65-94 ORDINANCE NO. 65-94
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING TITLE V, "PUBLIC
WORKS", BY ENACTING A NEW CHAPTER 58, "WIRELESS
COMMUNICATIONS SYSTEMS", TO PROVIDE FOR THE ENACTMENT
OF A NEW CHAPTER TO REQUIRE A PERMIT FOR AND TO
ASSESS FEES FOR THE PLACEMENT OF MICRO CELLS, PICO
CELLS OR OTHER FORMS OF TRANSMITTERS AND RECEIVERS
FOR THE PURPOSE OF PROVIDING TELEPHONIC, TELEPHONE,
TELEPOINT, PAGING OR OTHER SIMILAR WIRELESS
COMMUNICATION SERVICES ON OR WITHIN THE RIGHTS-OF-WAY
AND ESTABLISHING A PERMITTING PROCESS TO PROVIDE FOR
THESE DEVICES IN COMMERCIAL OR RESIDENTIAL BUILDINGS
NOT. ZONED FOR THIS ACTIVITY; PROVIDING a SAVING
CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE
DATE.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
~_~ That Title V, "Public Works" of the Code of
Ordinances of the City of Delray Beach, Florida, be, and the same is
hereby amended by enacting a new Chapter 58, "Wireless Communications
Systems", to read as follows:
CHAPTER 25; WIRELESS COMMUNICATION SYSTEMS: PERMITS FOR THE USE OF
RIGHT-OF-WAY.
SECTION 58.01 LICENSE REOUIREMENT.
(A) No person or firm, whether public, private, nonprofit
or not-for-profit, shall construct, operate or continue to operate a
Wireless Communications System which occupies any part of the streets,
public ways and public places within the City without having been
issued a Wireless Telecommunication Permit by the City. All work
within the City's rights-of-way shall require a permit from the
Environmental Services Department for any construction activity.
(B) Except as hereinafter provided, it shall be a term and
condition, of any Wireless Telecommunication Permit issued in
accordance herewith that as a part of the consideration supporting the
issuance of such Wireless Telecommunication Permit and the City's
permission thereby to occupy and use the streets and rights-of-way of
the City, that the Permittee shall pay to the City compensation and
license fees as set out below:
(1) All applicants shall pay a permit request fee of
$50'00 per cell site.
(2) The wireless provider shall pay to the City an
annual permit fee of $100.00 per cell site.
(3) Privately owned lines or cables placed by the
Wireless Communications System operator to support
the backhaul portion of the network are subject to
Chapter 57 unless the operator is a franchised
telephone company or franchised Cable Television.
(4) The City may adjust these permit fees each year to
the extend allowed by law. The minimum adjustment
shall be set by the cumulative increase in the
Consumer Price Index published by the United
States Department of Labor for Urban Wage Earners
(1967 = 100%), since the initial establishment of
this permit fee, or since the most recent increase
in the permit fee for any and all subsequent
increases after the first increase, and only after
a public hearing and at least twenty (20) days
notice to all Permittees, except as hereinafter
provided.
(C) The annual compensation and permit fee provided for in
Section (B) shall be payable annually on or before October 1 of each
Calendar year for the portion of the Wireless Communications Systems
within the City right-of-way on January I of that year and a prorated
license fee, based upon the calendar quarter in which the application
is filed, shall be paid at the time of the application for a Wireless
Telecommunication Permit for all new portions of the system. The
quarterly revenue fees are due January 1, April 1, July 1 and October
(D) Fees not paid within ten days after the due date shall
bear interest at the rate of one percent (1%) per month from the date
due until paid.
(E) The acceptance of any payment required hereunder by the
City shall not be construed as an acknowledgement that the amount paid
is the correct amount due, nor shall such acceptance of payment be
construed as a release of any claim which the City may have for
additional sums due and payable.
(1) All fee payments shall be subject to audit by the
City and assessment or refund if the payment is
found to be in error.
- 2 - Ord. No. 65-94
(2) In the event that such audit results in an
assessment by and an additional payment to the
City such additional payment may be subject to
interest at the rate of one percent (1%) per month
retroactive to the date such payment originally
should have been paid, which shall be due and
payable immediately.
(F) Nothing in this Chapter shall be construed to limit the
liability of the Permittee for all applicable federal, state and local
taxes.
(G) Any holder of a Wireless Telecommunication Permit must
be a member of "Call Sunshine" Utility Notification Center
(1-800-432-477.0) or any subsequent alert and warning system to protect
and locate their underground and pole mount structures.
SECTION 58.02 DEFINITIONS.
(A) For purposes of this chapter and any permit in
accordance herewith, the following terms, phrases, words and their
derivations, shall have the meaning given herein unless otherwise
specifically provided in this chapter, unless the context clearly
indicates otherwise or unless such meaning would be inconsistent with
the manifest intent of the City Commission.
(1) "Environmental Services" means the Environmental
Services Department of the City of Delray Beach.
(2) "Wireless Communications System" means any system
which uses a form of cellular telephony which
allows business and residential subscribers to
access and/or make telephone calls to each other
through the Wireless Telecommunications System or
over the Public Switch Telephone Network (PSTN)
using small cordless telephone devices which
communicate with limited range cells (transmitter/
receiver sites) connected to a backhaul network.
(3) "Backhaul Network" means the physical network that
connects micro cells and pico cells to a central
switching point or the Public Switch Telephone
Network (PSTN).
(4) "Micro Cell" means a transmitter/receiver system
used to communicate to the subscriber's handset.
Typically with a range of 600 - 1,000 meters.
- 3 - Ord. No. 65-94
(5) "Pico Cell" means a transmitter/receiver system
used to communicate to the subscriber's handset.
Typically with a range of 200 - 600 meters.
(6) "FCC" means the Federal Communications Commission
or its legally appointed successor.
(7) "Cell Site" means the location of a transmitter/
receiver and backhaul network interface which
provides telephonic or telecommunications type
service to subscribers. The locations include
single pole mounted receiver/transmitter units,
receiver/transmitter units located on new or
existing antenna structures, receiver/transmitter
units located in buildings and on roof tops.
(8) "Local Access Transport Area (LATA)" means that
geographic area and communications system in which
the City of Delray Beach is located and in which
Southern Bell or any subsequent telephone company
is authorized by the Public Service Commission of
Florida to provide local exchange access
telecommunication services.
(9) "Local Telephone Service" means:
(a) The access to a local franchised telephone
system, and the privilege of
telephonic-quality communication with
substantially all persons having telephone or
radio telephone stations constituting a part
of such local telephone system; or
(b) Any facility or service provided in
connection with a service described in
paragraph (a).
The term "local telephone service" does not
include any service which is a toll telephone
service; personal communications service; private
communication service; cellular mobile telephone
or telecommunication service; regularized mobile
telephone or telecommunication service;
regularized mobile radio, or pagers and paging
service, including but not limited to "beepers"
and any other form of mobile and portable one-way
or two-way communication; or telephone typewriter
or computer exchange service.
- 4 - Ord. No. 65-94
(10) "Wireless Communications Permit" means the
privilege granted by the City by which it
authorizes a person, firm or corporation to erect,
construct, reconstruct, operate, dismantle, test,
use, maintain, repair, rebuild or replace a
wireless communications system that occupies the
streets, public ways or public places within the
City. Any permit issued in accordance herewith
shall be a nonexclusive permit.
(11) "Permittee" the firm,
means
person,
organization,
profit or not-for-profit corporation or its legal
successor in interest who is issued a Wireless
Communication Permit or Permits in accordance with
the provisions of this chapter for the erection,
construction, reconstruction, operation,
dismantling, testing, use, maintenance, repairing,
rebuilding or replacing of a wireless
communications system in the City.
(12) "Private Communications System" means any system
of communications lines, cables, equipment or
facilities which are used to provide a telephone,
video, data, telemetry, intercom or
telecommunications service that in any manner
occupies easements, streets, public ways or public
places within the corporate limits of the City, as
now or in the future may exist. Private
communications system does not include any part of
a state or municipally franchised Local Exchange
Telephone Company or part of a cable television
system or telephone system franchised by the City
or any part of a federal, state, county or local
government owned telecommunications system.
(13) "Street" means any area established for vehicular
or public access use of the entire width between
the property lines of every way publicly
maintained when any part thereof is open for
public purposes. "Street" includes, but is not
limited to, highway, avenue, road, alley,
right-of-way, lane, boulevard, concourse, bridge,
tunnel, parks, parkways and waterways.
- 5 - Ord. No. 65-94
(14) "Easements" mean any strip of land created by a
subdivider for public or private utilities,
sanitation, or other specified uses having
limitations, the title to which shall remain in
the name of the property owner, subject to the
right-of-way use designated in the reservation of
the servitude. No private facility may be
constructed within the easement without written
permit from the City.
(a) A telephonic-quality communication for which
there is a toll charge which varies in amount
with the distance and elapsed transmission
time of each individual communication; or
(b) A service which entitles the subscriber or
user, upon the payment of a periodic charge
which is determined as a flat amount or upon
the basis of total elapsed transmission time,
· to the privilege of an unlimited number of
telephonic communications to or from all or a
substantial portion of the persons having
telephone or radio telephone stations in a
specified area which is outside the local
telephone system area in which the station
provided with this service is located.
SECTION 58.03 LENGTH OF PERMIT.
(A) Any Wireless Communication Permit issued by the City in
accordance herewith shall be a nonexclusive permit for the use of the
easements, streets, public ways or public places within the City as
specified in the Wireless Communication Permit for the erection,
construction, reconstruction, operation, maintenance, dismantling,
testing and use of a Wireless Communications System.
(B) Any Wireless Communication Permit issued by the City
shall continue in full force and effect so long as the Permittee is in
complianc~ with this chapter, all applicable federal, state and local
ordinances and regulations and the space occupied is not needed for a
public purpose.
- 6 - Ord. No. 65-94
(C) In the event any Wireless Communication Permit shall be
revoked, the applicable Wireless Communications System shall, at the
option of the City, be removed from the streets, public ways and
public places at the sole expense of the Permittee.
(D) All permits for construction activities shall expire
one (1) year after date of issuance.
SECTION $~,04 PERMIT LOCATIONS.
(A) Any Wireless Communication Permit issued for a Wireless
Communications System in accordance herewith shall apply only to the
location or locations stated on the Wireless Communication Permit or
Permits. Each Permit shall clearly state the location of each cell
site system and specify the height and cell configuration.
(B) Nothing in this chapter shall be construed as a
representation, promise or guarantee by the City that any other permit
or other authorization required under any City ordinance for the
construction or installation of a Wireless Communications System shall
be issued. The requirements for any and all other permits as may be
required by any City ordinance, including the Right-of-Way Utilization
Permit, shall still apply and all other applicable permit fees shall
still be due.
SECTION 58.05 USE OF STREETS AND POLE ATTACHMENTS,
(A) Before commencing construction of its Wireless
Communications System in, above, over, under, across, through or in
any way connected with the streets, public ways or public places of
City, first obtain the written approval of,
the
the
Permittee
shall
and all other necessary permits from, all appropriate City agencies,
including, but not limited to, the Planning and Zoning Department and
the Department of Environmental Services. Applications for such
approval, shall be made in the form prescribed by the Building
Department.
(B) Upon obtaining such written approval, the Permittee
shall give the Building Department and the appropriate agency written
notice within a reasonable time of proposed construction, but in no
event sha%l such notice be given less than ten (10) days before such
commencement, except for emergency repairs of existing lines or
cables.
- 7 - Ord. No. 65-94
(C) Any person who submits a request for a permit in
accordance herewith shall include therein proposed agreements for the
use of existing utility poles and conduits, if applicable, with the
owner(s) of such facilities to be used or affected by the construction
of the proposed Wireless Communications System, which agreements shall
become effective on the date of execution of the permit issued in
accordance herewith in the event that such person is issued a permit.
In the event that permission to use existing poles or conduits cannot
be obtained, the Permittee shall submit documentation to support the
unavailability of existing poles and a detailed plan for construction
to ensure protection for existing facilities. Such plans shall
include detailed drawings of the location and manufacturers'
specifications for the cell site equipment.
(D) It shall be unlawful for the Permittee or any other
person to open or otherwise disturb the surface of any street,
sidewalk, driveway, public way or other public place for any purpose
whatsoever without obtaining approval to do so pursuant to the manner
prescribed in subsections (A) and (B). Violation of this section
shall subject the Permittee to all penalties and remedies prescribed
herein and to all other remedies, legal or equitable, which are
available to the City.
(E) The Permittee shall restore any street or sidewalk it
has disturbed in accordance with the provisions of the City's Minimum
Construction Standards and Specifications, specifications for streets
and sidewalks, and shall, at its own cost and expense, restore and
replace any other property disturbed, damaged or in any way injured by
or on account of its activities to as good as the condition such
property was in immediately prior to the disturbance, damage or injury
or pay the fair market value of such property to its owner or shall
make such other repairs or restorations as outlined in the approved
permit.
(F) The Permittee shall, at its own cost and expense,
protect, support, temporarily disconnect, relocate in the same street
or other public place, or remove from such street or other public
place, any of its property when required to do so by the City because
of street or other public excavation, construction, repair, regrading,
or grading; traffic conditions; installation of sewers, drains, water
pipes; City, County or State owned power or 'signal lines, tracts;
vacation or relocation of streets or any other type of structure or
improvement of a public agency, or any type of improvement necessary
for the public health, safety or welfare, or upon termination or
expiration of the permit.
- 8 - Ord. No. 65-94
(G) Nothing in this chapter or any permit issued in
accordance herewith, shall be construed as authorizing the Permittee
to erect and maintain new poles in areas serviced by existing poles,
if the poles are available for permittee's use. The Permittee shall
obtain written approval from the Building Department and other
appropriate City agencies before erecting any new poles or cell site
support structures.
(H) The Permittee shall maintain all wires, conduits,
cables, and other real and personal property and facilities in good
condition, order and repair. The Permittee shall provide indemnity
insurance and performance bonds or demonstrate financial
responsibility as shall comply with all rules and regulations issued
by the Department of Environmental Services governing the construction
and installation of Wireless Communications Systems. Insurance
amounts and bonding requirements shall be established by the City's
Risk Manager.
(I) The Permittee shall keep accurate, complete and current
maps and records of its system and facilities which occupy the
streets, public ways and public places within the City and shall
furnish as soon as they-are available two (2) complete copies of such
maps and records, including as-built drawings, to the Department of
Environmental Services.
(J) The Permittee shall comply with all rules and
regulations issued by the Department of Environmental Services
governing the construction and installation of Wireless Communications
Systems. The Permittee shall also comply with all Florida Department
of Transportation regulations and requirements for maintenance of
traffic through a work zone, and meet all federal, state and local
safety requirements.
SECTION 58.06 VIOLATION PENALTY.
Any person who shall carry on or conduct any business or
occupation or profession for which a permit is required by this
chapter without first obtaining a permit shall be considered to be in
violation of this chapter, and, upon conviction, subject to a fine not
to exceed $500.00. Each day any violation shall continue to exist
shall constitute a separate offense.
- 9 - Ord. No. 65-94
SECTION 58.07 RESTRICTIONS ON ASSIGNMENT. TRANSFER. SALE. AND
SUBLEASING.
(A) The rights and privileges hereby granted are considered
personal, and if Permittee sells, assigns, transfers, leases or
pledges such rights or privileges, or both, in whole or in part,
either directly or by operation of the law, then the City shall have
the right to terminate any and all permits issued hereunder for no
other cause. The City shall terminate such permits in writing, by
certified mail, return receipt requested, to Permittee, and such
termination shall be effective sixty (60) days from said date of
mailing. The rights and provileges hereby granted shall not be
mortgaged or encumbered without the prior consent and approval of the
City given by written resolution.
(B) In addition to the provisions for termination provided
for in Subsection (A), the City shall have the right to terminate any
and all permits issued hereunder upon any actual or pending change in,
or transfer of, or acquisition by any other party or control of
Permittee. The word "control" as used in this context is not limited
to major stockholders, but includes actual working control in whatever
manner exercised. Permittee shall annually submit to the City a list
of all shareholders and a list of all officers and directors. By
acceptance of the permit the Permittee specifically agrees that any
violation of this section shall, at the City's option, cause any and
all permits granted the Permittee under this ordinance to be revoked.
SECTION 58.08 CELL SITE ZONING RESTRICTIONS.
(A) Micro Cell and Pico Cell Sites are allowed on
Commercial property. Each cell site will require a permit as
indicated in Section 58.01. This permit for a cell site on commercial
property must include a detailed design drawing of the proposed cell
site, a statement of permission by the owner and must be signed by the
property, owner and notarized. All fees and requirements of this
ordinance shall apply.
(B) Residential Property. No Micro Cell, Pico Cell,
repeater or translator sites are allowed on residential property.
Placement of cells on residential property is a violation of this
ordinance.and subject to a fine of not less than $5,000.00 and $500.00
per day for each day the cell is active.
- 10 - Ord. No. 65-94
SECTION 95.09 REPORTS.
(A) Firms or individuals requesting permits for new cell
sites or cell site systems may be required by the City to submit
evidence of financial capability to construct and operate such cell
sites or systems as may be included in the permit request. Such
evidence may include, but not be limited to, previous years audited
financial statements for the requesting firm, individual financial
statements for principals or investors or other such financial
information as the City Manager may desire.
(B) The Permittee shall provide the City with a written
statement from an independent certified public accountant within 120
days after the close of the calendar year that such certified public
accountant has reviewed the books and records of the Permittee as they
relate to any permits issued under this ordinance and based upon such
review, the certified public accountant believes the payment received
by the City properly reflects the fee due to the City with respect to
this ordinance. The City shall have the right to reasonable
inspection of the Permittee's books and records during normal business
hours.
(C) Local Office. The Permittee must maintain a local
business office open to the public during normal business hours for
the purpose of handling customer service. Ail books and records must
be maintained in this local office.
SECTION 55,10 CELL SITE REMOVAL,
Upon cancellation, revocation or denial of the permit
required by this ordinance, the requestor or Permittee shall remove
such designated cell site and any support structure as requested by
the City. Such removal to be completed within thirty (30) days. At
the end of thirty (30) days the City may, at its option, have the cell
site removed, with such costs being the responsibility of the
Permittee.
~ That should any section or provision of this
ordinance or any portion thereof, any paragraph, sentence or word be
declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a
whole or part thereof other than the part declared to be invalid.
~ That all ordinances or parts of ordinances in
conflict herewith be, and the same are hereby repealed.
- 11 - Ord. No. 65-94
Section 4. That this ordinance shall become effective
immediately upon its passage on second and final reading.
PASSED AND ADOPTED in regular session on second and final
reading on this the 18th day of October , 1994.
ATTEST:
~City Clerk t
First Reading September 27, 1994
Second Reading October 18~ 1994
- 12 - Ord. No. 65-94
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: ~CITY MANAGER
SUBJECT: AGENDA ITEM ~/O ~ - MEETING OF OCTOBER 18. 1994
SECOND READING AND PUBLIC HEARING FOR ORDINANCE NO. 65-94/
WIRELESS COMMUNICATIONS SYSTEMS
DATE: OCTOBER 14, 1994
Ordinance No. 65-94 is one of two proposed telecommunication
ordinances proposed for consideration on second and final reading.
It enacts a new Chapter 58, "Wireless Communications Systems:
Permits for the Use of Right-of-Way", which provides the authority
to regulate and require permitting of wireless communication system
cell sites throughout the City. It regulates the placement of the
cell sites, establishes a permitting process, establishes fees for
the permits, and a fee collection process.
As with Ordinance No. 64-94, this ordinance will allow the City to
regulate and generate revenue from the use of the City's
rights-of-way.
At first reading on September 27, 1994, the Commission passed the
ordinance by unanimous vote.
Recommend approval of Ordinance No. 65-94 on second and final
reading.
ref:agmemo4
CITY OF I:IELRAY BEACH
CITY ATTORNEY'S OFFICE ~,~ ,~w., ~,~.~. ~.~¥
FACSIMILE 407 278-4755
oELr^YSE^c. (407) 243-7090
Date: October 4, 1994
go: Alison MacGregor Harry, City Clerk
From: David N. Tolces, Assistant City Attorne~~
Subject: Telecommunication Ordinances
I made some minor modifications to the proposed ordinances
enacting Chapters 57 and 58. These should be used for
second reading. The caption was not changed. I attached a
copy of the memo from the City Manager which outlines the
revisions.
Please call if you have any questions.
DNT: smk
Attachment
cc: David Harden, City Manager
tele- 2. dnt
Printed on Recycled Paper
CITY OF i:IELRI:I¥ BEI:I£H
DELRAY BEACH 100 N.W. lst AVENUE · DELRAY BEACH, FLORIDA 33444 · 407/243.7000
~l.~me~aCi~ M E M O R A N D U M
® '
TO: David Tolces
1993
Asst. City Attorney I
FROM: David T. Harden .*5, %
City Manager ~ /'~ /
DATE: September 27, 1994
SUBJECT: Proposed Telecommunication Ordinances
I have had Environmental Services review the draft ordinances and
the following is a list of comments:
58.01 A
· Add the following sentence: "All work within the city right
of way shall require a permit from Environmental Services
Department for any construction activity."
~ 57 G
k 58.01 G
Revise "Call Candy" to "Call Sunshine" and the phone number
is 1-800-432-4770.
~/ction 58.02 A
(1) Revise Engineering Department to Environmental Services
Department. (This change needs to be carried throughout.)
~e~58.0357.03 (Length of Permit)
~.~ Add a paragraph (D) to read "All permits for construction
/" activities shall expire one year after date of issuance."
~Sectlon 57.05
ec Paragraph (C), third line, revise the word "sue" to "use."
tion 58.05 (C)
Second paragraph, fourth line, revise the word "insuring" to
"to ensure."
ecCtion 57.05 (D)
tion 58.05 (D)
Fourth line, revise the word "after" to "except by."
THE EFFORT ALWAYS MATTERS
Pnnted on ~lecycted Pa~er
Proposed Telecommunication Ordinances
Sept. 27, 1994
Page two
~3~ction 58.05 (E)
Second line, revise "standard specifications for streets and
sidewalks" to "Minimum Construction Standards and
Specifications."
ecCtion 57.05 (F)
tion 58.05 (F)
Seventh line, add the words "County or State" after the word
"City."
-,~oction 58.05 (H)
Revise "Engineering" to "Environmental Services." Add the
sentence "Indemnification amounts shall be determined by the
Se City's Risk Management."
ction 58.05 (I)
Revise "Engineering" to "Environmental Services."
Section 58.05 (J)
Revise "Engineering" to "Environmental Services." Add the
following sentence "The permittee shall furthermore comply
/~ with all Florida Department of Transportation requirements
for maintenance of traffic through a work zone and meet all
Federal, State and local safety requirements."
DTH:RH:mm
cc: Ralph E. Hayden, P.E., City Engineer
File: Memos to City Attorney
DTHTL927.MRM
M~MORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER~
SUBJECT: AGENDA ITEM ~ /~C - MEETING OF SEPTEMBER 27, 1994
FIRST READING FOR ORDINANCE NO. 65-94/WIRELESS
COMMUNICATIONS SYSTEMS
DATE: SEPTEMBER 22, 1994
Ordinance No. 65-94 is one of two proposed telecommunication
ordinances proposed for consideration on first reading. It enacts
a new Chapter 58, "Wireless Communications Systems: Permits for the
Use of Right-of-Way", which provides the authority to regulate and
require permitting of wireless communication system cell sites
throughout the City. It regulates the placement of the cell sites,
establishes a permitting process, establishes fees for the permits,
and a fee collection process.
As with Ordinance No. 64-94, this ordinance will allow the City to
regulate and generate revenue from the use of the City's
rights-of-way.
Recommend approval of Ordinance No. 65-94 on first reading. If
passed, public hearing on October 18, 1994.
ref:agmemo4