed location of the Utility Pole. If there is no Utility Pole within five hundred (500) feet, the Utility Pole shall be limited to fifty (50) feet. (e) Location context. The following location context standards shall apply to proposed Facilities and Utility Poles. (1) Installation at outermost boundary of Public Rights of Way. At -grade Facilities and Utility Poles shall be placed at the farthest distance practicable from the edge of pavement unless there is a designated corridor within the Public Rights of Way. (2) Equidistant requirement. Utility Poles are strongly encouraged to be placed equidistant between existing Utility Poles, if any, within the Public Rights of Way. (3) Common property line. For Placement within residentially -zoned districts, At - grade Facilities and Utility Poles are strongly encouraged to be placed at the common property line of the parcels that abut the Public Rights of Way or otherwise demonstrate the least impact to access such parcels. (4) Prohibition against placement that significantly impairs view from principal structures within residential blocks. At -grade Facilities and Utility Poles, shall be placed such that views from principal structures within residential districts are not significantly impaired. (5) Non -Residentially Zoned Districts. At -grade Facilities and Utility Poles are strongly encouraged to be placed at the common property lines of the parcels that abut the Public Rights of Way, or otherwise demonstrate the least impact to such parcels. (6) Prohibition against placement in location where facilities are placed underground. At -grade Facilities, aerial Wireline Facilities, and Utility Poles in the Public Rights of Way shall comply with undergrounding requirements of the City that prohibit aboveground structures in the Public Rights of Way, as applicable. (7) Tree Removal. The Placement or Maintenance of a Small Wireless Facility that results in the impact or removal of a Regulated Tree shall comply with the provisions of Chapter 23 of the City Code. Tree removal is not permitted within the Public Rights of Way to increase signal strength or provide a line - of -sight. 3400904259-6 (8) Prohibition against Placement in violation of OSHA or NESC rules and regulations. At -grade Facilities, Below -grade Facilities, Wireline Facilities, and Utility Poles shall not be placed in a location which violates rules and regulations set by the Occupational Safety and Health Administration or the National Electric Safety Code. (9) Wireless Facilities may not be located on Utility Poles twelve (12) feet or less in height above grade, unless incorporated within the Utility Pole under a top mounted street light. On wood Utility Poles, said Facilities must be flush - mounted. Section 19-36.2. Waiver of the Objective Design Standards for At -grade Facilities, Below -grade Facilities, Wireline Facilities, and Utility Poles. (a) The waiver provisions listed in this subsection apply in those circumstances where a Provider's use of the Public Rights of Way is impaired by strict application of the requirements of this Article. Objective design standards provided in Section 19-36.1 may be waived by the City Manager or his designee. (b) A request for a waiver shall be filed contemporaneously with the permit application. The request for waiver shall state each Section or subsection for which a waiver is being sought. A request for a waiver shall include the following information: (1) A detailed explanation, with supporting engineering or other data, as to why a waiver from the requirements of this Article is required, including a detailed explanation addressing the relevant criteria to be considered by the City Manager or his designee as provided in subsection (c); (2) Design of the proposed At -grade Facility or Utility Pole, with particular reference to achieving compatibility with the Surrounding Neighborhood and eliminating adverse visual impacts on the Surrounding Neighborhood; and (3) Any other information the City Manager or his designee may reasonably require to process the request for waiver. (c) The City Manager or his designee shall consider the following criteria when determining whether to grant or deny a permit: (1) Any special conditions and circumstances affecting the proposed site which prevent compliance with the Section or subsection for which a waiver is being sought; (2) The compatibility of the proposed waiver Communications Facility or Utility Pole with Adjacent Properties and the Surrounding Neighborhood; 3500904259-6 (3) Whether there is an excessive expense associated with compliance with the Section or subsection for which a waiver is being sought; or (4) Whether the proposed waiver preserves to the City flexibility in its management of the Public Rights of Way. (d) In granting any waiver, the City Manager or his designee may impose conditions to the extent the City Manager or his designee concludes such conditions are necessary to minimize any adverse effects of the proposed Communications Facility or Utility Pole on the Surrounding Neighborhood, or to protect the health, safety and welfare of the public. (e) The City Manager or his designee shall grant or deny a request for a waiver within forty-five (45) days after receiving the request for waiver. Should a request for waiver, and ultimately a permit, be denied by the City Manager or his designee, the denial of the waiver may be appealed in conjunction with an appeal of the permit denial in accordance with Section 19-40. Section 19-37. Wireless Facilities. (a) Applicability. This Section shall apply to any person who seeks to construct, place, install, maintain or operate a Wireless Facility in the Public Rights of Way, unless otherwise exempt by operation of applicable codes or State or Federal laws or regulations. This Section shall not apply to Wireless Communications Facilities owned by a Person, including the City, to the extent such facilities are utilized only on an internal, non-commercial basis by said person. This Article is intended to implement the Advanced Wireless Infrastructure Deployment Act, Section 337.401(7), F.S. In the event the Advanced Wireless Infrastructure Deployment Act, Section 337.401(7), F.S., is repealed, amended, or overturned by a court of competent jurisdiction, in whole or in part, provisions of this Section may no longer apply, in which case pending and future applications for Wireless Facilities and Utility Poles intended to support the Collocation of Small Wireless Facilities in the Public Rights of Way, will be governed by applicable law. Section 19-37.1. Wireless Facilities Allowed in the Public Rights of Way. (a) Subject to the requirements of this Article III, only the following Wireless Facilities may be Placed or Maintained within the Public Rights of Way: (1) Small Wireless Facilities Collocated on Existing Structures or Collocated on new Utility Poles intended to support the Collocation of Small Wireless Facilities; and (2) Micro Wireless Facilities suspended on cable strung between Existing Structures. (b) Wireless Support Structures are not permitted within the Public Rights of Way. 3600904259-0 (c) Wireless Facilities shall not be permitted in the Public Rights of Way except as permitted in this Section, unless otherwise permitted by applicable State or federal laws or regulation. (d) The approval of the installation, construction, placement, maintenance, or operation of a Small Wireless Facility pursuant to this Section does not authorize the provision of any voice, data, or video communications services or the installation, placement, maintenance, or operation of any Communications Facilities other than Small Wireless Facilities in the Public Rights of Way. Section 19-37.2. Permit Requirements; Application; Review Timeframes. (a) Permit Required. A Registrant shall not commence to place or maintain a Wireless Facility in the Public Rights of Way until all applicable permits have been issued by the City, except for Limited Work as provided in subsection (b), unless otherwise authorized by applicable codes or State or federal laws or regulations. A Registrant may submit a consolidated permit application and receive a single Permit for the collocation of up to thirty (30) Small Wireless Facilities. The Registrant acknowledges that as a condition of granting permits, the City may impose reasonable conditions governing the placement or maintenance of a Wireless Facility in the Public Rights of Way as set forth in Section 337.401, F.S., as amended. Permits shall apply only to the areas of the Public Rights of Way specifically identified in the permit. (b) Permit Not Required. (1) A Registrant shall be allowed to perform Limited Work within the Public Rights of Way without first obtaining a Permit if such proposed Limited Work does not involve excavation or the closure of a vehicle lane. As used in this section, the term Limited Work shall mean: a. Routine maintenance; b. Replacement of an existing Wireless Facility with a Wireless Facility that is substantially similar or of the same or smaller size; or C. Installation, Placement, Maintenance, or replacement of a Micro Wireless Facility that is suspended on cable strung between Existing Structures in compliance with applicable codes by or for a properly Registered Communications Services Provider. (2) Prior to performing any Limited Work, a Registrant shall provide reasonable advance written notice to the City identifying the areas where such maintenance will occur, scope of maintenance, date(s) and duration of work to be performed. If any Limited Work requires the closure of a vehicle lane, a lane closure permit shall be required. (3) A Registrant shall be allowed to perform emergency maintenance within the Public Rights of Way without first obtaining a permit. However, a Registrant shall provide prompt notice to the City of the emergency maintenance and, within fifteen (15) days of completing the emergency maintenance, apply for a permit in accordance with subsection (d) herein if such activity required a 3700904259-6 permit under this Section. As used in this Section, the term emergency maintenance means the repair or replacement of a Wireless Facility as a result of a condition that affects the public health, safety or welfare, which includes an unplanned out -of -service condition of a preexisting service. (4) The City Manager or his designate may issue an immediate stop work order where any Limited Work poses a serious threat to the health, safety or welfare of the public until such time as such serious threat has been abated. (c) Presubmittal conference. Prior to submitting a permit application, the applicant is encouraged to schedule a presubmittal conference with the City. A presubmittal conference is not required prior to submitting a permit application. (d) Permit Application. As part of any permit application to place or maintain a Small Wireless Facility in the Public Rights of Way, the Registrant shall provide a permit application or consolidated permit application that sets forth, at a minimum, the following: (1) Engineering plan. An engineering plan signed and sealed by a Florida licensed professional engineer, that includes: a. The type of proposed Wireless Facility including the dimensions, volume, height, footprint, and stealth design and concealment features of the proposed Small Wireless Facility, and location of the proposed Small Wireless Facility, including whether the proposed Small Wireless Facility is proposed within a location subject to restrictions pursuant to Section 19-37.4(c)(1); b. The type of structure intended to support the Small Wireless Facility, such as an Existing Structure, Repurposed Structure, or Utility Pole intended to support the Collocation of the Small Wireless Facility, including supporting documentation that the structure can support the additional load of the proposed Small Wireless Facility, if applicable; C. The distance of the proposed Small Wireless Facility, including ground - mounted equipment, and nearby pavement, sidewalks, driveways, ramps, trees, underground Utilities and other above -grade and below -grade structures and Utilities located nearby within the Public Rights of Way; d. The Global Positioning System (GPS) coordinates of the proposed Small Wireless Facility. The GPS coordinates shall be based on the reading from a handheld mobile GPS unit set to Datum NAD 83 or WGS84. GPS coordinates based on Google Earth or similar application may be used where areas of shading occur due to overhead canopy. GPS Coordinates shall be provided in decimal degrees at a six (6) decimal point precision; e. Sufficient specificity demonstrating compliance with the Florida Building Code and other applicable codes, including but not limited to sight lines or clear zone standards and specifications for transportation, pedestrians, and public safety as provided in the Florida Department of Transportation Plans Preparation Manual, Florida Department of Transportation Manual 3800904259-6 of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highways (the Florida Greenbook), and the Florida Department of Transportation Design Standards, as amended, the Trench Safety Act (Chapter 553, Florida Statutes), the Underground Facility Damage Prevention & Safety Act (Chapter 556, Florida Statutes), the "Safety Rules for the Installation & Maintenance of Electrical Supply & Communication Lines" established by the U.S. Department of Commerce, Bureau of Standards and the National Electric Safety Code; f. Trees and landscaping to be removed or impacted upon the placement or maintenance of the proposed Small Wireless Facility. The placement or maintenance of a Small Wireless Facility that results in impacts or removal of a Regulated Tree shall provide additional information and documentation in accordance with Chapter 23 of the City Code. (2) Description of installation or Construction. The Applicant shall provide a description of the manner in which the Small Wireless Facility will be placed or maintained (i.e. anticipated Construction methods or techniques). (3) Pole attachment agreement. For Collocations on Private Utility Poles, the applicant shall provide a copy of a valid pole attachment agreement for the Collocation of the proposed Small Wireless Facility. In lieu of providing the complete pole attachment agreement between the owner of the Private Utility Pole and applicant, the applicant may provide the first page of such agreement and the signature page or a notarized letter of authorization from the owner of the Private Utility Pole, providing adequate identifying information, acceptable to the City, and indicating the applicant is authorized to Collocate on the identified Private Utility Pole. (4) Stealth design. The Applicant shall provide a description of stealth design to be utilized pursuant to Section 19-37.4(b). (5) Temporary sidewalk closure plan. The applicant shall provide a temporary sidewalk closure plan, if applicable, to accommodate placement or maintenance of the Small Wireless Facility. (6) Temporary maintenance of traffic (MOT) plan. The applicant shall provide a temporary traffic lane closure and maintenance of traffic (MOT) plan, if applicable, to accommodate placement or maintenance of the Small Wireless Facility. (7) Restoration plan and estimate cost of restoration of the Public Rights of Way. If applicable, a restoration plan and a good faith estimate of the cost of restoration of the Public Rights of Way. Such good faith estimate shall be accepted by the City unless the Public Works Director determines such estimated costs are not representative of the actual costs of the restoration of 3900904259-6 the Public Rights of Way. Estimates of the cost to restore the Public Rights of Way shall include all costs necessary to restore the Public Rights of Way to its original condition. Such good faith estimate shall include, but is not limited to, costs to restore the paving, curbs/gutters, sidewalks, multi-purpose trails, and landscaping. All planted or naturally occurring shrubbery or vegetation, including sod, damaged or destroyed during work in the Public Rights of Way shall be replaced, except tree removals or pruning as allowed by the permit. (8) Timetable for Construction or installation. The timetable for placement or maintenance of the proposed Small Wireless Facility or each phase of the placement or maintenance thereof. (9) Indemnification. A statement shall be included within the permit application that by execution of the application, the Registrant shall be bound to the City with respect to the indemnification provisions set forth in Section 19-44. (10) Airport airspace protection. Applicant shall comply with Chapter 333, F.S., and all State and federal laws and regulations pertaining to airport airspace protections. (e) Application review timeframes. An application for a permit for a Small Wireless Facility, Repurposed Structure and Utility Pole intended to support the Collocation of Small Wireless Facilities within the Public Rights of Way shall be reviewed by the City as follows: (1) Notice of application deficiency. Within fourteen (14) days after the date of filing an application, unless the timeframe is mutually extended, for the Collocation of a Small Wireless Facility, Repurposed Structure or Utility Pole intended to support the Collocation of Small Wireless Facilities the City Manager or designee shall determine whether the application is complete. If an application is deemed incomplete, the City Manager or his designee shall notify the applicant by electronic mail and specifically identify the missing information. An application shall be deemed complete if the City Manager or his designee fails to notify the Applicant otherwise within fourteen (14) days after the date of filing the application. (2) Request for alternative location. Within fourteen (14) days after the date of filing the application for Collocation of a Small Wireless Facility, the City Manager or his designee may request that the proposed location of the Small Wireless Facility be moved to another location and be placed on another Existing Structure or by placing a new Utility Pole intended to support the Collocation of Small Wireless Facilities. The City and applicant may negotiate the alternative location, including objective design standards and reasonable spacing requirements for ground -mounted equipment for thirty (30) days after the City submits the request. The applicant shall notify the City of its acceptance or rejection within this thirty (30) day negotiating period. If the applicant accepts the alternative location, the application shall be deemed 4000904259-6 granted for the agreed-upon alternative location and all other locations in the application. If the requested alternative location is rejected by the applicant, the City Manager or his designee shall approve or deny the original application within ninety (90) days after the date the application was filed. (3) Application review period. Within sixty (60) days after the date of filing an application for the Collocation of a Small Wireless Facility, the City Manager or his designee shall approve or deny the application. If the City Manager or his designee does not submit a request for an alternate location as provided in subsection (2), the City Manager or his designee and the applicant may mutually agree to extend the sixty (60) day application review period. (4) Notice of denial, resubmission. Should the application be denied, the City Manager or his designee shall notify the applicant by electronic mail on the day the application is denied and specify in writing the basis for denial, including the specific Code provisions on which the denial is based. The applicant may cure the deficiencies identified by the City Manager or his designee and resubmit the application within thirty (30) days after the notice of denial is sent. The City Manager or his designee shall approve or deny the revised application within thirty (30) days after the date of filing the application. Any subsequent review shall be limited to the deficiencies cited in the notice of denial. A denial of a permit may be appealed pursuant to Section 19-40. (5) Consolidated Permit Applications. The City may separately address each proposed Collocated Small Wireless Facility for which incomplete information has been received or which are denied. (6) Deemed approved. Prior to commencing construction, a person with a deemed approved permit must be registered pursuant to Section 19-33 and must file a performance bond and construction bond with the City pursuant to this Article. Section 19-37.3. Small Wireless Facility Collocation Permit Conditions. (a) The City Manager or his designee may deny a proposed Collocation of a Small Wireless Facility in the Public Rights of Way if the proposed Collocation: (1) Materially interferes with the safe operation of traffic control equipment; (2) Materially interferes with sight lines or clear zone standards and specifications for transportation, pedestrians, or public safety purposes as provided in the Florida Department of Transportation Plans Preparation Manual, Florida Department of Transportation Manual of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highways (the Florida Greenbook), and/or the Florida Department of Transportation Design Standards, as amended; 4100904259-6 (3) Materially interferes with compliance with the Americans with Disabilities Act, 42 U.S.C. Sec. 12101, et seq, or similar federal or State standards regarding pedestrian access or movement; (4) Materially fails to comply with the 2010 edition of the Florida Department of Transportation Utility Accommodation Manual; or (5) Fails to comply with applicable codes governing placement or maintenance of Small Wireless Facilities within the Public Rights of Way, including the conditions and provisions contained in Section 19-36 and the Objective Design Standards in Section 19-37.4. (b) A permit for the Collocation of a Small Wireless Facility shall remain effective for and Construction must be completed within one (1) year. The City Manager or his designee may extend the expiration date of the permit for good cause. (c) A permit application for a Repurposed Structure or a Utility Pole intended to support the Collocation of Small Wireless Facilities shall be submitted prior to or contemporaneously with a Permit application for a Small Wireless Facility. Sec. 19-37.4. Objective Design Standards (a) Purpose and intent. Small Wireless Facilities shall be designed in such a manner that the Small Wireless Facilities are placed in a safe location that do not interfere with the traveling public, and shall be designed to maximize compatibility with the Surrounding Neighborhood and to minimize any negative visual impact on the Surrounding Neighborhood. The following objective design standards regulating the location context, color, stealth design, and concealment of the proposed Small Wireless Facility shall apply, unless waived pursuant to Section 19-37.5. (b) Stealth design. All proposed Small Wireless Facilities shall meet any one of the three following stealth design standards or combination thereof: (1) Preferred stealth design option 1: Wires, cables and equipment to be placed on a Utility Pole shall be within the Utility Pole, or covered with a Shroud or conduit that is similar to the Utility Pole color; the use of a slim design wherein the top mounted Antenna does not exceed the diameter of the supporting Utility Pole by more than six (6) inches on any side at the level of the Antenna attachment and side -mounted enclosures, if any, do not extend more than thirty (30) inches beyond the exterior dimensions of the supporting Utility Pole measured from the edge of the Utility Pole to the outermost surface of the side - mounted enclosure. (2) Preferred stealth design option 2: Wires, cables and equipment to be collocated on a Utility Pole shall be placed within the Utility Pole, or covered with a Shroud or conduit that is similar to the Utility Pole color; and the use of a street 4200904259-6 light fixture to camouflage the Small Wireless Facility. All street light fixtures shall be maintained in good working order by the Applicant or pole owner unless the City accepts maintenance responsibility in writing. If the City accepts the maintenance responsibility of a street light fixture on an City Utility Pole, the ownership of the street light fixture shall transfer to the City. All street light fixtures shall be of similar style and of similar lighting technology as nearby lighting fixtures (halogen, LED, etc.) and shall utilize dark -sky friendly lighting. (3) Preferred stealth design option 3: Wires, cables and equipment to be collocated on a Utility Pole shall be within the Utility Pole or covered with a Shroud or conduit that is similar to the Utility Pole color; and the use of wraps on the supporting structure, side mounted enclosures, and/or ground -mounted equipment. An applicant may propose a wrap design not previously approved by the City by applying for and obtaining a waiver pursuant to Section 19-37.5. Wraps shall be maintained by the applicant such that the wrap does not peel or significantly fade. (c) Concealment. The following concealment standards shall apply to proposed Small Wireless Facilities. (1) Applicants shall not place or maintain Signage on Communications Facilities in the Public Rights of Way, unless otherwise required by applicable State or federal laws or regulations, or as permitted by the City. (2) A Small Wireless Facility shall not have any type of lighted signal, lights, or illuminations unless required by applicable State or federal laws or regulations or as permitted by the City. (3) Ground -mounted equipment for Small Wireless Facilities shall be located within a ten (10) foot radius of the supporting structure for the Small Wireless Facility and, if possible, in areas with existing foliage or other aesthetic features to obscure the view of the ground -mounted equipment. The ground - mounted equipment shall be designed to appear similar to other at -grade facilities in the same Public Rights of Way and may be further concealed with additional plantings. Any additional plantings proposed pursuant to this subsection shall be approved by the City. An applicant may also utilize a wrap for At -grade Facilities. An applicant may propose a wrap design not previously approved by the City by applying for and obtaining a waiver pursuant to Section 19-37.5. Wraps shall be maintained by the applicant such that the wrap does not peel or significantly fade. (d) Maximum height restrictions. A Small Wireless Facility, including any attached Antennas, shall not exceed ten (10) feet above the Existing Structure, Repurposed Structure or Utility Pole upon which the Small Wireless Facility is to be collocated. 4300904259-6 (e) Location context. The following location context standards shall apply to proposed Small Wireless Facilities. (1) Prohibition against Placement within a location subject to Homeowners' Association restrictions. Small Wireless Facilities shall not be Collocated in a location subject to covenants, restrictions, articles of incorporation, or bylaws of a Homeowners' Association unless specifically authorized by the Homeowners' Association. This subsection shall not limit the installation, placement, maintenance, or replacement of Micro Wireless Facilities on any existing and duly authorized aerial Wireline Facility. (2) Prohibition against Placement in location where facilities are placed underground. As may be applicable, Small Wireless Facilities shall comply with nondiscriminatory undergrounding requirements of the City that prohibit aboveground structures in the Public Rights of Way. Any such requirements may be waived by the City pursuant to Section 19-37.5. (3) Tree Removal. The placement or maintenance of a Small Wireless Facility that results in impacts or removal of a Regulated Tree shall comply with the conditions contained in Chapter 23 of the City's Code. (4) Prohibition against Placement in violation of OSHA or NESC rules and regulations. Small Wireless Facilities shall not be placed in a location which violates rules and regulations set by the Occupational Safety and Health Administration or the National Electric Safety Code. Sec. 19-37.5. Waiver of Objective Design Standards for Small Wireless Facilities. (a) Objective design standards provided in Section 19-37.4 may be waived by the City Manager or his designee upon a showing that the objective design standards are not reasonably compatible for the particular location of a Small Wireless Facility or that the objective design standards impose an excessive expense. (b) A request for a waiver shall be filed contemporaneously with the permit application. The request for waiver shall state each Section or subsection for which a waiver is being sought. A request for a waiver shall include a detailed explanation, with supporting engineering or other data, as to why a waiver from the requirements of this Section 19-37 is required. (c) In granting any waiver, the City Manager of his designee may impose conditions to the extent the City Manager or his designee concludes such conditions are necessary to minimize any adverse effects of the proposed Small Wireless Facility on the Surrounding Neighborhood or to protect the health, safety and welfare of the public. (d) The City Manager or his designee shall grant or deny a request for a waiver within forty-five (45) days after receiving the request for waiver. Should a request for waiver, and ultimately 4400904259-e a permit, be denied by the City Manager or his designee, the denial of the waiver may be appealed in conjunction with an appeal of the permit denial in accordance with Section 19-40. Sec. 19-37.6. Make -Ready Work. (a) For a City Utility Pole that supports aerial Wireline Facility used to provide Communications Services or electric service, the City, Communications Services Provider, Wireless Infrastructure Provider, and Pass-through Provider shall comply with the process for make-ready work under 47 U.S.C. § 224, as amended, and implementing regulations. The good faith estimate of the Person owning or controlling the pole for any make-ready work necessary to enable the pole to support the requested Collocation must include pole replacement if necessary. (b) For a City Utility Pole that does not support aerial Wireline Facility used to provide Communications Services or electric service, the City shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested Collocation, including necessary pole replacement, within sixty (60) days after receipt of a complete application. Make- ready work, including any pole replacement, must be completed within sixty (60) days after the written acceptance of the good faith estimate by the Applicant. Alternatively, the City may require the Applicant seeking to Collocate a Small Wireless Facility to provide a make-ready estimate at the Applicant's expense for the work necessary to support the Small Wireless Facility, including pole replacement, and perform the make-ready work. (c) If pole replacement if required, the scope of the make-ready estimate is limited to the design, fabrication, and installation of a Utility Pole that is substantially similar in color and composition. The City may not condition or restrict the manner in which the Applicant obtains, develops, or provides the estimate or conducts make-ready work subject to the usual construction restoration standards for work in the Public Rights of Way. The replaced or altered Utility Pole shall remain the property of the City. Section 19-37.7. Collocation Fees. The rate to Collocate a Small Wireless Facility on a City Utility Pole shall be $150 per pole annually. Annual payments shall be due and payable on April 1 of each year. If the payments required by this Section are not made within ninety (90) days after the due date, the City Manager or his designee may withhold the issuance of any permits to the Registrant until the amount past due is paid in full. Section 19-38. Revocation or Suspension of Development Permits. Subject to Section 19-40, the City may revoke any Development Permit currently issued to a Communications Services Provider for work in the Public Rights of Way or suspend the issuance of Development Permits in the future to a Communications Services Provider for, in addition to any other circumstances provided for in this Chapter, one or more of the following reasons: 4500904259-e (a) a violation of permit conditions, including conditions set forth in the permit, this Chapter 19, and other applicable codes or regulations governing the placement or maintenance of Communications Facilities in the Public Rights of Way; (b) a misrepresentation or fraud made or committed on the part of the Communications Services Provider in the Registration process or in the application for an Development Permit; (c) the failure to properly renew the Registration or the ineffectiveness of Registration; or (d) the failure to relocate or remove Communications Facilities as may be required by the City pursuant to this Chapter 19. The City Manager or his designee shall provide notice and an opportunity to cure any violation of (a) through (d) above, each of which shall be reasonable under the circumstances. Section 19-39. Involuntary Termination of Registration. (a) The City may terminate a Registration if: (1) a Federal or State authority suspends, denies, or revokes a Communications Services Provider's certification or license to provide Communications Services; (2) the Communications Services Provider's placement or maintenance of a Communications Facility in the Public Rights of Way presents an extraordinary danger to the general public or other users of the Public Rights of Way and the Communications Services Provider fails to remedy the danger promptly after receipt of written notice; (3) the Communications Services Provider ceases to use all of its Communications Facilities in the Public Rights of Way and has not complied with § 19-49 herein; or (4) the Communications Services Provider fails to comply with any of the rules, regulations or general conditions set forth in § 19-35 herein. (b) Prior to termination of a Registration, the Communications Services Provider shall be notified by the City Manager or his designee with a written notice setting forth all matters pertinent to the proposed termination, including which of (1) through (4) above is applicable as the reason therefore. The Communications Services Provider shall have thirty (30) days after receipt of such notice within which to eliminate the reason or within which to present a plan, satisfactory to the City Manager or his designee, to accomplish the same. If not eliminated or if the plan presented is rejected, the City Manager or his designee shall provide written notice of such rejection to the Communications Services Provider and a final determination to terminate Registration. A final determination to terminate Registration may be appealed in accordance with the procedures set forth in § 19-211. 4600904259-6 (c) In the event of termination, following any appeal period, the Communications Services Provider formerly Registered shall (1) notify the City of the assumption or anticipated assumption by another registrant of ownership of the Communications Services Provider's Facilities in Public Rights of Way or (2) provide the City with an acceptable plan for disposition of its Communications Facilities in the Public Rights of Way. If a Communications Services Provider fails to comply with this § 19-39 (C), which determination of noncompliance is subject to appeal as provided in § 19- 40, the City may exercise any remedies or rights it has at law or in equity, including but not limited to taking possession of the Facilities where another Person has not assumed the ownership or physical control of the Facilities or requiring the Communications Services Provider within 90 days of the termination, or such longer period as may be mutually agreed to between the City and the Communications Services Provider, to remove some or all of the Communications Facilities from the Public Rights of Way and restore the Public Rights of Way to their original condition prior to such removal. (d) In any event, a Communications Services Provider whose Registration has been terminated shall take such steps as are necessary to render safe every portion of the Communications Facilities remaining in the Public Rights of Way. (e) In the event of termination of a Registration, this Section does not authorize the City to cause the removal of Communications Facilities used to provide another service for which the Communications Services Provider or another Person who owns or exercises physical control over the Communications Facilities holds a valid certification or license with the governing Federal or State agency, if required for provision of such service, and who is Registered with the City, if required. (f) The City's right to terminate a Registration shall be in addition to all other rights of the City, whether reserved in this Chapter, or authorized by other law, and no action, proceeding or exercise of the right to terminate Registration will affect or preclude any other right the City may have. Section 19-40. Appeals. Final determinations by appropriate City staff denying an initial Registration; denying an application for renewal of a Registration; terminating a Registration; or denying, revoking or suspending any Development Permit are subject to appeal. A notice of appeal of such decision may be filed with the City's Manager within thirty (30) days of the date of the final, written decision to be appealed. The City Manager shall have thirty (30) days from the date the appeal is filed to review the matter and render a written decision to uphold or reverse the final decision made by staff. If the City Manager upholds the final decision of staff, the appellant may file a notice of appeal with the City Clerk within thirty (30) days of the date of the written decision of the City Manager. The City Clerk shall set the matter for hearing before the City Commission at any regular meeting of City 4700904259-6 Commission scheduled within forty five (45) days of the date that the notice of appeal is filed with the City Clerk, unless waived by the Communications Services Provider. A ruling may be made at the hearing or at the next regularly scheduled City Commission meeting and the Communications Services Provider shall be notified of the decision in writing within thirty (30) days thereof. Where a notice of appeal to the City Manager or the City Clerk is not timely filed as provided herein, such right to appeal shall be waived. Upon correction by the Communications Services Provider of the circumstances that gave rise to a suspension or denial of a Development Permit, the suspension or denial shall be lifted (the same does not apply to the revocation of a Development Permit). Section 19-41. Fees Applicable to Those Not Subject to Communications Services Tax. While the Florida Legislature has prohibited municipalities from requiring providers of Communications Services who have registered with the Florida Department of Revenue from having to enter into franchise agreements or license arrangements as a condition to placing or maintaining Communications Facilities in the Public Rights of Way, the City expressly reserves the right to require the payment of consideration or regulatory fees by Persons using or occupying the Public Rights of Way in other capacities. The City reserves the right to require such payments based on the type of user and to the extent as follows: (a) Dealer. A Communications Services Provider who meets the definition of dealer as set forth in state statute and who has registered in accordance with Section 19-33 is not required to enter into a franchise agreement or license arrangement with the City as a condition to placing or maintaining Communications Facilities in the Public Rights of Way, nor is a dealer required to make payment of any franchise fees, license fees or other user fees to the City as consideration for the use or occupancy of the Public Rights of Way for the provision of Communication Services. (b) Pass-through Provider and Pass Through Facilities. A Communications Services Provider who meets the definition of Pass-through Provider as set forth in this Chapter 19 shall pay the City the maximum annual amount allowed under § 337.401(6) (b), Florida Statutes, as amended. For purposes of calculating payments hereunder, each separate pole or tower installed or maintained by a Pass-through Provider for purposes of supporting Antennas for other over -the -air radio transmission or reception equipment in the Public Rights of Way shall comprise a separate Communications Facility subject to assessment of a separate permit fee in the amount of five hundred dollars ($500.00) per linear mile, or portion thereof, up to the maximum amount allowed under § 337.401, Florida Statutes, whichever is higher. The annual amount referred to above shall be due and payable on October 1 of every year beginning on October 1, 2018. Fees not paid within ten (10) days after the due date shall bear interest at the rate of one percent per month from the date due until paid. The acceptance of any payment required hereunder by the City shall not be construed as an acknowledgment that the amount paid is the correct amount due, nor shall such acceptance of payment be construed as a release of any claim which the City may have for additional sums due and payable or authorization to install any facilities in the Public Rights of Way. (c) Other Persons. All other Persons, except Government, are required to pay the City, as consideration for the use or occupancy of the Public Rights of Way for the placement or maintenance of Communications Facilities, an amount based on and in accordance with Section 19-41(b), City Code. 4800904259-6 (d) Government. A government entity is not required to pay the City consideration for the use or occupancy of the Public Rights of Way for the placement or maintenance of Communications Facilities, unless such Facilities are being used by such government entity or a Communications Services Provider, including Resellers, to offer or provide Communication Services other than for such Government's internal non-commercial use, in which event the government entity is required to pay the City, as consideration for the use or occupancy of the Public Rights of Way by or through its Facilities placed therein after December 12, 2017, an amount based on and in accordance with § 19- 41(b), City Code. or such other amount or rate of compensation as mutually agreed to in writing by the government entity and the City. Section 19-42. Existing Communications Facility. A Communications Services Provider with a Facility in the Public Rights of Way as of the effective date of this Chapter 19 has until February 1, 2018 to comply with the provisions of this Chapter, including, but not limited to, Registration, or be in violation thereof. Section 19-43. Insurance. (a) At all times during the use or occupancy of the Public Rights of Way, including any time during placement or maintenance of Communications Facilities, the Communications Services Provider shall obtain, pay all premiums for, and maintain satisfactory to the City the types of insurance policies and coverage limits described in this § 19-43. Nothing contained in this Chapter shall limit a Communications Services Provider's liability to the City to the limits of insurance certified or carried. (1) Commercial general liability insurance valid in the State of Florida, including contractual liability and products completed operations liability coverage on an occurrence basis, which policy limit shall be in an amount not less than One Million Dollars ($1,000,000) per occurrence, combined single limit, for bodily injury, personal injury or death, or property damage and in an amount not less than Two Million Dollars ($2,000,000) policy aggregate for each personal injury liability, broad form property damage (without XCU exclusions), contractual liability and products -completed operations liability. (2) Business automobile liability insurance valid in the State of Florida which policy limit shall be in an amount not less than One Million Dollars ($1,000,000) combined single limit, including bodily injury and property damage covering owned, leased, hired and nori-owner vehicles. (3) Workers' Compensation valid in the State of Florida which policy limit shall be in an amount not less than the Statutory limit for Workers' Compensation. (4) Employer's liability insurance valid in the State of Florida which policy limit shall be in an amount not less than One Million Dollars ($1,000,000) each accident for employer's liability. 4900904259-6 (b) All insurance providers used shall be admitted and duly authorized to do business in the State of Florida and shall have assigned by A. M. Best Company a minimum Financial Strength Rating of "A" and a minimum Financial Size Category of "IX" (i.e., a size of $250,000,000 to $500,000,000 based on capital, surplus, and conditional reserve funds). Insurance policies and certificates issued by non -admitted insurance companies are not acceptable. All liability policies shall name the City, its commission members, officers, and employees as additional insureds with respect to any covered liability arising out of the placement or maintenance of Communications Facilities in the Public Rights of Way or other activities under this Chapter.. Each Communications Services Provider shall furnish annually to the City certificates showing proof of all required insurance coverage. All liability coverage must be in occurrence form and in accordance with the limits specified. Claims made policies are not acceptable. No insurance policy shall be canceled, nor shall the occurrence or aggregate limits set forth herein be reduced, until the City has received at least thirty (30) days' advance written notice by registered, certified or regular mail or facsimile of any cancellation, intent not to renew or reduction in policy coverage. Each Communications Services Provider shall be responsible for notifying the City of such cancellation, intent not to renew or reduction in coverage. All Certificate(s) of Insurance, including all endorsements and riders, evidencing insurance coverage shall be submitted to the City within thirty (30) days after the date of registration with the City in order for a Communications Services Provider to obtain Development Permits required for construction in the Public Rights of Way. Each Communications Services Provider shall, in the event of any such notice described above, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement policies within thirty (30) days following receipt by the City or the Communications Services Provider of such notice. (c) The Certificate(s) of Insurance forms must be properly executed by the authorized representative of the insurance provider and must include all endorsements, riders and notices. Each Communications Services Provider shall file and maintain with the City on an annual basis the required Certificate(s) of Insurance. The Certificate(s) of Insurance must indicate the following: (1) the policy number; name of insurance company; name and address of the agent or authorized representative; name and address of insured; that the policy coverage "pertains to the requirements of Section 19-43 of the Atlantic Beach Communications Facilities in Public Rights of Way Ordinance;" policy expiration date; and specific coverage amounts; and (2) any applicable deductibles or self-insured retentions; and (3) that the City, its Commission members, officers and employees are additional insureds; and (4) that the City shall receive thirty (30) days' advance written notice of cancellation, intent not to renew or reduction in coverage; and (5) that the commercial general liability insurance policy is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have; and any other insurance the City 5000904259-6 does possess shall be considered excess insurance only and shall not be required to contribute with this insurance. (d) Under extraordinary circumstances a Communications Services Provider may satisfy the insurance requirements of this Chapter by providing documentation of self-insurance that, in the sole discretion of the Director of Human Resources and Risk Management, demonstrates incontrovertibly the adequacy to defend and cover claims of any nature that might arise from the placement and maintenance of Facilities in the Public Rights of Way. The Communications Services Provider must be authorized as a self -insurer by the Department of Insurance under the laws of the State of Florida. Section 19-44. Indemnification. (a) Except with respect to the willful misconduct, negligence or gross negligence of the City, a Communications Services Provider, by act of Registering with the City as such, shall be obligated, at its sole cost and expense, to defend, indemnify and hold harmless the City, its officials, officers, Commissioners, agents and employees from and against any and all claims, suits, causes of action, proceedings, liabilities and judgments for damages or equitable relief, and costs and expenses arising out of or in connection with the placement or maintenance of its Communications Facilities or Utility Poles in the Public Rights of Way by the Communications Services Provider or its agent or hired contractor. This indemnification provision shall include, but not be limited to, such damages and penalties arising out of claims (1) by any Person whatsoever on account of (a) bodily injury to a person or persons, (b) death of a person or persons or (c) property damage, where any of the foregoing is occasioned by the operations of the Communications Services Provider, or alleged to have been so caused or occurred or (2) involving the Communications Services Provider's violation of any easement or private property rights. (b) Nothing in this Section shall prohibit the City from participating in the defense of any litigation by its own counsel if in the City's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. (c) Indemnified costs and expenses shall include, but not be limited to, all out-of-pocket expenses and reasonable attorneys' fees in defending against any such claim, suit or proceeding, and shall also include the reasonable value of any services rendered by the City Attorney or his assistants or any consultants, agents and employees of the City. The City will attempt to notify the Communications Services Provider, in writing, within a reasonable time of the City's receiving notice of any issue it determines may require indemnification. (d) Nothing contained in this section shall be construed or interpreted: (1) as denying the City, the Communications Services Provider or any Person any remedy or defense available to them under the laws of the State of Florida; or (2) as a waiver of sovereign immunity beyond the waiver provided in § 768.28, Florida Statutes, as it may be amended. (e) The indemnification requirements shall survive and be in effect after the termination or cancellation of a Registration. 5100904259-6 Section 19-45. Construction Bond. (a) Prior to issuance of any Development Permit where the type of work allowed under the permit will require restoration of the Public Rights of Way, the Communications Services Provider or the contractor performing such work on its behalf shall obtain, pay for and file with the City a construction bond. The construction bond shall serve to guarantee the timeliness and quality of the construction and restoration work and to secure, and enable the City to recover, all costs related to the restoration of the Public Rights of Way in the event the Communications Services Provider or its contractor fails to make such restoration to the City's satisfaction or causes damage to the Public Rights of Way during construction. The construction bond must name the City as Obligee and be in the face amount of Fifteen Thousand Dollars ($15,000) conditioned upon the full and faithful completion of construction and restoration of the Public Rights of Way to its original condition. Six (6) months following completion and inspection of the restoration of the Public Rights of Way satisfactory to the City Manager or his designee, the Communications Services Provider or its contractor, as the case may be, may reduce the face amount of the construction bond to Five Thousand Dollars ($5,000) and, thereafter, may allow the bond to lapse in accordance with its terms. However, for any subsequent work in the Public Rights of Way, the Communications Services Provider or its contractor will be required to replenish any existing construction bond or provide a new construction bond in the face amount of Fifteen Thousand Dollars ($15,000). The construction bond shall be in a form acceptable to the City Manager and must be issued by a surety having a rating reasonably acceptable to the City Manager or his designee and authorized by the Florida Department of Insurance to issue surety bonds in this State. (b) The construction bond must be issued as non -cancelable and be for a term of not less than twelve (12) months. In the event the term of any construction bond expires, or is reasonably expected to expire, prior to the completion of construction, restoration and City inspection, the Communications Services Provider, or the contractor acting on its behalf, shall immediately obtain, pay for, and file with the City a replacement bond. (c) The City's requirement of a construction bond is not in lieu of any additional bonds that may be required under this Chapter or through the permitting process. The City's right to recover under the construction bond shall be in addition to all other rights of the City, whether reserved in this Chapter, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect or preclude any other right the City may have. Section 19-46. Performance Bond. (a) Prior to issuance of any permit in accordance with this article, the registrant shall be required to obtain, pay for, and file with the City a performance bond. The performance bond shall serve to guarantee proper performance under the requirements of this article and the permit, the timeliness and quality of the construction and restoration of the affected Public Rights of Way, and to secure and enable the city to recover all costs related to the restoration of the Rights of Way, in the event the registrant fails to make such restoration to the City's satisfaction or causes damage to the Rights of Way during construction. The performance bond must name the City as obligee, and be conditioned upon the full and faithful compliance by the registrant, with all requirements, duties, and obligations imposed by the permit and provisions of this Article, during and through completion of 5200904259-6 the proposed placement and/or maintenance activity(-ies). The performance bond shall be in a form acceptable to the City Attorney and must be issued by a surety having an A.M. Best A -Class VII rating or better and duly authorized to conduct business in the state of Florida. (b) The performance bond shall be in the face amount of the estimated costs of the restoration of the Rights of Way, but in no event shall be less than two thousand five hundred dollars ($2,500.00). For a consolidated SWFC application, when allowed under this Chapter, the registrant shall provide a performance bond in the amount of the total costs of the restoration of the Rights of Way for all wireless communication facilities requested to be collocated on an existing structure within the Rights of Way, but in no event shall be less than five thousand dollars ($5,000.00). (c) The performance bond must be issued as non -cancelable and be for a term of not less than ninety (90) days after the anticipated date of completion of construction, restoration, and City inspection. In the event the term of any construction bond expires, or is reasonably expected to expire, prior to ninety (90) days after the completion of construction, restoration, and City inspection, the registrant shall immediately obtain, pay for, and file with the City, a replacement performance bond. (d) The City's right to recover under the performance bond shall be in addition to all other rights of the City, whether reserved in this Article, or authorized by other law, and no action, proceeding, or exercise of a right, with respect to the performance bond, will affect or preclude any other right the City may have. Any proceeds recovered under the performance bond may be used to reimburse the City for such additional expenses, as may be incurred by the City, as a result of the failure of the registrant to comply with the responsibilities imposed by this Article, including but not limited to, attorney's fees and costs of any action or proceeding." Section 19-47. Enforcement Remedies. (a) No provision of this Chapter shall be deemed to bar the right of the City to seek or obtain judicial relief from a violation of any provisions of this Chapter, the Registration provisions, or any rule, regulation or general condition provided for hereunder, whether administratively, judicially or both. Neither the existence of other remedies identified in this Chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the City to recover fines, penalties or monetary damages (except where liquidated damages are otherwise prescribed) for such violation by the Communications Services Provider. The remedies available to the City shall be cumulative and in addition to any other remedies provided by law or equity. The laws of the State of Florida shall govern with respect to any proceeding in law or equity pertaining to the enforcement of this Chapter or any cause of action arising out of or in connection herewith. (b) A Communications Services Provider's failure to comply with provisions of this Chapter shall constitute a City Code violation and shall subject the Communications Service Provider to the code enforcement provisions and procedures as provided in Chapter 2, City Code, and may be punishable as provided in § 162.22, Florida Statutes, as it may be amended. (c) In any proceeding before the City Commission where there exists an issue with respect to a Communications Services Provider's performance of its obligations pursuant to this Chapter, the 5300904259.6 Communications Services Provider shall be given the opportunity to provide such information as it may have concerning its compliance with the terms and conditions of this Ordinance. The City may find a Communications Services Provider that does not demonstrate compliance with the terms and conditions of this Chapter in default and apply any appropriate remedy or remedies as authorized by this Ordinance. In determining which remedy is appropriate, the City Commission shall take into consideration the nature of the violation, the Person bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the City Commission determines are appropriate to the public interest. (d) The City Manager or his designee, or his/her designee, shall be responsible for administration and enforcement of this Chapter, and is authorized to give any notice required herein or by law. (e) Failure of the City to enforce any requirements of this Chapter shall not constitute a waiver of the City's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies. Section 19-48. Abandonment of a Communications Facility or Utility Pole. (a) Upon Abandonment of any Facility or Utility Pole owned by a Communications Services Provider in the Public Rights of Way (hereinafter "Abandoned Communications Facility"), the Communications Services Provider shall notify the City within sixty (60) days. (b) The City may direct the Communications Services Provider, by written notice, to remove all or any portion of such Abandoned Communications Facility at the Communications Services Provider's sole expense if the City determines that the Abandoned Communications Facility's presence interferes with the public health, safety or welfare, which shall include, but shall not be limited to, a determination that such Communications Facility: (1) compromises safety at any time for any Public Rights of Way user; (2) compromises the safety of other Persons performing placement or maintenance of Communications Facilities in the Public Rights of Way; (3) prevents another Person from locating other facilities in the area of the Public Rights of Way where the Abandoned Communications Facility is located when other alternative locations are not reasonably available; or (4) creates a maintenance condition that is disruptive to the use of the Public Rights of Way. In the event of (2), the City may require the third Person to coordinate with the Communications Services Provider that owns the existing Communications Facility for joint removal and placement, where agreed to by the Communications Services Provider. (c) If the Communications Services Provider fails to remove all or any portion of an Abandoned Communications Facility as directed by the City within the time period specified in the written notice, which time period must be reasonable under the circumstances, the City may perform such removal and charge the cost of the removal against the Communications Services Provider. (d) In the event that the City does not direct the removal of the Abandoned Communications Facility, the Communications Services Provider, by its notice of Abandonment to the City, shall be deemed to consent to the alteration or removal of all or any portion of such 5400904259-6 abandoned Facility by the City or other Person, provided that the cost of the alteration or removal is not borne by the Communications Services Provider. Section 19-49. Reservation of Rights. The City hereby expressly reserves all of the following rights: (a) To exercise its municipal home rule powers, now or hereafter, to the fullest extent allowed by law with regard to the access, use and regulation of the Public Rights of Way. (b) To amend this Chapter as it shall find necessary in the lawful exercise of its municipal authority. (c) To adopt or enact by resolution or ordinance, in addition to the provisions contained herein and in any existing applicable ordinances, such additional reasonable regulations as City Commission finds necessary in the exercise of the City's police powers. (d) To exercise the power of eminent domain, consistent with applicable federal and state law, to acquire property that may include that property owned or leased by a Communications Services Provider. (e) As and when deemed necessary by City Commission to be in the interest of the City or its residents, to abandon portions of the Public Rights of Way within the proper exercise of its municipal authority and without notice to or the consent of any Communications Services Provider. The City shall not be responsible for any costs, damages, loss or other expense to the Communications Services Provider as a result of the City's abandonment of any Public Rights of Way. (f) To place and maintain, and franchise or permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications, and other types of facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the City in the Public Rights of Way occupied by any Communications Services Provider. (g) Without limitation, the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of any Public Rights of Way within the City limits and within said limits as the same may from time to time be altered. (h) To require a reseller to Register in accordance with § 19-33 to the extent such Reseller wants the right to place or maintain Facilities in the Public Rights of Way. Any Person using or leasing Facilities owned by a Registered Communications Services Provider is not, therefore, entitled to any rights to place or maintain Communications Facilities in the Public Rights of Way, unless such person themselves Registers with the City. SECTION 6. It is the intention of the City Commission and it is hereby ordained that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City of Atlantic 5500904259-6 Beach, Florida, and the publisher of the Code may renumber, reclassify or otherwise insert this Ordinance in an appropriate place to accomplish such intention. SECTION 7. All Ordinances or parts of Ordinances in conflict with the provisions of this Ordinance are hereby repealed. SECTION 8. If a Court of competent jurisdiction at any time finds any provision of this Ordinance to be unlawful, illegal, or unenforceable, the offending provision shall be deemed severable and removed from the remaining provisions of this Ordinance which shall remain in full force and intact. SECTION 9. This ordinance shall take effect on December 11, 2017, and shall apply to all applications filed on or after that date. SECTION 10. Ordinance 80-17-87, establishing a temporary moratorium for the acceptance, processing or approval of any wireless communication facilities in the City's rights of way through December 31, 2017, is hereby repealed. PASSED by the City Commission on first reading this 27th day of November, 2017. PASSED by the City Commission on second and final reading this 11th day of December, 2017. CITY OF LANTIIC BEACH z WE, �I Elen Glasser, Mayor Attest: 4&VPt4 Donna L. Bartle, City Clerk Approved as to form and correctness: Br4Qna n, City Attorney 5600904259-6