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Minutes 04-03-18MINUTES OF THE REGULAR CITY COMMISSION MEETING HELD ON TUESDAY APRIL 3, 2018, AT 6:30 P.M. IN COMMISSION CHAMBERS, CITY HALL 100 E. BOYNTON BEACH BOULEVARD, BOYNTON BEACH, FLORIDA PRESENT: Steven B. Grant, Mayor Christina Romelus, Vice Mayor Mack McCray, Commissioner Justin Katz, Commissioner Joe Casello, Commissioner 1. OPENINGS A. Call to Order - Mayor Steven B. Grant Tim Howard, Assistant City Manager Jim Cherof, City Attorney Judith A. Pyle, City Clerk Chair Grant called the meeting to order at 6:30 p.m. Invocation Mayor Grant gave the invocation Pledge of Allegiance to the Flag led by the led by Vice Mayor Romelus Roll Call City Clerk Pyle called the roll. A quorum was present. Agenda Approval: 1. Additions, Deletions, Corrections Mayor Grant requested to add to future agenda a Bike Share program. Also wanted to add a preliminary Budget workshop for May 29, 2018. This would be a publicly noticed meeting. Add under New Business A, Gun Control lawsuit against the State of Florida. Attorney Cherof indicated he will provide an update on the Class Action lawsuit against the Opioid manufacturers at the next Commission meeting. Commissioner Katz stated he has not seen or read anything regarding the gun lawsuit and would like to have this as a Future Agenda item. 2. Adoption Meeting Minutes City Commission Boynton Beach, Florida Motion April 3, 2018 Commissioner Casello moved to approve the agenda as amended. Commissioner McCray seconded the motion. Vote The motion unanimously passed. 2. OTHER A. Informational items by Members of the City Commission Commissioner Katz had nothing to report. Commissioner McCray noted he would like to thank Frank Ireland of the Carolyn Sims Center and Deputy Chief Latosha Clemons and the men and women of the Fire Department provided love and compassion to the children. Thanked Mary DeGraffenreidt for the Easter Egg-Stravaganza. Acknowledge staff member in the Parks Department for thinking outside the box regarding litter containers. Commissioner McCray recalled an incident at CVS Pharmacy and the police were called. The police officers were very professional conducting their business. Lastly he thanked the Commissioners and Mayor for their kind words. Vice Mayor Romelus attended the Junior Fire Academy graduation; kudos to Deputy Chief Clemons, as well as Chief Joseph. She pointed out the Junior Fire Academy was a strictly volunteer program. She also attended the Easter Egg-Stravaganza at the Hester Center. Commissioner Casello noted in the next couple of days there would be a firefighter from Key West making a foot journey to Tallahassee, to bring awareness to Cancer. Mayor Grant attended a meeting with COBWRA on March 21St. On March 23rd he went on a fishing trip. He attended the Junior Fire Academy graduation and would like the Junior Fire Academy to be an ongoing program. Monday, March 26th met with the head of international sales for Bahama Paradise Cruise Line. March 28th attended COP volunteers' event at the Intercostal Park Clubhouse, attended the League of Cities meeting, and attended a green energy workshop. Mayor Grant mentioned on April 25th there will be a sustainability and resiliency workshop. The City will start a sustainability and resiliency taskforce. March, 29th attended the Palm Beach County Transportation Planning Agency Steering Committee meeting. Mayor Grant noted the PBCTPA was going from a County run organization to an independent run organization. It was expected City members will pay a fee of 10 cents per resident. March 30th attended the FPL event for their Emergency Operation Center in Greater Boynton Beach. March 31St P� Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 attended the Easter Egg-Stravaganza and later that evening he attended the first ever Boynton Beach Reggae Fest. He wished everyone a great Easter and Passover Holiday. Mayor Grant spoke with Gulfstream Goodwill and Florida Textile Recycling representatives. Spoke with Mayor Mike Brown of Hypoluxo regarding a water agreement, between the City of Boynton Beach and Hypoluxo. Commissioner McCray indicated he needed clarification regarding the taskforce being created; this was not an advisory board. Mayor Grant responded instead of making recommendation, he wanted to see them out in the City of Boynton Beach making things better for the City. 3. ANNOUNCEMENTS, COMMUNITY & SPECIAL EVENTS & PRESENTATIONS A. Announcement of the 13th Annual Boynton Beach Firefighter Fishing Tournament and Firehouse Chili Cook -off on April 21, 2018 by Chief Glenn Joseph. Chief Glenn Joseph noted the Youth Academy was a joint venture between the Recreation Department and the Fire Department. Firefighter, Chris Lemieux indicated he has been involved with this event before working for the City of Boynton Beach. Noted last year the City raised more than $12,000 for the Boynton Beach Kiwanis Club. There were many local businesses involved. Announced the 131" Annual Boynton Beach Firefighter Fishing Tournament and Firehouse Chili Cook -off being held on April 21" at the Harvey Oyer Park. Thanked the Commission and the Chief for their support. Commissioner McCray asked if Commissioner Casello would be a judge this year. Commissioner Casello indicated he has been a judge for the past three years and looks forward to this event. B. Present a Certificate of Achievement from Mayor Grant to Tekeira Poole, a recent Career Online High School (COHS) Graduate. Ms. Poole was awarded a COHS Scholarship from Library staff in November 2016. Mayor Grant presented Tekeira Poole with her High School Diploma. Tekeira Poole thanked everyone for the opportunity to continue her education. Craig Clark, Library Director, wanted to announce how proud he was of Ms. Poole; she overcame some obstacles to get her high school diploma. Ms. Poole will be moving onto college soon. It gave him great joy to see her success. 3 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Jeannie Taylor, Head Librarian, stated there are many scholarships opportunities available for those who wish to pursue their education. Commissioner McCray thanked Ms. Poole for leading by example for her daughter. C. Proclaim April 8 to 14, 2018, as National Library Week and Tuesday, April 12, 2018, as National Library Workers Day. Mayor Grant read the proclamation into the record. Craig Clark, Library Director, thanked the Commission for their continued support of the Library and the dedicated Library staff. The staff is what makes a library successful. Vice Mayor Romelus noted there were some changes regarding borrowing privileges. Mr. Clark stated there was an updated borrowing policy. The Library allow up to 30 items to be checked out from the library. Mr. Clark noted there have been great reviews coming in from the public for the expansion of borrowing privileges. D. Proclaim the month of April 2018 as Paralyzed Veterans of America Month. Mayor Grant read the proclamation into the record. E. Past President and PVA National Vice -President Charles Brown will be accepting the proclamation on behalf Paralyzed Veterans of America Florida Chapter. Mayor Grant read the proclamation into the record. F. Proclaim April 10, 2018 as Gopher Tortoise Day in the City of Boynton Beach. Mayor Grant read the proclamation into the record. Rebecca Harvey, Sustainability Coordinator, informed the Commission that Boynton Beach was joining 17 other Florida communities in celebrating Gopher Tortoise Day. The Gopher Tortoises is a threatened species. The Gopher tortoises live more than 60 years. This species has been seen on the East Water Treatment Plant. Glenda Hall, Forestry and Grounds Manager, Boynton Beach has gopher Tortoise has habitat in the Galaxy Sand Pine preserve, Seacrest and Rosemary scrub natural areas, the Nickels Property (a future park site), Sand Pines preserves at Quantum, The proposed Echo Park in Quantum, and the East Water Treatment Plant. She indicated the City have some wonderful tortoise with some age. Mayor Grant informed the audience of a former Mayor Michael V. Michael passed away February 1, 2018 in Dixson, Tennessee. He came to Boynton Beach and was founder 0 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 of Michael Nursery. Was Vice Mayor in 1967 held the office of Mayor 1967-1968 and was a councilman from 1969-1970. Motion Commissioner Casello moved to approve motion. Vote The motion unanimously passed. 4. PUBLIC AUDIENCE Commissioner McCray seconded the INDIVIDUAL SPEAKERS W ILL BE LIMITED TO 3 MINUTE PRESENTATIONS (at the discretion of the Chair, this 3 minute allowance may need to be adjusted depending on the level of business coming before the City Commission) Mayor Grant opened public audience. Susan Oyer, 140 SE 27 Way, shared Marie Shepard's obituary with the Commission. Stated Ms. Shepard was an integral part of the City history. David Katz 67 Midwood Lane, asked the status of the Advisory board Dinner. Lori LaVerriere, City Manager, stated the dinner was being planned for September. Mr. Katz stated curbstoning was against the law in the City of Boynton Beach. He stated he informed Mr. Woods, Directory of Community Standards, who advised it was the Police Departments' responsibility. He contacted the Police Department and was told the responsible party was the Community Standard Department. Ms. LaVerriere stated it was a collaborative effort on both the Community Standards Department and the Police Department. It requires the Police Department assistance to run tags, because of access to delicate information, that the Community Standards officer does not have access. Mayor Grant asked if curb stoning was a criminal statute or was it a municipal ordinance. If it was a violation of an Ordinance it would be under Community Standards. Ms. LaVerriere stated to run the tag information and have access to the vehicle, it requires NCIC/CICS. Mayor Grant stated Community Standards cannot do that, because they are not part of the Police Department. Ms. LaVerriere responded no, it was because they were not trained Police Officers. Mayor Grant requested the City Manager to find out who takes care of this. 5 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Mr. Katz stated if Community Standards does not work on the weekend, if a Police Officer could ride by. They could have had the Toyota Camry towed. The other vehicle had a dealer tag on it. Minister Bernard Wright, President of Bernard Wright Ministry, Robert E. Wells Foundation and Real Talk Radio, said the Fire Academy was awesome, the City needed more of these programs. He said being a community advocate; the children are being deprived of the Carolyn Sims Center, which was for the neighborhood children. The children are not allowed to get a drink of water when camp is in session. He does not think it was fair or just. He believes this was illegal. He contacted the Commission and has not received a response. He trusts this would be taken under advisement and addressed before summer. Stated the residents are trying to curb crime and raise the children the best they can. Commissioner Katz responded it was legal for the City to run a camp program in the City facilities. In order for the paying customers of these programs to have their children enrolled, there needs to be some rules about people who are not enrolled entering the facility. This was a program provided to the residents of the community, which is well attended and well received. He did not anticipate killing the program anytime soon. Minister Wright stated he was not asking for the program to be killed, he was asking for access to the Center. The Center was built for the children in the neighborhood. These black children do not have access to the Center during summer or spring break. Mayor Grant responded there are alternatives, such as the Library. Minister Bernard Wright stressed this needed to be addressed. Harry Woodworth, 685 NE 15 Avenue, provided an update of what was going on in his area. He stated the U -Haul issue has improved. Sergeant Hawkins has done an amazing job of keeping their equipment on their property. It was going in the right direction, the bicycle lane was blocked for most of the day on Monday. If the Commission was not going to address the problem, please don't put a bike lane down Federal Highway. If you cannot use the lane why put it there. He also wanted to speak about the derelict boats in his neighborhood. The Boynton Beach Police Department rescued a boat which had broken away, and these boats are throwing their sewage into the water. The law was on the City of Boynton Beach side on at -risk vessels. Florida Statues has provisions with dealing with at -risk vessels. Locking up the sewer lines is mandatory inside coastal waters. He has personally watched this violation going on. He cannot understand why the City of Boynton Beach does not address this issue. Lucas Vogel, 1090 SW 24 Avenue, indicated it has been great joining the Planning and Zoning Board. Indicated in the last meeting they spoke about One Boynton, most of which was considered housekeeping issues. There are a lot of development projects on the way. Please consider tabling any further zoning until we get everything built. So 9 Meeting Minutes City Commission Boynton Beach, Florida it 3, 2018 the projects can be accessed. The Town Square Center financing was lacking, looking for the public private agency. He was concerned about his taxes. He was not able to find any information or get a better understanding of the details behind that. Mr. Vogel stated he could not find information regarding the financing of the $250M. He would like to have some details about the financing. He looked on the website but could not find any information. Commissioner McCray directed staff to provide information regarding derelict boats and what can be done. Lori LaVerriere, City Manager, indicated she has spoken with the City Attorney regarding some more aggressive action. Ms. LaVerriere noted documentation for Town Square was being finalized. Mayor Grant stated if anyone else wanted information a Public Records Request can be submitted to the City Clerk's office. Seeing no one else coming forward, Mayor Grant closed Public Audience. 5. ADMINISTRATIVE A. Appoint eligible members of the community to serve in vacant positions on City advisory boards. The following Regular (Reg) and Alternate (Alt) Student (Stu) and Nonvoting Stu (N/V Stu) openings exist: Arts Commission: 2 Alts Building Board of Adjustments & Appeals: 2 Regs and 1 Alts Employee Pension Board: 1 Regs Senior Advisory Bd: 2 Alts Mayor Grant announced there were no applicants for the Arts Commission, Building Board of Adjustments & Appeals, Employee Pension Board, or Senior Advisory Bd. B. PROPOSED RESOLUTION NO. R18-051 - Appoint a City Commission representative and alternate to the Countywide Intergovernmental Coordination Program. Commissioner McCray wanted to know who was serving on the County -Wide Intergovernmental Coordination program as a regular and who was the alternate. Vice Mayor Romelus replied she was currently serving as a representative for this Board. 7 Meeting Minutes City Commission Boynton Beach, Florida ril 3, 2018 Commissioner Katz noted he had a more flexible schedule, and was under the assumption that Commissioner Casello would be leaving the Commission in November. Commissioner Casello was the current COBWRA representative. Commissioner Katz stated he was interested in the alternate position. Commissioner Katz has worked at Park Vista School in the COBWRA territory for the past 10 years and has strong ties to the local community. He would appreciate taking the alternate slot once Commissioner Casello leaves in November. Mayor Grant asked for a nomination for Vice Mayor Romelus to serve as a Regular for the County Wide Intergovernmental Coordination Program and Lori LaVerriere City Manager to serve as the Alternate. Motion Commissioner McCray moved to nominate Vice Mayor Romelus to serve as a regular for the County Wide Intergovernmental Coordination Program and Lori LaVerriere City Manager to serve as the Alternate. Commissioner Casello seconded the motion. Vote The motion unanimously passed C. PROPOSED RESOLUTION NO. R18-052 - Appoint a City Commission representative and alternate to the Metropolitan Planning Organization Mayor Grant stated the MPO has changed its name to the Transportation Planning Agency. Noted he was serving on the Steering Committee and would like to continue serving in that capacity. Requested Commissioner McCray step in as the alternate. Motion Commissioner McCray moved to nominate Mayor Grant to serve as a regular for Transportation Planning Agency and Commissioner McCray as Alternate. Vice Mayor Romelus seconded the motion. Vote The motion unanimously passed D. PROPOSED RESOLUTION NO. R18-053 - Appoint a City Commission representative and alternate to the Palm Beach County League of Cities. NO Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Commissioner Casello indicated he would like to continue in that position for the time being; he would be resigning in the near future. Motion Commissioner McCray moved to nominate Commissioner Casello to serve as a regular for the Palm Beach County League of Cities and Commissioner McCray as Alternate. Vice Mayor Romelus seconded the motion. Vote The motion unanimously passed E. PROPOSED RESOLUTION NO. R18-054 - Appoint a City Commission representative and alternate to the Coalition of Boynton West Residents Association (COBWRA). Commissioner Casello would like to continue in that position for the time being; he would be resigning in the near future Motion Commissioner McCray moved to nominate Commissioner Casello to serve as a regular for the COBWRA and Commissioner Katz as alternate. Vice Mayor Romelus seconded the motion. Vote The motion unanimously passed 6. Consent Agenda Matters in this section of the Agenda are proposed and recommended by the City Manager for "Consent Agenda" approval of the action indicated in each item, with all of the accompanying material to become a part of the Public Record and subject to staff comments A. Approve an increase to estimated expenditure to Iron Container of Miami, FL from $70,000 to $95,000 per City Bid #016-2515-15/JMA due to the need to purchase additional containers and replace ones that cannot be repaired. B. PROPOSED RESOLUTION NO. R18-055 - Approve and authorize the City Manager to sign an Agreement with Government Services Group, Inc. to assist the City of Boynton Beach to continue the Fire Assessment Program for the FY 2018-2019 budget with the scope of professional services and specialized assistance in the amount of $17,500. X Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 C. PROPOSED RESOLUTION NO. R18-056 - Authorize the Mayor to sign an Interlocal Grant Agreement between the the City of Boynton Beach and Solid Waste Authority of Palm Beach County for $16,000 of funding towards the cost of installing an industrial, automated gate at the City's Rolling Green complex. The estimated cost of the project is $35,000 and the City will be providing the balance of $19,000. D. PROPOSED RESOLUTION NO. R18-057 - Authorize the City Manager to execute application for a grant from the Palm Beach County Transportation Planning Authority's Local Initiative Program for Improvements to Boynton Beach Boulevard between NW 3rd Street and US 1/Federal Highway. E. Approve the minutes from the Special Joint City Commission and Community Redevelopment Agency Board meeting held on March 13, 2018 Mayor Grant asked for a motion to approve Consent Agenda item. Motion Commissioner Katz moved to approve the Consent Agenda. Commissioner McCray seconded the motion. Vote The motion unanimously passed. 7. BIDS AND PURCHASES OVER $100,000 A. PROPOSED RESOLUTION NO. R18-058 - Approve an Agreement with Gulfstream Goodwill Industries, Inc. of West Palm Beach, FL for a Textile Recycling Franchise, RFP No. 009-1210-18/IT, for an initial three (3) year term. This is a revenue generating Agreement whereby Gulfstream Goodwill Industries, Inc. shall pay to the City a fixed monthly fee of $8,328.00, or $99,938.00 annually for the exclusive right to implement a Textile Recycling Program for City -owned Properties (Option B of the RFP). The Agreement will begin upon full execution and end three years from that date with an option to renew for an additional three (3) year term, if deemed in the City's best interest. The renewal term will be brought back to City Commission for approval. Tim Howard, Assistant City Manager, indicated the RFP had two options. It allowed for vendors to propose on either or both of the following options: Option A: Exclusive City-wide Franchise Program; and/or Option B: Exclusive City -owned Property Franchise Program FLSC, LLC d/b/a Florida Textile Recycling Program proposed for both Option A & B; Gulfstream Goodwill Industries, Inc. proposed for only option B. 10 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Commissioner Casello inquired as to the location of the Goodwill containers. Requested example of where these boxes would be located. Mr. Howard stated it could be City Hall, the Museum, at the Hester Center, any City -owned property. Mr. Howard stated the vendors would work with staff. Commissioner Casello asked if that was a good idea having Goodwill boxes on City property. Mr. Howard stated he was presenting the information the Commission requested. Commissioner Casello stated this was for City - owned property only. Mr. Howard stated this was for option B. Commissioner McCray asked who served on the review committee for the bin placements. Mr. Howard responded the selection committee was comprised of Andrew Mack, Director of Development; Mike Rumpf, Planning & Zoning Director; and Wally Majors, Director of Recreation & Parks. Commissioner McCray inquired as to how many meetings were held to make the decision. Mr. Howard explained the process was the committee receive the proposals and individually review them, and then in a public meeting they score them based on the criteria in the RFP. It indicated it was one meeting to rank them. Commissioner McCray asked if they met jointly. Mr. Howard replied they did not meet jointly; they reviewed individually and had one public meeting. Ms. LaVerriere noted the review committee was subject to the Sunshine rules. Mayor Grant inquired if the City moves forward on the City -owned property option, would it prevent businesses from going to private businesses and have their own bins according to the City statutes. Attorney Cherof replied not prohibited. Mayor Grant stated there could be some bins on City -owned property, as many as the Code allows. Mr. Howard stated there are some containers on school properties and places of worship. This would only be on City -owned property. Mayor Grant stated they have bins at other places such as Walgreens. Mr. Howard noted they understand there are some bins out there, but it was not permitted. Mayor Grant asked if the City moves forward with the City -owned option, will the City begin enforcing non -permitted bins. Commissioner McCray asked if the City has any Goodwill collection boxes. Mr. Howard responded not in the City. Commissioner Katz asked for clarification. If the Commission accepted a City -owned property only option, would that prohibit anyone from placing bins on private property, not City -owned property? Michael Rumpf, Planning and Zoning Director, advised there are standards and rules in the Land Development Regulations (LDR). These rules guide the City in reviewing containers. Someone can come in and get an approval for private property. The standards governs how many, where the bins are located, how big and the signage which are placed on the bins. This would be a separate process, unless the Commission directs staff to change the process. 11 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Commissioner Katz noted the request by Goodwill would yield approximately $100,000 and they are asking for City -owned property opportunities. What would the potential revenue for the City-wide revenue. He was curious for the potential City-wide estimate. Mr. Howard stated the proposal from Florida Textile on the City-wide option was $2,000 a year per bin, on City -owned property it was $1200 per bin per year. It was based on the number of bins placed. Mayor Grant stated in order to match Gulfstream they needed to place 50 bins on City - owned property. Commissioner McCray noted when the City starts placing bins whether on City -owned property or City-wide there will be problems with the areas being a dumping ground. Commissioner McCray asked who would be responsible for cleaning up the area. Commissioner Casello asked what was being done for the enforcement of bins not permitted. Mr. Rumpf stated the LDR would need to be amended. Brian Edwards, Gulfstream Goodwill, Vice President of Marketing and Development has spent the better part of seven years working hard to ban donation bins. There were many reasons, such as safety and health and human services. Goodwill provides services to residents or any others in need. Revenue generated by donations are very important for supporting those services. Gulfstream does not have unattended donation bins. There are attended donated bins centers called inline donation centers. In terms of collected goods, and processing materials, Goodwill uses that revenue to support services within all municipalities. Gulfstream has committed the man power, having the boxes clearly marked, the City requires hurricane tie downs, the fact that you are moving forward into a contract, guidelines and standard have been set. Commissioner Katz asked why only City -owned property, and not City-wide. Mr. Edwards replied they are a nonprofit. They have over 24 different services, we have a charter school for special needs children, traumatic brain injury center, light house for the Blind; the cost adds up. There was a cost to negotiate a fee for privately owned property. It was taken into consideration for a safety protection. Gulfstream went with option B. Commissioner Katz asked if the bin sites would be manned. Mr. Edwards indicated by virtue of the requirement in the RFP, the site would not be manned. Gulfstream would love the opportunity to negotiate an attended site. Commissioner Katz stated Gulfstream participation in the bid process was more of a defensive move. There was always the argument that there was always more to go around. This was not the case. 12 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Commissioner Katz inquired what other local municipality has Goodwill contacted to restrict bin usage. Mr. Edwards indicated they have been in almost all municipalities. He mentioned West Palm Beach, Lake Worth, Palm Beach County, Jupiter, and there were quite a few banning the bins. Commissioner Katz inquired if any of those municipalities banned the bins. Mr. Edwards responded they have. Commissioner Katz questioned if was fair to say an established entity seeking to ban completion, was trying to create a de facto monopoly. Indicated by banning other organization bins, Goodwill was boxing out the competition. Mr. Edwards stated that has been an argument regarding a monopoly at every meeting they have every attended. They have always been joined by other non -profits. Commissioner McCray asked if the money which Goodwill raises in Palm Beach County remains in Palm Beach County. Mr. Edwards stated it does. Mark Douglas, Chairman of Florida Textile Recycling Program, (FTRP) indicated Goodwill was the biggest proponent of the bins; he was surprised to see the bid from Goodwill. Mr. Douglas stated FTRP currently have a contract with Habit for Humanity; they are paid by the pound. FTRP have bins at schools in Boynton Beach, the payment was based on the amount of textiles collected. When this RFP was submitted they believed it was to increase the level of sustainability in the City of Boynton Beach. Option A, which was bid on was the most impactful of all the options with respect to achieving this goal and making recycling easier for the City of Boynton Beach residents. FTRP was a comprehensive, professionally run municipal program for a City-wide textile recycling, which has evolved and been on the cutting edge of innovation by utilizing the technology to enhance efficiencies and sustainability. This program was the first and only program in the State of Florida in existence which has been adopted by governmental entity and has proven successful in removing of millions of pounds from the local landfill in the past 3 years. FTRP has contracts with the Town of Davie, Marion County, the City of Hollywood and the Duvall County Public School Board. He stated every bin in the State of Florida has a contract. In the Town of Davie the program has generated more than $360,000 in revenue and vouchers and 4.1M pounds have been diverted from the landfills. In the City of Boynton Beach with 50 bins in the same 3 years' timeframe 4.1M pounds of textiles can be diverted, with the tipping fees would generate substantial savings over and above the $2,000 per year, per bin which they have offered. The program uses innovated techniques and technology which was head and shoulder above any competitors to not only enhance sustainability but also reduces the carbon footprint. This would allow the City to forecast the reduction of disposal saving the City will see as a result of this program. Mr. Douglas provided documentation regarding the bins and the technology. Mr. Douglas noted they have eyes on the bins on a daily basis. The software provides text and email notifications, as these bins are filling. The areas of the bins are kept clear within a 10 foot radius. FTRP was the only company which has a hurricane preparedness program in place. FTRP recycling rewards programs allowing local businesses to provide coupons of their choice to reward residents for recycling and increasing foot traffic to their local business. 13 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Mr. Douglas noted the bid was for 50 bins at $2,000 per bin which is a $100,000 per year in revenue to the City. He stated with CPI annual increases, its voucher program, its clothing drives, the recycling credits and the City-wide disposal saving far exceeds any other offer received. FTRP was the only company with municipality contracts and experience in operating successful, comprehensive, professionally run, City-wide textile and recycling program. He hopes preference will be given to contract with other governmental entities. Andre Parks, Attorney for Florida Textile Recycle Program, stated when speaking of qualification within the State of Florida, this was a sophisticated and complex system. This was a state of the art system made for sustainability and drive efficiency. This was a marriage between technology and human capital. Commissioner Katz noted FTRP made a reference to the revenue generated. Was it FTRP intention to place 50 bins within the City of Boynton Beach? Reference was also made to other fees which would come to the City. What are those other fees and the annual dollar amount? Mr. Douglas explained the 50 bins could be placed in shopping centers, plus the vouchers. The CPI increases every year. In a City similar to Boynton Beach, they have received more than $300,000, in Palm Beach County. It would be about $85,000 in additional savings for the City. Commissioner McCray noted the City logo, inquired if permission was acquired. Mr. Douglas replied yes. Commissioner McCray stated on page 30 it indicates bins are unsafe. Commissioner Casello asked about the schools being serviced. Mr. Douglas replied South Tech Charter Academy, South Tech Preparatory Academy, and Imagine School Chancellor. Commissioner Casello asked how long has these bins been at the schools. Mr. Douglas indicated since 2016. Commissioner Casello inquired as to how many pounds are picked up from the bins. Mr. Douglas stated he could get this information at a later time. Commissioner McCray asked the three schools are the bins permitted Mr. Howard replied they have not gone through the permit process. Commissioner Casello inquired how many have gone through the permitting process. Mr. Rumpf responded for the past two years there have been a couple of company which applied for permits, but they have not been approved. Commissioner Casello clarified the City has not permitted any company and to the best of Mr. Rumpf's knowledge there were no permits given. Ms. LaVerriere indicated if the City moves forward with allowing the recycling program, the regulations would be changed and adding an exemption for Houses of Worship and Schools. 14 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Vice Mayor Romelus, indicated FTRP mention sensors would be inside the bins, one of the main concerns would individuals dumping outside of the bins. How will this be tracked? Mr. Douglas stated the sensors measure the inside of the bins. There is a dedicated person in each municipality who goes around in a truck or a van and checks every day, and if items are dumped around the bin it will be removed immediately. Vice Mayor Romelus asked if the bins would be monitored seven days a week. Mr. Douglas responded this was correct. Mr. Douglas indicated the schools have given permission for the bins to be on their property. Commissioner McCray inquired as to the funds collected by the schools, is the revenue used by the school. Mr. Douglas replied a check was written to the school once a month for all the poundage which was collected. Commissioner McCray said Goodwill was used County -wide. Vice Mayor Romelus asked if the contract would be awarded for part B for City -owned, what would be the cost differential with what Goodwill was purposing and what FTRP was purposing. Mr. Howard stated it would depend on the number of bins. Florida Textile offered $1,200 per bin offered for City -owned property. Goodwill mentioned 10 sites for the monthly amount of $83.92 per site. Vice Mayor Romelus said the City did not have a specific amount for the bids. Mr. Douglas indicated FTRP did not specify a specific amount of bins. Vice Mayor Romelus stated previously it was mentioned a $100,000 minimum; does FTRP need a minimum number to reach in order for this project to be profitable Mr. Douglas stated this bid was for the City-wide property up to 50 bins. It depends on how many bins are approved. Vice Mayor Romelus asked if the rents to the owner reduce the amount paid to the City. Mr. Douglas replied the $2,000 per bin will be paid to the City no matter what the other costs are. Commissioner Casello stated earlier FTRP has 30 set sites secured in the Boynton area. Mr. Douglas stated he wanted to make a correction; they have 3 shopping centers which have offered the ability to place the bins. Each shopping center would be able to 15 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 hold 2 to 3 bins that would be up to the City of Boynton Beach for approval, and a lease would be signed with the business owners. Commissioner Casello asked how comfortable would FTRP feel if the City would provide 10 sites to reach the number of 50. Mr. Douglas stated he believed that was doable. Mr. Douglas stated regardless of the amount of bins the City was guaranteed $100,000 per year. He continued to say the Town of Davie has 48 bins but they are being paid for 50 bins. FTRP would guarantee $100,000 for the City-wide program. Commissioner Casello said he was thinking the more bins the more tipping fee. Mr. Douglas stated this would allow FTRP to service all of the residents in Boynton Beach to dispose of their textiles in a proper manner. Commissioner McCray stated he does not want to see 50 bins throughout the City. He indicated the City was not hurting that much that they needed to place bins all around the City. He does not want this to be a bin compliance City. Commissioner Katz asked if it was correct in saying regardless of how many bins are actually placed; the agreement was to pay for 50 bins. Mr. Douglas stated this was correct. Commissioner Katz asked if you only found 12 sites and only placed 20 bins, FTRP would pay the City for 50 bins. Mr. Douglas stated he would hope to place more than 20 bins. Mayor Grant asked how much FTRP pays the school per tonnage. The RFP did not allow payment based on the tonnage collected. Mr. Douglas responded the RFP request was per bin. Mr. Douglas said the schools pay 10 cents per pound. The extra events would be paid 10 cents per pound; this would be extra revenue. Mayor Grant asked about accountability, will there be some type of reporting of tonnage. Mr. Douglas replied each month along with a check, not only the tonnage report of textile which was kept out of the landfill, but a list of each bins in the City. Commissioner McCray asked money that was made over the $100,000 what was done with this money. Mr. Douglas stated they sell the merchandise. They have expenses just like Goodwill, with the trucks, personnel, bins and other items. Commissioner McCray asked if FTRP donate to any nonprofit organizations. Mr. Douglas responded the voucher program FTRP offers for $5000 the Commission determines who will receive. The company does not give money to any nonprofit organization. They are willing to help by giving needy people as they come in. He wanted to point out that Goodwill, when they collect merchandise in the Boynton Beach 16 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 area, goes to the main processing facility, merchandise does not necessarily remain in the municipality. Commissioner McCray stated he was not worried about merchandise remaining in Boynton Beach; he was concerned about the funds remaining in Boynton Beach. What was FTRP giving back to the City? Commissioner Katz stated he met with the operator of Florida Textile and was intrigued about these bins. He liked the idea of a constant self-regulation, such as the sensors intuitive nature of the bins. Commissioner Katz said no one wants to oppose Goodwill, which was not the position he was taking. The City put this out to attract a bid to provide bins and Goodwill submitted a proposal. He does not feel comfortable to support an attempt to limit the recycling, collection by virtue of only asking of City -owned property and limiting the number of bins. No one opposes Goodwill and provide revenue to the City. He likes the opportunity for something new. He would like to offer a motion for Florida Textile for the City-wide contract. Commissioner Casello seconded the motion from Commissioner Katz. Stated he liked the high tech bins and the daily monitoring. Mayor Grant stated he liked the daily monitoring of the bins as well. Vice Mayor Romelus stated both sides seem to confound her. She stated the practices do not make sense businesswise. If the attorney could work out the details with a limited number of sites, the applicant will payout a set amount. Her main concern was the City of Boynton Beach does not become a City with mismanaged bins. The City was trying to rebrand itself. She indicated supporting these bins makes her nervous. Vice Mayor Romelus indicated she was willing to support the motion on the table hoping FTRP would monitor the bins as well as give the revenue to the City based only on the contracted amount, not on the amount of bins placed in the City. Commissioner McCray stated he was not in favor of the bins coming into the City. Indicated there was no testimony offered in favor of FTRP. Inquired of the Attorney was there anything in the contract regarding breach of contract. Attorney Cherof stated in the Goodwill contract there was a termination clause for the convenience for the City. There was no termination clause. Attorney Cherof stated any provision the Commission wants can be added. Commission McCray noted for clarification, Gulfstream Goodwill there was a provision in the contract. Attorney Cherof noted that was correct. Vice Mayor Romelus wanted to amend the motion to add a termination clause. 17 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Commissioner Katz said, per the attorney's previous comment the contract must come back to the Commission. Commissioner Katz asked what would the termination clause entail? Stated he was open to placing language in the contract. Mayor Grant stated the contract was for three years, does the City need to negotiate a review period. He stated he wanted to see something in the contract. This was new to the City and to bind the City for three years made him anxious. He was ok with the contract, but would like to have a review period. Commissioner Katz amended his motion for FTRP to include language negotiated with Legal. Commissioner McCray stated they are the policy makers for the City of Boynton Beach; it should not be what the vendor was comfortable with. The Commission needed to set the rule. Commissioner Katz stated for clarification, he assumed some type of cancellation cause, this maybe something they agree with. Stated the City needed to be fair to the vendor. Attorney Cherof indicated the request for proposal contained provisions for a 3 -year contract term with a renewal possible and a cancellation provision with or without cause effective 30 days from the day of the written notification; both submittals were submitted pursuant to that limitation of rights of whoever was awarded the contract. The Commission controls the contract. Mayor Grant asked if the termination clause was included. Attorney Cherof noted there was a termination requirement for the RFP; even if the termination clause was not in the vendor proposal. Vice Mayor Romelus stated by virtue of applying for the RFP they were agreeing with this. Attorney Cherof asked if there were any disagreements from anyone. Mr. Howard indicated the draft agreement which was included exactly how the attorney stated. Mr. Howard stated the Commission can change for different days. Vice Mayor Romelus asked if the motion was for City -owned or City-wide Mayor Grant requested a motion. Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Motion Commissioner Katz moved to approve a motion for Florida Textile for the City-wide contract. Commissioner Casello seconded the motion. kvre ' 4-1 (Commissioner McCray dissenting) 8. PUBLIC HEARING 7 P.M. OR AS SOON THEREAFTER AS THE AGENDA PERMITS The City Commission will conduct these public hearings in its dual capacity as Local Planning Agency and City Commission. A. PROPOSED ORDINANCE NO. 18-0059 - Approve Second Amendment to the land development agreement between the City of Boynton Beach and SKYE at Boynton Beach, LLC and authorize release of surety to bury overhead utility lines across Federal Highway at SE 2nd Avenue Mayor Grant read proposed Ordinance No. 18-003, by title only into the record. Andrew Mack, Director of Development, stated this was a request for release of a Surety bond. The developer Skye at Boynton Beach, LLC has requested release of the cash surety as there is no intent or planned work that would warrant use of the surety prior to the expiration of the developer's agreement on June 10, 2018. Staff was in support of releasing the surety. Commissioner McCray asked the amount of the cash surety. Mr. Mack stated the amount of the surety was $26,961.66, which represents 50% of the cost to perform the work based on a licensed engineer's or FPL's estimated costs. Mayor Grant requested a motion. Motion Commissioner Romelus moved to approve. Commissioner Katz seconded the motion. Vote 5-0 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 B. PROPOSED ORDINANCE NO. 18-003 - SECOND READING - Approve One Boynton (aka Las Ventanas) Rezoning (REZN 18-005) from MU -L (Mixed Use Low District) to MU -4 (Mixed Use 4 District) to complete implementation of the CRA Community Redevelopment Plan's recommendation for the subject 14.6 acre property. Applicant: City -initiated. Attorney Cherof read proposed Ordinance No. 18-003, by title only into the record. Mayor Grant asked for a motion. Motion Commissioner McCray moved to approve. Vice Mayor Romelus seconded the motion. City Clerk Pyle called the roll. Vote we] C. PROPOSED ORDINANCE NO. 18-004 - SECOND READING - Approve Timeless Life Care and 601 S. Federal Mixed Use rezoning (REZN 18-006) from MU -1_2 (Mixed Use Low 2 District) to MU -2 (Mixed Use 2 District) to complete implementation of the CRA Community Redevelopment Plan's recommendation for the subject 2.41 acre area. Applicant: City -initiated. Attorney Cherof read proposed Ordinance No. 18-004, by title only into the record. Mayor Grant asked for a motion. Motion Commissioner Katz moved to approve. Commissioner McCray seconded the motion. City Clerk Pyle called the roll. Vote all 20 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 D. PROPOSED ORDINANCE NO. 18-005 - FIRST READING - Approve Telecommunications in Public Rights -of -Way (CDRV 18-001) - Amending Part II Code of Ordinances Chapter 25.1 Communications Facilities in Right -of -Way and Part III Land Development Regulations Chapter 3. Article V. Section 12. Amateur Radio and Television Antennas and Section 13. Wireless Communications Facilities (WCF) for consistency with FCC requirements and with the State's Advanced Wireless Infrastructure Deployment Act. City -initiated. Attorney Cherof read proposed Ordinance No. 18-005, by title only into the record. Commissioner Casello indicated he received a few emails from AT&T and Comcast stating they did not have enough time to look over the proposed Ordinance. Attorney Cherof stated tonight was the first reading of the Ordinance. Stated he has responded to a few people, to remind them there will be a second reading. The City Commission has authority to amend the City Ordinance between first and second reading. There was plenty of opportunity to respond. Mayor Grant stated if approved he would like to move the second reading to the first reading in May 2018, to give everyone ample opportunity to make comments. Michael Rump, Planning and Zoning Director, stated this was a celebrated effort, this involves various entities to bring the City into compliance. Kathleen Hatcher, Senior Planner, explained this was a City initiated Code revision of part 2 of the Code to implement the new state legislation known as the advanced wireless infrastructure redeployment act. There are currently 13 macro cell towers located throughout the City. With the ever increasing public demand for capacity, speed, and reliability, wireless carriers are now reducing the traffic on each macro -cell tower site by building a number of smaller sites with shorter transmission and receiver distances. These microcell towers are typically one-half the height of a standard cell tower and placed closer together to provide more consistent coverage to areas. There are currently no applications formally submitted to the City for the new technology of microcell towers within right-of-way, but there is interest and applications are expected in the very near future. These Code amendments would provide standards whereby microcell structures can be allowed while preventing negative impact. The proposed amendments to the Code of Ordinances Part II Chapter 25.1 Communications Facilities in Rights -of -Way implement the new regulations of the Act. Further amendments are necessary to Part III Land Development Regulations so that WCF regulations in the LDR do not conflict with the Part II amendments. The proposed Code revisions establish uniform standards and guidelines for the siting, design, and permitting of communication towers, communication antennas, and wireless communication facilities sited within public rights -of -ways. The proposed amendments also establish review procedures to ensure that applications for towers and related 21 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 equipment are processed consistent with state and federal law. The proposed regulations require that individuals and entities seeking permits to conduct any type of excavation, construction or other activity for communications facilities in public right-of- ways do so in a safe, expeditious, and professional manner to protect the public health, safety, aesthetics, and general welfare in the community. The recommended amendments also seek to minimize visual and other impacts of wireless communication facilities on surrounding areas by establishing standards for location, design, landscape screening, and compatibility. Commissioner McCray requested photos to be shown to the public of the towers. Ms. Hatcher showed pictures of different cell towers. Stated the current regulations in the LDR allow wireless communications facilities (WCF) to be located in public right-of- ways as non -concealed attached WCF, which are antennas attached to utility poles and freestanding lights at least 40 to 50 feet in height, subject to agreement with the agency representative with jurisdiction over the right-of-way and/or the utility company. The other section was the Amateur Radio and television antennas and the television satellite. Commissioner Katz asked if it was safe to assume the handful of emails received from the major telecommunication companies were going to be their objections on the standards being put in place, to maintain the aesthetic. The companies do not want to follow existing guidelines. Mr. Rumpf noted at this time they have stated they needed time to review. The companies feel as though they had been caught off guard. The majority of what was seen was consistent with statute, most are verbatim. The City has three different jurisdictions overseeing roadways in the City. The sole jurisdiction controls are in the residential roadways. Commissioner Katz asked if it was reasonable to assume, based on what was said, these companies are well aware of the law which was passed and the ability of local government to do what they are doing. Mr. Rumpf stated they are aware of what was happening with the laws and have more to gain than the City of Boynton Beach. Commissioner Katz stated with respect to Mayor Grant trying to give them more time, he would like to request to remain with the original timeline. He does not believe Verizon was not aware of all the details of the new statutes. Mr. Rumpf stated staff would make themselves available to review the ordinance. Commissioner McCray asked if the City was seriously thinking about burying the utilities lines. Mr. Rumpf responded the City was reviewing larger projects; the City was encouraging burying of utilities lines. Vice Mayor Romelus noted this was a part of the consolidation plan. Mr. Rumpf replied yes. 22 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Mayor Grant asked if Leisureville counted as a retirement community, would they go together or separately as part of the exemption. Mr. Rumpf explained he was not aware of the population count. Mayor Grant asked if anything was in the Code for stealth for the micro towers. Ms. Hatchers explained there are requirements for stealth towers, macro cell towers depending on the zoning. Indicated there are options which the carriers can use. Mr. Rumpf explained in the LDR there are definitions for stealth towers. Mr. Rumpf stated there was enough to guide staff and the public. Mayor Grant stated the ordinance speaks about reasonable location, context, and color of stealth and concealment requirements. The City has a roadmap to the qualification for the micro towers in the LDR's. Mr. Rumpf responded what the City has now applied to the large scale telecommunication towers, not necessarily for the smaller scale tower; it may be applicable in concept. Mayor Grant stated he was speaking of the newer one has it in their language regarding the location, context, color of stealth and concealment requirement. Ms. Hatcher indicated there are definitions included in Chapter 25.1; the stealth design was up to the applicant and for staff to review. There are many different designs. Mayor Grant stated each pole which was presented make sure has all the requirements. Vice Mayor Romelus asked if staff was ensuring uniformity of all poles. The poles need to be consistent with area and the poles around it. It would need to be concealed and it would need to look in proportion to the pole. Vice Mayor Romelus stated her concern was this ordinance would come into play as soon as it was approved after the second reading. What about the new downtown area, if there was already a build out, do the poles need to be renewed to the updated standard. Mr. Rumpf explained the City jurisdiction was over the local streets. Mr. Rumpf provided a presentation on short wave HAM towers and antennas regulations and processes. Stated the City continues to review the regulation regarding the Federal and State requirements. Currently the City lacks the provisions specifically for short wave radio communications. Under the FCC memorandum opinion & Order said the State and local regulation of a station antenna structure must not preclude amateur service communications, Rather it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state of local authority. Mr. Rumpf stated there was a limit of licensed users to 1 HAM tower; there was a maximum height of 60 feet when in use. The maximum height was 15 feet above the roofline when inactive. He indicated the location was to be in the rear of the home in the back yard only, unless 15 feet or less above the roof, the setback was the same as the building. He explained different types of antennas. Commissioner McCray asked if the City has a HAM operators' club. Mr. Rumpf explained this would be given before the second reading. 23 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Mr. Rumpf stated a question was asked if this was limited to single family neighborhoods, staff was looking into whether this should be applicable to duplex and multifamily environments. He stated there were questions regarding taller buildings in the downtown areas, for antenna the higher the better. Commissioner Katz noted he consulted with people in the industry and they stated these are reasonable regulations. Mayor Grant asked for a public audience. Janna Lhota, Holland and Knight, on behalf of Verizon Wireless, explained the reason for the request of a deferral of first reading. There was not sufficient time to make any material change to the ordinance. She provided a letter which addressed some issues which were identified with the ordinance. Her recollection there was some issues in the definitional section. In the right-of-way ordinance implements some definitions which are not consistent with State law, they have been culled from the non - right -of -way provisions of the City Code, and it implicates the antenna on buildings. Also the definition for co -location, it speaks about the second or subsequent antenna on a structure, which was a definition which was culled from the Section 365.172 of Florida Statues which relates to co -locations on existing towers and structures. The definition of Section 337.401 speaks about the initial attachment on a utility pole. These are some of the reasons the Attorney for Verizon requested for a deferral of the first reading. She stated they wanted to work with the City to craft an ordinance which would be consistent with State and Federal law, but also met with the City objectives. She requested time to offer suggestion. Stated she looked forward to working with the City in moving this matter forward. Attorney Cherof stated if he sends the ordinance in word format, would it be reasonable for the working group to send the track changes and comments response about a week from today. Ms. Lhota explained there was a standing meeting and this was already on the agenda. Attorney Cherof stated the ordinance would be emailed tomorrow morning. Motion Commissioner Katz moved to approve. Vice Mayor Romelus seconded the motion. City Clerk Pyle called the roll. Vote 4-1 (Dissenting Mayor Grant) 24 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 9. CITY MANAGER'S REPORT - None 10. UNFINISHED BUSINESS A. PROPOSED RESOLUTION NO. R18-038 - Commission to consider a land sale agreement to Leisureville for land parcel adjacent to Palm Beach Leisureville. Attorney Cherof read proposed Resolution No. 18-038, by title only into the record. Motion Commissioner McCray motioned to remove from the table. Commissioner Casello seconded the motion. Vote Unanimously passed Mayor Grant asked for comments. Shirley Cass, 217 SW 4 Street, Palm Beach Leisureville, stated it was with disappointment and sadness that Palm Beach Leisureville, due to the HOA document and insurance will not be able to purchase land adjacent to Palm Beach Leisureville. She sincerely thanked the Commission, staff and residents for the opportunity to work together on a positive project. She was hopeful that it would remain an open green space as it was intended in 1990. Harold Eide, 1003 Reposo Avenue, stated several months ago, this Counsel gave thought and consideration as to what benefit the 3. 6 acre open green space, leisure park site could be to the residents of Boynton Beach. One possible benefit was a development of low income housing; another possibility was to have another group build a park. There was a third possible plan; which would benefit Boynton Beach residents. The City of Boynton Beach, like so many Cities in the Country, was giving up open spaces because of the cost to maintain the green space. Florida has land conservation groups, which would like to take ownership of this park site and leave it as it is, as open green space in perpetuity. All the surrounding communities would appreciate the benefit of no increase traffic, no decrease in open space. Many years ago the adjacent property owners understood this parcel was given to Boynton Beach as a future park site. Once this parcel is developed it would be lost as an open green space forever. It was up to this Council to decide the fate of this parcel. Commissioner Katz noted in speaking with staff about potential alternatives available in lieu of the withdrawal of Leisureville. He was hopeful that Leisureville, given some time could work around the obstacles to obtain and develop this parcel into a park. There was not an urgency to consider other options 25 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Commissioner Casello indicated there was no sense of urgency. This land has been there since 1990. There was no motion. 11. NEW BUSINESS- NONE 12. LEGAL PROPOSED ORDINANCE 18-006 FIRST READING - Approval of Ordinance amending Section 18-164 of the Code of Ordinances to provide for mutual consent regarding use of the 185 money; amending Section 18-169 to add normal retirement age definition for members who retire with (20) years of service only retirement, to provide for payment of death benefits to a designated beneficiary in the event that there is no spouse, and to add ten year vesting for Police Officers hired on or after October 1, 2016; adding a new Section 18-178 to add a rehire after retirement provision. Attorney Cherof read proposed Ordinance No. 18-006, by title only into the record. Mayor Grant asked for a Motion. Motion Commissioner Casello moved to approve. Commissioner Katz seconded the motion. Vice Mayor Romelus requested clarification on the current vesting period. Attorney Cherof responded he was not sure of the vesting period. Attorney Cherof stated this document came from Bonnie Jensen, who represents the pension board. Vice Mayor Romelus asked for an explanation of new Section 18-178 to add a rehire after retirement provision. What does that mean exactly? Attorney Cherof responded it was previously a prohibition under Federal regulation that prevented the rehiring of employee without forfeiture of their retirement benefits. This provision catches up with the clarification of the IRS provision and allows rehiring to occur under limited circumstances. Commissioner Katz asked if this was already agreed upon with the Police Pension Board and is intended to reflect the mutual consent agreement incorporated in the last collective bargaining agreement. Commissioner McCray asked if this relates to former officer Yanuzzi. Attorney Cherof did not recall the circumstances of the retirement. 26 Meeting Minutes City Commission Boynton Beach, Florida April 3, 2018 Ms. LaVerriere indicated a good example would be Scott Harris, a retired police officer and was rehired on a part time basis as a civilian. There were concerns that this employment would affect his police pension. If a police officer retires the City would not rehire the employee again as a police officer. Mr. Howard stated if a police officer retires and receives a police pension, the officer can be rehired by the City of Boynton Beach, but not in the capacity of a police officer. The employee may return under the general pension plan. Commissioner Casello indicated this does not prevent police officers from seeking employment with other agencies. City Clerk Pyle called the roll. Vote 5-0 13. FUTURE AGENDA ITEMS A. Staff to review PBC Ordinance on Panhandlers — April 2018 B. Update Commission on topic of dogs on beach - April 17, 2018 C. Quarterly report on red light camera program (Jan 2018 -Mar 2018) - April 17, 2018 D. Quarterly report on gov't surtax fund (Jan 2018 -Mar 2018) - April 17, 2018 E. Approve Major Site Plan Modification (MSPM 17-001) request for 104 Multi- family rental units and associated recreational amenities and site improvements, as well as a request for four (4) setback waivers, located on Lot 52 of Quantum Park, in the PID (Planned Industrial Development) zoning district. Applicant: John Lyon, Olen Properties. - April 17, 2018 F. Staff to bring information concerning the following land parcels for the Commission to review - TBD Nichols Property Rolling Green Girl Scout Park G. Vice -Mayor Katz has requested the City Attorney to provide update on legal issues with QPODD — TBD 27 Meeting Minutes City Commission Boynton Beach, Florida ril 3, 2018 H. Staff to bring back to Commission results of negotiation with property owner a real estate purchase and sale agreement between City of Boynton Beach and Brittany Bumgardner for a vacant parcel at the end of the SW 24th Avenue adjacent to 1-95 — TBD I. Staff to present Leases for temporary space for City Services during construction phase of the Town Square Project - April 17,2018 14. Adjournment Motion There being no further business to discuss, Commissioner McCray moved to adjourn. Commissioner Casello seconded the motion. 1V[•V' The motion unanimously passed. The meeting was adjourned at 9:05 p.m. (Continued on next page) Meeting Minutes City Commission Boynton Beach, Florida ATTES Judi A. Pyle, CMC City;Olerk Queenester Nieves Deputy City Clerk 29 ril 3, 2018 r - Steven B/9rant Vice Mftygr -19hristina Romelus r mi s n s i K omissione - ck C y Commi sioner - Joe Casello '-j 1312-o(B S6,00 R 44 FLORIDA TEXTILE RECYCLING PROGRAMS SMART -BIN TECHNOLOGY Supported by Technotogy We're bringing textile recycling to the 21st century with BLIP®, our Bin Location Information Program. Intelligent Bins powered by BLIP@ notify Clothes Bin® owner for servicing. This technology prevents bin from overflowing. BLIPO software creates most efficient service route for staff. Software allows drivers to take pictures of bin when servicing in real-time, allowing for regular scheduled maintenance Ft cleaning. Local Clothes Bin® owner contact information available to property owner for business and emergency purposes. . SHE t B�� } stiwt pout# canetatta r' Resize satdkse Site Bin Name Last Report Date Fitf a =' "" Parkway Muddle Schon( FL -339 Key tr Jul 10; 2017 22A 06 35391 Lyons Creek Middle School FL -333 Key ?i Jul 10, 2017 22:02 41 3539 Challenger Elementary School FL -309 Key Jul 10, 2017 22:00:06 2192 Driftwood Elementary School FL -317 Key # Jul 10, 2017 22:00:06 ci Si4 3301 Cypress Bap High School FL -356 Key # Jul 10, 2017 22:00.06 Q zs tss 841 3669 Dolphin Bay Elementary School FL -354 Key # Jul 07, 2017 22-00.06 >, .: W 3669 Silver Shores Elementary School FL -304 Key # Jul 10: 2017 22 00:05 d ` 2894 Big Beachside Montessori Village Center FL -329 Key If Jul 10: 2017 22.00:06 gas 3066 az �L.. c...,,Rs CL....n..t�... C..i....,E Ct QA1 IC.o. 40 I'd 4(1 0[1117 00-M.F1R ©� • • 77 �r...i� 8."+iffip6t G� Starting at Sunrise, Ft., USA finishing tit Sunrise, FL, USA Sites to be: serviced are sliow below, De -select any sites if you wish. Vvay C?Ents B Clear select+w. Beachside Monte Bethume Elemer 2 Lake Forest Elen Nova Elsenhowe Sandpiper Elemt J Sunset Lakes El( Route Details 0 Truck Type LDefardt Truck O Total Distance 63,66 ml a Estimated driving time 1.99 Hours Q Estimated servicing time 1.50 Hours O Estimated Travel Time .3.44 Hours 0 Estimated weight to be collected 2,848.00 ib 0 Estimated Carbon Emissions 174.06 Ib O Trip Efficiency 28.00 Ib/mi Route Profit & Loss 0 Total outgoings 0 Total revenue 0 Gross Profit (Loss) analysis Visual Samples of Recycling collection and Donation Boxes iuifstream Goodwill industries would use a white 400 lbs. textile recycle bin to ensure a clean; safe and welcoming experience for both the site and the residents who will be donating. The white conation bins also provides for clarity in the co -branding of The City of Boynton Beach's Textile Recycling initiative and Gulfstream Goodwill industries so that donors can fill assured their donations are going to worthy causes and changing lives. Labeling would be piaced on ail four sides of the bin for visibility. 'he image of the bins would also be used for marketing materials for residents and commercial businesses, as well as web site and social media promotions. ExamQle of proposed exterior labeling provided below, understanding the City of Boynton Beach of course nas the final design decision that meets the needs of the city. Vie. W eigh t: Gallons: Materisk 47.5" R+ x 39.5" D x 72.5" H 400 lbs 4$0 Gallons 14 and 16 Gauge Powder Coated Gahan'' -zed Sly Usuaily Ships in 7-12 Business DaYs Off:: C_h�"e S �-,L -�7-r j -P sf-v�Pe1� uS� rte �c r 20 ��ears Gy mo CL MING & SHOES RECYCLING BIN CLOTHING & SHOES 6) RECYCLING M ®IANIWR AW SMG:: *Tmm%vwr =THING &SHOES RECYCLING BIN PAc-K CLOTHING & SHOES RECYCLING BIN S0t 'TW t;EGYLG Bi! n 0 X[Ep YOUR CLOTHING HMO SgUES OUT OF LOT" URKOFILIS TEXTILEFRO GRAMS COM TEXTILE RECYCLING BIN DESIGN PRESENTED BY FLORIDA TEXTILE RECYCLING PROGRAMS V41D �Rj 4k T PRESENTED TO THE CITY OF BOYNTON BEACH OPTION #1 PHONE: 888-325.3877 i FAX: 855-420.6104 WEB: TEXTILEPROGRAMS.CCM 413P -ole a Iz Gopher tortoises prefer to live in dry, sandy environments, however, this is also where people build homes. As a result, habitat loss has caused tortoise populations to decline. Residents can still provide habitat for tortoises in the open, grassy areas of their neighborhoods. The following suggestions can help homeowners and gopher tortoises safely coexist: ■ Tortoise burrows can be identified by the half-moon shape of the burrow entrance. Avoid disturbing the area around the burrow. ■ An active burrow has a mound of soil extending outward from the entrance, created when a tortoise digs its burrow. ■ Do not put a tortoise in water. They are terrestrial animals that do not swim well. ■ Do not attempt to handle or feed a tortoise. ■ If you see a tortoise in the roadway, you can move it across the road in the direction it was headed. Do not put your life in danger to move a tortoise. ■ Take an injured tortoise to the nearest licensed wildlife rehabilitator or call the FWC. Gopher tortoises and pets Gopher tortoises have coexisted with native animals in Florida for centuries, but many tortoises have been injured or killed by domestic pets, particularly dogs. These encounters can be avoided by: ■ Training pets to avoid tortoises and their burrows. ■ Creating a barrier or changing existing fences to separate pets from tortoises. Tortoises should still move freely around your property. ■ Never leaving pets unsupervised near tortoise burrows. ■ Contacting your county animal control office for assistance if a pet enters a burrow. Legal protection The gopher tortoise is a threatened species. It is illegal to damage, destroy, harass, or kill gopher tortoises, their burrows or their eggs. To report a violation call the FWC's toll free Wildlife Alert Hotline at 1-888-404-3922 or report it online at: MyFWC.com/contact/wildlife-alert/ Relocation Gopher tortoise relocation is only appropriate where development is proposed within 25 feet of a tortoise burrow. Landowners must obtain permits from the FWC before relocating a gopher tortoise. For concerns regarding a burrow under an existing structure, contact the gopher tortoise conservation biologist in your region: MyFWC.com/license/wildlife/gopher-tortoise-permits/ contacts/. Learn more about living with gopher tortoises in urban areas, landscaping with tortoise -friendly plants, and ways to get involved by contacting the gopher tortoise office at 850-921-1030 or visit MyFWC.com/GopherTortoise. v Florida Fish and Wildlife 3 Conservation Commission (Q a WyMc.com Holland & Knight 515 E. Las Olas Boulevard, Suite 1200 1 Ft, Lauderdale, FL 33301 1 T 954.525.1000 1 F 954.463.2030 Holland & Knight LLP I www.hkiaw.com Janna P. Lhota (954) 468-7841 janna.lhota@hklaw.com April 3, 2018 Via Electronic Mail Mayor Steven B. Grant GrantS(ir),bbfl.us Vice Mayor Christina Romelus RomelusC(a)bbfl.us Commissioner Justin Katz Katz) e,bbfl.us Commissioner Mack McCray MccrayM(2bbfl.us Commissioner Joe Casello CaselloJkbbfl.us City of Boynton Beach 100 E. Boynton Beach Boulevard Boynton Beach, FL 33435 Re: City Commission Meeting — April 3, 2018 Item No. 8.D. — Proposed Ordinance No. 18-005 (Wireless Communications Facilities) Dear Mayor Grant, Vice Mayor Romelus and Commissioners: Holland & Knight LLP represents Verizon Wireless Personal Communications, L.P. ("Verizon Wireless"). Tonight, the City Commission will consider on first reading an Ordinance No. 2018-005 (Agenda Item No. 8.D) which seeks to revise the City of Boynton Beach's (the "City") Code as it relates to wireless facilities, both within the public rights-of-way ("ROW"), as well as on private property ("Draft Ordinance"). The changes that affect facilities in the ROW seek to implement changes approved by HB 687 to Section 337.401, Florida Statutes, regarding the deployment of small wireless facilities. Verizon Wireless recently became aware of the Draft Ordinance and have not been able to conduct a meaningful, in-depth review in advance of tonight's hearing. However, in quickly reviewing the Attachments to the Draft Ordinance, we noted several provisions that directly conflict with state and federal law. A few of these examples follow and refer to the Attachments included in the Agenda back-up for tonight's hearing. Again, this is not an exhaustive list of all concerns, comments or objections raised by our client, but hopefully helps illustrate the need for further, more meaningful dialogue between the City, Verizon Wireless and other industry members. 1. Page 10 (Attachment "B"), Table 3-29 — This Table outlines the approvals required for various types of wireless communications facilities not located in the ROW. It provides for an administrative approval for any mitigation of an existing wireless Anchorage I Atlanta I Austin j Boston I Chicago I Dallas I Denver Fort Lauderdale I Jacksonville I Lakeland I Los Angeles I Miami New York I Northern Virginia I Orlando I Portland I San Francisco Tallahassee I Tampa I Washington, D.C. I West Palm Beach Page 2 communications facility ("WCF"), antenna element replacement and/or collocation. Any replacement of a WCF that increases the height further requires a public hearing. Per Section F on Page 13, administrative approval is processed as a minor site plan modification. As an initial matter, Section 365.172(13)(e), Florida Statutes, makes it clear that certain modifications and/or replacement of existing wireless equipment is subject to no more than a building permit. Certain collocations are similarly required to be approved by building permit subject to a review to ensure compliance with this state law. Overriding Florida law is Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, codified at 47 U.S.C. § 1455(a), which provides that certain types of wireless installations that qualify as an "eligible facilities request" must be approved by building permit. As presently drafted, the Draft Ordinance does not comply with Florida or federal law regarding these types of installations. Lastly, the City exempts a complete segment of communications services, e.g. cable, from the definition of communications facilities in direct contravention of the express language of Section 337.401(3), Florida Statutes, which requires that the City's regulations be generally applicable to all communications services providers, nondiscriminatory and competitively neutral. 2. Page 2 (Attachment "C"), Definitions — Several of the definitions either do not track the definitions included in Section 202.11 or Section 337.401(7)(b), Florida Statutes. More importantly, several definitions need to be revised to reflect that these regulations are for facilities in the ROW and not private property. For example, the definition of "antenna" does not incorporate the definition provided in Section 337.401(7)(b), rather, it contemplates antennas placed within a building. Similarly, the definition of "collocation" does not utilize the definition in Section 337.401(7)(b), but rather appears to utilize the definition in Section 365.172(13), Florida Statutes for non -ROW installations which contemplates a collocation as the second or subsequent wireless facility. 3. Pages 6-7 (Attachment "C"), Section 25.1-4 — This Section provides for registration by entities seeking to place communications facilities in the ROW, which includes the provision of a Security Fund per Section 25.1-15 in the amount of $25,000.00. Per Chapter No. 2018-118 recently adopted by the Florida Legislature, the City can no longer require a communications services provider to provide a security fund consistent with Section 202.24, Florida Statutes. A copy of Chapter No. 2018-118 was provided to the City Attorney earlier today. 4. Page 9-10 (Attachment "C"), Section 25.1-6 — This Section outlines various prohibitions on the placement of wireless facilities, which includes small wireless facilities and micro wireless facilities. There are a number of concerns with this section. Of particular note is the prohibition against any strand mounted wireless facilities in subsection (1)(k). Section 337.401(7)(e), Florida Statutes, is clear that not only are micro wireless facilities allowed to be strand mounted, they are exempt from permitting if the facilities meet certain dimensions outlined in Section 337.401(7)(b), Florida Statutes. As noted previously, these are just a few examples where the Draft Ordinance violates or is inconsistent with both state and federal law. As a result, we strongly urge that the City Commission defer this item to allow meaningful input and dialogue with the City to craft Page 3 regulations that not only meet the City's objective design standards, but which are also consistent with applicable law. We look forward to working with you as we move this matter forward. Sincerely yours, HOLLAND & KNIGHT LLP (1,,a, -P (kAf Janna P. Lhota c: Lori LaVerriere, City Manager LaVerriereLnubbfl.us Judith A. Pyle, City Clerk PyleJ cniebbfl.us James Cherof, City Attorney chero jf bfl.us #56256446_vl Pyle, Judith From: Jim Cherof <JCherof@cityatty.com> Sent: Tuesday, April 03, 2018 4:25 PM To: 'Scott, Robert'; Grant, Steven; Romelus, Christina; Casello, Joseph; Katz, Justin; McCray, Mack Cc: Tolces, David; Pyle, Judith; Cooper, Derek (Florida); Stagliano, Dawn; LaVerriere, Lori Subject: RE: Comcast Request for Deferral, Ordinance No. 18-005, Telecommunications in Public Rights of Way Bob- I feel certain that you are aware that both the City code and Florida Statute requires that ordinances have two readings and that an ordinance is not deemed adopted until that process is complete. Tonight is just the first reading of the Ordinance. There will be sufficient time and additional notice before second and final reading. You and other interested parties will have sufficient opportunity to gather and express all your comments and opinions regarding the Ordinance. City code and Florida law permit amendments between first and second reading. Although the Commission has the authority to table the Ordinance on first reading tonight, I see no reason why they are compelled do so. James A. Cherof GOREN, CHEROF, DOODY & EZROL, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 Broward (954) 771-4500 x 304 Palm Beach (561) 276-9400 x 304 Fax (954) 771-4923 Email: icherof@cityatty.com www.cityatty.com From: Scott, Robert [mailto:BobScott@dwt.com] Sent: Tuesday, April 03, 2018 3:32 PM To: GrantS@bbfl.us; RomelusC@bbfl.us; Casello)@bbfl.us; KatzJr@bbfl.us; McCrayM@bbfl.us Cc: Jim Cherof; David Tolces; Pyle)@bbfl.us; Cooper, Derek (Florida); Stagliano, Dawn Subject: Comcast Request for Deferral, Ordinance No. 18-005, Telecommunications in Public Rights of Way Good afternoon ladies and gentlemen. Please see the attached correspondence on behalf of Comcast requesting a deferral of proposed ordinance 18-005, scheduled for first reading on tonight's agenda. Comcast joins other communications service providers in requesting a deferral of this item so that the ordinance might be revised to reflect state and federal law, and to consider the views of the affected industry participants. Thank you, Bob Scott I Davis Wright Tremaine LLP 1919 Pennsylvania Avenue NW, Suite 800 1 Washington, DC 20006-3401 Tel: (202) 973-4265 1 Mobile: (703) 628-1443 Email: bobscott0-)dwt.com 1 Bio: www.dwt.com/people/robert(iscoft6r Anchorage I Bellevue I Los Angeles I New York I Portland I San Francisco I Seattle I Shanghai I Washington, D.C. Pyle, Judith From: Scott, Robert <BobScott@dwt.com> Sent: Tuesday, April 03, 2018 3:32 PM To: Grant, Steven; Romelus, Christina; Casello, Joseph; Katz, Justin; McCray, Mack Cc: JCherof@cityatty.com; Tolces, David; Pyle, Judith; Cooper, Derek (Florida); Stagliano, Dawn Subject: Comcast Request for Deferral, Ordinance No. 18-005, Telecommunications in Public Rights of Way Attachments: boynton beach 040318.pdf Good afternoon ladies and gentlemen. Please see the attached correspondence on behalf of Comcast requesting a deferral of proposed ordinance 18-005, scheduled for first reading on tonight's agenda. Comcast joins other communications service providers in requesting a deferral of this item so that the ordinance might be revised to reflect state and federal law, and to consider the views of the affected industry participants. Thank you, Bob Scott I Davis Wright Tremaine LLP 1919 Pennsylvania Avenue NW, Suite 800 1 Washington, DC 20006-3401 Tel: (202) 973-4265 1 Mobile: (703) 628-1443 Email: bobscottCabdwt.com I Bio: www.dwt.com/people/robertgscottir Anchorage I Bellevue I Los Angeles I New York I Portland I San Francisco I Seattle I Shanghai I Washington, D.C. UDavisWright Tremaine LLP April 3, 2018 VIA EMAIL Mayor Steven B. Grant (GrantS@bbfl.us) Vice Mayor Christina L. Romelus (RomelusC@bbfl.us) Commissioner Justin Katz (KatzJr@bbfl.us) Commissioner Mack McCray (McCrayM@bbfl.us) Commissioner Joe Casello (CaselloJ@bbfl.us) City of Boynton Beach, City Hall 100 E. Boynton Beach Boulevard Boynton Beach, Florida 33435 1919 Pennsylvania Avenue, NW Suite 800 Washington, DC 20006 Robert G. Scott, Jr. 202-973-4265 — Telephone bobscott@dwt.com Re: City Commission Meeting Agenda Item 8.1) Request for Deferral Ordinance No. 18-005, Telecommunications in Public Rishts of Way Dear Mayor Grant, Vice Mayor Romelus, and Commissioners Katz, McCray and Casello: I write regarding the scheduled reading tonight of the referenced ordinance — which we only became aware of late Friday — proposing regulations for telecommunications facilities in the City's rights -of -ways. Comcast respectfully requests that the Commission defer this item to allow revisions both to reflect the practical concerns of the industry, and to bring the Ordinance into compliance with applicable law. We have not had time to fully analyze the proposed ordinance, but note two provisions which directly conflict with state law, and highlight the wisdom of a deferral. Micro Wireless Permitting Florida's Advanced Wireless Infrastructure Deployment Act unequivocally provides that a city "may not require approval or require fees or other charges for ... [i]nstallation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles in compliance with applicable codes by or for a communications services provider authorized to occupy the rights-of-way and who is remitting taxes under chapter 202."1 ' 337.401(7)(e), F.S. The provision allows a city to "require a right-of-way permit for work that involves excavation, closure of a sidewalk, or closure of a vehicular lane." Boynton Beach City Commission Page 2 April 3, 2018 Despite this clear prohibition on local permitting of micro wireless facilities, the proposed ordinance flatly prohibits the installation of any "wireless facility," which expressly includes "micro wireless facilities," without a permit.2 Moreover, the proposed ordinance further violates the statute by declaring that "Wireless facilities shall not be suspended on cables strung between existing utility poles in the City."3 This provision alone indicates the need for a deferral of the proposed ordinance to make sure that it meets the legal minimums of state and federal law, and to assure that City law promotes, rather than hinders, the deployment of wireless and wireline broadband infrastructure. Security Fund Separately, the proposed ordinance requires all entities to provide a $25,000 security fund in order to maintain any communications facility in the City rights of way, including wireless and micro wireless facilities.4 On March 23, 2018, however, the Governor signed H.B. 7087, which includes an amendment to 202.24, F.S. Under the amendment, effective July 1, 2018, a city may not lawfully impose any security fund on any communications service provider that remits the unified communications services tax. The proposed ordinance should be deferred to assure that it complies with this binding law. The above two provisions are only the most glaring problems with the proposed ordinance. Comcast therefore requests that the Commission defer this item for further revision to comply with applicable law, and to take into account the practical concerns of the affected industry. Re§Rectfully submitted, Robert G. Sco Cc: Ms. Lori LaVerriere, City Manager LaVerriereL@bbfl.us James Cherof, City Attorney JCherof@cityatty.com David Tolces, City Attorney DTolcs@cityatty.com Judith A. Pyle, City Clerk PyleJ@bbfl.us Derek Cooper, Comcast Dawn Stagliano, Comcast 2 See proposed Sec. 25.1-6(a) (permit requirement for wireless facilities in rights of way); Sec. 25.1-3(2)(definition of wireless facilities). 3 Proposed Sec. 25.-1-6(k). "Proposed Sec. 25.1-15. LDavis Wrig ht u Tremaine l_l_P April 3, 2018 VIA EMAIL Mayor Steven B. Grant (GrantS@bbfl.us) Vice Mayor Christina L. Romelus (RomelusC@bbfl.us) Commissioner Justin Katz (KatzJr@bbfl.us) Commissioner Mack McCray (McCrayM@bbfl.us) Commissioner Joe Casello (CaselloJ@bbfl.us) City of Boynton Beach, City Hall 100 E. Boynton Beach Boulevard Boynton Beach, Florida 33435 1919 Pennsylvania Avenue, NW Suite 800 Washington, DC 20006 Robert G. Scott Jr. 202-973-4265 — Telephone bobscott@dwt.com Re: City Commission Meeting Agenda Item 8.1) Request for Deferral Ordinance No. 18-005, Telecommunications in Public Rights of Way Dear Mayor Grant, Vice Mayor Romelus, and Commissioners Katz, McCray and Casello: I write regarding the scheduled reading tonight of the referenced ordinance — which we only became aware of late Friday — proposing regulations for telecommunications facilities in the City's rights -of -ways. Comcast respectfully requests that the Commission defer this item to allow revisions both to reflect the practical concerns of the industry, and to bring the Ordinance into compliance with applicable law. We have not had time to fully analyze the proposed ordinance, but note two provisions which directly conflict with state law, and highlight the wisdom of a deferral. Micro Wireless Permitting Florida's Advanced Wireless Infrastructure Deployment Act unequivocally provides that a city "may not require approval or require fees or other charges for ... [i]nstallation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles in compliance with applicable codes by or for a communications services provider authorized to occupy the rights-of-way and who is remitting taxes under chapter 202."l t 337.401(7)(e), F.S. The provision allows a city to "require a right-of-way permit for work that involves excavation, closure of a sidewalk, or closure of a vehicular lane." Boynton Beach City Commission Page 2 April 3, 2018 Despite this clear prohibition on local permitting of micro wireless facilities, the proposed ordinance flatly prohibits the installation of any "wireless facility," which expressly includes "micro wireless facilities," without a permit.2 Moreover, the proposed ordinance further violates the statute by declaring that "Wireless facilities shall not be suspended on cables strung between existing utility poles in the City."3 This provision alone indicates the need for a deferral of the proposed ordinance to make sure that it meets the legal minimums of state and federal law, and to assure that City law promotes, rather than hinders, the deployment of wireless and wireline broadband infrastructure. Security Fund Separately, the proposed ordinance requires all entities to provide a $25,000 security fund in order to maintain any communications facility in the City rights of way, including wireless and micro wireless facilities.4 On March 23, 2018, however, the Governor signed H.B. 7087, which includes an amendment to 202.24, F.S. Under the amendment, effective July 1, 2018, a city may not lawfully impose any security fund on any communications service provider that remits the unified communications services tax. The proposed ordinance should be deferred to assure that it complies with this binding law. The above two provisions are only the most glaring problems with the proposed ordinance. Comcast therefore requests that the Commission defer this item for further revision to comply with applicable law, and to take into account the practical concerns of the affected industry. Re ectfully submitted, Robert G. co Cc: Ms. Lori LaVerriere, City Manager LaVerriereL@bbfl.us James Cherof, City Attorney JCherof@cityatty.com David Tolces, City Attorney DTolcs@cityatty.com Judith A. Pyle, City Clerk PyleJ@bbfl.us Derek Cooper, Comcast Dawn Stagliano, Comcast 2 See proposed Sec. 25.1-6(a) (permit requirement for wireless facilities in rights of way); Sec. 25.1-3(2)(definition of wireless facilities). 3 Proposed Sec. 25.-1-6(k). 4 Proposed Sec. 25.1-15. Florida Administrative Register Volume 44, Number 58, March 23, 2018 Corporation's website at www.floridahousing.org, approximately two days prior to the meeting. Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Sheila Freaney at the Florida Housing Finance Corporation at (850)4884197. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). If any person decides to appeal any decision made by the Board with respect to any matter considered at this meeting or hearing, he/she will need to ensure that a verbatim record of the proceeding is made, which record includes the testimony and evidence from which the appeal is to be issued. For more information, you may contact: Sheila Freaney at the Florida Housing Finance Corporation at (850)488-4197. FLORIDA HOUSING FINANCE CORPORATION The Florida Housing Finance Corporation announces a public meeting to which all persons are invited. DATE AND TIME: May 4, 2018, 11:00 a.m. or upon adjournment of the FHFC II Inc. Board of Directors meeting, until adjourned. PLACE: Grand Hyatt Tampa Bay, 2900 Bayport Drive, Tampa, FL 33607 GENERAL SUBJECT MATTER TO BE CONSIDERED: 1. Conduct business necessary for the organization of FHFC III, Inc. 2. Consider adopting resolutions delegating operational authority to the Executive Director. 3. Consideration of all necessary actions with regard to any property owned or held by FHFC III, Inc. 4. Consideration of approval of underwriters for inclusion on approved master list and teams. 5. Consideration of all necessary actions for initiating new rules or rule amendments on an emergency or non -emergency basis. 6. Consideration of status, workouts, or modifications for existing projects. 7. Consideration of matters relating to the statutory purpose of FHFC III, Inc., to provide safe and sanitary housing that is affordable for the residents of Florida. 8. Such other matters as may be included on the Agenda for the May 4, 2018, Board ;Meeting. A copy of the agenda may be obtained by contacting: Sheila Freaney, Board Liaison, Florida Housing Finance Corporation, 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32301-1329, phone number (850)488-4197, or by visiting the Corporation's website at www.floridahousing.org, approximately two days prior to the meeting. Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Sheila Freaney at the Florida Housing Finance Corporation at (850)488-4197. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice). If any person decides to appeal any decision made by the Board with respect to any matter considered at this meeting or hearing, he/she will need to ensure that a verbatim record of the proceeding is made, which record includes the testimony and evidence from which the appeal is to be issued. For more information, you may contact: Sheila Freaney at the Florida Housing Finance Corporation at (850)488-4197. CITY OF BOYNTON BEACH The City of Boynton Beach announces a public meeting to which all persons are invited. DATE AND TIME: April 3, 2018, 6:30 p.m. PLACE: City Hall, Commission Chambers, 100 E Boynton Beach Boulevard, Boynton Beach, FL 33435 GENERAL SUBJECT MATTER TO BE CONSIDERED: The City of Boynton Beach, gives notice of proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or right- of-way. The proposed ordinance amends the City of Boynton Beach Code of Ordinance provisions regulating telecommunications towers and antennas to expressly address current industry practices with respect to installation of personal wireless service facilities in the public rights-of-way. A copy of the agenda may be obtained by contacting the City Clerk's Office at (561)742-6061 or by visiting City Hall during regular business hours. Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 48 hours before the workshop/meeting by contacting the City Clerk's Office at (561)742-6061. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955- 8770 (Voice). Florida Birth -Related Neurological Injury Compensation Association The Florida Birth -Related Neurological Injury Compensation Association announces a public meeting to which all persons are invited. DATE AND TIME: April 6, 2018; 10:00 a.m. PLACE: Hyatt Regency Orlando International Airport, 9300 Jeff Fuqua Blvd. Orlando. FL 32827. 1(407)825-1327 1409 DEPARTMENT OF DEVELOPMENT MEMORANDUM NO. PZ 18-018 TO: Judith A Pyle, CMC City Clerk M' J ' \ FROM: Michael W. Rumpf Director of Planning & Zoning DATE: March 19, 2018 RE: City -initiated Telecommunications Code Revision CDRV 18-001 This memorandum regards the above -referenced revision to the Code of Ordinances (Part II Chapter 25.1) and the Land Development Regulations (Part III, Chapter 3, Article V. Sections 12 and 13) for Telecommunications in Public Rights -of -Way. This is a City -initiated item requiring notice to be published in the Florida Administrative Register of the First Reading of the corresponding ordinance by the City Commission on April 3, 2018. The legal notice will be forwarded to your office after approval by the City Attorney. MWR:kh REQUEST FOR PUBLISHING LEGAL NOTICES AND/OR LEGAL ADVERTISEMENTS A completed copy of this routing slip must accompany any request to have a Legal Notice or Legal Advertisement published and must be submitted to the Office of the City Attorney two (2) working days prior to the first publishing date requested below. ORIGINATOR: Planning and Zoning Division PREPARED BY: Michael Rumpf DATE PREPARED: March 14, 2018 BRIEF DESCRIPTION OF NOTICE OR AD: City -initiated revision to the Code of Ordinances (Part II Chapter 25.1) and the Land Development Regulations (Part III, Chapter 3, Article V. Sections 12 and 13) for Telecommunications in the Public Rights -of -Way. SPECIAL INSTRUCTIONS AND REQUIREMENTS: (Size of Headline, Type Size, Section Placement, Black Border, etc.) Legal Ad for the April 3, 2018 (1St Reading) City Commission meeting. SEND COPIES OF AD TO: Florida Administer Register and Planning and Zoning Director_ NEWSPAPER(S) TO PUBLISH: The Florida Administrative Register DATE (S) TO BE PUBLISHED: March 24, 2018 in the FAR LAST DATE TO FAX TO NEWSPAPER: March 21, 2018 APPROVED BY: (1) ✓i (Originator) (2) (City Attorney) RECEIVED BY CITY CLERK: COMPLETED: (Date) (Date) LEGAL AD FOR TELECOMMUNICATIONS IN PUBLIC RIGHTS-OF-WAY REQUIRED TO BE PUBLISHED 10 DAYS PRIOR TO 1ST READING IN THE FLORIDA ADMINSTRATIVE REGISTER: The City of Boynton Beach, gives notice of proposed ordinance governing a telecommunications company placing or maintaining telecommunications facilities in its roads or rights-of-way. FIRST READING TO BE HELD: DATE AND TIME: April 3, 2018 at 6:30 p.m. PLACE: City Commission Chambers, 100 East Boynton Beach Boulevard, Boynton Beach, Florida 33435 SUBJECT: The proposed ordinance amends the City of Boynton Beach Code of Ordinance provisions regulating telecommunications towers and antennas to expressly address current industry practices with respect to installation of personal wireless service facilities in the public rights-of-way. A copy of the proposed ordinance can be obtained by calling the City Clerk's Office at (56 i) 742-606'i , or by visiting City Haii during reguiar business hours. REQUEST FOR PUBLISHING LEGAL NOTICES AND/OR LEGAL ADVERTISEMENTS A completed copy of this routing slip must accompany any request to have a Legal Notice or Legal Advertisement published and must be submitted to the Office of the City Attorney two (2) working days prior to the first publishing date requested below. ORIGINATOR: Planning and Zoning Division PREPARED BY: Michael Rumpf DATE PREPARED: March 14, 2018 BRIEF DESCRIPTION OF NOTICE OR AD: City -initiated revision to the Code of Ordinances (Part II Chapter 25.1) and the Land Development Regulations (Part III, Chapter 3, Article V. Sections 12 and 13) for Telecommunications in the Public Rights -of -Way. SPECIAL INSTRUCTIONS AND REQUIREMENTS: (Size of Headline, Type Size, Section Placement, Black Border, etc.) Legal Ad for the April 3, 2018 05, Reading) City Commission meeting. SEND COPIES OF AD TO: Florida Administer Register and Planning and Zoning Director. NEWSPAPER(S) TO PUBLISH: The Florida Administrative Register DATE (S) TO BE PUBLISHED: March 24, 2018 in the FAR LAST DATE TO FAX TO NEWSPAPER: March 21, 2018 APPROVED BY: (Originator) (2) (City Attorney) RECEIVED BY CITY CLERK: COMPLETED: (Date) (Date) Stanzione, Tammy From: Swanson, Lynn Sent: Tuesday, March 20, 2018 4:45 PM To: Stanzione, Tammy Cc: Rumpf, Michael Subject: FW: legal ad for tele comm tower in rights-of-way item - signed pdf and word versions Approved by Jim Cherof L".; arson City ;Jc-o,n�.•).n I., arh Boynton Leach, Ft idu :;34�5 '�� �4"J�3n�c1nL�7"�`rl'il.i1S j (its:p:II4t�L;,,te..bC�yilt'Jn-k!e:ei:.ar�,,' LA fI America's Gateway to the Gulfstream �: U rc..tjrds I w anc. ail i i :, i � I:' r :0 ..—D , :�. :,* '! . , •),- - U')' r _ tC 1'rF`.I i1, .'1 law, -cs are�)i it3ilC f@r(?fi�f,. Ti?..i -Fore ?r"!" -msN CG'i f:.� fl c 1.?l ; :`u From: Jim Cherof [mailto:JCherof@cityatty.coml Sent: Tuesday, March 20, 2018 4:44 PM To: Swanson, Lynn <SwansonL@bbfl.us> Subject: RE: legal ad for tele comm tower in rights-of-way item - signed pdf and word versions approved From: Swanson, Lynn [mailto:Swanson&bbfl.us] Sent: Monday, March 19, 2018 4:30 PM To: Jim Cherof Cc: Melody S. Dorsch Subject: FW: legal ad for tele comm tower in rights-of-way item - signed pdf and word versions Legal ad for your review and signature 1 t•rr�--air_^,n C'. 01, o- i3uynccm G2 -cil 100 E. Ooynto)1 Ber}ch i;lvd. I s(aynton Beach, I'io; ida 3::^35 t,. 1)61-742-6053 .'M?`I1.('s ( m America's Gateway to the Gulfstream i3 ii`�Is ri l ...."lc>rlda Ki: -.broad pubix -Cords and a'; Cn''iespunclence Co :re via em -,,P ;nzy be Sutiject to il�::_.. _ :e.Ui)(1��. r�nrl,:�. fCwl`f15 law, •''m>.ii ..+Ut:ICe$5�3$ dr<= public. r�COrti�. Th::'ii?fUr%, yOaf F:-n)::II ^Ur))i)IUnlldtlUri %inti 't)t'r.•'-ir `i' i;:.iCti=::�._ ci1�':�+ l!;_ i'�i i ri, �(' r "Ic r::. I) e.. : i i�u . +li. •1iSCl;...,u From: Rumpf, Michael Sent: Monday, March 19, 2018 4:28 PM To: Swanson, Lynn <SwansonLgbbflus>; Stanzione, Tammy <StanzioneT bbfl.us> Cc: Pyle, Judith <PyleJ@bbfl.us> Subject: legal ad for tele comm tower in rights-of-way item - signed pdf and word versions Tammy I left a draft ad on your desk prompting your call to advise if there are any rules I'm not aware for processing ads to the FAR. Assuming there aren't, I've attached clean copies ready to go unless they need ediiing by anyone. Please advise if changes are needed to the ad or cover sheets. Mike .�hi.i•:::V Liliii� [::ri:'.lUi �;..,;:IuNm;2?i;, Planniog & Zoning -i y or f;.)ynton G=-;,ich iOG G. Buyr,ton i3c,-jch Fslvd. I Boynton Bcach, Florida 33435 r� ..F fli'ip:��l.'o.e`tv.bOy'r)CQf�-"}%3L}7.( 1'g� America's Gateway to the Gulfstream ,a, i c�.! �c; ttr�i. F!o, i:: 1: s =.� h• _ publ:iz r-2cor`as kiw and :'I U -r:._ ;)':,..!2 -IC, :o rn ::'!i- _..2 _'.I ' . sl ;- o _ro.,; ,Vr�i. 'S J.,..: -i.: i1 _. �'�ti;ss ii��:� + �_ .:th:�--c i�a p�.!��lit: tiisa�•. �.ar�. 2 Pyle, Judith From: dmartohuelaw@outlook.com Sent: Tuesday, April 03, 2018 4:53 PM To: Grant, Steven; Romelus, Christina; KatzJr@bfl.us; McCray, Mack; Casello, Joseph Cc: Pyle, Judith; LaVerriere, Lori; JCherof@cityatty.com; Tolces, David Subject: T -Mobile's initial comments to proposed amendment to Ch. 25 re ROW Communications Ordinance Item 8.D. Attachments: Attach ment_to_Ch_25.1-telecom munications. pdf; TMO Letter Opposing Boynton Beach ROW Ord No 18-005 4-3-2018.pdf; Boynton Beach Ch 25 ROW Comm Ord 1st Reading 4-3-2018 with T -Mobile comments.docx Dear Mayor & Commissioners: As a follow up to my letter this morning requesting a deferral of First Reading this evening to allow sufficient time to review and provide meaningful input to a complex Ordinance, on behalf of T -Mobile, attached is an annotated and redlined version of Ch. 25 (Attachment C). By no means should this initial set of comments and proposed language be considered an exhaustive and comprehensive list of comments but rather, those identified immediately upon first blush. Due to time constraints resulting from confusion as to whether or not this evening's meeting was a workshop or first reading until yesterday afternoon, I was unable to complete my review of the proposed amendments to Ch. 13 (Attachment B). However, I believe the attached annotated Ordinance highlights sufficient and material issues warranting further dialogue with the City and its Staff before final adoption of a ROW Communications Ordinance. You will note I have a few placeholders in areas that require additional research and/or technical feedback from engineering. Obviously, time constraints prevented me from providing a summary list of issues condensed and organized in a letter which is my preferred method of delivery. I have received and reviewed a copy of Verizon's letter filed with your City today and concur with Ms. Lohta's comments and requests. Our desire is to work collaboratively with the City to produce an Ordinance that complies with state and federal laws as well as encourages investment to strengthen and create reliable state of the art communications services to your residents, businesses and visitors. Thank you in advance for your time and consideration. Deborah L. Martohue Esq., AICP Martohue Land Use Law PA 1036 2311 Avenue N. St. Petersburg, FL 33704 Office: 727.256.1211 Mobile: 727.460.8431 Email: dmartohuelaw(Aoutlook.com Please note new address and phone number and update your rile contacts. Thank you. PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is the property of Martohue Land Use Law P.A. It is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Distribution or copying of this e-mail, or the information contained herein, to anyone other than the intended recipient is prohibited. If you have received this e-mail in error, please immediately notify the sender by e-mail at dmartohuelaw(u�outlook.coin or telephone at 727-256.1211. Please delete and destroy any copies of this e-mail. Please consider the environment before printing this email. Thank you. PART II. CODE OF ORDINANCES CHAPTER 25.1 - COMMUNICATIONS RIGHTS-OF-WAY Sec. 25.1-1 Title. This Chapter shall be known and may be cited as the City of Boynton Beach Communications Facilities in Public Rights -of Way Ordinance. (Ord. No. 01-29, § 3, 7-3-01) Sec. 25.1-2. Intent and Purpose; Applicability to State-controlled Rights -of -Way. (1) Intent and purpose. It is the intent of the city to promote the public health, safety and general welfare by: (a) providing for the placement or maintenance of communications facilities in the public rights-of-way within the city; (b) adopting and administering reasonable rules and regulations not inconsistent with state and federal law, including Florida Statutes § 337.401 as it may be amended by the Advanced Wireless Deployment Act, the city's home -rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996 and other federal and state law; (c) establishing reasonable rules and regulations necessary to manage the placement or maintenance of communications facilities in the public rights-of-way by all communications services providers; (d) protecting the city's unique and extraordinary aesthetic qualities; and (e) minimizing disruption to the public rights-of-way. In regulating its public rights- of-way, the city shall be governed by and shall comply with all applicable federal and state laws. (Ord. No. 01-29, 4,7-3-01) (2) State-controlled rights-of-way. This chapter shall apply to wireless and communications facilities in public rights-of-way under the control and jurisdiction of the city. This article shall also apply to wireless and communications facilities in public rights-of-way under the control and iurisdiction of the Florida Department of Transportation, provided that the City is authorized to apply this article under a permit -delegation agreement between the city and Department in accordance with F.S. � 337.4010)(a), or as otherwise provided by law. Sec. 25.1-3. Definitions. (1) Generally. For purposes of this chapter, the following terms, phrases, words and their abbreviations and derivations shall have the meaning given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. "And" and "or" may be read conjunctively or disjunctively. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined in this chapter shall be given the meaning set forth in Title 47 of the United States Code, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended. (2) Definitions: Abandonment shall mean the permanent cessation of all uses of a communications facility; provided that this term shall not include cessation of all use of a facility within a physical structure where the physical structure continues to be used. For example, cessation of all use of a cable within a conduit, where the conduit continues to be used, shall not be Abandonment of a facility in public rights-of-way. Antenna means any transmitting or receivinq device mounted on, within, or incorporated into a tower, building or structure and used in communications that radiate or capture electromagnetic waves digital signals analog signals radio frequencies (excluding radar signals), light, wireless telecommunications signals or other communication signals. For the purposes of this , the term "antenna" does not include any device designed for over -the -air reception of radio or television broadcast signals or multi -channel multi -point distribution service. Applicable codes means uniform building fire electrical, plumbing, or mechanical codes adopted by a recognized national code organization and the Florida Building Code and the Florida Fire Prevention Code and or local amendments to those codes enacted to address building, accessibility and fire code standards and threats of destruction of property or injury to persons, or local codes or ordinances adopted to implement this subsection The term includes obiective design standards adopted by ordinance that may require a small wireless facility to meet reasonable location context color, stealth and concealment requirements. The term also includes objective design standards adopted by ordinance that may require a new utility pole that replaces an existing utility pole to be of substantially similar design material and color or that may require reasonable spacing requirements concerning the location of ground -mounted equipment. Applicant means the person registering and applying to locate wireless facilities in the right-of- way of the city and includes the applicant's successors -in -interest and anyone owning and maintaining the wireless facilities. Application means a request submitted by an application to an authority for a permit to place or co -locate wireless facilities. Authority means a county or municipality having jurisdiction and control of the public rights-of-way of any public road. City shall mean the City of Boynton Beach, Florida. Where appropriate, the word "City" may refer to the City Commission or the relevant City officer or Board considering an application under this chapter. City -owned real property means real property to which the city holds title, easement, or a leasehold interest but does not include the public rights-of-way. City -owned facility or city -owned structure means any facility structure or infrastructure to which the city holds title easement or a leasehold interest including but not limited to, communications facilities utility poles towers buildings and communications infrastructure, regardless of whether located within or outside the public rights-of-way. Cluttered shall mean placement in a confused disordered disorganized, or mumbled or crowded state which can occur when too much is located in too small of an area given the reasonable location context. Collocation means the placement on or within an existing structure of a second or subsequent antenna The term includes the ground platform or roof installation of equipment enclosures, cabinets or buildings and cables brackets and other equipment associated with the placement, location or operation of the second or subsequent antenna 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. Communications Services shall mean the transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. Notwithstanding the foregoing, for purposes of this chapter, cable service, as defined in Florida Statutes § 202.11(2), as it may be amended, is not included in the definition of Communications Services and cable service providers or providers of service via an open video system may be subject to other ordinances of the city. Communications Services Provider shall mean any person, including a municipality or county, providing communications services through the placement or maintenance of a communications facility in public rights-of-way. Communications Services Provider shall also include any person, including a municipality or county, that places or maintains a communications facility in public rights-of-way but does not provide communications services. Communications FacilityLJesj or Facility or System(s) shall mean any permanent or temporary physical plant, equipment and property, including, but not limited to, cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or to be placed or maintained in the public rights-of-way of the city and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer communications services. The term includes wireless facilities. Communications tower or tower means a building -mounted or ground -mounted tower, pole -type, lattice or other structure that has the sole or primary purpose of supporting communication (transmission and/or receiving) equipment for telephone radio television microwave, cellular and/or similar other communication purposes Towers may include self-supporting lattice towers, guyed towers or monopole towers The term includes radio and television transmission towers, microwave towers common -carrier towers cellular telephone towers, alternative tower structures and the like The term includes the structure and any support thereto. Concealed means a tower, ancillary structure equipment compound or communications facility or area (collectively "physical improvements") that is not readily identifiable as such, and is designed to be aesthetically compatible with existing and proposed building(s) and uses on and adjacent to the proposed location of such physical improvements. Distributed Antenna System orDAS is a network of spatially separated antenna modes connected to a common source within a geographic area or structure. A DAS is a Wireless Communication Facility. FCC shall mean the Federal Communications Commission. In Public Rights -of -Way or in the Public Rights -of -Way shall mean in, on, over, under or across the public rights-of-way. Maintain shall mean to exercise physical control over a wireless facility in the public rights-of-way, including ownership or the right to maintain and repair. A person providing service only through resale or only through use of a third party's unbundled network elements is not "maintaining" the wireless facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights-of-way does not constitute "maintaining" facilities in the public rights-of-way. Micro wireless facility means a small wireless facility having dimensions no larger than 24 inches in length 15 inches in width and 12 inches in height and an exterior antenna, if any, no longer than 11 inches. Ordinance shall mean this Ordinance. Pass-through provider means any person who, upon registering with the city, places or maintains a communications facility in the city's rights-of-way and that does not remit communications service taxes as imposed by the city pursuant to Florida Statutes Ch. 202. Permit means the public rights-of-way permit that must be obtained before a person may construct in the public rights-of-way and shall include but not be limited to the City's public rights-of-way engineering and construction permits issued by the City Engineer or his or her designee. Person shall include any individual, child, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, all other groups or combinations, and shall include the city to the extent the city acts as a communications services provider. Place or maintain or placement or maintenance or placing or maintaining shall mean to erect, construct, install, maintain, grade, excavate, place, repair, extend, replace, expand, remove, occupy, locate or relocate. A communications services provider that owns or exercises physical control over communications facilities in public rights-of-way, such as the physical control to maintain and repair, is placing or maintaining the facilities. A party providing service only through resale or only through use of a third party's unbundled network elements is not placing or maintaining the communications facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights-of- way does not constitute placing or maintaining facilities in the public rights-of-way. Pole Attachment means any attachment of a wireless facility by a wireless provider to an existing utility pole or structure utilized for electric telephone cable television street lights, or other lighting, and other utilities. Public Rights -of -Way shall mean a public right-of-way, public utility easement, public highway, street, lane, bridge, sidewalk, road, waterway, tunnel, alley, or similar property regardless of which governmental entity has jurisdiction and control over such for which the city is the authority that has jurisdiction and control and may lawfully grant access to such property pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface to the extent the city holds a property interest therein. Public Rights -of -Way shall not include private property. Public Rights -of -Way shall not include any real or personal city property except as described above and shall not include city buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the public rights-of-way. No reference herein, or in any permit, to public rights-of-way shall be deemed to be a representation or guarantee by the city that its interest o9r other right to control the use of such property is sufficient to permit its use for such purposes, and a registrant shall be deemed to gain only those rights to use as are properly in the city and as the city may have the undisputed right and power to give. Registrant shall mean a communications services provider or other person that has registered with the city in accordance with the provisions of this chapter. Registration or Register shall mean the process described in this chapter whereby a communications services provider provides certain information to the city. Small wireless facility or small wireless facilities means a wireless facility that meets the followinq qualifications: (a) Each antenna associated with the facility is located inside an enclosure of no more than 6 cubic feet in volume or, in the case of antennas that have exposed elements, each antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet in volume: and (b) All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, ground-based enclosures, grounding equipment, power transfer switches, cutoff switches, vertical cable runs for the connection of power and other services, and utility poles or other support structures. Stealth design means a method of camouflaging any tower, antenna, wireless facilities, or other ancillary supporting communications facility, including, but not limited to, supporting electrical, optical or mechanical or other equipment, which enhances compatibility with adjacent land uses and which is visually and aurally unobtrusive. Stealth design may include a repurposed structure. Utility pole means a pole or similar structure that is used in whole or in part to provide communications services or for electric distribution, street lights or other lighting, cable television, traffic control signage or a similar function. The term includes the vertical support structure for traffic lights but does not include a horizontal structure to which signal lights or other traffic control devices are attached and does not include a pole or similar structure 15 feet in height or less unless an authority grants a waiver for such. Wireless facility or wireless facilities means equipment at a fixed location which enables wireless communications between user equipment and a communications network, including radio transceivers antennas distributed antenna systems ("DAS"), wires, coaxial or fiber-optic cable or other cables regular and backup power supplies and comparable equipment, regardless of technological configuration and equipment associated with wireless communications. The term includes small wireless facilities and micro wireless facilities. The 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 (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 certificated to provide telecommunications service 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 provider means a wireless infrastructure provider or a wireless services provider. Wireless services means any services provided using licensed or unlicensed spectrum, whether at a fixed location or mobile. usina wireless facilities. Wireless services provider means a person who provides wireless services. 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. Sec. 25.1-4. Registration for Placing or Maintaining Communications Facilities in Public Rights -of -Way. (1) A communications services provider that desires to place or maintain a communication facility in public rights-of-way in the city shall first register with the city in accordance with this chapter. Subject to the terms and conditions prescribed in this chapter, a registrant may place or maintain a communication facility in public rights-of-way. A communications services provider with an existing communications facility in the public rights-of- way of the city as of the effective date of this ordinance shall comply with this chapter within sixty (60) days from the effective date of this chapter, including, but not limited to, registration, or be in violation thereof. (2) A registration shall not convey any title, equitable or legal, to the registrant in the public rights-of-way. Registration under this chapter governs only the placement or maintenance of communications facilities in public rights-of-way. Other ordinances, codes or regulations may apply to the placement or maintenance in the public riqhts-of-way of facilities that are not communications facilities. Registration does not excuse a communications services provider from obtaining appropriate access or pole attachment agreements before locating its facilities on the city's or another person's facilities. Registration does not excuse a communications services provider from complying with all applicable city ordinances, codes or regulations, or submitting right-of-way permit applications, including this chapter. (3) Each communications services provider that desires to place or maintain a communication facility in public rights-of-way in the city shall file a single registration with the city which shall include the following information: (a) Name of the applicant; (b) Name, address, email address, and telephone number of the applicant's primary contact person in connection with the registration, and the person to contact in case of an emergency; (c) For registrations submitted prior to October 1, 2001, the applicant shall state whether it provides local service or toll service or both; (d) Evidence of the insurance coverage required under this chapter and acknowledgement that registrant has received and reviewed a copy of this chapter, which acknowledgment shall not be deemed an agreement; (e) A copy of the applicant's certificate of authorization or license to provide communications services issued by the Florida Public Service Commission, the Federal Communications Commission, or other federal or state authority, if any; (f) For an applicant that does not provide a Florida Public Service Commission certificate of authorization number, if the applicant or registrant is a corporation or limited liability company, proof of authority to do business in the State of Florida, including the number of the certificate of incorporation; (g) A security fund in accordance with this chapter. (4) The Utilities and Engineering Departments shall review the information submitted by the applicant. If the applicant submits information in accordance with subsection (3) 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 information has not been submitted in accordance with subsection (3) above, the city shall notify the applicant of the non -effectiveness of registration, and reasons for the non -effectiveness, in writing. The city shall so reply to an applicant within thirty (30) days after receipt of registration information from the applicant. Non - effectiveness of registration shall not preclude an applicant from filing subsequent applications for registration under the provisions of this section. (5) Cancellation of Registration. A registrant may cancel a registration upon written notice to the city stating that it will no longer place or maintain any communications facilities in public rights -of- way within the city and will no longer need to obtain permits to perform work in public rights -of- way. A registrant cannot cancel a registration if the registrant continues to place or maintain any communications facilities in public rights-of-way. (6) Limited Rights conferred by Registration. Registration shall not in itself establish any right to place or maintain or priority for the placement or maintenance of a communication facility in public rights-of-way within the city, but shall establish for the registrant a right to apply for a permit, if permitting is required by the city. Registrations are expressly subject to any future amendment to or replacement of this chapter and further subject to any additional city's ordinances, as well as any state or federal laws that may be enacted. (7) A registrant shall renew its registration with the city by April 1 of even numbered years in accordance with the registration requirements in this chapter, nowt o,ion RumbeFed "oar- Within thirty (30) days of any change in the information required to be submitted pursuant to subsection (3), except, as of October 1, 2001, subsection (3)(c), a registrant 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 permits until the communications services provider has complied with the registration requirements of this chapter. (8) In accordance with applicable city ordinances, codes or regulations and this chapter, a right-of-way utilization permit and a building permit shall be required of a communications services provider that desires to place or maintain a communication facility in public rights-of-way. An effective registration shall be a condition precedent to obtaining a permit. Notwithstanding an effective registration, permitting requirements shall continue to apply. A permit may be obtained by or on behalf of a registrant having an effective registration if all permitting requirements are met. Individual rights-of-way permits shall be obtained from the Department of Engineering on appropriate form currently in use. City -owned Structures Facilities and Real Property. The city may construct or designate existing city -owned structures facilities and real property within or outside the public rights-of-way, including any accompanying equipment or communications facilities necessary to provide communications services via such structures facilities or real property, for the purpose of housing privately or publicly owned antennas and other communications facilities, or to provide communications services to or support the provision of communications services by, providers of communications services within the city. The city may allow the placement of an antenna or other communications facility upon a city owned structure or real property or otherwise allow the use of city -owned facilities outside of the rights-of-way upon such terms as the city may deem acceptable in writing and subject to such rental use utility license or other fees as may be consistent with the law and established by the city commission via resolution. (a) In the interests of facilitating the safe efficient, and aesthetically desirable use of the public rights-of-way and to otherwise avoid the negative effects upon the public welfare of and address safety concerns relating to proliferation of structures within the rights-of-way the city may offer to an applicant who wishes to install construct, place or maintain an antenna or other communications facility in the public rights-of-way to place or co -locate such antenna or communications facility upon or within a city -owned structure outside of the rights-of-waV where feasible Such antenna or communications facility shall meet the requirements of this chapter. The city reserves and does not waive any right that the city may have in its capacity as a property owner or utility provider with respect to city -owned structures, facilities and real property, and may exercise control over such to the extent not prohibited by law. When the city allows the placement of communications facilities upon or the use of city -owned structures facilities and real property the city shall be deemed to be acting within its proprietary capacity or capacity as a utility provider, as appropriate and otherwise consistent with the law. The provisions of this article shall not limit the city's discretion with respect to the use installation construction placement or maintenance of city -owned structures facilities, and real property. Sec. 25.1-5. Transfer, Sale or Assignment of Assets in Public Rights -of -Way. (1) If a registrant transfers, sells or assigns its assets, located in public rights-of-way incident to a transfer, sale or assignment of the registrant's assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this chapter. Written notice of any such transfer, sale or assignment shall be provided by such registrant to the city within twenty (20) days after the effective date of the transfer, sale or assignment. If the transferee, buyer or assignee is a current registrant, then the transferee, buyer or assignee is not required to re -register. If the transferee, buyer or assignee is not a current registrant, then the transferee, buyer or assignee shall register as provided in Section 25.1-2- 4 within sixty (60) days of the transfer, sale, or assignment. (2) If permit applications are pending in the registrant's name, the transferee, buyer or assignee shall notify the Engineering and Utilities Departments that the transferee, buyer or assignee is the new applicant. (3) Any encumbrance on the communications facilities of the registrant in the public rights-of-way shall be subject and subordinate to the rights of the city under this chapter and applicable law. (Ord. No. 01-29 § 7, 7-3-01) Sec. 25.1-6. Placement or Maintenance of a Communication Facility in Public Rights -of - Way. Prohibitions (a) No wireless facilities or other communications facilities shall be installed in the City's rights-of-way without a right-of-way utilization permit. (b) Wireless facilities other than small wireless facilities and micro wireless facilities, are prohibited within the public rights-of-way. (c) To comply with clear zone requirements no wireless facilities or other communications facilities shall be closer than 8 feet from the street curb or edge of pavement if no curb is present. (d) Wireless facilities are prohibited within the public rights-of-way of roadways and railways under the jurisdiction and control of the Florida Department of Transportation unless approved by the City. (e) Wireless facilities are prohibited on utility poles owned by a municipal electric utility, utility poles owned by the city and utility poles used to support municipally owned or operated electric distribution facilities unless expressly permitted herein. (f Wireless facilities are prohibited on arms used to support or mount traffic control signals and warning signals and on arms attached to utility poles. (q) Wireless facilities are prohibited in the rights-of-way of any geographic area approved as an historic district either by the city the State of Florida or listed on the National Register of Historic Places unless: 1. The city's Historic Preservation Board recommends approval of the method to deploy the wireless facilities in stealth so as not to detract from contributing historic structures and the ambiance of the district; and 2. The City accepts the recommendation and approves of the application. Wireless facilities are prohibited on utility poles or similar structures 15 feet or less in height unless incorporated into and hidden in the pole under a top mounted street light. Wireless facilities shall not interfere with electrical lines, cable lines, or their associated equipment. Wireless facilities shall be at least 20 feet away from energized electrical distribution lines. Wireless facilities may not be hung from energized lines or mounted on poles suspending energized lines or on poles to be removed in conjunction with any undergrounding of electric utilities. Wireless facilities may not block or interfere with the view of signs of commercial businesses or street signs. Wireless facilities shall not be suspended on cables strung between existing utility poles in the City. The applicant or applicant's successor must agree to remove the wireless facilities at any time if warranted by public health or safety as determined by the City. For the safety of electrical utility workers and members of the public: (a) Wireless facilities collocated if allowed on the same utility pole as a street light shall be on the same disconnect as the street light; Wireless facilities shall be grounded and otherwise comply fully with all applicable electrical codes. (C) Whenever conduit of the wireless facilities crosses telephone or electric power wires wires shall cross and be maintained in accordance with the National Electrical Code, the National Electrical Safety Code and the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce. Bureau of Standards of the United States in force at the time of the effective date of this article, and as amended. Wireless facilities shall comply with all applicable structural requirements with respect to wind speed under the Florida Building Code. Grounds for denial The City may deny a proposed collocation of a small wireless facility in the public rights-of-way if the applicant fails to comply with any provision of this chapter or if the proposed collocation: (a) Materially interferes with the safe operation of traffic control equipment () Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes: (C) Materially interferes with compliance with the Americans with Disabilities Act, or similar federal or state standards and regulations regarding pedestrian access or movement: Materially fails to comply with the most current edition of the Florida Department of Transportation Utility Accommodation Manual; or (e) Fails to comply with applicable codes. (4}(5) A registrant or applicant shall at all times comply with and abide by all applicable provisions of the state, federal and local law and city ordinances, codes and regulations in placing or maintaining a communication facility in public rights-of-way. The burden of proof shall at all times be on an applicant to establish compliance with requirements under this chapter and state and federal law. (2} (6) A registrant shall notIp ace, commence to place or maintain a communication facility in public rights-of-way until all applicable permits, if any, have been issued by the city or other appropriate authority, except in the case of an emergency. No wireless facility shall operate unless the City has conducted a final inspection and issued a Certificate of Completion pursuant to the Florida Building Code as adopted and amended. (a) The term "emergency" shall mean a condition that affects the public's health, safety or welfare, which includes an unplanned out -of -service condition of a pre-existing service. Registrant shall provide prompt notice to the city of the placement or maintenance of a communication facility in public rights-of-way in the event of an emergency, and shall be required to apply for an after -the -fact permit within 30 days if a permit would have originally been required to perform the work undertaken in public rights-of-way in connection with the emergency. (C) Registrant acknowledges that as a condition of granting such permits, the city may impose reasonable rules or regulations governing the placement or maintenance of a communication facility in public rights-of-way. Permits shall apply only to the areas of public rights-of-way specifically identified in the permit. +Rd+vidual peffn+ts- (d) Further, once the emergency is abated, the communications facility placed in the public right-of-way during the emergency shall be removed unless permitted without the emergency as a basis. Application Review: Decisions: Time -frames: Permit Duration (a) Notification of Completeness. Within 14 days after receiving an application, the city shall determine and notify the applicant by electronic mail to the email address provided in the application as to whether the application is complete. If an application is deemed incomplete the city shall specifically identify the missing information. An application is deemed complete if the city does not provide notification to the applicant within 14 days. Application Review Period. The city shall approve or deny an application within 60 days after receipt of the complete application, or it deemed approved in accordance with F.S. $ 337.401. If the city does not use the 30 -day negotiation period provided in subparagraph (e) the parties may mutually agree to extend the 60 -day application review period. The city shall grant or deny the application at the end of the extended period. (C) Permit Duration. A right-of-way utilization permit issued pursuant to an approved application shall remain in effect for one (1) year unless extended by the city. Notification Procedure. The city shall notify the applicant of approval or denial by electronic mail. The city shall approve a complete application unless it does not meet the applicable codes. If the application is denied, the city will specify in writing the basis for denial, including the specific code provisions on which the denial was based, and send the documentation to the applicant by electronic mail on the day the city denies the application. (e) Opportunity to Cure Deficiencies. The applicant may cure the deficiencies identified by the city and resubmit the application within 30 days after notice of the denial is sent to the applicant. If the curative information is not provided within such time frame, the application will be considered withdrawn or closed. The city shall approve or deny the revised application within 30 days after receipt or the application is deemed approved. Any subsequent review shall be limited to the deficiencies cited in the denial. ff) Consolidated Applications. An applicant may file a consolidated application and receive a single permit for the collocation of up to 30 small wireless facilities. If the application includes multiple small wireless facilities, the city may separately address small wireless facility and micro wireless facility collocations for which incomplete information has been received or which are denied. Alternative Collocations. (a) If an applicant seeks to place a wireless facility upon a city utility pole or seeks to install a new utility pole the city may, within 14 days after the date that a wireless facility application is filed request that the proposed location of the wireless facility be moved to another location in the right-of-way and placed on an alternative utility pole or support structure or may place a new utility pole including for aesthetic or public safety reasons, or a location outside the right-of-way on city -owned structures or property in accordance with Section 25.1-4 . The City may offer an alternative location in the right-of-way for a wireless facility for health, safety, general welfare, or aesthetic reasons. The city and the applicant may negotiate the alternative location, includinq any objective desiqn standards and reasonable spacing requirements for ground-based equipment for 30 days after the date of the request. At the conclusion of the negotiation period if the alternative location is accepted by the applicant, the applicant must notify the city of such acceptance and the application shall be deemed granted for any new location for which there is agreement and all other locations in the application. If an agreement is not reached the applicant must notify the city of such non -agreement and the city shall grant or deny the original application within 90 days after the date the application was filed. A request for an alternative location an acceptance of an alternative location, or a resection of an alternative location shall be in writing and provided by electronic mail. Application requirements. (a) Except as otherwise provided herein a permit to construct or install wireless facilities or other communications facilities in the public rights-of-way shall not be granted except upon administrative review and approval pursuant to the requirements of this chapter, as well as any applicable requirements of Chapter 3 Article V Section 13 (Wireless Communication Facilities) of the City's Land Development Regulations. (3}() As part of any permit application to place a new or replace an existing communications facility in public rights-of-way, the registrant shall provide the following: 474M Plans submittal. For each proposed wireless facilitv location, submit plans signed and sealed by a Florida Registered Professional Engineer, or prepared by a person who is exempt from such reaistration requirements as provided in Florida Statutes 471.003 showing: a. The location of each proposed communications facility; b. True -to -scale site plan depicting all physical improvements including property lines within a 40 foot radius; c. A graphical depiction of each proposed communications facility to be installed; d. The size of each proposed communications facility; e. The specifications for each communications facility and f. Existing utilities in the immediate vicinity. 474The plans shall be in a hard copy format or an electronic format specified by the city, provided such electronic format is maintained by the registrant. Such plans in a format maintained by the registrant shall be provided at no cost to the city. The plans shall be in a digitized format showing the two- dimensional location of the facilities based on the city's geographical database, or other format acceptable to the city. The city shall maintain the confidentiality of such plans and any other information provided in accordance with Florida Statutes § 202.195, as it may be amended. 0-7)(3) If the actual installation deviates or will deviate from the submitted plans due to unforeseen conditions or any other reason, the registrant shall promptly provide revised plans. (bA� A description of the manner in which the communications facility will be installed (i.e. anticipated construction methods or techniques); A description of the stealth design techniques proposed to minimize the visual impact of the wireless communications facility; (-)L61 A traffic plan for a-n-ymaintenance of any disruption of the public rights-of-way; 44(7) Information on the ability of the public rights-of-way to accommodate the proposed facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other persons); (e}L81 If appropriate given the facility proposed an estimate of the cost of restoration to the public rights-of-way; {#)(l The timetable for construction of the project or each phase thereof, and the areas of the citv which will be affected; Photographs and Graphic or Simulated Renderings a. Photographs from four equally separated directions (north, south, east and west) clearly showing the nature and location of the site where each wireless or other communications facility is proposed to be located; b. Photographs showing the location and condition of properties adjacent to the site of each proposed wireless or other communications facility; and C. True -to -scale graphic depictions or simulated renderings accurately representing the visual impact of the wireless communications facilities when viewed from the street and from adjacent properties from 4 equally separated directions (north south east, and west). Letter(s) of no conflict provided by other utilities having facilities located in the area or areas that the wireless infrastructure provider desires to place conduits, antennas and/or any other facilities or to begin construction; A $150.00 collocation fee per wireless facility and all applicable permit fees, including a right-of-way utilization permit fee and building permit and plan review fees per wireless facility; and (g4(13) Such additional information requested by the Gity that the city finds reasonably necessary with respect to the placement or maintenance of the communications facility that is the subject of the permit application to review such permit application. (10) Factors considered in granting permit. In addition to any applicable requirements or standards imposed by this code of ordinances the following factors shall be considered in determining whether to issue a permit to a registrant to place or maintain a communications facility within the public rights-of-way: (a) Height and dimensions of the proposed communications facility; LbJ Proximity of the communications facility to residential structures and residential district boundaries; (c) Nature of uses on adjacent and nearby properties; (d) Surrounding topography; (e) Surrounding tree coverage and foliage; (f) Compliance with the objective design standards set forth herein with particular reference to design characteristics that have the effect of concealing, reducing, or eliminating visual obtrusiveness; icIJ Proposed ingress and egress (where applicable); Availability of suitable existing structures or alternative technologies not requirin the installation of the communications facility as proposed; The location context must be reasonable. Proximity to other structures within the rights-of-way cannot create a hazardous or safety condition or a cluttered appearance; Proximity to and/or interference with other private or public uses within or outside the rights-of-way, including but not limited to, utilities, easements, traffic control devices, and other uses; and Suitability of the right-of-way or the proposed section of the right-of-way for the proposed communications facility with reference to safety, engineering, and/or aesthetic concerns. (1) Whether the proposed communications facility is prohibited by Chapter 25.1-6; (m) Clearances by height and width with respect to accessibility requirements in the most current edition of Florida Building Code and regulations interpreting the Americans with Disabilities Act; and (n) Any other requirements set forth in this chapter. Non-interference Encouraged Technology; Additional Regulations. {- (a) All communications facilities shall be placed or maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and with the rights and convenience of property owners who adjoin any of the public rights-of-way. fRb) All facilities shall be placed underground to the extent that similarly situated utilities (electric communications, etc.) are so required. The G?ty may require the „so G The registrant shall be liable for the displacement, damage or destruction of any property, irrigation system or landscaping as a result of the placement or maintenance of its facility within the public rights-of-way.The -s+fy All facilities shall be placed underground to the extent not inconsistent with the rules of the Public Service Commission. The use of trenchless technoloav (i.e., directional bore method) for the installation of facilities in the public rights-of-way as well as joint trenching or the co -location of facilities in existina conduit is strongly encouraged, and shall be employed wherever feasible. (c) The city may promulgate additional reasonable rules and regulations concerning the placement or maintenance of a communication facility in public rights-of-way consistent with this chapter and other applicable law. Requirements for Wireless and communications facilities. Wireless and communications facilities may not be placed in the public rights-of-way unless it meets the followinq requirements: (a) The aesthetic requirements and provisions of this chapter governing antennas and towers shall apply to wireless and communications facilities located within the right-of-way. Wireless and communications facilities must be concealed and utilize stealth design as defined by chapter. Such stealth design and concealment shall eliminate the need to locate any ground or elevated equipment on the exterior of a pole tower, or other structure in order to preserve and promote the unique aesthetic character of the city. (c) Any application or proposal to locate equipment at ground level on or adjacent to a pole or tower and any application or proposal to locate elevated equipment (other than antennas) on or adjacent to the exterior of a tower or pole that asserts that such cannot be accomplished by undergroundinq such, and if not undergrounded then in accordance with the concealment and stealth design requirements of this chapter, may request an exemption to such requirements and such application or proposal shall include Florida professional engineering certified documentation demonstrating to the satisfaction of the city engineer that the proposed equipment cannot employ stealth design and cannot be concealed as required by this chapter, and that the proposed equipment and location and configuration of such, constitute the minimum equipment necessary and are the least obtrusive as is possible to achieve needed function. In order to avoid the clustering of multiple items of approved ground equipment or elevated equipment in a single area only one equipment box may be located in any single location. Where a registrant demonstrates that undergroundinq and stealth design and concealment cannot be employed under this subsection and the city agrees with such demonstration, the individual approved exterior equipment boxes or containment devices shall not exceed 12 cubic feet in volume and the configuration and dimensions of such shall be the least visually obtrusive as possible. The use of foliage and vegetation or other concealment method around any approved equipment may be required by the city based on conditions of the specific area where the equipment is to be located. Insofar as wireless facilities are constructed underground, the wireless infrastructure provider shall become a member of, and maintain membership in Florida_ utility notification one call system. Wireless facilities shall have five-foot horizontal clearance from other underground utilities and their appurtenances. Objective Design Standards. (a) Wireless facilities shall meet the following reasonable location, context, color, stealth, and concealment requirements. Design standards may be waived if the city determines that the design standards are not reasonably compatible for the particular location of a wireless facility or that the design standards impose excessive expense in relation to the aesthetic concerns of the City. The waiver shall be granted or denied within 45 days after the date of the request. 1. Any above -ground wireless facilities shall meet stealth design requirements. 2. Wireless facilities may increase the height of a metal street light pole only if the antenna is top -mounted and not wider than the pole or if the antenna is hidden in a cylinder that appears like an original part of the pole. A cellular antenna shall not extend more than ten (10) feet above the utility pole or structure upon which the wireless facility is to be collocated, and shall be shorter if the height of the utility pole requires a shorter antenna height so that the structure as a whole is proportionate. 3. A new utility pole that replaces an existing utility pole shall be of substantially similar design, material, and color as the existing utility pole unless the existing pole is made of wood, which is no longer permitted. 4. The antennas and related equipment shall be in a color that will provide the most camouflage as determined by the city. Ground based wireless facilities shall be painted forest green, unless determined otherwise by the city. When on a black pole, wireless facilities shall be painted black unless determined otherwise by the city. 5. Antennas must be hidden within the utility pole or appear like an original part of the utility pole. 6. All wireless facilities and related equipment, other than antennas, shall be placed underground in order, without limitation to avoid impeding pedestrian travel to avoid providing a target for graffiti or a mounting place for unauthorized signs to minimize danger to the public, and to preserve and enhance the aesthetic qualities of the City. 7 Wires serving the wireless facilities must be concealed within or flush mounted to the pole on which the facilities are collocated and insulated in accordance with applicable codes. (b) Antennas placed upon structures within the rights-of-way must meet the following additional requirements if stealth design, concealment, and this chapter's requirements regarding such cannot be met: 1. Top mounted antennas and their enclosures must not extend the diameter of the supporting structure at the level of antenna attachment: and 2. Side -mounted antennas and their enclosures must be flush -mounted to the supporting .structure at the level of antenna attachment. Under no circumstances shall antennas be mounted less than 12 feet above ground level. (c) Street light fixtures with stealth wireless facilities. On street lights, luminaires and bases should be roughly equal in size and volume for a balanced appearance. The decorative base of a street light should be between 10-25% of the pole height. The length of arms extending from the base should be between 20-25% of pole height; Arms should extend from the pole at a location within 20% of pole height from the top of the pole. Street light fixtures must meet AASHTO structural -guidelines for roadway application and ANSI requirements for vibrations. New or replacement poles that support wireless or communications facilities shall match the style, design, and color of the utility poles in the surrounding area. (dj Size and Height Requirements. Pole height shall be measured from the ground to the top of the utility pole, which measurement shall include any antennas built into or appended to the utility pole. The size and height of new wireless or communications facilities in the rights-of-way shall be no greater than the maximum size and height of any other utility or light poles located in the same portion of the right-of-way within the city other than a utility pole for which a waiver has previously been granted measured from grade in place within 500 feet of the proposed location of the small wireless facility. If there is no utility pole within 500 feet the height of the utility pole shall be limited to 50 feet, unless the city determines that a lower height is warranted given the location context for compatibility with existing or planned development within the vicinity of the proposed location or other provision of this chapter warrants such: provided however, that registrants proposing wireless or communications facilities with antennas to be located on existing poles or other structures may increase the height of the existing pole or other structure up to six feet if necessary to avoid adversely affecting existing pole attachments; and provided further that the overall height above ground of any wireless or communications facility shall not exceed 40 feet or exceed the existing height of other utility or light poles located in the same portion of the right-of-way, whichever height is less. (e) Setback Requirements. Wireless and communications facilities shall be located at least ten feet from a driveway, at least ten feet from the edge of existing trees 12 inches or greater in diameter, at least 25 feet from a traffic signal pole unless mounted upon such traffic signal pole, and at least 15 feet from any pedestrian ramp and 8 feet from the street curb. The city may require greater setbacks from these and other fixtures in the right-of-way to ensure proper sight lines for public safety purposes and in other cases as deemed necessary to advance the purposes of this article. JQ If the right-of-way is within or abuts a residential zoning district, wireless communication facilities must be located where the shared property line between two residential parcels intersects the right-of-way, whenever possible unless an unsafe condition, cluttered appearance, or other violation of this article would result. If the right-of-way is within or abuts a nonresidential district, wireless facilities must be located between tenant spaces or adjoining properties where their shared property lines intersect the right-of-way, whenever possible, unless an unsafe condition, cluttered appearance, or other violation of this article would result. �f Waiver. The city engineer may waive any requirement under this section if thecity determines that such requirement is not reasonably compatible for the particular location of a small wireless facility or that such requirement imposes an excessive expense or where the waiver serves the intent or purposes of this chapter. The waiver shall be granted or denied within 45 days after the date of the request. (14) New Structures Availability of Alternatives. No new utility pole, pole -type structure, or other freestanding structure shall be allowed in the rights-of-way unless the applicant demonstrates that no existing structure or alternative technology that does not require the placement of a new structure in a right-of-way can accommodate the applicant's proposed antenna or other communications facility. Such a demonstration by the applicant shall not give rise to a right to locate the proposed facility within the rights-of-way or in any way guarantee city approval of such An applicant shall submit information related to the availability of suitable existing structures or alternative technology. Evidence submitted to demonstrate that no existing structure or alternative technology can accommodate the applicant's proposed communications facility may consist of but is not limited to the following factors to be considered by the city: (a) No existing structures are located within the geographic area which would meet applicant's engineering requirements. Existing structures are not of sufficient height to meet applicant's engineering requirements which shall be demonstrated by at minimum, propagation and coverage maps. (c) Existing structures do not have sufficient structural strength to support applicant's proposed antenna or other communications facility and related equipment. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing structures or the antenna on the existing structures would cause interference with the applicant's proposed antenna. (e) The fees costs or contractual provisions required by the owner in order to share an existing structure or to adapt an existing structure for sharing are unreasonable. ff) The applicant demonstrates that there are other limiting factors that render existing structures unsuitable. Lcj� The applicant demonstrates that an alternative technology that does not require the use of new structures such as cable microcell network using multiple low -powered transmitters/receivers attached to wireline system, is unsuitable. Costs of alternative technology that exceed new structure or antenna development shall not be presumed to render the technology unsuitable. (x}(15) Limitations; No Property Ripht. A permit from the city constitutes authorization to undertake only certain activities in public rights-of-way in accordance with this chapter, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way. Construction: Maintenance; Safety; Restoration and Inspection. 40� (a) A registrant shall maintain its communication facility in public rights-of-way in a manner consistent with accepted industry practice and applicable law. (6) (b) All safety practices required by applicable law or accepted industry practices and standards shall be used during the construction, installation, placement or maintenance of communications facilities. 9} ) After the completion of any placement or maintenance of a communication facility in public rights-of-way or each phase thereof, A—a registrant shall, at its own expense, restore the public rights-of-way to at least its original condition before such work. If the registrant fails to make such restoration within thirty (30) days, or such longer period of time as may be reasonably required under the circumstances, following the completion of such placement or maintenance, the city may perform such restoration as it deems necessary and charge all costs of the restoration against the registrant in accordance with Florida Statutes § 337.402, as it may be amended. For 12 months following the original completion of the work, the registrant shall guarantee its restoration work and shall correct any improper restoration work at its own expense that does not satisfy the requirements of this chapter. for twelve (12) ME)Rths 44� In connection with excavation in the public rights-of-way, a registrant shall, where applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth in Florida Statutes Ch. 556, as it may be amended. 0-1) (e) A registrant 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. The person constructing installing and maintaining wireless facilities must be a licensed electrician, certified to work as a lineworker, or successfully complete an accredited lineworker apprenticeship program. 443 (f A registrant shall not place or maintain its communications facilities so as to interfere with, displace, damage or destroy any utilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the city or any other person's facilities lawfully occupying the public rights-of-way of the city. 464 L(al The city shall have the right to make such inspections of communications facilities placed or maintained in public rights-of-way as it finds necessary to ensure compliance with this chapter. In the event the city determines that a violation exists with respect to registrant's placement or maintenance of facilities in the public rights-of-way that is not considered to be an emergency or danger to the public health, safety or welfare, the city will provide registrant at least three (3) days written notice setting forth the violation and requesting correction. Modifications; Removal and Relocation; Antenna Co -locations. (a) The grant of a permit under this chapter shall not limit the authority and discretion of the city to regulate and control the public rights-of-way, and the city may at any time require the removal or relocation of a communications facility within the rights-of-way in the interests of the public welfare, health, or safety, aesthetics or as otherwise authorized by law. The wireless facilities provider must remove its wireless facilities within 30 days of notice that the City will remove a utility pole. k84 (b) Removal or relocation at the direction of the city of a registrant's communications facility in public rights-of-way shall be governed by applicable requirements of Florida Statutes M 337.403 and 337.404, as they may be amended, in addition to any other applicable city regulations or provisions of law. Unless otherwise provided by law, this City Code, or agreement, a registrant shall bear all costs of any removal or relocation of its facilities. (c) Removal due to technology advances. The City may require removal of wireless facilities and utility poles no longer required or necessary to provide coverage or which provide redundant coverage due to advances in technology, including without limitation, technological advances allowing larger distances between wireless facilities, or due to enhanced coverage provided under current technology. 0.34 (d) Coordination of work; work schedule. In the interest of the public's health, safety and welfare, upon request of the city, and as notified by the city of the other work, construction, installation or repairs referenced below, a registrant shall coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable time frame in the subject public rights-of-way. The city may require registrant to alter its placement or maintenance schedule as the city determines to be reasonably necessary so as to minimize disruptions and disturbance in the public rights-of-way. The city may provide a more definite time frame based on individual city construction or maintenance schedules. {45}Lej No warranties; vacation of rights-of-way. The city makes no warranties or representations regarding the fitness, suitability, or availability of the city's public rights-of- way, city -owned structures, and city -owned real property for the registrant's communications facilities and any performance of work, eF costs incurred by registrant or provision of services shall be at registrant's sole risk. Nothing in this chapter shall affect the city's authority to add to, vacate or abandon public rights-of-way, or add vehicular travel lanes, and the city makes no warranties or representations regarding the availability of any added, vacated or abandoned public rights-of-way for communications facilities. (f) Alteration of Rights -of -Way; Other Work and Facilities in Rights -of -Way. 494. The city reserves the right to place and maintain, and 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 public rights-of-way occupied by the registrant. (-x 9) 2. Registrant shall, if registrant so agrees, allow the city facilities to be co - located within the city's public rights-of-way through the use of a joint trench during registrant's construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between registrant and the city and may be subjected to other city rights-of-way requirements. 48) 3. The city further reserves without limitation the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of the public rights-of-way within the limits of the city and within said limits as same may from time to time be altered. 49) A. A registrant shall, on the request of any person holding a permit issued by the city, temporarily raise or lower its wireless or other communications facilities to permit the work authorized by the permit. The expense of temporarily raising or lowering facilities shall be paid by the person requesting the same, and the registrant shall have the authority to require such payment in advance. The registrant shall be given not less than thirty (30) days advance written notice to arrange for such temporary relocation. If the city requests a temporary raising or lowering of a facility for a public purpose, the city shall not be charged for the temporary raising or lowering of the facility. (Ord. No. 01-29, § 8, 7-3-01) l9.) Replacement and maintenance of wireless facilities. M The city shall not require approval or require fees or other charges for: a. Routine maintenance; b. Replacement of existing wireless facilities with wireless facilities that are substantially similar or of the same or smaller size: or C. A communications service provider authorized to occupy the rights- of-way and who is remitting taxes under chapter 202. (2) The City may charge a pole connection fee for connecting to a city utility pole in a reasonable amount to be determined by the Utilities Department. Notwithstanding this paragraph, for public safety the wireless provider must give reasonable notice to the City Engineer before undertaking the activities of replacement or maintenance and a right-of-way permit shall be required for work that involves excavation, closure of a sidewalk, or closure of a vehicular lane. {4}L�J Additional Authority; Permit Conditions. To the extent not otherwise prohibited by state or federal law and this chapter, the city shall have the power to prohibit or limit the placement of new or additional communications facilities within all or parts of the public rights-of-way I—I., es n that area of the publiG rights ef way, for the proteGt OR G The city may impose reasonable conditions upon the grant of a permit in addition to the specific requirements of this code as deemed appropriate to advance the intent or purposes of this chapter. The approval of the installation placement maintenance, or operation of a small wireless facility or other wireless facility pursuant to this chapter does not authorize the installation placement maintenance. or operation of any communications facilities other than small wireless facilities in the right-of-way. Make -Ready for Collocation. 1. For a city utility pole that does not support an aerial facility used to provide communications services or electric service, the applicant seeking to collocate a small wireless facility shall 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. If pole replacement is 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 shall not condition or restrict the manner in which the applicant obtains, develops or provides the estimate or conducts the make-ready work subject to usual construction restoration standards for work in the right-of-way. The replaced or altered utility pole shall remain the property of the city. 2. The city shall not require more make-ready work than is required to meet applicable codes or industry standards. 3. Fees for make-ready work shall not include costs related to pre-existing damage or prior noncompliance. Fees for make-ready work, including any pole replacement shall not exceed actual costs or the amount charged to communications service providers other than wireless services providers for similar work and shall not include any consultant fee or expense. 4. Fees for make-ready work must be paid to the City, even if they exceed the applicant's estimate before the wireless facilities may be operational. Sec. 25.1-7 Suspension of Permits. (1) Subject to Section 25.1-8 below, the Director of Engineering, or his designee may suspend a permit for work in the public rights-of-way for one or more of the following reasons: (a) Failure to satisfy permit conditions, including conditions set forth in this chapter or other applicable city ordinances, codes or regulations governing placement or maintenance of communications facilities in public rights-of-way, including without limitation, failure to take reasonable safety precautions to alert the public of work at the work site, or to restore any public rights-of-way; (b) Misrepresentation or fraud by registrant in a registration or permit application to the city; (c) Failure to properly renew or ineffectiveness of registration; (d) Failure to relocate or remove facilities as may be lawfully required by the city; (e) Failure to commence work within 180 days of securing permit; or (f) Abandonment of project or suspension of work for more than 180 days. (2) After the suspension of a permit pursuant to this section, the Director of Engineering or his designee shall provide written notice of the reason for the suspension to the registrant. (Ord. No. 01-29, § 9, 7-3-01) Sec. 25.1-8 Appeals. (1) Final, written decisions of the Director of Engineering, or his designee, suspending or denying a permit, denying an application for a registration or denying an application for renewal of a registration are subject to appeal, as set forth in Chapter 1, Article VII, of the City's Land Development Regulations, as amended. (2) Nothing in the chapter shall affect the remedies the city has available under applicable law. (Ord. No. 01-29, § 10, 7-3-01) Sec. 25.1-9. Conditional Use of Public Rights -of -Way. (1) In the event registrant desires to use its existing facilities or to construct new facilities for the purpose of providing other utility or non-utility services to existing or potential consumers or resellers, by providing any other services other than the provisions other than the provision of communications service, or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from the city for such activities as may be required by applicable law. (2) To the extent that a registrant leases or otherwise uses the facilities of a person that is duly registered or otherwise authorized to place or maintain facilities in the public rights-of-way of the city, registrant shall make no claim, nor assert any right, which will impede the lawful exercise of the city's rights, including requiring the removal of such facilities from the public rights-of-way of the city, regardless of the effect on registrant's ability to place or maintain its own communications facilities in public rights-of-way of the city. (Ord. No 01-29, § 11, 7-3-01) Sec. 25.1-10 Involuntary Termination of Registration. (1) The city may terminate a registration if: (a) A federal or state authority suspends, denies, or revokes a registrant's certification or license to provide communications services; (b) The registrant's placement or maintenance of a communications facility in the public rights-of-way presents an extraordinary or unreasonable danger to the general public or other users of the public rights-of-way and the registrant fails to remedy the danger promptly after receipt of written notice; or (c) The registrant ceases to use all of its communications facilities in public rights- of-way and has not complied with section 25.1-17 of this chapter. (2) Prior to termination, the registrant shall be notified by the Director of Engineering, or his designee, with a written notice setting forth all matters pertinent to the proposed termination action, including which of subsections (a) through (c) above is applicable as the reason therefore, and describing the proposed action of the city with respect thereto. The registrant shall have thirty (30) days after receipt of such notice within which to address or eliminate the reason or within which to present a plan, satisfactory to the Director of Engineering, or his designee, to accomplish the same. If the plan is rejected, the Director of Engineering or his designee shall provide written notice of such rejection to the registrant and shall make a recommendation to the City Commission regarding a final decision as to termination of registration. A decision by the city to terminate a registration may only be accomplished by an action of the City Commission. A registrant shall be notified by written notice of any decision by the City Commission to terminate its registration. Such written notice shall be sent within seven (7) days after the decision. (3) In the event of termination, the former registrant shall: (a) notify the city of the assumption or anticipated assumption by another registrant of ownership of the registrant's communications facilities in public rights-of-way; or (b) provide the city with an acceptable plan for disposition of its communications facilities in public rights-of-way. If a registrant fails to comply with this subsection, 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, requiring the registrant's bonding company within ninety (90) days of the termination to remove some or all of the facilities from the public rights-of-way and restore the public rights-of-way to its original condition before the removal, or requiring that some or all of the facilities be removed and the public rights-of-way restored to its original condition before the removal at the registrant's expense. (4) In any event, a terminated registrant shall take such steps as are necessary to render safe every portion of the communications facilities remaining in the public rights-of-way of the city s 6. (5) In the event of termination of a registration, this provision does not permit the city to cause the removal of any communications facilities that are used to provide another service for which the registrant holds a valid certification or license with the governing federal or state agency, where required, and is properly registered with the city for such certificated or licensed service, where required. (Ord. No. 01-29 § 12, 7-3-01) Sec.25.1-11. Existing Communications Facilities in Public Rights -of -Way. A communications services provider with an existing communications facility in the public rights- of-way of the city has sixty (60) days from the effective date of this chapter to comply with the terms of this chapter, including, but not limited to, registration, or be in violation thereof. (Ord. No. 01-29 § 13, 7-3-01) Sec. 25.1-12. Insurance. (1) A registrant shall provide, pay for and maintain satisfactory to the city an acceptable policy or policies of liability insurance, including comprehensive general liability insurance, products/completed operations liability, personal iniury liability, owners and contractors protective liability, broad form property damage, contractual liability, automobile liability (owned, non -owned and hired automobiles), workers' compensation and employee liability. A registrant shall not commence construction, operation or maintenance of the facility without obtaining all insurance required under this section and approval of such insurance by Risk Management of the city, nor shall a registrant allow any contractor or subcontractor to commence work on its contract or subcontract until all similar such insurance required of the same has been obtained and approved. The required insurance must be obtained and maintained for the entire period the registrant has facilities in the public rights-of-way, and for a period thereafter as specified in the minimum coverages described below. If the registrant, its contractors or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved. (2) All liability policies shall provide that the city is an additional insured as to the activities under this chapter. The required coverages must be evidenced by properly executed certificates of insurance forms. The certificates must be signed by the authorized representative of the insurance company and shall be filed and maintained with the city annually. Certificates of insurance, reflecting evidence of the required insurance, shall be filed with the Risk Manager Coordinator. For entities that are entering the market, the certificates shall be filed prior to the commencement of construction and once a year thereafter, and as provided below in the event of a lapse in coverage. For entities that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within sixty (60) calendar days of the adoption of this chapter, annually thereafter, and as provided below in the event of a lapse in coverage. (3) These certificates of insurance shall contain a provision that coverages afforded under these policies will not be canceled until at least forty-five (45) calendar days prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the State of Florida. Financial Ratings must be no less than "A -VI" in the latest edition of "Bests Key Rating Guide", published by A.M. Best Guide. The insurance requirements may be satisfied by evidence of self-insurance with sufficient financial strength and reserves or other types of insurance acceptable to the city. ° Fegi6tFant may Golf in6 ire. Self-insured status must be confirmed with certification of same by presentation of financial statements which are not more than one (1) year old and signed by the registrant's Chief Financial Officer or designees. Information contained therein is subject to review and approval by city's Risk Management Division. (4) In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of this contract, then in that event, the registrant shall furnish, at least thirty (30) calendar days prior to the expiration of the date of such insurance, a renewed certificate of insurance equal and like coverage. (5) The insurance policy or policies shall contain contractual liability insurance naming the city as an insured and shall also insure against the types of liabilities covered by the indemnification and hold harmless provisions of Section 25.1-13. {5�&J A registrant and its contractors or subcontractors engaged in work on the operator's behalf in, on, under or over public rights-of-way, shall maintain the following minimum insurance: (a) Comprehensive general liability insurance to cover liability bodily injury and property damage. Exposures to be covered are: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability: Bodily injury a. Each occurrence $1,000,000 Annual aggregate $3,000,000 2. Property damage Each occurrence $1,000,000 b. Annual aggregate $3,000,000 Personal injury a. Annual aggregate $3,000,000 4. Completed operations and products liability shall be maintained for two (2) years after the abandonment of the facility by the registrant (in the case of the registrant) or completion of the work for the registrant (in case of a contractor or subcontractor). 5. Property damage liability insurance shall include coverage for the following hazards: X — explosion, C — collapse, U — underground. (b) Worker's compensation insurance shall be maintained to comply with statutory limits for all employees, and in case any work is sublet, each registrant shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each registrant. Each registrant and its contractors and subcontractors shall maintain employers liability insurance. The following limits must be maintained: Workers' compensation Statutory 2. Employer's liability $500,000 per occurrence (c) Comprehensive auto liability Bodily injury a. Each occurrence $1,000,000 b. Annual aggregate $3,000,000 2. Property damage a. Each occurrence $1,000,000 b. Annual aggregate $3,000,000 Coverage shall include owned, hired and non -owned vehicles. (6) Each communication facility operator shall hold the city, its agents, and employees, harmless on account of claims for damage to persons, property or premises arising out of it construction, operation or repair of its communications facility and name the city as an additional insured. M Thirty (30) days advance written notice by registered, certified or regular mail as determined by the city must be given to the city of any cancellation, intent not to renew or reduction in the policy coverages. (7}L81 This Section shall not be construed to affect in any way the city's rights, privileges and immunities as set forth in Florida Statutes § 768.28. Insurance under this Section shall run continuously with the presence of the registrant's facilities in the public rights-of-way and any termination or lapse of such insurance shall be a violation of this Section and subject to the remedies as set forth herein. Notwithstanding the foregoing, the city may, in its sole discretion, required increased or decreased levels of insurance for any other object placed in the city's public rights-of-way by way of individual license agreements. (Ord. No. 01-29 § 14, 7-3-01) Sec. 25.1-13. Indemnification. (1) A registrant shall, at its sole cost and expense, indemnify, hold harmless, and defend the city, its officials, boards, members, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses incurred by the city arising out of the placement or maintenance of its communications systems or facilities in public rights-of-way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this chapter, provided, however, that a registrant's obligation hereunder shall not extend to any claims caused by the negligence, gross negligence or wanton or willful acts of the city. This provision includes, but is not limited to, the city's reasonable attorneys' fees and costs incurred in defending against any such claim, suit or proceedings. The city agrees to notify the registrant, in writing, within a reasonable time of the city receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the city from participating in the defense of any litigation by its own counsel and at its own cost if in the city's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this section shall be construed or interpreted: (a) As denying to either party any remedy or defense available to such party under the laws of the State of Florida; (b) As consent by the city to be sued; or (c) As a waiver of sovereign immunity beyond the waiver provided in Florida Statutes § 768.28, as it may be amended. (2) The indemnification requirements shall survive and be in effect after the termination, suspension or cancellation of a registration. (Ord. No. 01-29, § 15, 7-3-01) Sec. 25.1-14. Construction Bond. (1) Prior to issuing a permit, publie Fights of way, the city may require a construction bond to secure the restoration of the public rights-of-way and removal of abandoned equipment or equipment not removed after termination of registration or non -renewal of the annual permit. Notwithstanding the foregoing, a construction bond hereunder may only be required to the extent that the cost of the restoration exceeds the amount recoverable against the security fund as provided in Section 25.1-15. (2) In the event a registrant subject to such a construction bond fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the registrant, or the cost of completing the work, plus a reasonable allowance for attorney's fees, up to the full amount of the bond. (3) No less than twelve (12) months after the completion of the construction and satisfaction of all obligations in accordance with the bond, the registrant may request the Director of Engineering to remove the requirement to continue the construction bond. Notwithstanding, the city may require a new bond for any subsequent work performed in the public rights-of-way. (4) The construction bond shall be issued by a surety having a minimum rating of A-1 in Best's Ley Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City Attorney; and shall provide that: "For twelve (12) months after issuance of this bond, this bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the city, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew." (5) The rights reserved by the city with respect to any construction bond established pursuant to this section are in addition to all other rights and remedies the city may have under this Section, or at law or equity 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 any other right the city may have. (Ord No 01-29, § 15, 7-3-01) Sec. 25.1-15. Security Fund. At or prior to the time a registrant receives its first permit to place or maintain a communication facility in public rights-of-way after the effective date of this chapter, the registrant may be required to file with the city, for city approval, an annual bond, cash deposit or irrevocable letter of credit in the sum of twenty-five thousand dollars ($25,000) or other appropriate amount having as a surety a company qualified to do business in the State of Florida, and acceptable to the city, which shall be referred to as the "security fund." The security fund shall be maintained from such time through the earlier of: (i) transfer, sale or assignment to another registrant who shall comply with this provision or removal of all communications facilities in public rights-of-way; or (ii) twelve months after the termination or cancellation of any registration. The security fund shall be conditioned on the full and faithful performance by the registrant of all requirements, duties and obligations imposed upon registrant by the provisions of this chapter. The bond or guaranty shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the registrant's full and faithful performance at all times. In the event a registrant fails to perform its duties and obligations imposed upon the registrant by the provisions of this chapter, subject to Section 25.1- 15 of this chapter, there shall be recoverable, jointly and severally from the principal and surety of the bond security fund, any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of any pFopeFty facilities of the registrant in public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the security fund. Notwithstanding the foregoing, the city may in its reasonable discretion may accept a corporate guarantee of the registrant or its parent company, if the registrant is a publicly traded company and maintains an insurance rating of no less than A. (Ord No 01-29, § 17, 7-3-01) Sec. 25.1-16. Enforcement Remedies. (1) A registrant's failure to comply with provisions of this chapter shall constitute a violation of this chapter and shall subject the registrant to the code enforcement provisions and procedures as provided in Florida Statutes Chapter 162, Florida Statutes § 166.0415 and Section 2-72, et. seq. of the City Code of Ordinances, as they may be amended. In addition, violation of this chapter may be punishable by a fine not to exceed five hundred dollars ($500) or by imprisonment not to exceed sixty (60) days or by both as provided. (2) In addition to any other remedies available at law, including but not limited to Florida Statutes § 166.0415, and Florida Statutes Chapter 162, or equity or as provided in this chapter, the city may apply any one or combination of the following remedies in the event a registrant violates this chapter, or applicable local law or order related to the public rights-of-way: (a) Failure to comply with the provisions of the chapter or other law applicable to occupants of the public rights-of-way, may result in imposition of penalties to be paid by the registrant to the city in an amount of not less than one hundred dollars ($100) per day or part thereof that the violation continues. (b) In addition to or instead of any other remedy, the city may seek legal or equitable relief from any court of competent jurisdiction. (3) Before imposing a fine pursuant to this section, the city manager or the citv manager's designee shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice, the registrant shall have 30 days to either: (a) cure the violation to the city's satisfaction and the city shall make good faith reasonable efforts to assist in resolving the violation; or (b) file an appeal with the city to contest the alleged violation. Section 25.1-8 of this chapter shall govern such appeal. If no appeal is filed and if the violation is not cured within the thirty (30) day period, the city may collect all fines owed, beginning with the first day of the violation, through any means allowed by law. (4) In determining which remedy is appropriate, the city shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the city determines are appropriate to the public interest. (5) 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. (6) In any proceeding before the city where there exists an issue with respect to a registrant's performance of its obligations pursuant to this chapter, the registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms and conditions of this chapter. The city may find a registrant that does not demonstrate compliance with the terms and conditions of this chapter in default and apply any one or combination of the remedies otherwise authorized by this chapter or other applicable laws, ordinances, regulations or city codes. (7) The city manager or a designee shall be responsible for administration and enforcement of this chapter, and is authorized to give any notice required by law. (Ord. No 01-29, § 18, 7-3-01) Sec. 25.1-17. Abandonment of a Communication Facility. (1) Upon abandonment of a communications facility owned by a registrant in public rights- of-way, the registrant shall notify the city within ninety (90) days. (2) The city may direct the registrant by written notice to remove all or any portion of such abandoned communications facility at the registrant's sole expense if the city determines that the abandoned facility's presence interferes with the public health, safety or welfare, which shall include, but is not be limited to, a determination that such facility: (a) compromises safety at any time for any public rights-of-way user or during construction or maintenance in public rights-of- way; (b) prevents another person from locating facilities in the area of public rights-of-way where the abandoned facility is located when other alternative locations are not reasonably available; (c) creates a maintenance condition that is disruptive to the public rights -of -way's use; or d removal of the communications facility would improve or enhance the city's aesthetics. In the event of (b), the city may require the third person to coordinate with the registrant that owns the existing facility for joint removal and placement, where agreed to by the registrant. (3) In the event that the city does not direct the removal of the abandoned facility, the registrant, by its notice of abandonment to the city, shall be deemed to consent to the alteration or removal of all or any portion of the facility by the city or another person at such third party's cost. (4) If the registrant fails to remove all or any portion of an abandoned facility as directed by the city within a reasonable time period as may be required by the city under the circumstances, the city may perform such removal and charge the cost of the removal against the registrant or any successor in interest to the registrant. (Ord. No 01-29 § 19, 7-3-01) Sec. 25.1-18. Force Majeure. M In the event a registrant's performance of or compliance with any of the provisions of this chapter is prevented by a cause or event not within the registrant's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result; provided, however, that such registrant uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this chapter, causes or events not within a registrant's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within registrant's control, and thus not falling within this section, shall include, without limitation, registrant's financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of registrant's directors, officers, employees, contractors or agents. (Ord. No. 01-29, § 20, 7-3-01) Sec. 25-1-19. Reports and Records. (1) Each registrant shall, upon thirty (30) calendar days written notice, if reasonably possible, but in no event less than five (5) business days written notice, provide the city access to all books and records related to the construction, maintenance, or repair of the facility to the extent the city review of the books and records is necessary to manage its rights-of-way. (2) Any and all non-proprietary or non -confidential books and records may be copied by the city. To the maximum extent permitted by Florida Statutes § 202.195, as amended, such books and records shall be kept confidential and exempt from the provisions of Florida Statutes § 119.07(1). A registrant is responsible for obtaining or maintaining the necessary possession or control of all books and records related to the construction, maintenance or repair of the facility, so that it can produce the documents upon request. Books and records must be maintained for a period of five (5) years, except that any record that is a public record must be maintained for the period required by state law. (3) For purposes of this section, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the city at City Hall, except by agreement. (4) If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a registrant may request that the inspection take place at some other location mutually agreed to by the city and the registrant, provided that the registrant must make necessary arrangements for copying documents selected by the city after its review; and the registrant must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee. (5) Without limiting the foregoing, a registrant shall provide the city the following within ten (10) calendar days of their receipt or (in the case of documents created by the registrant or its affiliate) filing: (a) Notices of deficiency or forfeiture related to the operation of the facility; and (b) Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the operator or by any partnership or corporation that owns or controls the operator directly or indirectly. (6) In addition, the city may, at its option, and upon reasonable notice to the registrant, inspect the facilities in the public rights-of-way to ensure the safety of its residents. (Ord No. 01-29, § 21, 7-3-01) Sec.25.1-20. Reservation of Rights and Remedies. (1) The city reserves the right to amend this chapter as it shall find necessary in the lawful exercise of its police powers. (2) This chapter shall be applicable to all communications facilities placed in the public rights-of-way on or after the effective date of this chapter and shall apply to all existing communications facilities in the public rights-of-way prior to the effective date of this chapter, to the full extent permitted by state and federal law. (3) The adoption of this chapter is not intended to affect any rights or defenses the city may have under any existing franchise, license or other agreements with a communications services provider. (4) Nothing in this chapter shall affect the remedies the city has available under applicable law. (5) Any person who uses the communications facilities of a registrant, other than the registrant that owns the facilities shall not be entitled to any rights to place or maintain such facilities in excess of the rights of the registrant that places or maintains the facilities. (Ord. No. 01-29, § 22, 7-3-01) Sec. 25.1-21. Pass-through Provider Fees and Charges. (1) Pass-through providers shall pay to the city on an annual basis an amount equal to $500.00 per linear mile or portion thereof of communications facilities placed and/or maintained in the city's rights-of-way. For purposes of this section the city's rights-of-way do not include rights-of-way that extend in or through the city but are state, county or another authority's roads or rights-of-way. (2) The amounts charged pursuant to this section shall be based on the linear miles of rights -of- way where a wireless communications facility is placed, not based on a summation of the lengths of individual cables conduits strands or fibers. Multiple cables, conduits, strands, or fibers located within the same conduit shall be considered one communications facility for purposes of this subsection. (3) Any annual amount charged shall be reduced for a prorated portion of any 12 -month period during which the pass-through provider remits taxes imposed by the city pursuant to F.S. Ch. 202. (4) Fees for Non -Collocated Communications Facilities. (a) Fees for non -collocated communications facilities may be charged to any person not a dealer of communications services as defined by Florida Statutes 202.11. (b) Annual payments shall be due and payable on April 1 of each year. Failure to timely Pay the annual payment shall result in the immediate forfeiture of all rights to locate any wireless equipment in the citv rights-of-way and all wireless equipment shall be removed within thirtv (30) days at the wireless infrastructure provider's expense. Fees not paid shall bear interest at the rate of one percent per month from the date due until the wireless equipment is removed. The acceptance of any payment required hereunder by the city shall not be construed as an acknowledgement 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. All fee payments shall be subject to audit by the city, and assessment or refund if any payment is found to be in error. If such audit results in an assessment by and an additional payment to the city, such additional payment shall be subject to interest at the rate of one percent per month until the date payment is made. (5) Collocation Fees. (a) The wireless infrastructure provider shall remit a $150.00 collocation fee per wireless facility to the City with the application to pay for the first year's fee for collocating small wireless facilities on a city utility pole. (b) The wireless infrastructure provider shall remit a $150.00 collocation fee per wireless facility to the City within thirty (30) days of the anniversary of the approval of the collocation. Failure to timely pay the Collocation Fee shall result in the immediate forfeiture of all rights to collocate on the city utility pole and any wireless equipment collocated on the utility pole shall be removed within thirty (30) days at the wireless provider's expense. (6) Fees for City Connections. The City reserves the right to assess pole connection fees or other fees for the use of city employees and contractors as well as fees for access to any fiber network the city may construct. (7) Permit Fees. The wireless infrastructure provider shall remit with its application all appropriate fees including a right-of-way utilization permit fee and building permit and plan review fees. (8) If the payments required by this section are not timely made by the due date, the city may withhold the issuance of any permits including for other wireless facilities, to the registrant until the amount past due is paid in full. April 3, 2018 VIA EMAIL ONLY TO EXPEDITE Mayor Steven B. Grant GrantS@bbfl.us Vice Mayor Christina L. Romelus RomelusC@bbfl.us Commissioner Justin Katz KatzJnbbfl.us Commissioner Mack McCray McCrayM(abbfl.us Commissioner Joe Casello CaselloJnbbfl.us City of Boynton Beach, City Hall 100 E. Boynton Beach Boulevard Boynton Beach, Florida 33435 Deborah L. Martohue, Esq., AICP 1036 23,d Avenue N. St. Petersburg, FL 33704 Office Direct: 727.256.1211 Mobile: 727.460.8431 dmartohuelaw@outlook.com RE: City Commission Meeting —April 3, 2018 Request for Deferral of FIRST READING and Objection to Public Hearing Item 8.1) Proposed Telecommunications in Public Rights -of -Way Ordinance No.: 18-005 Dear Mayor Grant, Vice Mayor Romelus and Commissioners Katz, McCray and Casello: I write regarding the above referenced Ordinance on behalf of T -Mobile South, LLC. ("T -Mobile"). T -Mobile became aware of the captioned Ordinance and its scheduled first reading mid-afternoon Friday March 301h. Prior to that, we had identified an FAR notice of a "Meeting/Workshop Hearing" late Friday March 23`d. See attached. There was no indication on that Notice that the Commission would be considering an Ordinance on First Reading. Further, our Industry group had been in touch with your City Attorney several months ago and was under the impression we would be provided a draft Ordinance and given an opportunity to review and provide meanigful input. Until last Friday afternoon when we obtained the Commission agenda, our group was under the impression that the Notice of Workshop would be the commencement of such a dialogue opportunity. Yesterday, a representative of our group reached out to the City's outside counsel firm, to Attorney Tolces, to determine the status of this item on this evening's agenda which was confirmed late afternoon as indeed a First Reading. T -Mobile would like to acknowledge that it understands the City's desire to establish procedures for deployment of new and upgraded small wireless infrastructure within public rights-of-way consistent with the Advanced Wireless Infrastructure Deployment Act effective July 1, 2017 (the "Act"). Further, it is our understanding that corresponding amendments to the City's land development regulations may also be required. T -Mobile respectfully requests a meaningful opportunity to work with the City to support the prompt and orderly deployment of this essential infrastructure. We understand the City's strong desire to retain its oversight over the wireless siting process within its boundaries and we want to partner with the City to bring enhanced wireless services to its residents, businesses and visitors. As a matter of information and for your consideration of T -Mobile's request for deferral, my client is a participant within a coalition group representing diverse users of public rights-of-way including, wireless, cable, fiber, landline, and wireless infrastructure providers that have been working together since July 2016. Our group has worked closely and extensively with many county and municipal jurisdictions to draft and provide input to Ordinances regulating communication infrastructure and services within the public rights-of-way. Our goal is to assist in drafting and adopting an Ordinance that is consistent with the Act, respects the City's local considerations as well as the technological and practical constraints of deploying communications equipment, all in a competitively neutral and non-discriminatory manner as required by 337.401, Florida Statutes. T -Mobile appreciates its local partners and our ability to work through complex issues like these, particularly in cooperation with the diverse participants within our working group that bring to the table a level of federal, state and local legal expertise as well as technical support. Given our preference to work collaboratively with the City, we are requesting that your Commission defer First Reading on the proposed Ordinance to allow sufficient time for T - Mobile and its Industry coalition colleagues to have meaningful input that will assist the City in the development and refinement of its Code of Ordinances to ensure that they are not only compliant with federal and state law, but also encourage additional investment in and strengthening of the City's communications infrastructure. Our T -Mobile team is available to discuss and answer questions you or City Staff may have. We look forward to an opportunity to review any proposed Ordinance implementing the Act. In the event the County elects to proceed forward with First Reading, this letter shall constitute its written objection to its adoption in its current form and request that this letter be included as part of the record on behalf of T -Mobile South, LLC. Thank you in advance for your time and consideration. Sincerely, Deborah L. Martohue, Esq. AICP Cc: Ms. Lori LaVerriere, City Manager LaVerriereL@bbfl.us James Cherof, City Attorney JCherofAcityatt David Tolces, City Attorney DTolcs@cityatty.com Judith A. Pyle, City Clerk PyleJL?bbfl.us 2 PART II. CODE OF ORDINANCES CHAPTER 25.1 - COMMUNICATIONS RIGHTS-OF-WAY Sec. 25.1-1 Title. This Chapter shall be known and may be cited as the City of Boynton Beach Communications Facilities in Public Rights -of Way Ordinance. (Ord. No. 01-29, § 3, 7-3-01) Sec. 25.1-2. Intent and Purpose; Applicability to State-controlled Rights -of -Way. L1 Intent and purpose. It is the intent of the city to promote the public health, safety and general welfare by: ia) providing for the placement or maintenance of communications facilities in the public rights-of-way within the city; (b) adopting and administering reasonable rules and regulations not inconsistent with state and federal law, including Florida Statutes § 337.401 as +t -may be amended by the Advanced Wireless Deployment Act, the city's home -rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996 and other federal and state law; (c) establishing reasonable rules and regulations necessary to manage the placement or maintenance of communications facilities in the public rights-of-way by all communications services providers; (d) protecting the city's unique and extraordinary aesthetic qualities; and (e_) minimizing disruption to the public rights-of-way. In regulating its public rights- of-way, the city shall be governed by and shall comply with all applicable federal and state laws. (Ord. No. 01-29, § 4,7-3-01) (2) State-controlled rights-of-way. This chapter shall apply to wireless and communications facilities in public rights-of-way under the control and jurisdiction of the city. This article shall also apply to wireless and communications facilities in public rights-of-way under the control and jurisdiction of the Florida Department of Transportation, provided that the City is authorized to apply this article under a permit -delegation agreement between the city and Department in accordance with F.S. & 337.401(1)(a), or as otherwise provided by law. Sec. 25.1-3. Definitions. (1) Generally. For purposes of this chapter, the following terms, phrases, words and their abbreviations and derivations shall have the meaning given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. "And" and "or" may be read conjunctively or disjunctively. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined in this chapter shall be given the meaning set forth in Title 47 of the United States Code, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended. (2) Definitions: Abandonment shall mean the permanent cessation of all uses of a communications facility; provided that this term shall not include cessation of all use of a facility within a physical structure where the physical structure continues to be used. For example, cessation of all use of a cable X00223126.1 3069001821 within a conduit, where the conduit continues to be used, shall not be Abandonment of a facility in public rights-of-way. Antenna means any transmitting or receiving device mounted on within or incorporated into ar _ - {Deleted: tower. bwlding or structure and used in communications that radiate or capture electromagnetic waves, digital signals analog signals radio frequencies (excluding radar signals) light wireless telecommunications signals or other communication signals For the purposes of this the term "antenna" does not include any device designed for over -the -air reception of radio or television broadcast signals or multi -channel multi -point distribution service. Applicable codes means uniform building fire electrical plumbing or mechanical codes adopted by a recognized national code organization and the Florida Building Code and the Florida Fire Prevention Code and or local amendments to those codes enacted to address building, accessibility and fire code standards and threats of destruction of property or injury to persons, or local codes or ordinances adopted to implement this subsection The term includes objective design standards adopted by ordinance that may require a small wireless facility to meet reasonable location context color, stealth and concealment requirements. The term also includes obiective design standards adopted by ordinance that may require a new utility pole that replaces an existing utility pole to be of substantially similar design material and color or that may require reasonable spacing requirements concerning the location of ground -mounted equipment. Applicant means the person registering and applying to locate wireless facilities in the right-of- way of the city and includes the applicant's successors -in -interest and anyone owning and maintaining the wireless facilities. Application means a request submitted by an application to an authority for a permit to place or co -locate wireless facilities. Authority means a county or municipality having jurisdiction and control of the public rights-of-way of any public road. City shall mean the City of Boynton Beach, Florida. Where appropriate the word "City" may refer to the City Commission or the relevant City officer or Board considering an application under this chapter. City -owned real property means real property to which the city holds title easement or a leasehold interest but does not include the public rights-of-way. City -owned facility or city -owned structure means any facility, structure or infrastructure to which the city holds title easement or a leasehold interest including but not limited to communications facilities utility poles towers buildings and communications infrastructure regardless of whether located within or outside the public rights-of-way. Cluttered shall mean placement in a confused disordered disorganized, or mumbled or crowded Deleted: the placement on or within an existing structure of a state which can occur when too much is located in too small of an area given the reasonable second or subsequent antenna The term includes the ground location context. elafform or roof installation of equipment enclosures, cabinets or buildings and cables brackets and other equipment associated with the placement location or Collocation means ' to install,_mount maintain modify, operate or re >[ mace one or more wireless-,.' operation of the second or subsequent antenna to install, facilities on under, within or adjacent to a wireless support structure or utility pole. The term does mount maintain modify operate or replace one or more wireless facilities on under, within or adjacent to a wireless support structure or utility pole. 100123126.1 306-9001921 not include the installation of a new utility pole or wireless support structure in the public rights- of-wa Communications Services shall mean the transmission, conveyance or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance. Communications Services Provider shall mean any person, including a municipality or county, providing communications services through the placement or maintenance of a communications facility in public rights-of-way. Communications Services Provider shall also include any person, including a municipality or county, that places or maintains a communications facility in public rights-of-way but does not provide communications services. Communications FacilityLesI or Facility or Systemjsl shall mean any permanent or temporary physical plant, equipment and property, including, but not limited to, cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or to be placed or maintained in the public rights-of-way of the city and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer communications services. The term includes wireless facilities. Concealed means a, ancillary structure equipment compound, or communications facility or area (collectively "physical improvements") that is not readily identifiable as such, and is designed to be aesthetically compatible with existing and proposed building(s) and uses on and adjacent to the proposed location of such physical improvements. Distributed Antenna System orDAS is a network of spatially separated antenna modes connected to a common source within a geographic area or structure. A DAS is a Wireless Communication Facilit FCC shall mean the Federal Communications Commission. In Public Rights -of -Way or in the Public Rights -of -Way shall mean in, on, over, under or across the public rights-of-way. Maintain shall mean to exercise physical control over a wireless facility in the public rights-of-way, including ownership or the right to maintain and repair. A person providing service only through resale or only through use of a third party's unbundled network elements is not "maintaining" the wireless facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights-of-way does not constitute "maintaining" facilities in the public rights-of-way. Micro wireless facility means a small wireless facility having dimensions no larger than 24 inches in length 15 inches in width and 12 inches in height and an exterior antenna if any, no longer than 11 inches. Ordinance shall mean this Ordinance. 100223126.1 3068001821) Commented [DM3]: Definition taken from 337.401(7)(b)7. Florida Statutes Deleted: Notwithstanding the foregoing, for purposes of this chapter, cable service, as defined in Florida Statutes § 202.1 t(2), as it may be amended, is not included in the definition of Communications Services and cable service providers or providers of service via an open video system may be subject to other ordinances of the city 1 Deleted: . Commented [DM5]: If the City exempts cable from the definition of communication services then t is exempting cable from the definition of communications services provider. This will have a pervasive impact on the proposed Ordinance that results in prohibited discriminatory treatment between communications services provider in violation of 337.401(3)(a), Florida Statutes. For example, the Registration section below by definition exempts cable service providers and violates the statutory requirement that local government ROW regulations be competitively neutral. Pass-through provider means any person who, upon registering with the city, places or maintains a communications facility in the city's rights-of-way and that does not remit communications service taxes as imposed by the citv pursuant to Florida Statutes Ch. 202. Permit means the public rights-of-way permit that must be obtained before a person may construct in the public rights-of-way and shall include, but not be limited to, the City's public rights-of-wav engineering and construction permits issued by the City Engineer or his or her designee. Person shall include any individual, child, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, all other groups or combinations, and shall include the city to the extent the city acts as a communications services provider. Place or maintain or placement or maintenance or placing or maintaining shall mean to erect, construct, install, maintain, grade, excavate, place, repair, extend, replace, expand, remove, occupy, locate or relocate. A communications services provider that owns or exercises physical control over communications facilities in public rights-of-way, such as the physical control to maintain and repair, is placing or maintaining the facilities. A party providing service only through resale or only through use of a third party's unbundled network elements is not placing or maintaining the communications facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights-of- way does not constitute placing or maintaining facilities in the public rights-of-way. Pole Attachment means any attachment of a wireless facility by a wireless provider to an existing utility pole or structure utilized for electric, telephone, cable television, street lights, or other lighting, and other utilities. Public Rights -of -Way shall mean a public right-of-way, public utility easement, public highway, street, lane, bridge, sidewalk, road, waterway, tunnel, alley, or similar property regardless of which governmental entity has jurisdiction and control over such for which the city is the authority that has jurisdiction and control and may lawfully grant access to such property pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface to the extent the city holds a property interest therein. Public Rights -of -Way shall not include private property. Public Rights -of -Way shall not include any real or personal city property except as described above and shall not include city buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the public rights-of-way. No reference herein, or in any permit, to public rights-of-way shall be deemed to be a representation or guarantee by the city that its interest o9r other right to control the use of such property is sufficient to permit its use for such purposes, and a registrant shall be deemed to gain only those rights to use as are properly in the city and as the city may have the undisputed right and power to give. Registrant shall mean a communications services provider or other person that has registered with the city in accordance with the provisions of this chapter. Registration or Register shall mean the process described in this chapter whereby a communications services provider provides certain information to the city. Small wireless facility or small wireless facilities means a wireless facility that meets the following aualifications: )00773176.1 306-9001871) (a) Each antenna associated with the facility is located inside an enclosure of no more than 6 cubic feet in volume or, in the case of antennas that have exposed elements, each antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet in volume: and (b) All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, ground-based enclosures, grounding equipment, power transfer switches cutoff switches, vertical cable runs for the connection of power and other services, and utility poles or other support structures. Stealth design means a method of camouflaging any antenna, wireless facilities, or other ...- peleted:tower J ancillary supporting communications facility, including, but not limited to, supporting electrical, optical or mechanical or other equipment, which enhances compatibility with adjacent land uses and which is visually and aurally unobtrusive. Stealth design may include a repurposed structure. Utility pole means a pole or similar structure that is used in whole or in part to provide communications services or for electric distribution, street lights or other lighting, cable television, traffic control signage or a similar function. The term includes the vertical support structure for traffic lights but does not include a horizontal structure to which signal lights or other traffic control devices are attached and does not include a pole or similar structure 15 feet in height or less unless an authority grants a waiver for such. Wireless facility or wireless facilities means equipment at a fixed location which enables wireless communications between user equipment and a communications network, including radio transceivers antennas distributed antenna systems ("DAS") wires, coaxial or fiber-optic cable or other cables regular and backup power supplies and comparable equipment, regardless of technological configuration and equipment associated with wireless communications. The term includes small wireless facilities and micro wireless facilities. The 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 (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 certificated to provide telecommunications service 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 provider means a wireless infrastructure provider or 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. (00333126.1 306-9001811 � 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. Sec. 25.1-4. Registration for Placing or Maintaining Communications Facilities in Public Rights -of -Way. (1) A communications services provider that desires to place or maintain a communication facility in public rights-of-way in the city shall first register with the city in accordance with this chapter. Subject to the terms and conditions prescribed in this chapter, a registrant may place or maintain a communication facility in public rights-of-way. A communications services provider with an existing communications facility in the public rights-of- way of the city as of the effective date of this ordinance shall comply with this chapter within sixty (60) days from the effective date of this chapter, including, but not limited to, registration, or be in violation thereof. (2) A registration shall not convey any title, equitable or legal, to the registrant in the public rights-of-way. Registration under this chapter governs only the placement or maintenance of communications facilities in 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 communications facilities. Registration does not excuse a communications services provider from obtaining appropriate access or pole attachment agreements before locating its facilities on the city's or another person's facilities. Registration does not excuse a communications services provider from complying with all applicable city ordinances, codes or regulations, or submitting right-of-way permit applications, including this chapter. (3) Each communications services provider that desires to place or maintain a communication facility in public rights-of-way in the city shall file a single registration with the city which shall include the following information: (a) Name of the applicant; (b) Name, address, email address, and telephone number of the applicant's primary contact person in connection with the registration, and the person to contact in case of an emergency; (C) (d) Evidence of the insurance coverage required under this chapter and acknowledgement that registrant has received and reviewed a copy of this chapter, which acknowledgment shall not be deemed an agreement; (e) A copy of the applicant's certificate of authorization or license to provide communications services issued by the Florida Public Service Commission, the Federal Communications Commission, or other federal or state authority, if any; (f) For an applicant that does not provide a Florida Public Service Commission certificate of authorization number, if the applicant or registrant is a corporation or limited liability company, proof of authority to do business in the State of Florida, including the number of the certificate of incorporation; (002231]61 306 90018211 Commented tDM10]: Definition of communications service must be revised to delete cable services as an exemption from the definition. Otherwise, by definition, Registration requirements do not apply to cable providers and such exemption is facially discriminatory and violates the statutory mandate that ROW Communication regulations be competitively neutral. See 337.401(3)(a). - -� Deleted: For registrations submitted prior to October 1, 2001, the applicant shall state whether it provides local service or toll service or both Deleted: (g) (4) The Utilities and Engineering Departments shall review the information submitted by the applicant. If the applicant submits information in accordance with subsection (3) 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 information has not been submitted in accordance with subsection (3) above, the city shall notify the applicant of the non -effectiveness of registration, and reasons for the non -effectiveness, in writing. The city shall so reply to an applicant within thirty (30) days after receipt of registration information from the applicant. Non - effectiveness of registration shall not preclude an applicant from filing subsequent applications for registration under the provisions of this section. (5) Cancellation of Registration. A registrant may cancel a registration upon written notice to the city stating that it will no longer place or maintain any communications facilities in public rights -of- way within the city and will no longer need to obtain permits to perform work in public rights -of- way. A registrant cannot cancel a registration if the registrant continues to place or maintain any communications facilities in public rights-of-way. (6) Limited Rights conferred by Registration. Registration shall not in itself establish any right to place or maintain or priority for the placement or maintenance of a communication facility in public rights-of-way within the city, but shall establish for the registrant a right to apply for a permit, if permitting is required by the city. Registrations are expressly subject to any future amendment to or replacement of this chapter and further subject to any additional city's ordinances, as well as any state or federal laws that may be enacted. (7) A registrant shall renew its registration with the city by April 1 of even numbered years in accordance with the registration requirements in this chapter, Within thirty (30) days of any change in the information required to be submitted pursuant to subsection (3), except, as of October 1, 2001, subsection (3)(c), a registrant 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 permits until the communications services provider has complied with the registration requirements of this chapter. (8) In accordance with applicable city ordinances, codes or regulations and this chapter, a right-of-way utilization permit and a building permit shall be required of a communications services provider that desires to place or maintain a communication facility in public rights-of-way. An effective registration shall be a condition precedent to obtaining a permit. Notwithstanding an effective registration, permitting requirements shall continue to apply. A permit may be obtained by or on behalf of a registrant having an effective registration if all permitting requirements are met. Individual rights-of-way permits shall be obtained from the Department of Engineering on appropriate form currently in use. Deleted: A security fund in accordance with this chapter { Deleted:.¶ way shall be Fequ'Fed to pay GOrnpensation to the Gity as required by appliGable law and OFdinanGe6 of the Gity. ' Commented [DM 13]: Question: Is there a reason the City is Including facilities outside the ROW in this Section of the Code that u City -owned Structures Facilities, and Real Property. The city may construct or [appears to be regulating ROW use only? designate existing city -owned structures facilities and real property, within or:outside the public { Formatted: Highlight (W223126.1306-900192 11 rights-of-way, including any accompanying equipment or communications facilities necessary to provide communications services via such structures facilities, or real property, for the purpose of housing privately or publicly owned antennas and other communications facilities, or to provide communications services to or support the provision of communications services by, providers of communications services within the city., (a) In the interests of facilitating the safe efficient, and aesthetically desirable use of the public rights-of-way, and to otherwise avoid the negative effects upon the public welfare of and address safety concerns relating to proliferation of structures within the rights-of-way, the city may offer to an applicant who wishes to install, construct, place, or maintain an antenna or other communications facility in the public rights-of-way, to place or co -locate such antenna or communications facility upon or within a city -owned structure outside of the rights-of-way where feasible. Such antenna or communications facility shall meet the requirements of this chapter. u The city reserves and does not waive any right that the city may have in its capacity as a property owner or utility provider with respect to city -owned structures facilities and real property, and may exercise control over such to the extent not prohibited by law. When the city allows the placement of communications facilities upon, or the use of city -owned structures facilities and real property, the city shall be deemed to be acting within its proprietary capacity or capacity as a utility provider, as appropriate and otherwise consistent with the law. The provisions of this article shall not limit the city's discretion with respect to the use installation construction placement or maintenance of city -owned structures facilities and real property, subject to 337.401(7)(fl Florida Statutes_ Sec. 25.1-5. Transfer, Sale or Assignment of Assets in Public Rights -of -Way. (1) If a registrant transfers, sells or assigns its assets, located in public rights-of-way incident to a transfer, sale or assignment of the registrant's assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this chapter. Written notice of any such transfer, sale or assignment shall be provided by such registrant to the city within twenty (20) days after the effective 6o, sing' date of the transfer, sale or assignment. If the transferee, buyer or assignee is a current registrant, then the transferee, buyer or assignee is not required to re- register. If the transferee, buyer or assignee is not a current registrant, then the transferee, buyer or assignee shall register as provided in Section 25.1-2- 4 within sixty (60) days of the transfer, sale, or assignment. (2) If permit applications are pending in the registrant's name, the transferee, buyer or assignee shall notify the Engineering and Utilities Departments that the transferee, buyer or assignee is the new applicant. (3) Any encumbrance on the communications facilities of the registrant in the public rights-of-way shall be subject and subordinate to the rights of the city under this chapter and applicable law. (Ord. No. 01-29 § 7, 7-3-01) Sec. 25.1-6. Placement or Maintenance of a Communication Facility in Public Rights -of - Way. M Prohibitions. 100 2 2 3 17 6.1 306-9001821) ....-..-_...-- - — Meted: The city may allow the placement of an antenna or other communications facility upon a city owned structure or real property or otherwise allow the use of city -owned facilities outside of the rights-of-way upon such terms as the city may deem acceptable in writing and subiect to such rental use utility license or other fees as may be consistent with the law and established by the city commission via resolution ( Deleted: -- Commented [DM15]: Understanding that the City is not using mandatory language, concerned about implementation of alternate locations outside of the public ROW which would have distinct and different regulatory requirements that may not be otherwise applicable to users of the ROW. 337.401, 337.401(3)(a) and 337.401(7) expressly allow access t public ROWS to all communications services providers in a competitively neutral and non-discriminatory manner. Deleted:, Commented [DM16]: Asa result of the federal approval process for any such mergers or transfers, the proper terminology is "effective closing date" which recognizes the final step in a multi- step process. (a) No communications'services facilities or other communications facilities shall be --- commented [DM17]: Universal comment that ROW installed in the City's rights-of-way without a right-of-way utilization permit. registration regulations and requirement of a utilization permit must apply to all communications services providers and notjust wireless providers. Isolating wireless providers for special treatment (b) Wireless facilities other than small wireless facilities and micro wireless facilities, is facially discriminatory and violates 337,401(3)(a) are prohibited within the public rights-of-way. Deleted: wireless (C) To comply with clear zone requirements no wireless facilities or other communications facilities shall be closer than 8 feet from the street curb or edge of pavement if no curb is present. u Wireless facilities are prohibited within the public rights-of-way of roadways and railways under the jurisdiction and control of the Florida Department of Transportation unless approved by the ON. u (f Wireless facilities are prohibited on arms used to support or mount traffic control signals and warning signals and on arms attached to utility poles. (q) Wireless facilities are prohibited in the rights-of-way of any geographic area approved as an historic district either by the city, the State of Florida or listed on the National Register of Historic Places that were adopted by Ordinance on or before April 1 2017 unless 1. The city's Historic Preservation Board recommends approval of the method to deploy the wireless facilities in stealth so as not to detract from contributing historic structures and the ambiance of the district: and 2. The City accepts the recommendation and approves of the application. (h) Wireless facilities are prohibited on utility poles or similar structures 15 feet or less in height unless incorporated into and hidden in the pole under a top mounted street light 0 Wireless facilities shall not interfere with electrical lines cable lines, or their associated equipment Wireless facilities shall be at least 20 feet away from energized electrical distribution lines Wireless facilities may not be hung from energized lines or mounted on poles suspendinq enerqized lines or on poles to be removed in conjunction with any undergrounding of electric utilities Ali Wireless facilities may not block or interfere with the view of signs of commercial businesses or street signs. Commented [DM181: The City has jurisdiction over FOOT l............. ........_..- — _ - Deleted: Wireless facilities are prohibited on utility poles owned by a municipal electric utility, utility poles owned by the city, and utility poles used to support municipally owned or operated electric distribution facilities unless expressly permitted herein Deleted:_¶ Commented [DM201: Language added per 337.401(7)(k) (k) Wireless facilities excluding micro wireless facilities, shall not be suspended on { commented[DM211:See337.401(7)cFs. -- .................. -- - -----_ ... ......._._._ cables strung between existing utility poles in the City. (2) The applicant or applicant's successor must agree to remove the wireless facilities at any time if warranted by public health or safety as determined by the City. iii For the safety of electrical utility workers and members of the public: u Wireless facilities collocated if allowed on the same utility pole as a street light shall be on the same disconnect as the street light: 100113116.1 30690018111 (b) Wireless facilities shall be -grounded and otherwise comply fully with all applicable electrical codes. u Whenever conduit of the wireless facilities crosses telephone or electric power wires wires shall cross and be maintained in accordance with the National Electrical Code the National Electrical Safety Code and the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce Bureau of Standards of the United States in force at the time of the effective date of this article, and as amended. LZ Wireless facilities shall comply with all applicable structural requirements with respect to wind speed under the Florida Building Code. u Grounds for denial The City may deny a proposed collocation of a small wireless facility in the public rights-of-way if the applicant fails to comply with any provision of this chapter or if the proposed collocation: (a) Materially interferes with the safe operation of traffic control equipment; (b) Materially interferes with sight lines or clear zones for transportation pedestrians or public safety purposes: (c) Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards and regulations regarding pedestrian access or movement: (d) Materially fails to comply with the most current edition of the Florida Department of Transportation Utility Accommodation Manual; or (e) Fails to comply with applicable codes. (4 (5) A registrant or applicant shall at all times comply with and abide by all applicable provisions of the state, federal and local law and city ordinances, codes and regulations in placing or maintaining a communication facility in public rights-of-way. The burden of proof shall at all times be on an applicant to establish compliance with requirements under this chapter and state and federal law. (24 (6) A registrant shall notIp ace, commence to place or maintain a communication facility in public rights-of-way until all applicable permits, if any, have been issued by the city or other appropriate authority, except in the case of an emergency. No wireless facility shall operate unless the City has conducted a final inspection and issued a Certificate of Completion pursuant to the Florida Building Code as adopted and amended. (a) The term "emergency' shall mean a condition that affects the public's health, safety or welfare, which includes an unplanned out -of -service condition of a pre-existing service. (b) Registrant shall provide prompt notice to the city of the placement or maintenance of a communication facility in public rights-of-way in the event of an emergency, and shall be required to apply for an after -the -fact permit within 30 days if a permit would have originally been required to perform the work undertaken in public rights-of-way in connection with the emergency. (00223126,1 306-9001831 1 u Registrant acknowledges that as a condition of granting such permits, the city may impose reasonable rules or regulations governing the placement or maintenance of a communication facility in public rights-of-way. Permits shall apply only to the areas of public rights-of-way specifically identified in the permit. t indfvidua( pern*� u Further, once the emergency is abated, the communications facility placed in the public right-of-way during the emergency shall be removed unless permitted without the emergency as a basis. M Application Review; Decisions; Time -frames; Permit Duration (a) Notification of Completeness. Within 14 days after receiving an application, the city shall determine and notify the applicant by electronic mail to the email address provided in the application as to whether the application is complete. If an application is deemed incomplete, the city shall specifically identify the missing information. An application is deemed complete if the city does not provide notification to the applicant within 14 days. (b) Application Review Period. The city shall approve or deny an application within 60 days after receipt of the complete application or it is deemed approved in accordance with F.S. § 337.401. If the city does not use the 30 -day negotiation period provided in subparagraph (e) the parties may mutually agree to extend the 60 -day application review period. The city shall grant or deny the application at the end of the extended period. (C) Permit Duration. A right-of-way utilization permit issued pursuant to an approved application shall remain in effect for one (1) year unless extended by the city. Notification Procedure. (1) The city shall notify the applicant of approval or denial by electronic mail. The city shall approve a complete application unless it does not meet the applicable codes. u If the application is denied the city will specify in writing the basis for denial, including the specific code provisions on which the denial was based, and send the documentation to the applicant by electronic mail on the day the city denies the application. LI Opportunity to Cure Deficiencies. The applicant may cure the deficiencies identified by the city and resubmit the application within 30 days after notice of the denial is sent to the applicant. If the curative information is not provided within such time frame, the application will be considered withdrawn or closed. The city shall approve or deny the revised application within 30 days after receipt or the application is deemed approved Any subsequent review shall be limited to the deficiencies cited in the denial. ff) Consolidated Applications. An applicant may file a consolidated application and receive a single permit for the collocation of up to 30 small wireless facilities If the application includes multiple small wireless facilities the city may separately address small wireless facility and micro wireless facility collocations for which incomplete information has been received or which are denied. 100223126.1 3068001831) (8) Alternative Collocations. (a) If an applicant seeks to place a wireless facility upon a city utility pole or seeks to install a new utility pole, the city may, within 14 days after the date that a wireless facility application is filed request that the proposed location of the wireless facility be moved to another location in the right-of-way and placed on an alternative utility pole or support structure or may place a new utility pole, including for aesthetic or public safety reasons, or a location outside the right-of-way on city -owned structures or property in accordance with Section 25.1-4 . The City may offer an alternative location in the right-of-way for a wireless facility for health safety, general welfare, or aesthetic reasons. (b) The city and the applicant may negotiate the alternative location, including any objective design standards and reasonable spacing requirements for ground-based equipment for 30 days after the date of the request. At the conclusion of the negotiation period, if the alternative location is accepted by the applicant, the applicant must notify the city of such acceptance and the application shall be deemed granted for any new location for which there is agreement and all other locations in the application. If an agreement is not reached the applicant must notify the city of such non -agreement and the city shall grant or deny the original application within 90 days after the date the application was filed. (c). A request for an alternative location, an acceptance of an alternative location, or a resection of an alternative location shall be in writing and provided by electronic mail. n Application requirements. u Except as otherwise provided herein a permit to construct or install wireless facilities or other communications facilities in the public rights-of-way shall not be granted except upon administrative review and approval pursuant to the requirements of this chapter, as well as any applicable requirements of Chapter 3, Article V, Section 13 (Wireless Communication Facilities) of the City's Land Development Regulations. (commented (DM22): Must research' (.24 (b) As part of any permit application to place a new or replace an existing communications facility in public rights-of-way, the registrant shall provide the following: provided an PoFida Statutes § 47-1.003, identifying the IeGatien of the PFOpo6ed far."ity, RGluding a deGGFqpt'GA of the faGmlmtqe6 to be installed, wheFe it is to be IeGated, and the I I . te sdze ef faGilitie6 and equipment that will be IOGated in publir. Fights of way; E17 -)u Plans submittal. For each proposed wireless facilitv location, submit plans signed and sealed by a Florida Registered Professional Engineer, or prepared by a person who is exempt from such registration reauirements as provided in Florida Statutes 6 471.003 showing: (00223126.13069001821) The location of each proposed communications facility: b. True -to -scale site plan depictinq all physical improvements including property lines within a 40 foot radius; c. A graphical depiction of each proposed communications facility to be installed; d. The size of each proposed communications facility, e. The specifications for each communications facility: and f. Existing utilities in the immediate vicinity. 47-) u The plans shall be in a hard copy format or an electronic format specified by the city, provided such electronic format is maintained by the registrant. Such plans in a format maintained by the registrant shall be provided at no cost to the city. The plans shall be in a digitized format showing the two- dimensional location of the facilities based on the city's geographical database, or other format acceptable to the city. The city shall maintain the confidentiality of such plans and any other information provided in accordance with Florida Statutes § 202.195, as it may be amended. 0-7)(3) If the actual installation deviates or will deviate from the submitted plans due to unforeseen conditions or any other reason, the registrant shall promptly provide revised plans. M(4) A description of the manner in which the communications facility will be installed (i.e. anticipated construction methods or techniques); ,(5) A description of the stealth design techniques proposed to minimize the visual impact of the wireless communications facility; (-ru A niaiR' -gf traffic plan for aRy-maintenance of any disruption of the public rights-of-way; (d)L71 Information on the ability of the public rights-of-way to accommodate the proposed facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other persons); (eiLl If appropriate given the facility proposed, an estimate of the cost of restoration to the public rights-of-way; OK) l The timetable for construction of the project or each phase thereof, and the areas of the city which will be affected; (10) Photographs and Graphic or Simulated Renderings. commented [pM23]: excessive and unduly burdensome requirements that do not assist in the determination of compliance a. Photographs from four equally separated directions (north, south, with Applicable codes as required by 337.401(7)(d)2. A brochure or other visual depiction as well as plans and equipment specifications east and west) clearly showing the nature and location of the site where provided as part of a building permit sufficiently show whether or each wireless or other communications facility Is proposed to be located; not the proposed equipment complies with the physical and objective aesthetic requirements. 100223126 1 306 90018211 b. Photographs showing the location and condition of properties adjacent to the site of each proposed wireless or other communications facility: and C. True -to -scale graphic depictions or simulated renderings accuratelv representing the visual impact of the wireless communications facilities when viewed from the street and from adiacent properties from 4 equally separated directions (north, south, east, and west). ___ _ ........... ------- (11) Letter(s) of no conflict provided by other utilities having facilities located in - {Commented [DM24]: Are letters required. Isn't that what the area or areas that the wireless infrastructure provider desires to place conduits, su11 nsh 11 ne 811 s for? antennas and/or any other facilities or to begin construction: (12) A $150.00 collocation fee per wireless facility for attachments to an authority polel, and { Deleted: and all applicable permit fees, including a right- - - - of -way utilization permit fee and building permit and plan (amu Such additional information that the city finds review fees per wireless facility reasonably necessary with respect to the placement or maintenance of the communications facility that is the subject of the permit application to review such permit application. (10) Factors considered in granting permit. In addition to any applicable requirements or standards imposed by this code of ordinances the following factors shall be considered in determining whether to issue a permit to a registrant to place or maintain a communications facility within the public rights-of-way: Sal Height and dimensions of the proposed communications facilit Ll Proximity of the communications facility to residential structures and residential ;`Formatted: Highlight district boundaries: u Nature of uses on adjacent and nearby properties: Surrounding topography: (e) Surrounding tree coverage and foliaqe Commented[DM26]: Factors (b) through C are more _._ traditional macro tower compatibility zoning criteria rather than of Compliance with the objective design standards set forth herein with particular ityi required the extent these i location reference to design characteristics that have the effect of concealing, reducing, or itemstiactorve t thealter at items factor into the City initiating an alternate negotiation, those may be permissiblefactors— would appreciate eliminating visual obtrusiveness, discussion on this section. We can offer objective placement criteria adopted by other jurisdictions. (gZ Proposed ingress and egress (where applicable):Formatted: Highlight -..... _... .. Deleted Availability of suitable existing structures or _-- - alternative technologies not regumna the installation of the communications facility as proposed u The location context must be reasonable. Proximity to other structures within the Deleted:, rights-of-way cannot create a hazardous or safety condition or a cluttered appearance: (00213136.1 306-9001921 ) (jZ Proximity to and/or interference with other private or public uses within or outside the rights-of-way, including but not limited to, utilities, easements, traffic control devices, and other uses: and u Suitability of the right-of-way or the proposed section of the right-of-way for the proposed communications facility with reference to safety, engineering, and/or aesthetic concerns. Li Whether the proposed communications facility is prohibited by Chapter 25.1-6; (m) Clearances by height and width with respect to accessibility requirements in the most current edition of Florida Building Code and regulations interpreting the Americans with Disabilities Act: and iii Any other requirements set forth in this chapter. Sh Non-interference Encouraged Technology, Additional Regulations. 1�(a) All communications facilities shall be placed or maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and with the rightsof property owners who adjoin any of the public rights-of-way. (5�(b) All facilities shall be placed underground to the extent that similarly situated utilities (electric, communications, etc.) are so required. The City may Fequire the use of n the existing . The registrant shall be liable for the displacement, damage or destruction of any property, irrigation system or landscaping as a result of the placement or maintenance of its facility within the public rights-of-way. The city nwimintanAnGA this GhapteF and other: appliGable law. All facilities shall be placed underground to the extent not inconsistent with the rules of the Public Service Commission. The use of trenchless technology (i.e., directional bore method) for the installation of facilities in the public rights-of-way as well as joint trenching or the co -location of facilities in existing conduit is strongly encouraged and shall be employed wherever feasible Notwithstanding the foregoing small wireless facilities and micro wireless facilities are exempt from this undergrounding Irequirement. u The city may promulgate additional reasonable rules and regulations concerning the placement or maintenance of a communication facility in public rights-of-way consistent with this chapter and other applicable law. Requirements for tireless and communications facilities. Wireless and communications facilities may not be placed in the public rights-of-waV unless it meets the following requirements: u The aesthetic requirements and provisions of this chapter governing antennas, shall apply to wireless and communications facilities located within the right-of- way. 100]]3126.130690018311 Deleted: and convenience Commented [DM29]: Wireless equipment cannot receive or transmit signals underground; thus such a requirement would unlawfully deny ROW access to wireless services providers in violation of 337.401(1), 337.401(3)(a) and 337.401(7) F.S. { Deleted: and towers (b) Wireless and communications facilities must be concealed and utilize stealth design as defined by chapter. Such stealth design and concealment shall eliminate the need to locate any ground or elevated equipment on the exterior of a pole tower, or other structure in order to preserve and promote the unique aesthetic character of the city. (c) Any application or proposal to locate equipment at ground level on or adjacent to a pole or structure -and any application or proposal to locate elevated equipment (other than antennas) on or adjacent to the exterior of a structures or pole that asserts that such cannot be accomplished by undergrounding such, and if not undergrounded then in accordance with the concealment and stealth design requirements of this chapter, may request an exemption to such requirements, and such application or proposal shall include Florida professional engineering certified documentation demonstrating to the satisfaction of the city engineer that the proposed equipment cannot employ stealth design and cannot be concealed as required by this chapter, and that the proposed equipment, and location and configuration of such, constitute the minimum equipment necessary and are the least obtrusive as is possible to achieve needed function. In order to avoid the clustering of multiple items of approved ground equipment or elevated equipment in a single area only one equipment box may be located in any single location. Where a registrant demonstrates that undergrounding and stealth design and concealment cannot be employed under this subsection and the city agrees with such demonstration, the individual approved exterior equipment boxes or containment devices shall not exceed28 cubic feet in volume and the configuration and dimensions of such shall be the least visually obtrusive as possible. The use of foliage and vegetation or other concealment method around any approved equipment may be required by the city based on conditions of the specific area where the equipment is to be located. L2 Insofar as wireless facilities are constructed underground, the wireless infrastructure provider shall become a member of and maintain membership in Florida utility notification one call system. Wireless facilities shall have five-foot horizontal clearance from other underground utilities and their appurtenances. (13) Objective Design Standards. (a) Wireless facilities shall meet the following reasonable location, context, color, stealth and concealment requirements. Design standards may be waived if the city determines that the design standards are not reasonably compatible for the particular location of a wireless facility or that the design standards impose excessive expense in relation to the aesthetic concerns of the City. The waiver shall be granted or denied within 45 days after the date of the request. 1. Any above -ground wireless facilities shall meet stealth design requirements. -� Deleted: tower Deleted: tower Commented [DM31]: Per 337.401(7)(b)10 F.S. ......... _..... Deleted. 12 Commented [DM32]: Need technical feedback. No comment until such time Commented [DM33]: This requirement will prohibit top - 2. Wireless facilities may Increase the height of a metal street light pole only mounted shrouded antennas aka canister attachments; or cause if the antenna is top -mounted and not wider than the pole or if the antenna is hidden replacement pole to be installed that is wider in diameter than in a cylinder that appears like an original part of the Dole A cellular antenna shall necessary and therefore more visually obtrusive. The city cannot mandate the physical configuration of a SWF attachment beyond the volumetric limitations set forth in 337.401(7)(b)30, F.S. 100 2 2 3 12 6.1306 9001821) not extend more than ten (10) feet above the utility pole or structure upon which the wireless facility is to be collocated. i 3. A new utility pole that replaces an existing utility pole shall be of substantially similar design material, and color as the existing utility pole unless the existing pole is made of wood, which is no longer permitted. 4. The antennas and related equipment shall be in a color that will provide the most camouflage as determined by the city. Ground based wireless facilities shall be painted forest green unless determined otherwise by the city. When on a black pole wireless facilities shall be painted black, unless determined otherwise by the cid 5. signs to minimize danger to the public and to preserve and enhance the aesthetic qualities of the City. 7 Wires serving the wireless facilities must be concealed within or flush mounted to the pole on which the facilities are collocated and insulated in accordance with applicable codes. (b) Antennas placed upon structures within the rights-of-way must meet the following additional requirements if stealth design, concealment, and this chapter's requirements regarding such cannot be met: 1. Top mounted antennas and their enclosures must not extend the diameter of the supporting structure at the level of antenna attachment: and 2. Qnder no circumstances shall antennas be mounted less than 12 feet above ground level. u Street light fixtures with stealth wireless facilities. M On street lights luminaires and bases should be roughly equal in size and volume for a balanced appearance. L2 The decorative base of a street light should be between 10-25% of the pole height. L1 The length of arms extending from the base should be between 20-25% of pole height; u Arms should extend from the pole at a location within 20% of pole height from the top of the pole. (5) Street light fixtures must meet AASHTO structural -guidelines for roadway application and ANSI requirements for vibrations. 100 2 1 3 126 1 306 9Wt821) `. Deleted: , and shall be shorter if the height of the utility pole requires a shorter antenna height so that the structure as a whole is proportionate Deleted: _¶ — --- --- --- -------------- - f_Deleted: Antennas must be hidden within the utility pole or appear like an on inaI part of the utility pole Deleted:. - Commented [DM36]: What is the average water table level for Boynton Beach? Water, particularly salt water intrusion will damage equipment Commented [DM37]: This requirement will prohibit top mounted shrouded antennas aka canister attachments; or cause a replacement pole to be installed that is wider in diameter than necessary and therefore more visually obtrusive. The City cannot mandate the physical configuration of a SWF attachment beyond the volumetric limitations set forth in 337.401(7)(b)10, F.S. Commented [DM38]: Physical configuration limitations are set forth In 337.401(7)(b) and are limited to 6 cubic feet in volume. Additional flush -mounting requirements are prohibited by state law. Deleted: Side -mounted antennas and their enclosures must be flush -mounted to the supporting .structure at the level of antenna attachment. Commented [DM39]: Could (c)(1) through (4) be streamlined to provide that any light fixtures that may be installed must be substantially similar or identical in design to existing street light fixtures within X radius and approved by the City? j u New or replacement poles that support wireless or communications facilities shall match the style, design, and color of the utility poles in the surrounding area. (dZ Size and Height Requirements. Pole height shall be measured from the ground to the top of the utility pole, which measurement shall include any antennas built into or appended to the utility pole. The size and height of new wireless or communications facilities in the rights-of-way shall be no greater than the maximum size and height of any other utility or light poles located in the same portion of the right-of-way within the city other than a utility pole for which a waiver has previously been granted measured from grade in place within 500 feet of the proposed location of the small wireless facility. If there is no utility pole within 500 feet, the height of the utility pole shall be limited to 50 feet provided however, that registrants proposing wireless or communications facilities with antennas to be located on existing poles or other structures may increase the height of the existing pole or other structure up to 1 q feet, if necessary, to avoid adversely affecting existing pole attachments; and provided further that the overall height above ground of any wireless or communications facility shall not exceed 40 feet or exceed the existing height of other utility or light poles located in the same portion of the right-of-way. whichever height is less. (e) Setback Requirements (1) Wireless and communications facilities shall be located at least ten feet from a driveway, at least ten feet from the edge of existing trees 12 inches or greater in diameter, at least 25 feet from a traffic signal pole unless mounted upon such traffic signal pole and at least 15 feet from any pedestrian ramp and 8 feet from the street curb. The city may require greater setbacks from these and other fixtures in the right-of-way to ensure proper sight lines for public safety purposes and in other cases as deemed necessary to advance the purposes of this article. (2) If the right-of-way is within or abuts a residential zoning district, wireless communication facilities must be located where the shared property line between two residential parcels intersects the right-of-way, whenever possible unless an unsafe condition, cluttered appearance, or other violation of this article would result Ll If the right-of-way is within or abuts a nonresidential district, wireless facilities must be located between tenant spaces or adjoining properties where their shared property lines intersect the right-of-way, whenever possible, unless an unsafe condition, cluttered appearance, or other violation of this article would result (�f Waiver. The city engineer may waive any requirement under this section if the city determines that such requirement is not reasonably compatible for the particular location of a small wireless facility or that such requirement imposes an excessive expense or where the waiver serves the intent or purposes of this chapter. The waiver shall be granted or denied within 45 days after the date of the request. (14) New Structures Availability of Alternatives. No new utility pole, pole -type structure, or other freestanding structure shall be allowed in the rights-of-way unless the applicant J00223126 1 30690018211 Deleted: Deleted:; .. .............. _......__. _.... Commented [DM41]: Revised to be consistent with state and federal law which allows 10 feet Deleted: six Commented [DM42]: Awkwardly worded and appears inconsistent with 337.401(7)(d)5 subject to further review demonstrates that no existing structure or alternative technology that does not require the placement of a new structure in a riqht-of-way can accommodate the applicant's proposed antenna or other communications facility. Such a demonstration by the applicant shall not give rise to a right to locate the proposed facility within the rights-of-way or in any way guarantee city approval of such. An applicant shall submit information related to the availability of suitable existing structures!=vidence submitted to demonstrate that no existing structurecan accommodate the applicant's proposed communications facility may consist of, but is not limited to, the following factors to be considered by the city: '----- -- ------ ----- -- -- — — — . -- ----- (93(15) Limitations; No Property Right. A permit from the city constitutes authorization to undertake only certain activities in public rights-of-way in accordance with this chapter, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way. (16) Construction; Maintenance: Safety; Restoration and Inspection. 40) u A registrant shall maintain its communication facility in public rights-of-way in a manner consistent with accepted industry practice and applicable law. (&) u All safety practices required by applicable law or accepted industry practices and standards shall be used during the construction, installation, placement or maintenance of communications facilities. (7-) L2 After the completion of any placement or maintenance of a communication facility in public rights-of-way or each phase thereof, A -a registrant shall, at its own expense, restore the public rights-of-way to at least its original condition before such work. a t„ If the registrant fails to make such restoration within thirty (30) days, or such longer period of time as may be reasonably required under the circumstances, following the completion of such placement or maintenance, the city may perform such restoration as it deems necessary and charge all costs of the restoration against the registrant in accordance with Florida Statutes § 337.402, as it may be amended. For 12 months following the original completion of the work, the registrant shall guarantee its restoration work and shall correct any improper restoration work at its own expense that does not satisfy the requirements of this chapter. fol: twelYe (12) MORthS ( -44 (d) In connection with excavation in the public rights-of-way, a registrant shall, where applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth in Florida Statutes Ch. 556, as it may be amended. (12) Set A registrant 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. The person constructing, installinq, and maintaininq wireless facilities must be a licensed electrician certified to work as a lineworker, or successfully complete an accredited lineworker apprenticeship program. 100 2 2 3 126.1 30690018111 --{ Deleted: or alternative technology {Deleted: , (Deleted: or alternative technology Deleted: (M. No existing structures are located within the aeograOic area which would meet applicant's engineering requirements.¶ 9 . f,b) . Existing structures are not of sufficient height to meet applicant's engineering requirements, which shall be demonstrated bv. at minimum. propagation and coverage maps.¶ ¶fgj. Existing structures do not have sufficient structural strength to support applicant's proposed antenna or other communications facility and related equipment.¶ ¶LcU. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing structures or the antenna on the existino structures would cause interference with the applicant's proposed antenna .¶ ¶fgj . The fees costs or contractual provisions required by the owner in order to share an existing structure or to adapt an existing structure for sharing are unreasonable.% The applicant demonstrates that there are other limiting factors that render existing structures unsuitable Formatted: Highlight Deleted: _5 Deleted: The applicant demonstrates that an alternative technology that does not require the use of new structures, such as cable microcell network using multiple low -powered transmitters/receivers attached to wireline system, is unsuitable. Costs of alternative technology that exceed new structure or antenna development shall not be Presumed to render the technology unsuitable Deleted:. (44) M A registrant shall not place or maintain its communications facilities so as to interfere with, displace, damage or destroy any utilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the city or any other person's facilities lawfully occupying the public rights-of-way of the city. The cit shall have the right to make such 'visual ins ections of Commented [DM47]: Added for clarification. Anything other (� (91 Y 9 _ p --- communications facilities placed or maintained in public rights-of-way as it finds necessary than a visual inspection by an unauthorized person can avoid to ensure compliance with this chapter. In the event the city determines that a violation equipment warranty. exists with respect to registrant's placement or maintenance of facilities in the public rights- of-way that is not considered to be an emergency or danger to the public health, safety or welfare, the city will provide registrant at least three (3) days written notice setting forth the violation and requesting correction. (17) Modifications Removal and Relocation; Antenna Co -locations. (a) The grant of a permit under this chapter shall not limit the authority and discretion of the city to regulate and control the public rights-of-way, and the city may at any time that the City will remove a utility pole. (8) (b) Removal or relocation at the direction of the city of a registrant's communications facility in public rights-of-way shall be governed by applicable requirements of Florida Statutes 615 337.403 and 337.404 as they may be amended in addition to any other applicable city regulations or provisions of law. Unless otherwise provided by law, this City Code. or agreement, a registrant shall bear all costs of any removal or relocation of its facilities LLi... 4 (d) Coordination of work; work schedule. In the interest of the public's health, safety and welfare, upon request of the city, and as notified by the city of the other work, construction installation or repairs referenced below, a registrant shall coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable time frame in the subject public rights-of-way. The city may require registrant to alter its placement or maintenance schedule as the city determines to be reasonably necessary so as to minimize disruptions and disturbance in the public rights-of-way. The city may provide a more definite time frame based on individual city construction or maintenance schedules. P -5)(e) No warranties; vacation of rights-of-way. The city makes no warranties or representations regarding the fitness, suitability, or availability of the city's public rights-of- way, city -owned structures and city -owned real property for the registrant's communications facilities and any performance of work, of costs incurred by registrant or provision of services shall be at registrant's sole risk. Nothing in this chapter shall affect the city's authority to add to, vacate or abandon public rights-of-way, or add vehicular travel lanes, and the city makes no warranties or representations regarding the availability of any added, vacated or abandoned public rights-of-way for communications facilities. f(f) Alteration of Rights -of -Way: Other Work and Facilities in Rights -of -Way. 100223126.1306-80018211 { Deleted: aesthetics ll ......... ........... __-__ ..... JI Deleted: Removal due to technology advances The City may require removal of wireless facilities and utility poles no longer required or necessary to provide coverage or which provide redundant coverage due to advances in technology, including without limitation technological advances allowing larger distances between wireless facilities or due to enhanced coverage provided under current technology Deleted:.J — (8)1. The city reserves the right to place and maintain, and 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 public rights-of-way occupied by the registrant. (18) 2. Registrant shall, if registrant so agrees, allow the city facilities to be co - located within the city's public rights-of-way through the use of a joint trench during registrant's construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between registrant and the city and may be subjected to other city rights-of-way requirements. 48) 3. The city further reserves without limitation the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of the public rights-of-way within the limits of the city and within said limits as same may from time to time be altered. 49) 4. A registrant shall, on the request of any person holding a permit issued by the city, temporarily raise or lower its wireless or other communications facilities to permit the work authorized by the permit. The expense of temporarily raising or lowering facilities shall be paid by the person requesting the same, and the registrant shall have the authority to require such payment in advance. The registrant shall be given not less than thirty (30) days advance written notice to arrange for such temporary relocation. If the city requests a temporary raising or lowering of a facility for a public purpose, the city shall not be charged for the temporary raising or lowering of the facility subject to 337.403 and 337.404, Florida Statutes. (Ord. No. 01-29, § 8, 7-3-01) 19i Replacement and maintenance of wireless facilities. M The city shall not require approval or require fees or other charges for: a. Routine maintenance; b. Replacement of existing wireless facilities with wireless facilities that are substantially similar or of the same or smaller size; or C. A communications service provider authorized to occupy the rights- of-wav and who is remitting taxes under chapter 202; or -- — _-- 2 The City may charge a pole c Formatted: [DMso]: seine: 0" p1� d. micro wireless acilitie Formatted: Indent First line 0' u connection fee for connecting to a city utility Deleted:. pole in a reasonable amount to be determined by the Utilities Department.{ _ """--------""""(COMMented[DM51]: Placeholder for further research LL Notwithstanding this paragraph for public safety the wireless provider must give reasonable notice to the City Engineer before undertaking the activities of replacement or maintenance and a right-of-way permit shall be required for work that involves excavation closure of a sidewalk or closure of a vehicular lane. 100223126.1 306-90DIS311 (4iLj Additional Authority' Permit Conditions. To the extent not otherwise prohibited by state or federal law and this chapter, the city shall have the power to prohibit or limit the placement of new or additional communications facilities within all or parts of the public rights-of-way thArR 'A 6paGe to aGGernmodate all of the requests to plaGe a Rd maintaOR faGmlmt*e6 that area of the publiG Fights of way, fGF th9 PFGtGGt*on of existing or projects that the Gity deteFmine6 are "R the publiG iRtefest-. The city may impose reasonable conditions upon the grant of a permit in addition to the specific requirements of this code as deemed appropriate to advance the intent or purposes of this chapter. Q The approval of the installation placement maintenance or operation of a small wireless facility or other wireless facility pursuant to this chapter does not authorize the installation placement maintenance or operation of any communications facilities other than small wireless facilities in the right-of-way. M Make -Ready for Collocation. 1. For a city utility pole that does not support an aerial facility used to provide communications services or electric service the applicant seeking to collocate a small wireless facility shall 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 If pole replacement is 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 shall not condition or restrict the manner in which the applicant obtains, develops or provides the estimate or conducts the make-ready work subject to usual construction restoration standards for work in the right-of-way. The replaced or altered utility pole shall remain the property of the city. 2. The city shall not require more make-ready work than is required to meet applicable codes or industry standards. 3. Fees for make-ready work shall not include costs related to pre-existing damage or prior noncompliance Fees for make-ready work including any pole replacement shall not exceed actual costs or the amount charged to communications service providers other than wireless services providers for similar work and shall not include any consultant fee or expense. 4. Fees for make-ready work must be paid to the City even if they exceed the applicant's estimate before the wireless facilities may be operational. Sec. 25.1-7 Suspension of Permits. (1) Subject to Section 25.1-8 below, the Director of Engineering, or his designee may suspend a permit for work in the public rights-of-way for one or more of the following reasons: (a) Failure to satisfy permit conditions, including conditions set forth in this chapter or other applicable city ordinances, codes or regulations governing placement or maintenance of communications facilities in public rights-of-way, including without X00213126.1306-9001821 limitation, failure to take reasonable safety precautions to alert the public of work at the work site, or to restore any public rights-of-way; (b) Misrepresentation or fraud by registrant in a registration or permit application to the city; (c) Failure to properly renew or ineffectiveness of registration; (d) Failure to relocate or remove facilities as may be lawfully required by the city; (e) Failure to commence work within 180 days of securing permit; or (f) Abandonment of project or suspension of work for more than 180 days. (2) After the suspension of a permit pursuant to this section, the Director of Engineering or his designee shall provide written notice of the reason for the suspension to the registrant. (Ord. No. 01-29, § 9, 7-3-01) Sec. 25.1-8 Appeals (1) Final, written decisions of the Director of Engineering, or his designee, suspending or denying a permit, denying an application for a registration or denying an application for renewal of a registration are subject to appeal, as set forth in Chapter 1, Article VII, of the City's Land Development Regulations, as amended. (2) Nothing in the chapter shall affect the remedies the city has available under applicable law. (Ord. No. 01-29, § 10, 7-3-01) Sec. 25.1-9. Conditional Use of Public Rights -of -Way. (1) In the event registrant desires to use its existing facilities or to construct new facilities for the purpose of providing other utility or non-utility services to existing or potential consumers or resellers, by providing any other services other than the provisions other than the provision of communications service, or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from the city for such activities as may be required by applicable law. (2) To the extent that a registrant leases or otherwise uses the facilities of a person that is duly registered or otherwise authorized to place or maintain facilities in the public rights-of-way of the city, registrant shall make no claim, nor assert any right, which will impede the lawful exercise of the city's rights, including requiring the removal of such facilities from the public rights-of-way of the city, regardless of the effect on registrant's ability to place or maintain its own communications facilities in public rights-of-way of the city. (Ord. No 01-29, § 11, 7-3-01) Sec. 25.1-10 Involuntary Termination of Registration. (1) The city may terminate a registration if: J0022 M 6.1 306-9001821) (a) A federal or state authority suspends, denies, or revokes a registrant's certification or license to provide communications services; (b) The registrant's placement or maintenance of a communications facility in the public rights-of-way presents an extraordinary or unreasonable danger to the general public or other users of the public rights-of-way and the registrant fails to remedy the danger promptly after receipt of written notice; or (c) The registrant ceases to use all of its communications facilities in public rights- of-way and has not complied with section 25.1-17 of this chapter. (2) Prior to termination, the registrant shall be notified by the Director of Engineering, or his designee, with a written notice setting forth all matters pertinent to the proposed termination action, including which of subsections (a) through (c) above is applicable as the reason therefore, and describing the proposed action of the city with respect thereto. The registrant shall have thirty (30) days after receipt of such notice within which to address or eliminate the reason or within which to present a plan, satisfactory to the Director of Engineering, or his designee, to accomplish the same. If the plan is rejected, the Director of Engineering or his designee shall provide written notice of such rejection to the registrant and shall make a recommendation to the City Commission regarding a final decision as to termination of registration. A decision by the city to terminate a registration may only be accomplished by an action of the City Commission. A registrant shall be notified by written notice of any decision by the City Commission to terminate its registration. Such written notice shall be sent within seven (7) days after the decision. (3) In the event of termination, the former registrant shall: (a) notify the city of the assumption or anticipated assumption by another registrant of ownership of the registrant's communications facilities in public rights-of-way; or (b) provide the city with an acceptable plan for disposition of its communications facilities in public rights-of-way. If a registrant fails to comply with this subsection, 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, requiring the registrant's bonding company within ninety (90) days of the termination to remove some or all of the facilities from the public rights-of-way and restore the public rights-of-way to its original condition before the removal, or requiring that some or all of the facilities be removed and the public rights-of-way restored to its original condition before the removal at the registrant's expense. (4) In any event, a terminated registrant shall take such steps as are necessary to render safe every portion of the communications facilities remaining in the public rights-of-way of the city safe. (5) In the event of termination of a registration, this provision does not permit the city to cause the removal of any communications facilities that are used to provide another service for which the registrant holds a valid certification or license with the governing federal or state agency, where required, and is properly registered with the city for such certificated or licensed service, where required. (Ord. No. 01-29 § 12, 7-3-01) Sec.25.1-11. Existing Communications Facilities in Public Rights -of -Way. A communications services provider with an existing communications facility in the public rights- Deleted: , Including, but not limited to, registration, or be in of -way of the city has sixty (60) days from the effective date of this chapter to comply with the violation thereof registration terms of this chapter - - { Deleted:. IM223126.1306-90013211 (Ord. No. 01-29 § 13, 7-3-01) The provisions of this Chapter shall be applicable to all Communications Facilities placed in the Public Rights -of -Way on or after the effective date of this Ordinance and shall apply to all existing Communications Facilities placed in the Public Rights -of -Way prior to the effective date of this Ordinance to the full extent permitted by Federal and State law, except that any provision of this Chapter regarding the size Stealth Design, concealment or location of Communications Facilities shall not apply to existing Communications Facilities lawfully placed within the Public Rights -of -Way prior to the effective date of this Ordinance to the extent that such Communications Facilities may be Maintained repaired and replaced with a Communications Facility substantially similar in size and for the same purpose. Sec. 25.1-12. Insurance. (1) A registrant shall provide pay for and maintain satisfactory to the city an acceptable policy or policies of liability insurance including comprehensive general liability insurance products/completed operations liability, personal injury liability, owners and contractors Protective liability, broad form property damage contractual liability, automobile liability (owned, non -owned and hired automobiles) workers' compensation and employee liability. A registrant shall not commence construction, operation or maintenance of the facility without obtaining all insurance required under this section and approval of such insurance by Risk Management of the city, nor shall a registrant allow any contractor or subcontractor to commence work on its contract or subcontract until all similar such insurance required of the same has been obtained and approved. The required insurance must be obtained and maintained for the entire period the registrant has facilities in the public rights-of-way, and for a period thereafter as specified in the minimum coverages described below. If the registrant, its contractors or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved. (2) All liability policies shall provide that the city is an additional insured as to the activities under this chapter. The required coverages must be evidenced by properly executed certificates of insurance forms The certificates must be signed by the authorized representative of the insurance company and shall be filed and maintained with the city annually. Certificates of insurance, reflecting evidence of the required insurance, shall be filed with the Risk Manager Coordinator. For entities that are entering the market, the certificates shall be filed prior to the commencement of construction and once a year thereafter, and as provided below in the event of a lapse in coverage. For entities that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within sixty (60) calendar days of the adoption of this chapter, annually thereafter, and as provided below in the event of a lapse in coverage. (3) These certificates of insurance shall contain a provision that coverages afforded under these policies will not be canceled until at least forty-five (45) calendar days prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the State of Florida. Financial Ratings must be no less than "A -VI" in the latest edition of "Bests Key Rating Guide", published by A.M. Best Guide. The insurance requirements may be satisfied by evidence of self-insurance with sufficient financial strength and reserves or other types of insurance acceptable to the city. A registraRt Fnay self insure. Self-insured status must be confirmed with certification of same by presentation of financial statements which are not more than one (1) year old and signed by the registrant's Chief Financial Officer or designees. Information contained therein is subject to review and approval by city's Risk Management Division. X00223126.1306 9001821) (4) In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of this contract, then in that event, the registrant shall furnish, at least thirty (30) calendar days prior to the expiration of the date of such insurance, a renewed certificate of insurance equal and like coverage. (5) The insurance policy or policies shall contain contractual liability insurance naming the city as an insured, and shall also insure against the types of liabilities covered by the indemnification and hold harmless provisions of Section 25.1-13. (§)�Q A registrant and its contractors or subcontractors engaged in work on the operator's behalf in, on, under or over public rights-of-way, shall maintain the following minimum insurance: (a) Comprehensive general liability insurance to cover liability bodily injury and property damage. Exposures to be covered are: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability: Bodily injury Each occurrence $1,000,000 b. Annual aggregate $3,000,000 2. Property damage a. Each occurrence $1,000,000 b. Annual aggregate $3,000,000 3. Personal injury a. Annual aggregate $3,000,000 4. Completed operations and products liability shall be maintained for two (2) years after the abandonment of the facility by the registrant (in the case of the registrant) or completion of the work for the registrant (in case of a contractor or subcontractor). 5. Property damage liability insurance shall include coverage for the following hazards: X — explosion, C — collapse, U — underground. (b) Worker's compensation insurance shall be maintained to comply with statutory limits for all employees, and in case any work is sublet, each registrant shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each registrant. Each registrant and its contractors and subcontractors shall maintain employers liability insurance. The following limits must be maintained: Workers' compensation Statutory X00223126.1 306 9001811 1 2. Employer's liability $500,000 per occurrence (c) Comprehensive auto liability Bodily injury a. Each occurrence $1,000,000 b. Annual aggregate $3,000,000 2. Property damage Each occurrence $1,000,000 b. Annual aggregate $3,000,000 Coverage shall include owned, hired and non -owned vehicles. (6) Each communication facility operator shall hold the city, its agents, and employees, harmless on account of claims for damage to persons, property or premises arising out of it construction, operation or repair of its communications facility and name the city as an additional insured. (7) Thirty (30) days advance written notice by registered certified or regular mail as determined by the city must be given to the city of any cancellation intent not to renew or reduction in the policy coverages. k74M This Section shall not be construed to affect in any way the city's rights, privileges and immunities as set forth in Florida Statutes § 768.28. Insurance under this Section shall run continuously with the presence of the registrant's facilities in the public rights-of-way and any termination or lapse of such insurance shall be a violation of this Section and subject to the remedies as set forth herein. Notwithstanding the foregoing, the city may, in its sole discretion, required increased or decreased levels of insurance for any other object placed in the city's public rights-of-way by way of individual license agreements. (Ord. No. 01-29 § 14, 7-3-01) Sec. 25.1-13. Indemnification. (1) A registrant shall, at its sole cost and expense, indemnify, hold harmless, and defend the city, its officials, boards, members, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses incurred by the city arising out of the placement or maintenance of its communications systems or facilities in public rights-of-way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this chapter, provided, however, that a registrant's obligation hereunder shall not extend to any claims caused by the negligence, gross negligence or wanton or willful acts of the city. This provision includes, but is not limited to, the city's reasonable attorneys' fees and costs incurred in defending against any such claim, suit or proceedings. The city agrees to notify the registrant, in writing, within a reasonable time of the city receiving notice, of any issue it determines may require indemnification. Nothing in this Section shall prohibit the city from participating in the defense of any litigation by its own counsel and at X00223126.1306 9001821 its own cost if in the city's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this section shall be construed or interpreted: (a) As denying to either party any remedy or defense available to such party under the laws of the State of Florida; (b) As consent by the city to be sued; or (c) As a waiver of sovereign immunity beyond the waiver provided in Florida Statutes § 768.28, as it may be amended. (2) The indemnification requirements shall survive and be in effect after the termination, suspension or cancellation of a registration. (Ord. No. 01-29, § 15, 7-3-01) Sec. 25.1-14. Construction Bond. (1) Prior to issuing a permit, publiG Fights of way, the city may require a construction bond to secure the restoration of the public rights-of-way and removal of abandoned equipment or equipment not removed after termination of registration or non -renewal of the annual permit., (2) In the event a registrant subject to such a construction bond fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the registrant, or the cost of completing the work, plus a reasonable allowance for attorney's fees, up to the full amount of the bond. (3) No less than twelve (12) months after the completion of the construction and satisfaction of all obligations in accordance with the bond, the registrant may request the Director of Engineering to remove the requirement to continue the construction bond. Notwithstanding, the city may require a new bond for any subsequent work performed in the public rights-of-way. (4) The construction bond shall be issued by a surety having a minimum rating of A-1 in Best's Ley Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City Attorney; and shall provide that: "For twelve (12) months after issuance of this bond, this bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the city, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew." (5) The rights reserved by the city with respect to any construction bond established pursuant to this section are in addition to all other rights and remedies the city may have under this Section, or at law or equity 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 any other right the city may have. (Ord No 01-29, § 15, 7-3-01) Sec. 25.1-16. Enforcement Remedies. (W223126 1 306-9W M l I Deleted: Notwithstanding the foregoing, a construction bond hereunder may only be required to the extent that the cost of the restoration exceeds the amount recoverable against the security fund as provided in Section 25.1-15 - Deleted: Sec. 25.1.1 S. Security Fund Deleted:.% .i Al or prior to the time a registrant receives its first permit to place or maintain a communication facility in public rights-of- way after the effective date of this chapter, the registrant may be required to file with the city, for city approval, an annual bond, cash deposit or irrevocable letter of credit in the sum of twenty-five thousand dollars ($25,000) or other appropriate amount having as a surety a company qualified to do business in the State of Florida, and acceptable to the city, which shall be referred to as the "security fund." The security fund shall be maintained from such time through the earlier of (i) transfer, sale or assignment to another registrant who shall comply with this provision or removal of all communications facilities in public nghtsof-war or (ii) twelve months after the termination or cancellation of any registration. The security fund shall be conditioned on the full and faithful performance by the registrant of all requirements, duties and obligations imposed upon registrant by the provisions of this chapter. The bond or guaranty shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the registrant's full and faithful performance at all times. In the event a registrant fails to perform its duties and obligations imposed upon the registrant by the provisions of this chapter, subject to Section 25.1-15 of this chapter, there shall be recoverable, jointly and severally from the principal and surety of the bend security fund, any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of any gFepeFt facilities of the registrant in public rights-of- way, plus a reasonable allowance for attomeys' fees, up to the full amount of the security fund. Notwithstanding the foregoing, the city may in its reasonable discretion may accept a corporate guarantee of the registrant or its parent company, if the registrant is a publicly traded company and maintains an insurance rating of no less than A.¶ (Ord No 01-29, § 17, 7-3-01)¶ (1) A registrant's failure to comply with provisions of this chapter shall constitute a violation of this chapter and shall subject the registrant to the code enforcement provisions and procedures as provided in Florida Statutes Chapter 162, Florida Statutes § 166.0415 and Section 2-72, et. seq. of the City Code of Ordinances, as they may be amended. In addition, violation of this chapter may be punishable by a fine not to exceed five hundred dollars ($500) or by imprisonment not to exceed sixty (60) days or by both as provided. (2) In addition to any other remedies available at law, including but not limited to Florida Statutes § 166.0415, and Florida Statutes Chapter 162, or equity or as provided in this chapter, the city may apply any one or combination of the following remedies in the event a registrant violates this chapter, or applicable local law or order related to the public rights-of-way: (a) Failure to comply with the provisions of the chapter or other law applicable to occupants of the public rights-of-way, may result in imposition of penalties to be paid by the registrant to the city in an amount of not less than one hundred dollars ($100) per day or part thereof that the violation continues. (b) In addition to or instead of any other remedy, the city may seek legal or equitable relief from any court of competent jurisdiction. (3) Before imposing a fine pursuant to this section, the city manager or the city manager's designee shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice, the registrant shall have 30 days to either: (a) cure the violation to the city's satisfaction and the city shall make good faith reasonable efforts to assist in resolving the violation; or (b) file an appeal with the city to contest the alleged violation. Section 25.1-8 of this chapter shall govern such appeal. If no appeal is filed and if the violation is not cured within the thirty (30) day period, the city may collect all fines owed, beginning with the first day of the violation, through any means allowed by law. (4) In determining which remedy is appropriate, the city shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the city determines are appropriate to the public interest. (5) 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. (6) In any proceeding before the city where there exists an issue with respect to a registrant's performance of its obligations pursuant to this chapter, the registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms and conditions of this chapter. The city may find a registrant that does not demonstrate compliance with the terms and conditions of this chapter in default and apply any one or combination of the remedies otherwise authorized by this chapter or other applicable laws, ordinances regulations or city codes. (7) The city manager or a designee shall be responsible for administration and enforcement of this chapter, and is authorized to give any notice required by law. (Ord. No 01-29, § 18, 7-3-01) X00223126.1 30690018211 Sec. 25.1-17. Abandonment of a Communication Facility. (1) Upon abandonment of a communications facility owned by a registrant in public rights- of-way, the registrant shall notify the city within ninety (90) days. (2) The city may direct the registrant by written notice to remove all or any portion of such abandoned communications facility at the registrant's sole expense if the city determines that the abandoned facility's presence interferes with the public health, safety or welfare, which shall include, but is not be limited to, a determination that such facility: (a) compromises safety at any time for any public rights-of-way user or during construction or maintenance in public rights-of- way; (b) prevents another person from locating facilities in the area of public rights-of-way where the abandoned facility is located when other alternative locations are not reasonably available; (c) creates a maintenance condition that is disruptive to the public rights -of -way's use; or d removal of the communications facility would improve or enhance the city's aesthetics. In the event of (b), the city may require the third person to coordinate with the registrant that owns the existing facility for joint removal and placement, where agreed to by the registrant. (3) In the event that the city does not direct the removal of the abandoned facility, the registrant, by its notice of abandonment to the city, shall be deemed to consent to the alteration or removal of all or any portion of the facility by the city or another person at such third party's cost. (4) If the registrant fails to remove all or any portion of an abandoned facility as directed by the city within a reasonable time period as may be required by the city under the circumstances, the city may perform such removal and charge the cost of the removal against the registrant or any successor in interest to the registrant. (Ord. No 01-29 § 19, 7-3-01) Sec. 25.1-18. Force Majeure. (1) In the event a registrant's performance of or compliance with any of the provisions of this chapter is prevented by a cause or event not within the registrant's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result; provided, however, that such registrant uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this chapter, causes or events not within a registrant's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. (2) Causes or events within registrant's control, and thus not falling within this section, shall include, without limitation, registrant's financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of registrant's directors, officers, employees, contractors or agents. (Ord. No. 01-29, § 20, 7-3-01) Sec. 25-1-19. Reports and Records. (1) Each registrant shall, upon thirty (30) calendar days written notice, if reasonably possible, but in no event less than five (5) business days written notice, provide the city access X00223126.1 306-9001821 to all books and records related to the construction, maintenance, or repair of the facility to the extent the city review of the books and records is necessary to manage its rights-of-way. (2) Any and all non-proprietary or non -confidential books and records may be copied by the city. To the maximum extent permitted by Florida Statutes § 202.195, as amended, such books and records shall be kept confidential and exempt from the provisions of Florida Statutes § 119.07(1). A registrant is responsible for obtaining or maintaining the necessary possession or control of all books and records related to the construction, maintenance or repair of the facility, so that it can produce the documents upon request. Books and records must be maintained for a period of five (5) years, except that any record that is a public record must be maintained for the period required by state law. (3) For purposes of this section, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the city at City Hall, except by agreement. (4) If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a registrant may request that the inspection take place at some other location mutually agreed to by the city and the registrant, provided that the registrant must make necessary arrangements for copying documents selected by the city after its review; and the registrant must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee. (5) Without limiting the foregoing, a registrant shall provide the city the following within ten (10) calendar days of their receipt or (in the case of documents created by the registrant or its affiliate) filing: (a) Notices of deficiency or forfeiture related to the operation of the facility; and (b) Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the operator or by any partnership or corporation that owns or controls the operator directly or indirectly. (6) In addition, the city may, at its option, and upon reasonable notice to the registrant, inspect the facilities in the public rights-of-way to ensure the safety of its residents. (Ord No. 01-29, § 21, 7-3-01) Sec.25.1-20. Reservation of Rights and Remedies. (1) The city reserves the right to amend this chapter as it shall find necessary in the lawful exercise of its police powers. (2) This chapter shall be applicable to all communications facilities placed in the public rights-of-way on or after the effective date of this chapter and shall apply to all existing communications facilities in the public rights-of-way prior to the effective date of this chapter, to the full extent permitted by state and federal law. (3) The adoption of this chapter is not intended to affect any rights or defenses the city may have under any existing franchise, license or other agreements with a communications services provider. X00223126.1306-0001831 (4) Nothing in this chapter shall affect the remedies the city has available under applicable law. (5) Any person who uses the communications facilities of a registrant, other than the registrant that owns the facilities shall not be entitled to any rights to place or maintain such facilities in excess of the rights of the registrant that places or maintains the facilities. (Ord. No. 01-29, § 22, 7-3-01) Sec. 25.1-21. Pass-through Provider Fees and Charges. (1) Pass-through providers shall pay to the city on an annual basis an amount equal to $500.00 per linear mile or portion thereof of communications facilities placed and/or maintained in the city's rights-of-way. For purposes of this section the city's rights-of-way do not include rights-of-way that extend in or through the city but are state county or another authority's roads or rights-of-way. (2) The amounts charged pursuant to this section shall be based on the linear miles of rights -of- way where a wireless communications facility is placed not based on a summation of the lengths of individual cables conduits strands or fibers. Multiple cables conduits, strands, or fibers located within the same conduit shall be considered one communications facility for purposes of this subsection. (3) Any annual amount charged shall be reduced for a prorated portion of any 12 -month period during which the pass-through provider remits taxes imposed by the city pursuant to F.S. Ch. 202. (4) Fees for Non -Collocated Communications Facilities. (a) Fees for non -collocated communications facilities may be charged to any person not a dealer of communications services as defined by Florida Statutes & 202.11. (b) Annual payments shall be due and payable on April 1 of each year. Failure to timely pay the annual payment shall result in the immediate forfeiture of all rights to locate any wireless equipment in the citv rights-of-way and all wireless equipment shall be removed within thirtv (30) days at the wireless infrastructure provider's expense. Fees not paid shall bear interest at the rate of one percent per month from the date due until the wireless equipment is removed The acceptance of any payment required hereunder by the city shall not be construed as an acknowledgement 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 All fee payments shall be subject to audit by the city, and assessment or refund if any payment is found to be in error. If such audit results in an assessment by and an additional payment to the city, such additional payment shall be subject to interest at the rate of one percent per month until the date payment is made. (5) Collocation Fees. (a) The wireless infrastructure provider shall remit a $150.00 collocation fee per wireless facility to the City with the application to pay for the first year's fee for collocating small wireless facilities on a city utility pole. X00223126.1306 9001811 (b) The wireless infrastructure provider shall remit a $150.00 collocation fee per wireless facility to the City within thirty (30) days of the anniversary of the approval of the collocation Failure to timely pay the Collocation Fee shall result in the immediate forfeiture of all rights to collocate on the city utility pole and any wireless equipment collocated on the utility pole shall be removed within thirty (30) days at the wireless provider's expense. (6) Fees for City Connections. The City reserves the right to assess pole connection fees or other fees for the use of city employees and contractors as well as fees for access to any fiber network the city may construct. iDeleted: (7) Permit Fees The wireless infrastructure Provider (8) If the payments required b this section are not timely made by the due date, the city shall remit with its application all appropriate fees. includina a y right-of-way utilization permit fee and building permit and plan may withhold the issuance of any permits including for other wireless facilities to the registrant review fees until the amount past due is paid in full. Deleted: ¶ 100]] 3116.1 306 90018317