§ 8. Use of rights-of-way.

(a)

A facility owner agrees at all times to comply with and abide by all applicable provisions of the state statutes and local laws including, but not limited to, applicable zoning regulations not inconsistent with state and federal laws.

(b)

Except in the case of an emergency, no telecommunications service provider shall construct any facility under or within any public right-of-way which disrupts the public rights-of-way without first filing an application with and obtaining a permit from the town therefor, pursuant to applicable permitting requirements of the town, and other applicable town code requirements, except as otherwise provided in this appendix. The term emergency shall mean a condition that affects the public's health, safety or welfare, which includes unplanned out of service condition of a pre-existing service. Registrant shall provide prompt notice to the town in the event of an emergency. Unless otherwise required by the Town Code, the town may waive the permit requirement in cases where there will be no disruption of the public rights-of-way.

(c)

As part of any permit application, with respect to new or existing facilities, where applicable, in the public rights-of-way, the registrant shall provide a proposal for construction of the telecommunications facility that sets forth at least the following:

(1)

An engineering plan signed and sealed by a Florida registered professional engineer or prepared by a person who is exempt from such registration requirements as provided in F.S. § 471.003, identifying the location of the proposed facility, including a description of the facilities to be installed, where it is to be located, and the approximate size of facilities and equipment that will be located in, on, over, or above the public rights-of-way.

(2)

A description of the manner in which the system will be installed (i.e. anticipated construction methods and/or techniques), the time required to construct the system, a maintenance of traffic plan for any disruption of the public rights-of-way, including information on the ability of the public rights-of-way to accommodate the proposed system, if available (such information shall be provided without certification as to correctness, to the extent obtained from other users of the public rights-of-way), and, if appropriate given the system proposed, an estimate of the cost of restoration to the public rights-of-way. Such plan shall include the timetable for construction for each phase of the project, and the areas of the town which may be affected.

(3)

The town may request such additional information as it finds reasonably necessary to review an application for a permit to perform work in the public rights-of-way.

(d)

The town shall have the power to prohibit or limit the placement of new or additional facilities within the public rights-of-way, if there is insufficient space to accommodate all of the requests to occupy or use the rights-of-way, for the protection of existing facilities in the public rights-of-way, or for town plans for public improvements which have been determined by the town to be in the public interest. Nothing in this appendix shall affect the town's authority to add, vacate, or abandon public rights-of-way, and the town makes no warranties or representations regarding the availability of any added, vacated or abandoned public rights-of-way for communications facilities.

(e)

All facilities shall be installed, located and maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and to cause unreasonable interference with the rights and convenience of property owners who adjoin any of the public rights-of-way. The registrant shall be liable for costs and expenses for the displacement, damage or destruction of any irrigation system or landscaping within the public rights-of-way, to the extent not covered by the construction bond. The registrant shall make such repairs upon request of the affected property owner. In the event the registrant fails to make the appropriate repairs, to restore such property to as good a condition as existed prior to commencement of work, the affected property owner may file a complaint with the town manager or a designee. In this instance, the registrant shall be given prior written notice of the necessary repairs by the town manager or the designee. If such repairs are not performed in a reasonable and satisfactory manner within in 30 calendar days after receiving notice, the town may cause the repairs to be made at the facility's owner expense, utilizing town employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the town to the registrant. After 30 days, the town may obtain reimbursement from the security fund. The "prior written notice" described in this paragraph shall be considered a final written decision for purposes of the appellate rights outlined in subsection (p) of this section.

(f)

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 and/or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever possible.

(g)

The town manager may issue such additional rules and regulations concerning the placement or maintenance of a telecommunications facility in the public rights-of-way, as may be consistent with applicable law and not inconsistent with this appendix.

(h)

All safety practices required by applicable law or accepted industry practices and standards shall be used during construction, maintenance, and repair of the telecommunications facilities.

(i)

In the event that at any time during the term of the rights granted herein the town shall lawfully elect to alter, or change the grade of, any public rights-of-way, upon reasonable notice by the town, the registrant shall make any necessary removals, relaying and relocations of its telecommunications facilities at its own expense, in accordance with applicable law. The town reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications or other types of facilities, cables or conduits, 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.

(j)

A facility owner shall obtain any and all required permits and pay any and all required fees before commencing any construction on or otherwise disturbing any public-rights-of way as a result of its construction, except as provided herein. The facility owner shall, at its own expense, restore such property to as good a condition as existed prior to commencement of work. A registrant shall guarantee its restoration for a period of 12 months after the completion of such restoration. If such restoration is not performed in a reasonable and satisfactorily manner within 30 calendar days after the completion of construction, the town may, after prior written notice to registrant, cause the repairs to be made at the facility's owner expense, utilizing town employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the town to the registrant. A permit from the town constitutes authorization to undertake only certain activities on public rights-of-way in accordance with this appendix, 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.

(k)

All ongoing installation, construction and maintenance of a telecommunications facility located in the public rights-of-way shall be subject to the town's periodic inspection for compliance with this appendix, or any applicable provisions of the Town Code.

(l)

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 registrant shall be at registrant's sole risk.

(m)

A facility owner shall cooperate with the town by providing timely and complete information requested under this subparagraph. Upon completion of any installation or construction of new facilities in public right-of-way, at no cost to the town, the facility owner shall provide such information, as may be requested, showing the exact location of its facilities and structures, including but not limited to, as-built plans, maps, geographical information systems, plats, construction documents, drawings and any other information the town may find reasonably necessary. Such plans shall be provided in digitized format showing the two-dimensional location of the facilities based on the town's geographical database datums, or other format acceptable to the town manager. All information required by this section shall be maintained in accordance with F.S. § 202.195.

(n)

Suspension or denial of permits. Subject to subsection (p) below, the town manager or a designee may suspend or deny a permit for work in the public rights-of-way for one or more of the following reasons:

(1)

Violation of permit conditions, including conditions set forth in this appendix or other applicable provisions of the Town Code or regulations governing use of public rights-of-way; or

(2)

Misrepresentation or fraud by registrant in a registration or permit application to the town; or

(3)

Failure to relocate or remove facilities as may be lawfully required by the town; or

(4)

Failure of registrant, its employees, agents or subcontractors, in connection with the subject permit, to (a) place barricades or signs around the work area, (b) take reasonable safety precautions to alert the public of work at the work site, or (c) repair, replace and restore any sidewalk street, alley, pavement, water, sewer or other utility line or appurtenance, soil, landscaping, dirt or other improvement property or structure of any nature. In the event of such failure, the town may perform the work utilizing town employees, agents or contractors, charge any and all costs, and require reimbursement within 30 days after the submission of the bill by the town to registrant.

(o)

Immediately after the suspension or denial of permit pursuant to this section, the town shall provide written notice of the violation, which notice shall contain a description of the violation. A final written decision(s) of the town manager suspending a permit or denying an application is subject to appeal. Upon correction of any violation that gave rise to a suspension or denial of permit, the suspension or denial shall be lifted.

(p)

An appeal must be filed with the town within 30 days of the date of the final, written decision(s) to be appealed. Any appeal not timely filed shall be waived. The town commission shall hear the appeal no later than 45 days from the end of the 30-day appeal period, unless waived by the registrant.

(q)

In the event registrant desires to use its existing facilities or to construct new facilities for the purpose of providing other utility or non-utility services to existing or potential consumers or resellers, by providing cable services, or any other services other than the provision of telecommunications service, or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from town for such activities as may required by applicable law. In the event that a registrant is acting in its proprietary function as a retail provider of telecommunications equipment or appliances, registrant shall seek the appropriate permits and licenses from the town.

(r)

To the extent that any person or registrant leases or otherwise uses the facilities of an entity that is duly registered or otherwise authorized to place and maintain facilities in the public rights-of-way of the town, the person or registrant shall make no claim, nor assert any right, which will impede the lawful exercise of the town's rights, including requiring the removal of such facilities from the public rights-of-way of the town, regardless of the effect on the persons ability to provide service or on the registrant's ability to maintain its own telecommunications facilities in the public rights-of-way of the town. Any person or registrant leasing or otherwise using the facilities of a registrant or other entity authorized to place and maintain facilities in the public rights-of-way, may provide the town with notice of its use of such facilities, describing the location of the facilities used and providing the town with an address to which notice from the town should be sent. In the event the town exercises its lawful authority to require the removal or relocation of any such facilities, under this provision, such person or registrant leasing or otherwise using the facilities of a registrant or other entity authorized to place and maintain facilities in the public rights-of-way, shall receive notice from the town of such removal or relocation of such facilities. The failure of the town to provide notice, under this paragraph, shall not render the town's actions under this paragraph invalid.

(Ord. No. 01-3, § 1, 10-19-01)