Town of Zolfo Springs, FL Communications Facilities in Public Rights-of-Way

The public rights-of-way within the Town of Zolfo Springs are a unique and physically limited resource and important amenity that are critical to the travel and transport of persons and property in the Town.

(2)

The demand for telecommunications services has grown exponentially in recent years, requiring the continual upgrading of telecommunications equipment and services to satisfy such demand.

(3)

The placement of telecommunications equipment and facilities in the public rights-of-way to satisfy the demand for telecommunications services raises important issues with respect to the Town's responsibility to manage its public rights-of-way.

(4)

The public rights-of-way must be managed and controlled in a manner that enhances the health, safety and general welfare of the Town and its citizens.

(5)

The use and occupancy of the public rights-of-way by providers of communications services must be subject to regulation which can ensure minimal inconvenience to the public, coordinate users, maximize available space, reduce maintenance and costs to the public, and facilitate entry of an optimal number of providers of cable, telecommunications, and other services in the public interest.

(6)

Section 166.041, Florida Statutes, provides for procedures for adoption of an ordinance which is a regulation of general and permanent nature and enforceable as local law.

(7)

Section 337.401, Florida Statutes, provides that because federal and state law require the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of communications services, it is the intent of the Florida Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way.

(8)

The Town finds that, to promote the public health, safety and general welfare, it is necessary to:

(a)

Provide for the placement or maintenance of communications facilities in the public rights-of-way within the Town limits;

(b)

Adopt and administer reasonable rules, regulations and general conditions not inconsistent with applicable state and federal law;

(c)

Manage the placement and maintenance of communications facilities in the public rights-of-way by all communications services providers;

(d)

Minimize disruption to the public rights-of-way; and

(e)

Require the restoration of the public rights-of-way to original condition.

(9)

The Town's intent is that these rules and regulations must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services to apply for or enter into an individual license, franchise, or other agreement with the Town as a condition of placing or maintaining communications facilities in its roads or rights-of-way.

(10)

It is also the Town's intent to exercise the Town's retained authority to regulate and manage the Town's roads and rights-of-way in exercising its police power over communications services providers' placement and maintenance of facilities in the public rights-of-way in a nondiscriminatory and competitively neutral manner.

This chapter shall apply to any public or private entity which seeks to construct, place, install, maintain or operate a communications system or facilities, as such terms are defined herein, in the public rights-of-way, unless otherwise exempt by operation of applicable state or federal law. This chapter shall equally apply to a Town-owned or -controlled communications system except to the extent such facilities are utilized on an internal, noncommercial basis by the Town or any of its agencies, departments or bureaus.

§ 240-48 Definitions.

For purposes of this chapter, the following terms, phrases, words and their derivations shall have the meanings ascribed herein. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural. The words "shall," "will" and "must" are mandatory, and "may" is permissive. Words not otherwise defined herein shall have the meaning ascribed thereto under Chapter 202 or 337, Florida Statutes, as amended, or where none is ascribed shall be construed to mean the common and ordinary meaning.

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

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

ANTENNA: Communications equipment that transmits or receives electromagnetic radio frequency signals used in providing wireless services or other communications services.

APPLICABLE CODES: Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address 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 which may require that a new utility pole replacing an existing utility pole be of substantially similar design, material, and color, or that ground-mounted equipment meet reasonable spacing requirements. The term includes objective design standards adopted by ordinance which may require a small wireless facility to meet reasonable location, context, color, stealth, and concealment requirements; however, the Town may waive the design standards upon a showing that the design standards are not reasonably compatible for the particular location of a small wireless facility or that the design standards impose an excessive expense. The waiver must be granted or denied within 45 days after the date of the waiver request.

APPLICANT: A person who submits an application and is a wireless provider.

APPLICATION: A request submitted by an applicant to the Town for a permit to co-locate small wireless facilities.

CHAPTER: The Zolfo Springs Communications Right-of-Way Utilization Ordinance, codified as Chapter 240 of the Town Code pursuant to that ordinance enacted by Town Commission effective on July 1, 2017, as may be amended or supplemented from time to time.[1]

CO-LOCATE or CO-LOCATION: To install, mount, maintain, modify, operate, or replace one or more wireless facilities on, under, within, or adjacent to a wireless support structure or utility pole. The term does not include the installation of a new utility pole or wireless support structure in the public rights-of-way, nor does it include interconnection of communications facilities or the sale or purchase of capacity (whether bundled or unbundled).

COMMUNICATIONS FACILITY PROVIDER: A person who is engaged, directly or indirectly, in the business of leasing, licensing, subleasing, subletting or hiring to one or more communications services providers all or a portion of the tangible personal property used in a communications facility, including but not limited to, towers, poles, tower space, antennas, transmitters, and transmission lines placed or maintained or to be placed or maintained upon, under, over, or along any public rights-of-way of the Town. Provisions of this article that apply only to communications facility providers shall not apply to communications services providers even if the communications services provider also operates, licenses, leases, subleases, or sublets communications facilities.

COMMUNICATIONS FACILITY, FACILITY or FACILITIES or SYSTEM: Any portion of a communications system located in the public rights-of-way.

COMMUNICATIONS SERVICES: The definition ascribed thereto in § 202.11(1), Florida Statutes, as may be amended, and also includes but is not limited to wireless services as defined herein.

COMMUNICATIONS SERVICES PROVIDER

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

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

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

DEALER: Any person, municipality or county providing communications services to an end user in Zolfo Springs through the use and operation of communications facilities installed, placed and maintained in the public rights-of-way, whether owned or leased, and who has registered with the Florida Department of Revenue as a provider of communications services pursuant to Chapter 202, Florida Statutes. This definition of "dealer" is intended to include any reseller.

DEPARTMENT: The Florida Department of State.

DEVELOPMENT PERMIT: The permit required under § 240-33, Zolfo Springs Code (within the right-of-way and easement use ordinance subchapter), prior to commencement of any placement or maintenance of facilities in the public rights-of-way.

FCC: The Federal communications Commission.

GOVERNMENT: The United States of America, the State of Florida, counties, municipalities, and any of their respective agencies, departments or bureaus.

IN THE PUBLIC RIGHTS-OF-WAY: In, along, on, over, under, across or through the public rights-of-way.

MICRO WIRELESS FACILITY: 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.

PASS-THROUGH FACILITIES: The facilities for a communications system that merely pass through the Town from one point to another point and from which no revenues are directly attributable to subscribers or other carriers within the Town.

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

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

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

PUBLIC RIGHTS-OF-WAY

An interest in land granted, conveyed, dedicated, acquired for Town purposes, or devoted to vehicular and/or pedestrian traffic; this shall include but not be limited to land in which the Town owns fee simple title, or has established any type of ownership thereof or interest in any land utilized by the Town for vehicular and/or pedestrian traffic or other purposes and includes the space above, at or below the surface of such right-of-way. Public rights-of-way shall include public utility easements and Town services easements that are to locate or permit the location of communications facilities; provided that the terms and conditions of any such easement expressly allow, or any restrictions thereon do not expressly prohibit, the use of the particular easement for purposes other than which it was conveyed, dedicated or condemned.

Public rights-of-way shall not include:

(1)

County, state or federal rights-of-way;

(2)

Property owned by any person other than the Town;

(3)

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

(4)

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

PUBLIC SERVICE COMMISSION or PSC: The agency for the State of Florida charged with the powers and duties conferred upon it by Chapter 364, Florida Statutes.

REGISTRANT: A communications services provider or pass-through provider that has registered with the Town in accordance with the provisions of § 240-49 of this article and holds an effective registration.

REGISTRATION or REGISTER (or other similar formulation of that term): The process described in § 240-43 herein whereby a communications services provider provides certain information to the Town.

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

SMALL WIRELESS FACILITY

A wireless facility that meets the following qualifications:

(1)

Each antenna associated with the facility is located inside an enclosure of no more than six cubic feet in volume or, in the case of antennas that have exposed elements, each antenna and all of its exposed elements could fit within an enclosure of no more than six cubic feet in volume; and

(2)

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.

TOWN: The Town of Zolfo Springs, Florida, a municipal corporation organized and existing under the laws of the State of Florida.

TOWN CODE: The municipal code of ordinances of the Town of Zolfo Springs, Florida.

TOWN COMMISSION: The governing body for the Town.

TOWN UTILITY POLE: A utility pole owned by the Town in the right-of-way.

UTILITY POLE: A pole or similar structure used in whole or in part to provide communications services or for electric distribution, lighting, traffic control, signage, or a similar function. The term includes the vertical support structure for traffic lights, but does not include any horizontal structures upon which are attached signal lights or other traffic control devices and does not include any pole or similar structure 15 feet in height or less unless the Town grants a waiver for the pole.

WIRELESS FACILITIES

Equipment at a fixed location which enables wireless communications between user equipment and a communications network, including radio transceivers, antennas, wires, coaxial or fiber-optic cable or other cables, regular and backup power supplies, and comparable equipment, regardless of technological configuration, and equipment associated with wireless communications. The term includes small wireless facilities.

The term does not include:

(1)

The structure or improvements on under within, or adjacent to the structure on which the equipment is co-located; or

(2)

Wireline backhaul facilities; or

(3)

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: 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: A wireless infrastructure provider or a wireless services provider.

WIRELESS SERVICES: Any services provided using licensed or unlicensed spectrum, whether at a fixed location or mobile, using wireless facilities.

WIRELESS SERVICES PROVIDER: A person who provides wireless services.

WIRELESS SUPPORT STRUCTURE: 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.

[1]

Editor's Note: Said ordinance is codified as Ch. 240, Art. III.

§ 240-49 Registration.

Every communications services provider that desires to place or maintain a communications system or any communications facilities in the public rights-of-way, including any pass-through facilities, shall first register with the Town in accordance with this § 240-49. Subject to the provisions prescribed in this chapter, a communications services provider that has properly registered may apply for development permits to place or maintain a communications system or facilities in the public rights-of-way.

Every communications services provider that desires to place or maintain communications facilities in the public rights-of-way, including any pass-through facilities, shall register with the Public Works Director or his designee's office and shall submit the following information and documentation:

(1)

The name of the applicant under which it will transact business in the Town and, if different, in the State of Florida; and

(2)

The address and telephone number of the applicant's principal place of business in the State of Florida and any branch office located in the Town or, if none, the name, address and telephone number of the applicant's national headquarters and its registered agent in Florida; and

(3)

The name, address and telephone number of the applicant's primary contact person and the person to contact in case of an emergency; and

(4)

The type of communications services that the applicant intends to provide within the corporate limits of the Town (if more than one, state all that apply), or, if none, state that the applicant is a pass-through provider or is intending only to place and maintain pass-through facilities, as the case may be; and

(5)

For registrations submitted on or after October 1, 2017, a copy of both the applicant's resale certificate and certificate of registration issued by the Florida Department of Revenue to engage in the business of providing communications services in the State of Florida; and

(6)

A copy of the applicant's certificate of authorization, public convenience and necessity or other similar certification issued by the Florida Public Service Commission; and

(7)

The number of the applicant's certificate of authorization or license to provide communications services issued by the Florida Public Service Commission, the Department, the FCC, or other federal authority, if any; and

(8)

For an applicant that is a pass-through provider, in lieu of Subsection A(5), (6) and (7) above, the applicant shall provide a certified copy of the certificate or license issued by the Florida Department of State, or other appropriate state agency or department, authorizing the company to do business in the State of Florida; and

(9)

Evidence of the applicant's insurance coverage as required under this chapter.

The Town shall review the information submitted by the applicant. Such review shall be by the Public Works Director or his designee, or his or her designee. If it is found that the applicant complied with the requirements in § 240-49A above, the registration shall be effective, and the Town shall notify the applicant of the effectiveness of the registration in writing. If the Town determines that the applicant is not in compliance, the Town shall notify the applicant in writing of the noneffectiveness and denial of registration and the reasons therefor. The Town shall so reply to an applicant within 30 days after receipt of the registration and required information from the applicant. Noneffectiveness and denial of registration shall not preclude an applicant from reapplying or filing subsequent applications for registration under the provisions of this § 240-49.

An effective registration does not, and shall not be construed to, convey equitable or legal title in the public rights-of-way to any communications services provider. Registration under this article governs only the placement or maintenance of a communications system or communications facilities in the public rights-of-way. Other ordinances, codes or regulations may apply to the placement or maintenance in the public rights-of-way of facilities that are not part of a communications system. Registration does not excuse a communications services provider from obtaining appropriate access or pole attachment agreements before locating its facilities on those facilities or property belonging to the Town or another person. Registration does not excuse a communications services provider from complying with all other applicable Town ordinances, codes or regulations, including the rules, regulations and general conditions set forth in this chapter.

A communications services provider may cancel a registration upon written notice to the Town stating that it will no longer place or maintain a communications system or any communications facilities in the public rights-of-way and will no longer have a need to apply for development permits to perform construction or other work in the public rights-of-way. A communications services provider cannot cancel a registration if it intends to continue placing or maintaining a communications system or any communications facilities in the public rights-of-way.

Registration, in and of itself, does not establish a right to place or maintain or a priority for the placement or maintenance of a communications system or any facility in the public rights-of-way, but shall establish for the communications services provider a right to apply for a development permit from the Town. Registrations are expressly subject to any future amendment to or replacement of this chapter and further subject to any additional Town ordinances, as well as any state or federal laws that may be enacted. Registration does not excuse or exempt a communications services provider from having to obtain on occupational license from the Town in accordance with the Town Code.

A communications services provider shall renew its registration with the Town by April 1 of even-numbered years in accordance with the registration requirements in this chapter, except that any communications services provider that initially registers during the even-numbered year when renewal would be due or the odd-numbered year immediately preceding such even-numbered year shall not be required to renew its registration until the next even-numbered year. Within 30 days of any change in the information required to be submitted pursuant to § 240-49A(1), a communications services provider shall provide updated information to the Town. If no information in the then-existing registration has changed, the renewal may state that no information has changed. Failure to renew a registration may result in the Town restricting the issuance of additional development permits until the communications services provider has complied with the registration requirements of this chapter.

In accordance with applicable Town ordinances, codes or regulations, a development permit is required for a communications services provider to place or maintain a communications facility in the public rights-of-way. An effective registration shall be a condition of obtaining such a permit. Notwithstanding an effective registration, all permitting requirements shall apply, including the requirement to pay for any such permits unless otherwise provided by resolution or ordinance of the Town. A permit may be obtained by or on behalf of the communications services provider having an effective registration if all permitting requirements of the Town and other provisions of this chapter are met.

§ 240-50 Notice of transfer, sale or assignment of assets.

If a communications services provider transfers, sells or assigns its system or any facilities located in the public rights-of-way incident to a transfer, sale or assignment of the communications services provider's assets, the transferee, buyer or assignee shall be obligated to comply with the provisions set forth in this chapter. Written notice of any such transfer, sale or assignment shall be provided by the communications services provider to the Town within 30 days after the effective date of such transfer, sale or assignment. If the transferee, buyer or assignee is not currently registered with the Town, then the transferee, buyer or assignee must register as provided in § 240-43 within 60 days of the effective date of such transfer, sale or assignment. If any applications for development permits are pending under the communications services provider's name as of the date the Town receives written notice of the transfer, sale or assignment, then the Town shall consider the transferee, buyer or assignee as the new applicant unless otherwise notified by the communications services provider.

§ 240-51 Rules, regulations and general conditions to placement or maintenance of communications systems and facilities in the public rights-of-way.

As a condition of allowing the placement or maintenance of a communications system or any communications facility in the public rights-of-way, and under additional authority granted pursuant to Chapter 337, Florida Statutes, the Town hereby imposes the following rules, regulations and general conditions. Unless otherwise provided in this Article III, Chapter 240, these rules, regulations and general conditions shall apply to all communications services providers, including those that are pass-through providers, irrespective of whether they place and maintain only conduit, dark fiber or pass-through facilities.

A registrant shall at all times comply with and abide by all applicable provisions of the state and federal law and Town ordinances, codes and regulations in placing or maintaining a communications facility in public rights-of-way, including, but not limited to, all applicable sections of Chapter 240 of the Town Code.

The registrant shall not commence to place or maintain a communications facility, including, without limitation, a co-location, in the public rights-of-way until all applicable permits, if any, have been issued by the Town or other appropriate authority; provided, however, in the case of an emergency, a registrant may restore its damaged facilities in the right-of-way with facilities of the same size, character and quality, all without first applying for or receiving a permit.

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 preexisting service. The registrant shall provide prompt notice to the Town of the repair or replacement of a communications facility in the public rights-of-way in the event of an emergency, and shall be required to obtain an after-the-fact permit if a permit would have originally been required to perform the work undertaken in the public rights-of-way in connection with the emergency. The registrant acknowledges that as a condition of granting permits, the Town may impose reasonable rules or regulations governing the placement or maintenance of a communications facility in the public rights-of-way. Permits shall apply only to the areas of public rights-of-way specifically identified in the permit. The Town may issue a blanket permit to cover certain activities, such as routine maintenance and repair activities that may otherwise require individual permits.

Communications facilities providers and pass-through providers understand and acknowledge that the Town's policies strongly favor strengthening utility infrastructure, in particular as it relates to flooding and hurricane-related events. Subject to any applicable regulatory approval, the communications facility providers and pass-through providers will implement an infrastructure hardening plan for any facilities within the Town's boundaries.

As part of any permit application to place a new or replace an existing wireless communications facility in public rights-of-way, including, without limitation, a co-location, the registrant shall provide the following:

(1)

The location of the proposed facilities, including a description of the facilities to be installed, where the facilities are to be located, and the approximate size of facilities that will be located in public rights-of-way;

(2)

With respect to proposals to locate a new tower or replace an existing tower or wireless communications facility in the right-of-way, engineering documentation demonstrating either:

(a)

How the proposed tower or wireless communications facility can accommodate multiple co-locations;

(b)

Why the Town's interest in safe, aesthetic, efficient and effective management of the public rights-of-way is better served by the proposed tower or wireless communications facility than by a communications facility that could accommodate multiple co-locations; or

(c)

Why a repurposed structure is not better suited to or feasible for the site.

(3)

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

(4)

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

(5)

For purposes of assessing impact on public rights-of-way resources, effects on neighboring properties and potential for co-locations or repurposed structures, information on the ability of the public rights-of-way to accommodate the proposed facility, including information that identifies all aboveground and below-ground structures (including light poles, power poles, equipment boxes and antennas), currently existing in the public rights-of-way in the Town within a five-hundred-foot radius of the proposed facility, if available (such information may be provided without certification as to correctness, to the extent obtained from other registrants with facilities in the public rights-of-way); however, if the Town Manager or his or her designee determines that it either better serves the Town's interests in safe, aesthetic, efficient and effective management of the public rights-of-way, is necessary to address a documented lack of capacity for one or more carriers or will help minimize the total number of communications facilities necessary to serve a particular area, then the five-hundred-foot distance requirement may be modified. The applicant shall provide competent substantial evidence to reflect that the above conditions are met, in order to waive the five-hundred-foot distance requirements, and ensure compliance with all the other requirements of this chapter;

(6)

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

(7)

The timetable for construction of the project or each phase thereof, and the areas of the Town which will be affected;

(8)

Whether all or any portion of the proposed facilities will be rented, hired, leased, sublet, or licensed from or to any third party and, if so, the identity and contact information of that third party;

(9)

Prior to installation of any new or additional equipment in the rights-of-way, including, but not limited to, co-location at a specific site, the communications services provider or pass-through provider shall be required to remove any and all obsolete, unutilized or abandoned equipment. Any application to install new or additional equipment shall identify the abandoned, obsolete or unutilized equipment that shall be removed prior to the installation of any new or additional technology or equipment in the rights-of-way;

(10)

If there exists a communications facility by the same provider or pass-through provider within the public rights-of-way that is adjacent to or within 15 feet of the proposed new communications facility location, the communications services provider or pass-through provider shall be required to remove and consolidate the equipment into one facility, so as to not create a second location for street furniture within such a minimal distance; and

(11)

Such additional information as the Town 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.

To the extent not otherwise prohibited by state or federal law, the Town shall have the power to prohibit or limit the placement of new or additional communications facilities within a particular area of public rights-of-way and may consider, among other things and without limitation, the sufficiency of space to accommodate all of the present communications facilities and pending applications to place and maintain facilities in that area of the public rights-of-way, the sufficiency of space to accommodate Town-announced plans for public improvements or projects that the Town determines are in the public interest, the impact on traffic and traffic safety, and the impact upon existing facilities in the public rights-of-way. The Town Manager or his designee, or his or her designee, may impose additional reasonable rules and regulations to ensure the public health, safety and welfare, and peaceful enjoyment of Town residents and businesses.

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. 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 should be employed wherever feasible. To the extent not prohibited by federal and state law, the Town shall require any registrant that does not have communications facilities in the Town as of the date of adoption of this article to place any new cables, wires, fiber optics, splice boxes and similar communications facilities underground, unless such communications facilities can be co-located on existing poles. The Town Manager or his designee, or his or her designee, may promulgate reasonable rules and regulations concerning the placement or maintenance of a communications facility in the public rights-of-way consistent with this article and other applicable law.

All safety practices required by applicable law or accepted industry practices and standards shall be used during the placement or maintenance of communications facilities.

After the completion of any placement or maintenance of a communications facility in the public rights-of-way or each phase thereof, a registrant shall, at its own expense, restore the public rights-of-way to its original condition before such work. If the registrant fails to make such restoration within 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 Town may perform restoration and charge the costs of the restoration against the registrant in accordance with § 337.402, Florida Statutes, 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 restoration work that does not satisfy the requirements of this article at its own expense.

Removal or relocation at the direction of the Town of a registrant's communications facility in the public rights-of-way shall be governed by the provisions of §§ 337.403 and 337.404, Florida Statutes, as they may be amended from time to time.

A permit from the Town constitutes authorization to undertake only certain activities in the public rights-of-way in accordance with this Article III, 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.

A registrant shall maintain its communications facilities in the public rights-of-way in a manner consistent with accepted industry practice and applicable law.

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 Ch. 556, Florida Statutes, as it may be amended from time to time.

The 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.

Upon request of the Town, and as notified by the Town of the other work, construction, installation or repairs referenced below, a registrant may be required to 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, and the registrant may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbance in the public rights-of-way.

A registrant shall not place or maintain its communications facilities so as to interfere with, displace, damage or destroy any facilities, including, but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the Town or any other person's facilities lawfully occupying the public rights-of-way of the Town.

The Town makes no warranties or representations regarding the fitness, suitability, or availability of the Town's public rights-of-way for the registrant's communications facilities and any performance of work, costs incurred or services provided by the registrant shall be at the registrant's sole risk. Nothing in this article shall affect the Town's authority to add, vacate, modify, abandon or otherwise dispose of public rights-of-way, and the Town makes no warranties or representations regarding the availability of any added, vacated, modified or abandoned public rights-of-way for communications facilities.

The Town shall have the right to make such inspections of communications facilities placed or maintained in the public rights-of-way as it finds necessary to ensure compliance with this Article III.

A permit application to place a new or replace an existing communications facility in the public rights-of-way shall include plans showing the location of the proposed installation of facilities in the public rights-of-way. If the plans so provided require revision based upon actual installation, the registrant shall promptly provide revised plans. The plans shall be in a hard-copy format or an electronic format specified by the Town, 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 Town. Upon completion of any communications facilities, the communications services provider shall furnish to the Town, at no cost to the Town, one complete set of sealed as-built plans or, in the case of any underground communications facilities, a sealed survey showing the exact location of such communications facilities, including their depth; or in either case, such other documentation describing the location (including height or depth, as the case may be), of communications facilities as the Town Manager or his designee, or his or her designee, may approve. This requirement shall be in addition to, and not in lieu of, any filings the registrant is required to make under the Underground Facility Damage Prevention and Safety Act set forth in Ch. 556, Florida Statutes, as amended from time to time. The fact that such plans or survey are on file with the Town shall in no way abrogate the duty of any person to comply with the aforesaid Underground Facility Damage Prevention and Safety Act when performing work in the public rights-of-way. Any proprietary confidential business information obtained from a registrant in connection with a permit application or a permit, upon request of the registrant, shall be held confidential by the Town to the extent provided in § 202.195, Florida Statutes, as amended from time to time.

The Town 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 Town in the public rights-of-way occupied by the registrant, and the Town also reserves the right to reserve any portion in the public rights-of-way for its own present or future use. The Town 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 Town and within said limits as same may from time to time be altered.

The following additional requirements apply when a registrant seeks authority to locate a wireless communications facility in the public rights-of-way;

(1)

Registrants seeking to locate wireless communications facilities within the Town are encouraged to locate on private property or government-owned property outside of the public rights-of-way. An application for a permit to locate wireless communications facilities in the public rights-of-way shall explain why the applicant is unable to locate the proposed facilities on private property or government-owned property. The Town may not deny an application based solely on the fact that the applicant is proposing to place a wireless communications facility in the public rights-of-way.

(2)

Registrants seeking to place, construct or modify a wireless communications facility in the public rights-of-way shall either:

(a)

Co-locate wireless communications facilities with the wireless communications facilities of other wireless service providers, as set out in § 365.172, Florida Statutes, as amended; or

(b)

Install their wireless communications facilities on existing structures within the public rights-of-way, including without limitation existing power poles, light poles and telephone poles in a stealth design; or

(c)

Repurpose an existing structure. With respect to proposals to locate a new tower or replace an existing tower or wireless communications facility in the public rights-of-way, engineering documentation demonstrating either: (i) how the proposed tower communications facility can accommodate multiple co-locations; (ii) why the Town's interest in safe, aesthetic, efficient and effective management of the public rights-of-way is better served by the proposed tower or wireless communications facility than by a communications facility that could accommodate multiple co-locations; or (iii) why a repurposed structure would not be better suited to or feasible for the site.

(3)

Registrants seeking to construct wireless communications facilities within the public rights-of-way shall locate their wireless communications facilities in the public rights-of-way of arterial or collector roadways, whenever possible. An application for a permit to place wireless communications facilities in the public rights-of-way other than those of arterial or collector roadways shall explain why the applicant is unable to locate the wireless communications facilities in the public rights-of-way of an arterial or collector roadway and shall include an engineering analysis from the applicant demonstrating to the satisfaction of the Town the need to locate the wireless communications facilities in the areas proposed in the application.

(4)

To the extent applicable, the Town's action on proposals to place, construct or modify wireless communications facilities shall be subject to the standards and time frames set out in § 365.172, Florida Statutes; and 47 U.S.C. § 1455(a), as they may be amended from time to time.

Pursuant to § 337.401(c)(1)(b), Florida Statutes, and other applicable provisions of law, and notwithstanding any other provisions of this Code, the Town hereby elects not to charge permit fees to any registrant for permits to do work in the public rights-of-way.

The following additional conditions shall apply to all permits issued under this article:

(1)

Town not liable. Except for acts of willful misconduct or gross negligence and to the extent permitted by applicable law, neither the Town nor its officials, boards, commissions, consultants, agents, employees or independent contractors shall have any liability to the communications services provider for any claims for any damages, costs, expenses or losses resulting from the Town's breakage, removal, alteration or relocation of any facilities of any communications services provider which arose out of or in connection with any emergency or disaster situation or was, in the sole discretion of the Public Works Director or his designee, deemed necessary to facilitate any public works project, public improvement, alteration of a Town structure, change in the grade or line of any public rights-of-way, or the elimination, abandonment or closure of any public rights-of-way or was found by the Town Commission to be in the best interest of the health, safety or general welfare of the public; nor shall any charge be made by the communications services provider against the Town for any damages, costs, expenses or losses related thereto.

(2)

No exemption from permits. Nothing in this chapter shall exempt any communications services provider from obtaining development permits for work done within the public rights-of-way.

(3)

Subject to police powers. The rights of the communications services provider shall be subject to all lawful exercise of police power by the Town, and to such other reasonable regulation of the public rights-of-way as the Town shall hereafter by resolution or ordinance provide in the interest of the health, safety and general welfare of the public. Any inconsistency or ambiguity between the provisions of this Chapter 240 and any lawful exercise of the Town's police power shall be resolved in favor of the latter.

(4)

Town inspection. The Town shall have the right to make such inspections of a communications system or facilities placed or maintained in the public rights-of-way as it finds necessary to ensure compliance with this chapter. This chapter shall not be construed to create or hold the Town responsible or liable for any damage to persons or property by reason of any inspection by the Town of the placement or maintenance of a communications system or facility as authorized herein or failure by the Town to so inspect.

(5)

Access to manholes. The Town, in the proper exercise of its municipal powers and duties with respect to the public rights-of-way, shall have access at any time to all hand holes and manholes in the Town belonging to a communications services provider. Before accessing any manhole, the Town will make a reasonable good faith effort to provide the communications services provider prior notice to afford an opportunity to have trained personnel present, unless determined by the Town to be an emergency situation.

(6)

Compatibility, capacity and interference issues. To properly manage and control the use of the public rights-of-way, and to protect the health, safety and general welfare of the public, the Town, in its legislative and regulatory role, shall be the final authority on permitting a communications system or facility to be placed in the public rights-of-way and shall exercise such authority in a nondiscriminatory manner. It shall be in the sole discretion of the Town Attorney whether an easement is compatible with or allows for its use by a communications system or facility. It shall be in the sole discretion of the Public Works Director or his designee, based on the nature, design, size, configuration or proposed location of any communications system or facility, whether there is sufficient capacity in a particular section of the public rights-of-way or whether such system or facility will interfere with the facilities or equipment of any municipality, county, public utility, cable operator, or other communications services provider.

(7)

No warranty of fitness or suitability. The Town makes no express or implied warranties or representations regarding the fitness, suitability, or availability of the public rights-of-way for any communications system or facility or its right to authorize the placement or maintenance of any communications system or facility in the public rights-of-way. Any performance of work, costs incurred or services rendered by a communications services provider shall be at such provider's sole risk. Nothing in this chapter shall affect the Town's authority to acquire or add public rights-of-way, or to vacate or abandon public rights-of-way as provided for in the Town Code or applicable law. The Town makes no express or implied warranties or representations regarding the availability of any acquired, added, vacated or abandoned public rights-of-way for a communications system or facility.

(8)

Annexations. Upon the annexation of any territory to the Town of Zolfo Springs, the provisions of this chapter and the rules, regulations and general conditions contained herein shall extend to the territories so annexed; and all facilities placed, maintained, owned or operated by any communications services provider extending into or already located in the public rights-of-way of the territory so annexed, shall thereafter be subject to all terms hereof, as the same may be amended from time to time.

§ 240-52 Duty to notify Town of resellers; conditional use of public rights-of-way.

Within 30 days of any registered communications services provider using its facilities to carry the communications services of any reseller, such communications services provider shall notify the Town of the name and address of such reseller. A reseller's lease, interconnection or other use of facilities belonging to a communications services provider duly registered in accordance with § 240-49 and properly permitted to place or maintain its facilities in the public rights-of-way does not, and shall not, afford such reseller any right, claim or cause of action to impede the lawful exercise of the Town's rights or police powers, including, but not limited to, requiring the registered communications services provider to remove such facilities from the public rights-of-way.

§ 240-53 Wireless facilities.

Generally. The placement of telecommunications towers and antennas anywhere in the corporate limits of the Town shall in all cases be subject to the Town's zoning and land use regulations, including those set forth in Articles 2A, 3A, and 9A, of the Town's Unified Land Development Code.[1] Where placement of a wireless antenna in the public rights-of-way has been approved by the Town and to the extent not inconsistent with any Town zoning and land use regulations, a wireless antenna attached to a permitted and legally maintained vertical structure in the public rights-of-way, such as a light pole or utility pole, shall, unless otherwise agreed to by the Town in writing:

(1)

Not extend more than 10 feet above the highest point of the vertical structure;

(2)

Not have any type of lighted signal, lights, or illuminations unless required by an applicable federal, state, or local rule, regulation or law;

(3)

Comply with any applicable Federal Communications Commission emissions standards;

(4)

Comply with any applicable local building codes in terms of design, construction and installation; and

(5)

Not contain any commercial advertising thereon.

[1]

Editor's Note: The Unified Land Development Code is on file in the Town offices.

Small wireless facilities in public rights-of-way. The Town hereby adopts the following rules that will apply to the co-location of small wireless facilities in public rights-of-way for all applications filed on or after July 1, 2017:

(1)

General conditions. Applicants seeking permission to co-locate or install small wireless facilities within public rights-of-way shall comply with the registration, insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, Town liability, and Town warranties provisions contained in this Chapter 240; provided, however, that the review time frames and denial criteria of this § 240-53B shall control.

(2)

Filing, review, and processing of applications. The Town shall accept applications for permits and shall process and issue permits for the co-location of small wireless facilities in public rights-of-way subject to the following requirements:

(a)

The applicant shall as a part of its application provide information necessary to demonstrate the applicant's compliance with the applicable provisions of Chapter 240 for the placement of small wireless facilities in the locations identified in the application, and shall bear the burden of demonstrating compliance therewith.

(b)

Within 14 days after the date of filing the application, the Town may request that the proposed location of a small wireless facility be moved to another location in the right-of-way and placed on an alternative Town utility pole or support structure or may place a new utility pole. The Town 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 Town 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 Town of such nonagreement and the Town must 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 rejection of an alternative location must be in writing and provided by electronic mail.

(c)

The Town hereby limits the height of a small wireless facility to 10 feet above the utility pole or structure upon which the small wireless facility is to be co-located. Unless waived by the Town, the height for a new utility pole is limited to the tallest existing utility pole as of July 1, 2017, located in the same public rights-of-way, 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 Town shall limit the height of the utility pole to 50 feet.

(d)

Within 14 days after receiving an application, the Town must determine and notify the applicant by electronic mail as to whether the application is complete. If an application is deemed incomplete, the Town must specifically identify the missing information. An application is deemed complete if the Town fails to provide notification to the applicant within 14 days.

(e)

The Town shall process all applications on a nondiscriminatory basis. If the Town fails to approve or deny a complete application within 60 days after receipt of the application, the application is deemed approved. If the Town does not use the thirty-day negotiation period provided herein, the parties may mutually agree to extend the sixty-day application review period. The Town shall grant or deny the application at the end of the extended period.

(f)

A permit issued pursuant to an approved application shall remain effective for one year unless extended by the Town.

(g)

The Town shall notify the applicant of approval or denial by electronic mail. The Town shall approve a complete application unless it does not meet the applicable provisions of this Chapter 240.

(h)

If the application is denied, the Town shall specify in writing the basis for denial, including the specific code provisions on which the denial is based, and shall send the documentation to the applicant by electronic mail on the day the Town denies the application.

(i)

The applicant may cure the deficiencies identified by the Town and resubmit the application within 30 days after notice of the denial is sent to the applicant. Failure by the applicant to timely resubmit the application shall result in a final denial of the application. The Town shall approve or deny a timely filed 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.

(j)

An applicant seeking to co-locate small wireless facilities within the Town's boundaries may, at the applicant's discretion, file a consolidated application with the Town and receive a single permit for the co-location of up to 30 small wireless facilities. If the application includes multiple small wireless facilities, the Town may separately address small wireless facility co-locations for which incomplete information has been received or which are denied.

(k)

The Town may deny a proposed co-location of a small wireless facility in the public rights-of-way if the proposed co-location:

[1]

Materially interferes with the safe operation of traffic control equipment.

[2]

Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes.

[3]

Materially interferes with compliance with the Americans with Disabilities Act[2] or similar federal or state standards regarding pedestrian access or movement.

[2]

Editor's Note: See 42 U.S.C. § 12101 et seq.

[4]

Materially fails to comply with the 2010 edition of the Florida Department of Transportation Utility Accommodation Manual.

[5]

Fails to comply with applicable codes and the applicable provisions of this Chapter 240.

(l)

Notwithstanding anything to the contrary contained herein, the Town may reserve space on Town utility poles for future public safety uses. If replacement of a Town utility pole is necessary to accommodate the co-location of the small wireless facility and the future public safety use, the pole replacement is subject to the make-ready provisions of this article, and the replaced pole shall accommodate the future public safety use.

(m)

A structure granted a permit and installed pursuant to this § 240-53B shall comply with Chapter 333, Florida Statutes, and federal regulations pertaining to airport airspace protections.

(n)

The Town does not require approval or fees for:

[1]

Routine maintenance;

[2]

Replacement of existing wireless facilities with substantially similar wireless facilities; or

[3]

Installation, 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 public rights-of-way and who is remitting taxes under Chapter 202, Florida Statutes.

(3)

Co-location of small wireless facilities on Town utility poles. Co-location of small wireless facilities on Town utility poles is subject to the following requirements:

(a)

The Town shall not enter into an exclusive arrangement with any person for the right to attach equipment to Town utility poles.

(b)

The rates and fees for co-locations on Town utility poles must be nondiscriminatory, regardless of the services provided by the co-locating person.

(c)

The Town hereby levies, establishes, and sets an annual rate that shall be paid by all those applicants who file an application to co-locate small wireless facilities on Town utility poles in the amount of $150 per pole per year. The initial payment shall be made as a condition of the granting of the permit, with remaining annual payments to be made in all subsequent years on the same date.

(d)

Agreements between the Town and wireless providers that are in effect on July 1, 2017, and that relate to the co-location of small wireless facilities in the right-of-way, including the co-location of small wireless facilities on Town utility poles, remain in effect, subject to applicable termination provisions. The wireless provider may accept the rates, fees, and terms established under this subsection for small wireless facilities and utility poles that are the subject of an application submitted after the rates, fees, and terms become effective.

(e)

For a Town utility pole that supports an aerial facility used to provide communications services or electric service by another, the parties shall comply with the process for make-ready work under 47 U.S.C. § 224 and implementing regulations. The good faith estimate of the person owning or controlling the pole for any make-ready work necessary to enable the pole to support the requested co-location must include pole replacement if necessary.

(f)

For a Town utility pole that does not support an aerial facility used to provide communications services or electric service by another, the Town shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested co-location, including necessary pole replacement, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, must be completed within 60 days after written acceptance of the good faith estimate by the applicant. Alternatively, the Town may require the applicant seeking to co-locate a small wireless facility to provide a make-ready estimate at the applicant's expense for the work necessary to support the small wireless facility, including pole replacement, and perform the make-ready work. 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 Town may 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 Town.

(g)

The Town may not require more make-ready work than is required to meet applicable codes or industry standards. Fees for make-ready work may not include costs related to preexisting damage or prior noncompliance. Fees for make-ready work, including any pole replacement, may not exceed actual costs or the amount charged to communications services providers other than wireless services providers for similar work and may not include any consultant fee or expense.

(4)

Placement of utility poles in the public rights-of-way in support of co-location of small wireless facilities. A wireless infrastructure provider may apply to the Town to place utility poles in the public rights-of-way to support the co-location of small wireless facilities. The application must include an attestation that small wireless facilities will be co-located on the utility pole or structure and will be used by a wireless services provider to provide service within nine months after the date the application is approved by the Town. The Town shall accept and process the application in accordance with § 240-53B(2) and any applicable codes and other local codes governing the placement of utility poles in the public rights-of-way, including but not limited to the provisions of § 240-51, provisions applicable to telecommunications towers set forth in Articles 2A, 3A, and 9A, of the Town's Unified Land Development Code,[3] and applicable historic preservation provisions and requirements set forth in the Town Code, as amended from time to time.

[3]

Editor's Note: The Unified Land Development Code is on file in the Town offices.

(5)

Application and enforcement of historic preservation zoning regulations. Consistent with preservation of local zoning authority under 47 U.S.C. § 332(c)(7), the requirements for facility modifications under 47 U.S.C. § 1455(a), and the National Historic Preservation Act of 1966, as amended, [4]this § 240-53B is subject to the provisions of any historic preservation ordinance that may be adopted by the Town.

[4]

Editor's Note: See 16 U.S.C. § 470 et seq..

(6)

Prohibited co-locations, attachments, installations, and services not authorized by § 240-53B. This § 240-53B does not authorize, and the Town hereby prohibits, the following:

(a)

This § 240-53B does not authorize a person to co-locate or attach wireless facilities, including any antenna, micro wireless facility, or small wireless facility, on a privately owned utility pole, a utility pole owned by an electric cooperative or a municipal electric utility, a privately owned wireless support structure, or other private property without the consent of the property owner.

(b)

The approval of the installation, placement, maintenance, or operation of a small wireless facility pursuant to this § 240-53B does not authorize the provision of any voice, data, or video services or the installation, placement, maintenance, or operation of any communications facilities other than small wireless facilities in the public rights-of-way.

(c)

This § 240-53B does not affect provisions relating to pass-through providers contained in this article and contained in § 337.401(6), Florida Statutes.

(d)

This § 240-53B does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities, provided that once aerial facilities are converted to underground facilities, any such co-location or construction shall be only as provided by the Town's underground utilities ordinance.

(e)

This § 240-53B does not authorize a person to co-locate small wireless facilities or micro wireless facilities on a Town utility pole or erect a wireless support structure in a location subject to covenants, conditions, restrictions, articles of incorporation, and bylaws of a homeowners' association. This subsection does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities.

§ 240-54 Revocation or suspension of development permits.

Subject to § 240-56. the Town may revoke any development permit currently issued to a communications services provider for work in the public rights-of-way or suspend the issuance of development permits in the future to a communications services provider for, in addition to any other circumstances provided for in this chapter, one or more of the following reasons:

(1)

A violation of permit conditions, including conditions set forth in the permit, this Chapter 240, and other applicable codes or regulations governing the placement or maintenance of communications facilities in the public rights-of-way;

(2)

A misrepresentation or fraud made or committed on the part of the communications services provider in the registration process or in the application for a development permit;

(3)

The failure to properly renew the registration or the ineffectiveness of registration; or

(4)

The failure to relocate or remove communications facilities as may be required by the Town pursuant to this Chapter 240.

The Public Works Director or his designee shall provide notice and an opportunity to cure any violation of Subsection A(1) through (4) above, each of which shall be reasonable under the circumstances.

§ 240-55 Involuntary termination of registration.

The Town may terminate a registration if:

(1)

A federal or state authority suspends, denies, or revokes a communications services provider's certification or license to provide communications services;

(2)

The communications services provider's placement or maintenance of a communications facility in the public rights-of-way presents an extraordinary danger to the general public or other users of the public rights-of-way and the communications services provider fails to remedy the danger promptly after receipt of written notice;

(3)

The communications services provider ceases to use all of its communications facilities in the public rights-of-way and has not complied with § 240-66 herein; or

(4)

The communications services provider fails to comply with any of the rules, regulations or general conditions set forth in § 240-45 herein.

Prior to termination of a registration, the communications services provider shall be notified by the Public Works Director or his designee with a written notice setting forth all matters pertinent to the proposed termination, including which of A(1) through (4) above is applicable as the reason therefor. The communications services provider shall have 30 days after receipt of such notice within which to eliminate the reason or within which to present a plan, satisfactory to the Public Works Director or his designee, to accomplish the same. If not eliminated or if the plan presented is rejected, the Public Works Director or his designee shall provide written notice of such rejection to the communications services provider and a final determination to terminate registration. A final determination to terminate registration may be appealed in accordance with the procedures set forth in § 240-56.

In the event of termination, following any appeal period, the communications services provider formerly registered shall notify the Town of the assumption or anticipated assumption by another registrant of ownership of the communications services provider's facilities in public rights-of-way or provide the Town with an acceptable plan for disposition of its communications facilities in the public rights-of-way. If a communications services provider fails to comply with this Subsection C, which determination of noncompliance is subject to appeal as provided in § 240-56, the Town may exercise any remedies or rights it has at law or in equity, including but not limited to taking possession of the facilities where another person has not assumed the ownership or physical control of the facilities or requiring the communications services provider within 90 days of the termination, or such longer period as may be mutually agreed to between the Town and the communications services provider, to remove some or all of the communications facilities from the public rights-of-way and restore the public rights-of-way to their original condition prior to such removal.

In any event, a communications services provider whose registration has been terminated shall take such steps as are necessary to render safe every portion of the communications facilities remaining in the public rights-of-way.

In the event of termination of a registration, this section does not authorize the Town to cause the removal of communications facilities used to provide another service for which the communications services provider or another person who owns or exercises physical control over the communications facilities holds a valid certification or license with the governing federal or state agency, if required for provision of such service, and who is registered with the Town, if required.

The Town's right to terminate a registration shall be in addition to all other rights of the Town, whether reserved in this chapter, or authorized by other law, and no action, proceeding or exercise of the right to terminate registration will affect or preclude any other right the Town may have.

§ 240-56 Appeals.

Final determinations by appropriate Town staff denying an initial registration; denying an application for renewal of a registration; terminating a registration; or denying, revoking or suspending any development permit are subject to appeal. A notice of appeal of such decision may be filed with the Town's Manager within 30 days of the date of the final, written decision to be appealed. The Town Manager or his designee shall have 30 days from the date the appeal is filed to review the matter and render a written decision to uphold or reverse the final decision made by staff. If the Town Manager or his designee upholds the final decision of staff, the appellant may file a notice of appeal with the Town Clerk within 30 days of the date of the written decision of the Town Manager or his designee. The Town Clerk shall set the matter for hearing before the Town Commission at any regular meeting of the Town Commission scheduled within 45 days of the date that the notice of appeal is filed with the Town Clerk, unless waived by the communications services provider. A ruling may be made at the hearing or at the next regularly scheduled Town Commission meeting, and the communications services provider shall be notified of the decision in writing within 30 days thereof. Where a notice of appeal to the Town Manager or his designee or the Town Clerk is not timely filed as provided herein, such right to appeal shall be waived. Upon correction by the communications services provider of the circumstances that gave rise to a suspension or denial of a development permit, the suspension or denial shall be lifted (the same does not apply to the revocation of a development permit).

§ 240-57 Fees applicable to those not subject to communications services tax.

While the Florida Legislature has prohibited municipalities from requiring providers of communications services who have registered with the Florida Department of Revenue from having to enter into franchise agreements or license arrangements as a condition to placing or maintaining communications facilities in the public rights-of-way, the Town expressly reserves the right to require the payment of consideration or regulatory fees by persons using or occupying the public rights-of-way in other capacities. The Town reserves the right to require such payments based on the type of user and to the extent as follows:

Dealer. Except as provided in paragraph (16) of § 240-45B, a communications services provider who meets the definition of "dealer" as set forth in this Chapter 240 and who has registered in accordance with § 240-49 is not required to enter into a franchise agreement or license arrangement with the Town as a condition to placing or maintaining communications facilities in the public rights-of-way, nor is a dealer required to make payment of any franchise fees, license fees or other user fees to the Town as consideration for the use or occupancy of the public rights-of-way for the provision of communications services.

Pass-through provider and pass-through facilities. A communications services provider who meets the definition of "pass-through provider" as set forth in this Chapter 240 and who is not subject to the Town of Zolfo Springs's Local Communications Services Tax imposed pursuant to §§ 202.19 and 202.20, Florida Statutes, shall pay the Town the maximum annual amount allowed under § 337.401, Florida Statutes, as amended. For purposes of calculating payments hereunder, each separate pole or tower installed or maintained by a pass-through provider for purposes of supporting antennas for other over-the-air radio transmission or reception equipment in the public rights-of-way shall comprise a separate communications facility subject to assessment of a separate permit fee in the amount of $500 per linear mile, or portion thereof, up to the maximum amount allowed under § 337.401, Florida Statutes, whichever is higher. The annual amount referred to above shall be due and payable on October 1 of every year beginning on October 1, 2017. Fees not paid within 10 days after the due date shall bear interest at the rate of 1% per month from the date due until paid. The acceptance of any payment required hereunder by the Town shall not be construed as an acknowledgment that the amount paid is the correct amount due, nor shall such acceptance of payment be construed as a release of any claim which the Town may have for additional sums due and payable or authorization to install any facilities in the public rights-of-way.

Other persons. All other persons, except government, are required to pay the Town, as consideration for the use or occupancy of the public rights-of-way for the placement or maintenance of communications facilities, an amount based on and in accordance with the fee provision in § 240-57B, Town Code.

Government. A government is not required to pay the Town consideration for the use or occupancy of the public rights-of-way for the placement or maintenance of communications facilities, unless such facilities are being used by such government or a communications services provider, including resellers, to offer or provide communications services other than for such government's internal noncommercial use, in which event the government, where not subject to the Town of Zolfo Springs's Local Communications Services Tax imposed pursuant to §§ 202.19 and 202.20, Florida Statutes, is required to pay the Town, as consideration for the use or occupancy of the public rights-of-way by or through its facilities placed therein after October 1, 2017, an amount based on and in accordance with the fee provision in § 240-57B, Town Code, or such other amount or rate of compensation as mutually agreed to in writing by the government and the Town.

§ 240-58 Existing communications facility.

A communications services provider with a facility in the public rights-of-way as of the effective date of this Chapter 240 has until October 1, 2017, to comply with the provisions of this chapter, including, but not limited to, registration, or be in violation thereof.

§ 240-59 Insurance.

At all times during the use or occupancy of the public rights-of-way, including any time during placement or maintenance of communications facilities, the communications services provider shall obtain, pay all premiums for, and maintain satisfactory to the Town the types of insurance policies and coverage limits described in this § 240-59. Nothing contained in this chapter shall limit a communications services provider's liability to the Town to the limits of insurance certified or carried.

(1)

Commercial general liability insurance valid in the State of Florida, including contractual liability and products completed operations liability coverage on an occurrence basis, which policy limit shall be in an amount not less than $1,000,000 per occurrence, combined single limit, for bodily injury, personal injury or death, or property damage and in an amount not less than $2,000,000 policy aggregate for each personal injury liability, broad form property damage (without XCU exclusions), contractual liability and products-completed operations liability.

(2)

Business automobile liability insurance valid in the State of Florida which policy limit shall be in an amount not less than $1,000,000 combined single limit, including bodily injury and property damage covering owned, leased, hired and nonowner vehicles.

(3)

Workers' compensation valid in the State of Florida which policy limit shall be in an amount not less than the statutory limit for workers' compensation.

(4)

Employer's liability insurance valid in the State of Florida which policy limit shall be in an amount not less than $1,000,000 each accident for employer's liability.

All insurance providers used shall be admitted and duly authorized to do business in the State of Florida and shall have assigned by A. M. Best Company a minimum financial strength rating of "A" and a minimum financial size category of "IX" (i.e., a size of $250,000,000 to $500,000,000 based on capital, surplus, and conditional reserve funds). Insurance policies and certificates issued by nonadmitted insurance companies are not acceptable. All liability policies shall name the Town, its Commission members, officers, and employees as additional insureds with respect to any covered liability arising out of the placement or maintenance of communications facilities in the public rights-of-way or other activities under this chapter. Each communications services provider shall furnish annually to the Town certificates showing proof of all required insurance coverage. All liability coverage must be in occurrence form and in accordance with the limits specified. Claims made policies are not acceptable. No insurance policy shall be canceled, nor shall the occurrence or aggregate limits set forth herein be reduced, until the Town has received at least 30 days' advance written notice by registered, certified or regular mail or facsimile of any cancellation, intent not to renew or reduction in policy coverage. Each communications services provider shall be responsible for notifying the Town of such cancellation, intent not to renew or reduction in coverage. All certificate(s) of insurance, including all endorsements and riders, evidencing insurance coverage shall be submitted to the Town within 30 days after the date of registration with the Town in order for a communications services provider to obtain development permits required for construction in the public rights-of-way. Each communications services provider shall, in the event of any such notice described above, obtain, pay all premiums for, and file with the Town written evidence of the issuance of replacement policies within 30 days following receipt by the Town or the communications services provider of such notice.

The certificate(s) of insurance forms must be properly executed by the authorized representative of the insurance provider and must include all endorsements, riders and notices. Each communications services provider shall file and maintain with the Town on an annual basis the required certificate(s) of insurance. The certificate(s) of insurance must indicate the following:

(1)

The policy number; name of insurance company; name and address of the agent or authorized representative; name and address of insured; that the policy coverage "pertains the requirements of § 240-53 of the Zolfo Springs Communications Right-of-Way Utilization Ordinance;" policy expiration date; and specific coverage amounts; and

(2)

Any applicable deductibles or self-insured retentions; and

(3)

That the Town, its Commission members, officers and employees are additional insureds; and

(4)

That the Town shall receive 30 days' advance written notice of cancellation, intent not to renew or reduction in coverage; and

(5)

That the commercial general liability insurance policy is primary as respects any other valid or collectible insurance that the Town may possess, including any self-insured retentions the Town may have; and any other insurance the Town does possess shall be considered excess insurance only and shall not be required to contribute with this insurance.

Under extraordinary circumstances a communications services provider may satisfy the insurance requirements of this chapter by providing documentation of self-insurance that, in the sole discretion of the Director of Human Resources and Risk Management, demonstrates incontrovertibly the adequacy to defend and cover claims of any nature that might arise from the placement and maintenance of facilities in the public rights-of-way. The communications services provider must be authorized as a self-insurer by the Department of Insurance under the laws of the State of Florida.

§ 240-60 Indemnification.

Except with respect to the willful misconduct, negligence or gross negligence of the Town, a communications services provider, by act of registering with the Town as such, shall be obligated, at its sole cost and expense, to defend, indemnify and hold harmless the Town, its officials, commission members, agents and employees from and against any and all claims, suits, causes of action, proceedings, liabilities and judgments for damages or equitable relief, and costs and expenses arising out of or in connection with the placement or maintenance of its communications facilities in the public rights-of-way by the communications services provider or its agent or hired contractor. This indemnification provision shall include, but not be limited to, such damages and penalties arising out of claims:

(1)

By any person whatsoever on account of:

(a)

Bodily injury to a person or persons;

(b)

Death of a person or persons; or

(c)

Property damage, where any of the foregoing is occasioned by the operations of the communications services provider, or alleged to have been so caused or occurred; or

(2)

Involving the communications services provider's violation of any easement or private property rights.

Nothing in this section shall prohibit the Town from participating in the defense of any litigation by its own counsel if in the Town's reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict.

Indemnified costs and expenses shall include, but not be limited to, all out-of-pocket expenses and reasonable attorneys' fees in defending against any such claim, suit or proceeding, and shall also include the reasonable value of any services rendered by the Town Attorney or his assistants or any consultants, agents and employees of the Town. The Town will attempt to notify the communications services provider, in writing, within a reasonable time of the Town's receiving notice of any issue it determines may require indemnification.

Nothing contained in this subsection shall be construed or interpreted:

(1)

As denying the Town, the communications services provider or any person any remedy or defense available to them under the laws of the State of Florida; or

(2)

As a waiver of sovereign immunity beyond the waiver provided in § 768.28, Florida Statutes, as it may be amended.

The indemnification requirements shall survive and be in effect after the termination or cancellation of a registration.

§ 240-61 Construction bond.

Prior to issuance of any development permit where the type of work allowed under the permit will require restoration of the public rights-of-way, the communications services provider or the contractor performing such work on its behalf shall obtain, pay for and file with the Town a construction bond. The construction bond shall serve to guarantee the timeliness and quality of the construction and restoration work and to secure, and enable the Town to recover, all costs related to the restoration of the public rights-of-way in the event the communications services provider or its contractor fails to make such restoration to the Town's satisfaction or causes damage to the public rights-of-way during construction. The construction bond must name the Town as obligee and be in the face amount of $15,000 conditioned upon the full and faithful completion of construction and restoration of the public rights-of-way to its original condition. Six months following completion and inspection of the restoration of the public rights-of-way satisfactory to the Public Works Director or his designee, the communications services provider or its contractor, as the case may be, may reduce the face amount of the construction bond to $5,000 and, thereafter, may allow the bond to lapse in accordance with its terms. However, for any subsequent work in the public rights-of-way, the communications services provider or its contractor will be required to replenish any existing construction bond or provide a new construction bond in the face amount of $15,000. The construction bond shall be in a form acceptable to the Town Attorney and must be issued by a surety having a rating reasonably acceptable to the Public Works Director or his designee and authorized by the Florida Department of Insurance to issue surety bonds in this State.

The construction bond must be issued as noncancelable and be for a term of not less than 12 months. In the event the term of any construction bond expires, or is reasonably expected to expire, prior to the completion of construction, restoration and Town inspection, the communications services provider, or the contractor acting on its behalf, shall immediately obtain, pay for, and file with the Town a replacement bond.

The Town's requirement of a construction bond is not in lieu of any additional bonds that may be required under this chapter or through the permitting process. The Town's right to recover under the construction bond shall be in addition to all other rights of the Town, whether reserved in this chapter, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect or preclude any other right the Town may have.

§ 240-62 Performance bond.

Before any communications services provider is permitted to begin the placement or maintenance of an initial build, any substantial rebuild, upgrade or extension of its communications system, or when construction plans show that there would be at least 1,000 feet of open trenching in the public rights-of-way at any given time, the communications services provider is required to obtain, pay for, and file with the Town a performance bond. The performance bond must name the Town as obligee and be in the face amount of $250,000 conditioned upon the full and faithful compliance by the communications services provider with all requirements, duties and obligations imposed by the provisions of Chapter 240 during, and through completion of, the placement or maintenance project. The performance bond shall be in a form acceptable to the Town Attorney and must be issued by a surety having a rating reasonably acceptable to the Public Works Director or his designee and authorized by the Florida Department of Insurance to issue performance bonds in this state.

The performance bond must be issued as noncancelable and be for a term consistent with the reasonably expected duration of the particular placement or maintenance project (including restoration and Town inspection), but in no event less than 18 months. In the event the term of any performance bond expires, or is reasonably expected to expire, prior to the completion of such placement or maintenance project, including restoration and Town inspection, the communications services provider shall immediately obtain, pay for, and file with the Town a replacement bond.

The Town's requirement of a performance bond is not in lieu of any additional bonds that may be required under this chapter or through the permitting process. The Town's right to recover under the performance bond shall be in addition to all other rights of the Town, whether reserved in this chapter, or authorized by other law, and no action, proceeding or exercise of a right with respect to the performance bond will affect or preclude any other right the Town may have. Any proceeds recovered under the performance bond may be used to reimburse the Town for such additional expenses as may be incurred by the Town as a result of the communications services provider's failure to comply with the responsibilities imposed by this chapter, including, but not limited to, attorneys' fees and costs of any action or proceeding, and the cost of removal or abandonment of any property.

§ 240-63 Security Fund.

Every communications services provider shall make a cash deposit of $25,000, or shall file with the Town an irrevocable letter of credit or acceptable equivalent in the same amount, which shall serve, and be referred to, as the "Security Fund." The Security Fund shall be conditioned upon the full and faithful compliance with and performance by the communications services provider of all requirements, duties and obligations imposed by the provisions of Chapter 240 at all times. The letter of credit shall be in a form and issued by an institution acceptable to the Town's Chief Financial Officer. Should the Town draw upon the Security Fund, it shall promptly notify the communications services provider, and the communications services provider shall promptly restore the cash deposit or letter of credit to the full amount. The Security Fund shall be maintained until the later of the effective date of transfer, sale or assignment by the communications services provider of all its facilities in the public rights-of-way, 12 months after the removal or abandonment by the communications services provider of all of its facilities in the public rights-of-way or six months after the termination of registration, including any appeals undertaken pursuant to § 240-56 herein. Upon the later of these events the cash deposit will be returned without interest or the letter of credit may be canceled. In the event a communications services provider fails to perform any requirement, duty or obligation imposed upon it by the provisions of this chapter, there shall be recoverable, jointly and severally from the Security Fund, any damages or loss suffered by the Town as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of any facilities in public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the Security Fund.

§ 240-64 Enforcement remedies.

No provision of this chapter shall be deemed to bar the right of the Town to seek or obtain judicial relief from a violation of any provisions of this chapter, the registration provisions, or any rule, regulation or general condition provided for hereunder, whether administratively, judicially or both. Neither the existence of other remedies identified in this chapter nor the exercise thereof shall be deemed to bar or otherwise limit the right of the Town to recover fines, penalties or monetary damages (except where liquidated damages are otherwise prescribed) for such violation by the communications services provider. The remedies available to the Town shall be cumulative and in addition to any other remedies provided by law or equity. The laws of the State of Florida shall govern with respect to any proceeding in law or equity pertaining to the enforcement of this chapter or any cause of action arising out of or in connection herewith.

A communications services provider's failure to comply with provisions of this chapter shall constitute a Town Code violation and shall subject the communications services provider to the code enforcement provisions and procedures as provided in Chapter 8, §§ 8-1 through 8-17, Town Code,[1] and may be punishable as provided in § 162.22, Florida Statutes, as it may be amended.

[1]

Editor's Note: See Ch. 8, Code Enforcement.

In any proceeding before the Town Commission where there exists an issue with respect to a communications services provider's performance of its obligations pursuant to this chapter, the communications services provider shall be given the opportunity to provide such information as it may have concerning its compliance with the terms and conditions of this article. The Town may find a communications services provider that does not demonstrate compliance with the terms and conditions of this chapter in default and apply any appropriate remedy or remedies as authorized by this article. In determining which remedy is appropriate, the Town Commission shall take into consideration the nature of the violation, the person bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the Town Commission determines are appropriate to the public interest.

The Public Works Director or his designee, or his/her designee, shall be responsible for administration and enforcement of this chapter, and is authorized to give any notice required herein or by law.

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

§ 240-65 Abandonment of communications facility.

Upon abandonment of any facility owned by a communications services provider in the public rights-of-way, the communications services provider shall notify the Town within 60 days.

Removal at Town's direction.

(1)

The Town may direct the communications services provider, by written notice, to remove all or any portion of such abandoned communications facility at the communications services provider's sole expense if the Town determines that the abandoned communications facility's presence interferes with the public health, safety or welfare, which shall include, but shall not be limited to, a determination that such communications facility:

(a)

Compromises safety at any time for any public rights-of-way user;

(b)

Compromises the safety of other persons performing placement or maintenance of communications facilities in the public rights-of-way;

(c)

Prevents another person from locating other facilities in the area of the public rights-of-way where the abandoned communications facility is located when other alternative locations are not reasonably available; or

(d)

Creates a maintenance condition that is disruptive to the use of the public rights-of-way.

(2)

In the event of Subsection B(1)(b), the Town may require the third person to coordinate with the communications services provider that owns the existing communications facility for joint removal and placement, where agreed to by the communications services provider.

If the communications services provider fails to remove all or any portion of an abandoned communications facility as directed by the Town within the time period specified in the written notice, which time period must be reasonable under the circumstances, the Town may perform such removal and charge the cost of the removal against the communications services provider.

In the event that the Town does not direct the removal of the abandoned communications facility, the communications services provider, by its notice of abandonment to the Town, shall be deemed to consent to the alteration or removal of all or any portion of such abandoned facility by the Town or other person, provided that the cost of the alteration or removal is not borne by the communications services provider.

§ 240-66 Reservation of rights.

The Town hereby expressly reserves all of the following rights:

To exercise its municipal home rule powers, now or hereafter, to the fullest extent allowed by law with regard to the access, use and regulation of the public rights-of-way.

To amend this chapter as it shall find necessary in the lawful exercise of its municipal authority.

To adopt or enact by resolution or ordinance, in addition to the provisions contained herein and in any existing applicable ordinances, such additional reasonable regulations as the Town Commission finds necessary in the exercise of the Town's police powers.

To exercise the power of eminent domain, consistent with applicable federal and state law, to acquire property that may include that property owned or leased by a communications services provider.

As and when deemed necessary by the Town Commission to be in the interest of the Town or its residents, to abandon portions of the public rights-of-way within the proper exercise of its municipal authority and without notice to or the consent of any communications services provider. The Town shall not be responsible for any costs, damages, loss or other expense to the communications services provider as a result of the Town's abandonment of any public rights-of-way.

To place and maintain, and franchise or permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications, and other types of facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the Town in the public rights-of-way occupied by any communications services provider.

Without limitation, the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of any public rights-of-way within the Town limits and within said limits as the same may from time to time be altered.

To require a reseller to register in accordance with § 240-43 to the extent such reseller wants the right to place or maintain facilities in the public rights-of-way. Any person using or leasing facilities owned by a registered communications services provider is not, therefore, entitled to any rights to place or maintain communications facilities in the public rights-of-way, unless such person themself registers with the Town.