2001-3306 ORD
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'.
ORDINANCE NO.
2001-3306
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, RELATING TO
COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY;
PROVIDING FOR TITLE; PROVIDING FOR INTENT AND PURPOSE;
PROVIDING FOR DEFINITIONS; PROVIDING FOR REGISTRATION
FOR PLACING OR MAINTAINING COMMUNICATIONS FACILITIES
IN PUBLIC RIGHTS-OF.WAY; PROVIDING FOR NOTICE FOR
TRANSFER, SALE OR ASSIGNMENT OF ASSETS IN PUBLIC RIGHTS.
OF-WAY; PROVIDING FOR PLACEMENT OR MAINTENANCE OF A
COMMUNICATIONS FACILITY IN PUBLIC RIGHTS-OF-WAY;
PROVIDING FOR SUSPENSION OF PERMITS; PROVIDING FOR
APPEALS; PROVIDING FOR INVOLUNTARY TERMINATION OF
REGISTRATION; PROVIDING FOR EXISTING COMMUNICATIONS
FACILITIES IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR
INSURANCE; PROVIDING FOR INDEMNIFICATION; PROVIDING
FOR CONSTRUCTION BOND; PROVIDING FOR SECURITY FUND;
PROVIDING FOR ENFORCEMENT REMEDIES; PROVIDING FOR
ABANDONMENT OF A COMMUNICATIONS FACILITY; PROVIDING
FOR FORCE MAJEURE; PROVIDING FOR RESERVATION OF
RIGHTS AND REMEDIES; ESTABLISHING THE RATE OF THE
COMMUNICATIONS SERVICES TAX; REPEALING ALL
ORDINANCES AND RESOLUTIONS IN CONFLICT HEREWITH;
PROVIDING FOR SEVERABILITY; PROVIDING FOR CODIFICATION;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000), was
amended to state 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 telecommunications services, it is the intent of the Florida Legislature that
municipalities and counties treat telecommunications companies in a nondiscriminatory and
competitively neutral manner when imposing rules or regulations goveming the placement or
maintenance of telecommunications facilities in the public roads or rights-of-way; and rules or
regulations imposed by a municipality or county relating to telecommunications companies
placing or maintaining telecommunications facilities in its roads or rights-of-way must be
generally applicable to all telecommunications companies and, notwithstanding any other law,
may not require a telecommunications company to apply for or enter into an individual license,
franchise, or other agreement with the municipality or county as a condition of placing or
maintaining telecommunications facilities in its roads or rights-of-way; and
WHEREAS, effective October 1, 2001, Section 337.401, Florida Statutes (2000), was
further amended to state that because of the unique circumstances applicable to providers of
communications services and the fact that 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; and rules or regulations imposed by a municipality or county relating to providers
of communications services placing or maintaining communications facilities in its roads or
rights-of-way must be generally applicable to all providers of communications services and,
notwithstanding any other law, may not require a provider of communications services, except as
otherwise provided for providers of Cable Service, to apply for or enter into an individual
license, franchise, or other agreement with the municipality or county as a condition of placing
or maintaining communications facilities in its roads or rights-of-way; and
WHEREAS, it is the intent of the City to exercise the City's authority over
communications services providers' placement and maintenance of facilities in the public rights-
of-way; and
WHEREAS, it is the City's intent to treat each communications services provider in a
nondiscriminatory and competitively neutral manner in exercising such authority; and
WHEREAS, the public rights-of-way subject to the jurisdiction and control of the City:
(1) are critical to the travel of persons and the transport of goods and other tangibles in the
business and social life of the community by all citizens; (2) are a unique and physically limited
resource and proper management by the City is necessary to maximize efficiency, minimize the
costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative
effects upon the public from such facilities' placement and maintenance in the public rights-of-
way; and (3) are intended for public uses and must be managed and controlled consistently with
that intent; and
WHEREAS, it is the intent of the City to exercise its authority to adopt reasonable rules
and regulations to the fullest extent allowed by Federal and State law; and
WHEREAS, it is the intent of the City that this Ordinance shall not apply to Cable
Service providers.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
Section 1. There is hereby created a new Chapter 104 of the Miami Beach City Code,
entitled "Telecommunications," which shall read as follows:
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Article I Communications Rights-or-Way Ordinance
Sec. 104-1. Title.
This Article shall be known and may be cited as the City of Miami Beach
Communications Rights-of-Way Ordinance.
Sec. 104-2. Intent and Purpose.
It is the intent of the City to promote the public health, safety and general welfare by:
providing for the placement or maintenance of Communications Facilities in the Public Rights-
of-Way within the City; adopting and administering reasDnable rules and regulations not
inconsistent with State and Federal law, including Section 337.401, Florida Statutes (2000), as it
may be amended from time to time, the City's home-rule authority, and in accordance with the
provisions of the Federal Telecommunications Act of 1996 and other Federal and State law;
establishing reasonable rules and regulations necessary to manage the placement or maintenance
of Communications Facilities in the Public Rights-of-Way by all Communications Services
Providers; and minimizing disruption to the Public Rights-of-Way. In regulating its Public
Rights-of-Way, the City shall be governed by and shall comply with all applicable Federal and
State laws.
Sec. 104-3. Definitions.
For purposes of this Article, the following terms, phrases, words and their derivations
shall have the meanings given. Where not inconsistent with the context, words used in the
present tense include the future tense, words in the plural number include the singular number,
and words in the singular number include the plural number. The words "shall" and "will" are
mandatory, and "may" is permissive. Words not otherwise defined shall be construed to mean
the common and ordinary meaning.
"Abandonment" shall mean the permanent cessation of all uses of a Communications
Facility; provided that this term shall not include cessation of all use of a Facility within a
physical structure where the physical structure continues to be used. 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 Public Rights-of-Way.
"Cable Service" shall mean the transmission of video, audio, or other programming
service to purchasers, and the purchaser interaction, if any, required for the selection or use of
any such programming service, regardless of whether the programming is transmitted over
facilities owned or operated by the Cable Service provider or over facilities owned or operated
by one or more other dealers of communications services. The term includes point-to-point and
point-to-multipoint distribution services by which programming is transmitted or broadcast by
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microwave or other equipment directly to the purchaser's premises, but does not include direct-
to-home satellite service. The term includes basic, extended, premium, pay-per-view, digital,
and music services.
"City" shall mean the City of Miami Beach, Florida.
"Communications Facility" Of "Facility" or "System" shall mean any permanent or
tempofary plant, equipment and property, including but not limited to cables, wires, conduits,
ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes,
vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed
or maintained or to be placed or maintained in the Public Rights-of-Way of the City and used or
capable of being used to transmit, convey, route, receive, distribute, provide or offer
Communications Services.
"Communications Services" shall mean the transmission, conveyance or routing of voice,
data, audio, video, or any other information or signals to a point, or between or among points, by
or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method
now in existence or hereafter devised, regardless of the protocol used for such transmission or
conveyance. Notwithstanding the foregoing, for purposes of this Article "Cable Service," is not
included in the definition of "Communications Services," and Cable Service providers may be
subject to other ordinances of the City. For the purposes of this Ordinance, "Communications
Services" shall not include pay telephones, and nothing contained herein shall be construed to
allow pay telephones to be placed in the Public Rights-of-Way. Such term also does not include:
(a) Information services.
(b) Installation or maintenance of wiring or equipment on a customer's premises.
(c) The sale or rental of tangible personal property.
(d) The sale of advertising, including, but not limited to, directory advertising.
(e) Bad check charges.
(1) Late payment charges.
(g) Billing and collection services.
(h) Internet access service, electronic mail service, electronic bulletin board service, or
similar on-line computer services.
(i) Direct-to-home satellite service.
"Communications Services Provider" shall mean any Person including a municipality or
county providing Communications Services through the placement or maintenance of a
Communications Facility in Public Rights-of-Way. "Communications Services Provider" shall
also include any Person including a municipality or county that places or maintains a
Communications Facility in Public Rights-of-Way but does not provide Communications
Services.
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"Communications Services Tax" shall mean the local communications services tax
authorized to be levied and collected by counties and municipalities pursuant to Section 202.20,
Florida Statutes, upon charges for Communications Services.
"FCC" shall mean the Federal Communications Commission.
"In Public Rights-of-Way" or "in the Public Rights-of-Way" shall mean in, on, over,
under or across the Public Rights-of-Way.
"Person" shall include any individual, children, firm, association, joint venture,
partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal
entity of any kind, successor, assignee, transferee, personal representative, and all other groups
or combinations, and shall include the City to the extent the City acts as a Communications
Services Provider.
"Place or maintain" or "placement or maintenance" or "placing or maintaining" shall
mean to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate
or relocate. A Communications Services Provider that owns or exercises physical control over
Communications Facilities in Public Rights-of-Way, such as the physical control to maintain and
repair, is "placing or maintaining" the Facilities. A Person providing service only through resale
or only through use of a third party's unbundled network elements is not "placing or
maintaining" the Communications Facilities through which such service is provided. The
transmission and receipt of radio frequency signals through the airspace of the Public Rights-of-
Way does nDt constitute "placing or maintaining" Facilities in the Public Rights-of-Way,
"Public Rights-of-Way" shall mean a public right-of-way, public utility easement,
highway, street, bridge, tunnel or alley for which the City is the authority that has jurisdiction
and control and may lawfully grant access to pursuant to applicable law, and includes the
surface, the air space over the surface and the area below the surface. "Public Rights-of-Way"
shall not include private property. "Public Rights-of-Way" shall not include any real or personal
City property except as described above and shall not include City buildings, fixtures, poles,
conduits, facilities or other structures or improvements, regardless of whether they are situated in
the Public Rights-of-Way.
"Registrant" shall mean a Communications Services Provider that has Registered with
the City in accordance with the provisions of this Article.
"Registration" or "Register" shall mean the process described in this Article whereby a
Communications Services Provider provides certain information to the City.
Sec. 104-4. Registration for Placing or Maintaining Communications Facilities in
Public Rights-of-Way.
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~uniCations Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way in the City shall first Register with the City in
accordance with this Article. Subject to the tenus and conditions prescribed in this Article, a
Registrant m~ce or maintain a Communications Facility in Public Rights-of-Way.
~Registration shall not convey any title, equitable or legal, to the Registrant in
the Public Rights-of-Way. Registration under this Article governs only the placement or
maintenance of Communications Facilities in Public Rights-of-Way. Other ordinances, codes or
regulations may apply to the placement or maintenance in the Public Rights-of-Way of facilities
that are nDt Communications Facilities. Registration does not excuse a Communications
Services Provider from obtaining appropriate access or pole attachment agreements before
locating its Facilities on the City's or another Person's facilities_ Registration does not excuse a
Communications Services Provider from complying with all applicable City ordinances, codes or
regulations, including this Article.
~h Communications Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way in the City shall file a single Registration with
the City which shall include the following information:
(1) name of the applicant;
(2) name, address and telephone number of the applicant's primary contact
person in connection with the Registration, and the person to contact in
case of an emergency;
(3) for Registrations submitted prior to OctDber I, 200 I, the applicant shall
state whether it provides local service or tDll service or both;
(4) evidence of the insurance coverage required under this Article and
acknowledgment that Registrant has received and reviewed a copy of this
Article, which acknowledgment shall not be deemed an agreement; and
(i) (5) the number of the applicant's certificate of authorization or license to
d provide Communications Services issued by the Florida Public Service
Commission or the Federal Communications Commission.
)) Registration Application Fees: No Registration application fees shall be imposed
for Registration under this Ordinance.
C!) (ll) The City shall review the information submitted by the applicant. Such review
shall be by the City Manager or his or her designee. If the applicant submits information in
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(a) A Communications Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way in the City shall first Register with the City in
accordance with this Article. Subject to the terms and conditions prescribed in this Article, a
Registrant may place or maintain a Communications Facility in Public Rights-of-Way.
(b) A Registration shall not convey any title, equitable or legal, to the Registrant in
the Public Rights-of-Way. Registration under this Article governs only the placement or
maintenance of Communications Facilities in Public Rights-of-Way. Other ordinances, codes or
regulations may apply to the placement or maintenance in the Public Rights-of-Way of facilities
that are not Communications Facilities. Registration does not excuse a Communications
Services Provider from obtaining appropriate access or pole attachment agreements before
locating its Facilities on the City's or another Person's facilities. Registration does not excuse a
Communications Services Provider from complying with all applicable City ordinances, codes or
regulations, including this Article.
(c) Each Communications Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way in the City shall file a single Registration with
the City which shall include the following information:
(1) name of the applicant;
(2) name, address and telephone number of the applicant's primary contact
person in connection with the Registration, and the person to contact in
case of an emergency;
(3) for Registrations submitted prior to October 1, 2001, the applicant shall
state whether it provides local service or toll service or both;
(4) evidence of the insurance coverage required under this Article and
acknowledgment that Registrant has received and reviewed a copy of this
Article, which acknowledgment shall not be deemed an agreement; and
(5) the number of the applicant's certificate of authorization or license to
provide Communications Services issued by the Florida Public Service
Commission or the Federal Communications Commission.
(d) Registration Application Fees: No Registration application fees shall be imposed
for Registration under this Ordinance.
(e) The City shall review the information submitted by the applicant. Such review
shall be by the City Manager or his or her designee. If the applicant submits information in
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accordance with subsection (c) above, the Registration shall be effective and the City shall notify
the applicant of the effectiveness of Registration in writing. If the City determines that the
information has not been submitted in accordance with subsection ( c) above, the City shall notify
the applicant of the non-effectiveness of Registration. and reasons for the non-effectiveness, in
writing. The City shall so reply to an applicant within thirty (30) days after receipt of
registration information from the applicant. Non-effectiveness of Registration shall not preclude
an applicant from filing subsequent applications for Registration under the provisions of this
Section. An applicant has thirty (30) days after receipt of a notice of non-effectiveness of
Registration to appeal the decision as provided in Section 104-8 hereof_
~) A Registrant may cancel a Registration upon written notice to the City stating that
it will no longer place or maintain any Communications Facilities in Public Rights-of-Way
within the City and will no longer need to obtain permits to perform work in Public Rights-of-
Way. A Registrant cannot cancel a Registration if the Registrant continues to place or maintain
any Communications Facilities in Public Rights-of-Way.
~
~) Registration does not in and of itself establish a right to place or maintain or
priority for the placement or maintenance of a Communications Facility in Public Rights-of-Way
within the City but shall establish for the Registrant a right to apply for a permit, if permitting is
required by the City. Registrations are expressly subject to any future amendment to or
replacement of this Article and further subject to any additional City ordinances, as well as any
State or Federal laws that may be enacted from time tD time.
~ Registrant shall renew its Registration with the City by the fifth (5th) anniversary
of the date of initial Registration and by each fifth (5th) anniversary thereafter. Within thirty (30)
days of any change in the information required to be submitted pursuant to subsection (c) hereof,
except, as of October I, 2001, subsection (c)(3), a Registrant shall provide updated information
to the City. If no information in the then-existing Registration has changed, the renewal may
state that no information has changed. Failure to renew a Registration may result in the City
restricting the issuance of additional permits until the Communications Services Provider has
complied with the Registration requirements of this Article.
({)
(1)
be required of a Communications Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way. An effective Registration shall be a
condition precedent to obtaining a permit. Notwithstanding an effective Registration, all
permitting requirements of the City shall apply. A permit may be obtained by or on behalf of a
Registrant having an effective Registration if all permitting requirements are met.
In accordance with applicable City ordinances, codes or regulations, a permit may
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accordance with subsection (c) above, the Registration shall be effective and the City shall notify
the applicant of the effectiveness of Registration in writing. If the City determines that the
information has not been submitted in accordance with subsection (c) above, the City shall notify
the applicant of the non-effectiveness of Registration, and reasons for the non-effectiveness, in
writing. The City shall so reply to an applicant within thirty (30) days after receipt of
registration information from the applicant. Non-effectiveness of Registration shall not preclude
an applicant from filing subsequent applications for Registration under the provisions of this
Section. An applicant has thirty (30) days after receipt of a notice of non-effectiveness of
Registration to appeal the decision as provided in Section 104-8 hereof.
(f) A Registrant may cancel a Registration upon written notice to the City stating that
it will no longer place or maintain any Communications Facilities in Public Rights-of-Way
within the City and will no longer need to obtain permits to perform work in Public Rights-of-
Way. A Registrant cannot cancel a Registration if the Registrant continues to place or maintain
any Communications Facilities in Public Rights-of-Way.
(g) Registration does not in and of itself establish a right to place or maintain or
priority for the placement or maintenance of a Communications Facility in Public Rights-of-Way
within the City but shall establish for the Registrant a right to apply for a permit, if permitting is
required by the City. Registrations are expressly subject to any future amendment to or
replacement of this Article and further subject to any additional City ordinances, as well as any
State or Federal laws that may be enacted from time to time.
(h) Registrant shall renew its Registration with the City by the fifth (5th) anniversary
of the date of initial Registration and by each fifth (5th) anniversary thereafter. Within thirty (30)
days of any change in the information required to be submitted pursuant to subsection (c) hereof,
except, as of October 1, 2001, subsection (c)(3), a Registrant shall provide updated information
to the City. If no information in the then-existing Registration has changed, the renewal may
state that no information has changed. Failure to renew a Registration may result in the City
restricting the issuance of additional permits until the Communications Services Provider has
complied with the Registration requirements of this Article.
(i) In accordance with applicable City ordinances, codes or regulations, a permit may
be required of a Communications Services Provider that desires to place or maintain a
Communications Facility in Public Rights-of-Way. An effective Registration shall be a
condition precedent to obtaining a permit. Notwithstanding an effective Registration, all
permitting requirements of the City shall apply. A permit may be obtained by or on behalf of a
Registrant having an effective Registration if all permitting requirements are met.
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Sec. 104-5. Notice of Transfer, Sale or Assignment of Assets in Public Rights-of-
Way.
If a Registrant transfers, sells or assigns its assets located in Public Rights-of-Way
incident to a transfer, sale or assignment of the Registrant's assets, the transferee, buyer or
assignee shall be obligated to comply with the terms of this Article. Written notice of any such
transfer, sale or assignment shall be provided by such Registrant to the City within twenty (20)
days after the effective date of the transfer, sale or assignment. If the transferee, buyer or
assignee is a current Registrant, then the transferee, buyer or assignee is not required to re-
Register. If the transferee, buyer or assignee is not a current Registrant, then the transferee,
buyer or assignee shall Register as provided in Section 104-4 hereof within sixty (60) days of the
transfer, sale or assignment. If permit applications are pending in the Registrant's name, the
transferee, buyer or assignee shall notify the City Manager that the transferee, buyer or assignee
is the new applicant.
Sec.l04-6.
Placement or Maintenance of a Communications Facility in Public
Rights -of-Way.
(a) A Registrant shall at all times comply with and abide by all applicable provisions
of the State and Federal law and City ordinances, codes and regulations in placing or maintaining
a Communications Facility in Public Rights-of-Way, including, but not limited to, Articles II and
III of Chapter 98, and Article V of Chapter 110 of the Miami Beach City Code.
(b) Registrant shall not commence to place or maintain a Communications Facility in
Public Rights-of-Way until all applicable permits, if any, have been issued by the City or other
appropriate authority, except in the case of an emergency. The term "emergency" shall mean a
condition that affects the public's health, safety or welfare, which includes an unplanned out-of-
service condition of a pre-existing service. Registrant shall provide prompt notice to the City of
the placement or maintenance of a Communications Facility in 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. Registrant acknowledges that as a condition of granting
permits, the City may impose reasonable rules or regulations governing the placement or
maintenance ofa Communications Facility in Public Rights-of-Way. Permits shall apply only to
the areas of Public Rights-of-Way specifically identified in the permit. The City may issue a
blanket permit to cover certain activities, such as routine maintenance and repair activities, that
may otherwise require individual permits.
(c) As part of any permit application to place a new or replace an eXlstmg
Communications Facility in Public Rights-of-Way, the Registrant shall provide the following:
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(1)
(2)
(3)
(4)
(5)
(6)
(7)
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;
A description of the manner in which the Facility will be installed (i.e.
anticipated construction methods or techniques);
A maintenance of traffic plan for any disruption of the Public Rights-of-
Way;
Information on the ability of the Public Rights-of-Way to accommodate
the proposed Facility, if available (such information shall be provided
without certification as to correctness, to the extent obtained from other
Persons);
If appropriate given the Facility proposed, an estimat~the cost of
restoration to the Public Rights-of-Way;
The timetable for construction of the project or each phase thereof, and the
areas ofthe City which will be affected; and
Such additional information as the ~nds 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.
(d) To the extent not otherwise prohibited by State or Federal law, the City 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.
(e) 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 City shall require any Communications Services Providers that do not
have Communications Facilities in the City 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 City Manager
may promulgate reasonable rules and regulations concerning the placement or maintenance of a
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Communications Facility In Public Rights-of-Way consistent with this Article and other
applicable law.
(f) All safety practices required by applicable law or accepted industry practices and
standards shall be used during the placement or maintenance of Communications Facilities.
(g) After the completion of any placement or maintenance of a Communications
Facility in 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 thirty (30) days, or such longer period of time as may be
reasonably required under the circumstances, following the completion of such placement or
maintenance, the City may perform restoration and charge the costs of the restoration against the
Registrant in accordance with Section 337.402, Florida Statutes (2000), as it may be amended,
For twelve (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.
(h) Removal or relocation at the direction of the City of a Registrant's
Communications Facility in Public Rights-of-Way shall be governed by the provisions of
Sections 337.403 and 337.404, Florida Statutes (2000), as they may be amended from time to
time. Subject to the aforementioned Sections 337.403 and 337.404, Florida Statutes (2000) and
other provisions oflaw, whenever existing overhead utility distribution facilities are converted to
underground facilities pursuant to Article V of Chapter 110 of the Miami Beach City Code, any
Communications Services Providers having Communications Facilities on poles that are to be
removed shall arrange for the conversion to underground facilities on the same terms and
conditions as the other utilities that are being converted to underground facilities.
(i) A permit from the City constitutes authorization to undertake only certain
activities in Public Rights-of-Way in accordance with this Article, 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.
(s) A Registrant shall maintain its Communications Facilities in Public Rights-of-
Way in a manner consistent with accepted industry practice and applicable law.
(k) 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 Chapter 556, Florida Statutes (2000), as it may be amended from time to time.
(1) 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.
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(m) Upon request of the City, and as notified by the City 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 timeframe
in the subject Public Rights-of-Way, and 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.
(n) 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 City or any other Person's facilities
lawfully occupying the Public Rights-of-Way of the City.
(0) The City makes no warranties or representations regarding the fitness, suitability,
or availability of the City'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. Nothing in this Article shall affect the City's authority to add, vacate,
abandon or otherwise dispose of Public Rights-of-Way, and the City makes no warranties or
representations regarding the availability of any added, vacated or abandoned Public Rights-of-
Way for Communications Facilities.
(P) The City shall have the right to make such inspections of Communications
Facilities placed or maintained in Public Rights-of-Way as it finds necessary to ensure
compliance with this Article.
(q) A permit application to place a new or replace an existing Communications
Facility in 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 City, provided such
electronic format is maintained by the Registrant. Such plans in a format maintained by the
Registrant shall be provided at no cost to the City. Upon completion of any Communications
Facilities, the Communications Services Provider shall furnish to the City, at no cost to the City,
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 City
Manager, or his or her designee, may approve. This requirement shall be in addition to, and not
in lieu of, any filings the Communications Services Provider is required to make under the
Underground Facility Damage Prevention and Safety Act set forth in Chapter 556, Florida
Statutes (2000), as amended from time to time. The fact that such plans or survey is on file with
the City shall in no way abrogate the duty of any Person to comply with the aforesaid
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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 shall be held confidential by the City to the
extent provided in Section 202.195, Florida Statutes (2000), as amended from time to time.
(r) The City reserves the right to place and maintain, and permit to be placed or
maintained, sewer, gas, water, electric, storm drainage, communications, and other types of
facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead
installation or improvement that may be deemed necessary or proper by the City in Public
Rights-of-Way occupied by the Registrant, and the City also reserves the right to reserve any
portion of the Public Rights-of-Way for its own present or future use. The City further reserves
without limitation the right to alter, change, or cause to be changed, the grading, installation,
relocation, or width of the Public Rights-of-Way within the limits of the City and within said
limits as same may from time to time be altered.
(s) A Registrant shall, at the request of any Person holding a permit issued by the
City, temporarily raise or lower its Communications Facilities to permit the work authorized by
the permit. The expense of such temporary raising or lowering of Facilities shall be paid by the
Person requesting the same, and the Registrant shall have the authority to require such payment
in advance. The Registrant shall be given not less than thirty (30) days advance written notice to
arrange for such temporary relocation.
(t) Pursuant to Section 337.401(c)(1)(b), Florida Statutes (2000) and other applicable
provisions of law, and notwithstanding any other provisions of the Miami Beach City Code, the
City hereby elects not to charge permit fees to any Registrant for permits to do work in the
Public Rights-of-Way.
Sec. 104-7. Suspension of Permits.
The City may suspend a permit for work in the Public Rights-of-Way for one or more of
the following reasons:
(a) violation of permit conditions, including conditions set forth in the permit, this
Article or other applicable City ordinances, codes or regulations governing placement or
maintenance of Communications Facilities in Public Rights-of-Way;
(b) misrepresentation or fraud by Registrant in a Registration or permit application to
the City; or
(c) failure to properly renew or ineffectiveness of Registration.
(d) failure to relocate or remove Facilities as may be lawfully required by the City.
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The City Manager shall provide notice and an opportunity to cure any violation of (a)
through (d) above, each of which shall be reasonable under the circumstances.
Sec. 104-8. Appeals.
Any person aggrieved by any action or decision of the City Manager, or his or her
designee, with regard to any aspect of Registration under this Article may appeal to the special
master appointed pursuant to Article II of Chapter 30 of the Miami Beach City Code by filing
with the special master, within thirty (30) days after receipt a written decision of the City
Manager, or his or her designee, a notice of appeal, which shall set forth concisely the action or
decision appealed from and the reasons or grounds for the appeal. No requests for extension of
time for filing an appeal will be permitted. The only appeal that shall be considered are those
appeals that allege that there is error in any order, requirement, decision, or determination made
by an administrative official in the enforcement of this Article. The special master shall set such
appeal for hearing on the very next available date followlfi'g such notice of appeal and cause
notice thereof to be given to the appellant and the City Manager, and the City Manager, or his or
her designee shall present the case On behalf of the City. The special master shall hear and
consider all facts material to the appeal and render a decision within twenty (20) calendar days of
the date of the hearing. The special master may affirm, reverse or modifY the action or decision
appealed from; provided, that the special master shall not take any action which conflicts with or
nullifies any of the provisions of this Article. Any person aggrieved by any decision of the
special master on an appeal shall be entitled to apply to the circuit court for a review thereof by
petition for writ of certiorari in accordance with the applicable court rules.
Sec.l04-9.
Involuntary Termination of Registration.
(a) The City may terminate a Registration if:
(1) a Federal or State authority suspends, denies, or revokes a Registrant's
certification or license to provide Communications Services;
(2) the Registrant'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
Registrant fails to remedy the danger promptly after receipt of written
notice; or
(3) the Abandonment by the Registrant of all of its Communications Facilities
in Public Rights-of-Way and noncompliance with Section 104-16 hereof.
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,
(b) Prior to termination, the Registrant shall be notified by the City Manager, or his or
her designee, with a written notice setting forth all matters pertinent to the proposed termination
action, including which of (1) through (3) above is applicable as the reason therefore, and
describing the proposed action of the City with respect thereto. The Registrant shall have sixty
(60) days after receipt of such notice within which to address or eliminate the reason or within
which to present a plan, satisfactory to the City Manager to accomplish the same. If the plan is
rejected, the City Manager shall provide written notice of such rejection to the Registrant and
shall make a recommendation to the Mayor and City Commission regarding a decision as to
termination of Registration. The City Manager, or his or her designee, shall provide notice to
Registrant of any resolution or other action to be taken up at any meeting of the Mayor and City
Commission and Registrant shall be granted the opportunity to be heard at such meeting. A
decision by a City to terminate a Registration may only be accomplished by an action of the
Mayor and City Commission. A Registrant shall be notified by written notice of any decision by
the Mayor and City Commission to terminate its Registration. Such written notice shall be sent
within seven (7) days after the decision.
(c) In the event of termination, the former Registrant shall: (1) notify the City of the
assumption or anticipated assumption by another Registrant of ownership of the Registrant's
Communications Facilities in Public Rights-of-Way; or (2) provide the City with an acceptable
plan for disposition of its Communications Facilities in Public Rights-of-Way. If a Registrant
fails to comply with this subsection (c), which determination of non-compliance is subject to
appeal as provided in Section 104-8 hereof, the City may exercise any remedies or rights it has at
law or in equity, including but not limited to requiring the Registrant within ninety (90) days of
the termination, or such longer period as may be agreed to by the Registrant, to remove some or
all of the Facilities from the Public Rights-of-Way and restore the Public Rights-of-Way to its
original condition before the removal.
(d) In any event, a terminated Registrant shall take such steps as are necessary to
render safe every portion of the Communications Facilities remaining in the Public Rights-of-
Way ofthe City.
(e) In the event of termination of a Registration, this Section does not authorize the
City to cause the removal of Communications Facilities used to provide another service for
which the Registrant or another Person who owns or exercises physical control over the Facilities
holds a valid certification or license with the governing Federal or State agency, if required for
provision of such service, and is Registered with the City, if required.
Sec. 104-10. Existing Communications Facilities in Public Rights-of-Way.
A Communications Services Provider with an existing Communications Facility in the
Public Rights-of-Way of the City has sixty (60) days from the Effective Date of this Article to
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comply with the terms of this Article, including, but not limited to, Registration, or be In
violation thereof.
Sec. 104-11. Insurance.
(a) A Registrant shall provide, pay for and maintain satisfactory to the City the types of
insurance described herein. All insurance shall be from responsible companies duly authorized
to do business in the State of Florida and having a rating reasonably acceptable to the City. All
liability policies shall provide that the City is an additional insured as to the activities under this
Article. The required coverages must be evidenced by properly executed Certificates of
Insurance forms. The Certificates must be signed by the authorized representative of the
insurance company and shall be filed and maintained with the City annually. Thirty (30) days
advance written notice by registered, certified or regular mail or facsimile as determined by the
City must be given to the City of any cancellation, intent not to renew or reduction in the policy
coverages. The insurance requirements may be satisfied by evidence of se1f- insurance or other
types of insurance acceptable to the City.
(b) The limits of coverage of insurance required shall be not less than the following:
(1) Worker's Compensation and Employer's Liability Insurance
Worker's Compensation-Florida Statutory Requirements
(2) Comprehensive General Liability
Bodily injury and property damage
$1,000,000 combined single limit each occurrence
(3) Automobile Liability
Bodily injury and property damage-
$1,000,000 combined single limit each accident
Sec. 104-12. Indemnification.
(a) A Registrant shall, at its sole cost and expense, indemnify, hold harmless, and
defend the City, its officials, boards, members, agents, and employees, against any and all
claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs
and expenses incurred by the City arising out of the placement or maintenance of its
Communications System or Facilities in Public Rights-of-Way, regardless of whether the act or
omission complained of is authorized, allowed or prohibited by this Article, provided, however,
that a Registrant's obligation hereunder shall not extend to any claims caused by the negligence,
gross negligence or wanton or willful acts of the City. This provision includes, but is not limited
to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or
proceedings. The City agrees to notify the Registrant, in writing, within a reasonable time of the
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City receiving notice, of any issue it determines may require indemnification. Nothing in this
Section shall prohibit the City from participating in the defense of any litigation by its own
counsel and at its own cost if in the City's reasonable belief there exists or may exist a conflict,
potential conflict or appearance of a conflict. Nothing contained in this Section shall be
construed or interpreted: (1) as denying to either party any remedy or defense available to such
party under the laws of the State of Florida; or (2) as a waiver of sovereign immunity beyond the
waiver provided in Section 768.28, Florida Statutes (2000), as it may be amended from time to
time.
(b) The indemnification requirements shall survive and be in effect after the
termination or cancellation of a Registration.
Sec. 104-13. Construction Bond.
(a) Prior to issuing a permit where the work under the permit will require restoration
of Public Rights-of-Way, a City may require a construction bond to secure proper performance
under the requirements of any permits and the restoration of the Public Rights-of-Way. Twelve
(12) months after the completion of the restoration in Public Rights-of-Way in accordance with
the bond, the Registrant may eliminate the bond. However, the City may subsequently require a
new bond for any subsequent work in the Public Rights-of-Way. The construction bond shall be
issued by a surety having a rating reasonably acceptable to the City; shall be subject to the
approval of the City's Risk Manager; and shall provide that: "For twelve (12) months after
issuance of this bond, this bond may not be canceled, or allowed to lapse, until sixty (60) days
after receipt by the City, by certified mail, return receipt requested, of a written notice from the
issuer of the bond of intent to cancel or not to renew."
(b) The rights reserved by the City with respect to any construction bond established
pursuant to this Section are in addition to all other rights and remedies the City may have under
this Article, or at law or equity.
(c) The rights reserved to the City under this Section are in addition to all other rights of
the City, whether reserved in this Article, or authorized by other law, and no action, proceeding
or exercise of a right with respect to the construction bond will affect any other right the City
may have.
Sec. 104-14. Security Fund.
At the time of Registration, the Registrant shall be required to file with the City, for City
approval, an annual bond, cash deposit or irrevocable letter of credit in the sum of Twenty Five
Thousand Dollars ($25,000), having as a surety a company qualified to do business in the State
of Florida, and acceptable to the City Manager, or his or her designee, which shall be referred to
as the "Security Fund." The Security Fund shall be maintained from such time through the earlier
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of: (a) transfer, sale, assignment or removal of all Communications Facilities in Public Rights-of-
Way; or (b) twelve (12) months after the termination or cancellation of any Registration. The
Security Fund shall be conditioned on the full and faithful performance by the Registrant of all
requirements, duties and obligations imposed upon Registrant by the provisions of this Article.
The Security Fund shall be furnished annually or as frequently as necessary to provide a
continuing guarantee of the Registrant's full and faithful performance at all times. In the event a
Registrant fails to perform its duties and obligations imposed upon the Registrant by the
provisions of this Article, subject to Section 104-15 of this Article, there shall be recoverable,
jointly and severally from the principal and surety of the Security Fund, any damages or loss
suffered by the City as a result, including the full amount of any compensation, indemnification
or cost of removal, relocation or abandonment of any Facilities of the Registrant in Public
Rights-of-Way, plus a reasonable a allowance for attorneys' fees, up to the full amount of the
Security Fund. Notwithstanding the foregoing, the City may in its discretion not require a
Security Fund or may accept a corporate guarantee of the Registrant or its parent company.
Sec. 104-15. Enforcement Remedies.
(a) A Registrant's failure to comply with provisions of this Article shall constitute a
violation of this Article and shall subject the Registrant to the code enforcement provisions and
procedures as provided in Chapter 30 of the Miami Beach City Code, including the provisions of
Chapter 30 that allow the City to seek relief as otherwise provided by law.
(b) Failure of the City to enforce any requirements of this Article shall not constitute
a waiver of the City's right to enforce that violation or subsequent violations of the same type or
to seek appropriate enforcement remedies.
Sec. 104-16. Abandonment ofa Communications Facility.
(a) Upon Abandonment of a Communications Facility owned by a Registrant in
Public Rights-of-Way, the Registrant shall notify the City within ninety (90) days.
(b) The City may direct the Registrant by written notice to remove all or any portion
of such Abandoned Facility at the Registrant's sole expense if the City determines that the
Abandoned Facility's presence interferes with the public health, safety or welfare, which shall
include, but shall not be limited to, a determination that such Facility: (1) compromises safety at
any time for any Public Rights-of-Way user or during construction or maintenance in Public
Rights-of-Way; (2) prevents another Person from locating facilities in the area of Public Rights-
of-Way where the Abandoned Facility is located when other alternative locations are not
reasonably available; or (3) creates a maintenance condition that is disruptive to the Public
Rights-of-Way's use. In the event of (2) above, the City may require the third Person to
coordinate with the Registrant that owns the existing Facility for joint removal and placement,
where agreed to by the Registrant.
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(c) In the event that the City does not direct the removal of the Abandoned Facility,
the Registrant, by its notice of Abandonment to the City, shall be deemed to consent to the
alteration or removal of all or any portion of the Facility by the City or another Person at such
third party's cost.
(d) If the Registrant fails to remove all or any portion of an Abandoned Facility as
directed by the City within a reasonable time period as may be required by the City under the
circumstances, the City may perform such removal and charge the cost of the removal against the
Registrant.
Sec. 104-17. Force Majeure.
In the event a Registrant's performance of or compliance with any of the provisions of
this Article is prevented by a cause or event not within the Registrant's control, such inability to
perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a
result, provided, however, that such Registrant uses all practicable means to expeditiously cure
or correct any such inability to perform or comply. For purposes of this Article, causes or events
not within a Registrant's control shall include, without limitation, acts of God, floods,
earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots
or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency
or court. Causes or events within Registrant's control, and thus not falling within this Section,
shall include, without limitation, Registrant's financial inability to perform or comply, economic
hardship, and misfeasance, malfeasance or nonfeasance by any of Registrant's directors, officers,
employees, contractors or agents.
Sec. 104-18. Reservation of Rights and Remedies.
(a) The City reserves the right to amend this Article as it shall find necessary in the
lawful exercise of its police powers.
,
(b) This Article shall be applicable to all Commui1cations Facilities placed in the
Public Rights-of-Way on or after the effective date of this Article and shall apply to all existing
Communications Facilities in the Public Rights-of-Way prior to the effective date of this Article,
to the full extent permitted by State and Federal law.
(c) The adoption of this Article is not intended to affect any rights or defenses of the
City or a Communications Service Provider under any existing franchise, license or other
agreements with a Communications Services Provider.
(d) Nothing in this Article shall affect the remedies the City or the Registrant has
available under applicable law.
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(e) Any Person who uses the Communications Facilities of a Registrant, other than
the Registrant that owns the Facilities, shall not be entitled to any rights to place or maintain such
Facilities in excess of the rights of the Registrant that places or maintains the Facilities.
Sec. 104-19. Establishment ofthe Rate ofthe Communications Services Tax.
(a) For the fiscal year of the City commencing on October 1, 2001 and ending on
September 30, 2002, the City hereby establishes the rate of the Communications Services Tax as
the base rate of 5.10% established by Sections 202.19 and 202.20, Florida Statutes, plus 0.40%,
as permitted by Section 13 of Chapter 2001-140 of the Laws of Florida, plus 0.12%, as permitted
by Section 337.401, Florida Statutes, for a total of 5.62%.
(b) On and after October 1, 2002, the City hereby establishes the rate of the
Communications Services Tax as the base rate of 5.10% established by Section 202.20, Florida
Statutes, plus 0.12%, as permitted by Section 337.401, Florida Statutes, for a total of 5.22%.
(c) The City hereby instructs the Florida Department of Revenue to collect the
Communications Services Tax at the rates set forth in subsections (a) and (b) of this Section.
Section 2. All ordinances, resolutions or parts thereof in conflict herewith be and the
same are hereby repealed, including, but not limited to, the definitions of "Telecommunications
service," "Telecommunications service provider," and "Taxable telecommunications service" in
Section 102-151, the entirety of Sections 102-153 and 012-154, and conflicting references to
telecommunications in Section 101-155 of the Miami Beach Code,
Section 3. If any section, sentence, clause or phrase of this Ordinance is held to be
invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no
way affect the validity of the remaining portions of this Ordinance.
Section 4. It is the intention of the Mayor and City Commission of the City of Miami
Beach, and it is hereby ordained that the provisions of this Ordinance shall become and be made
part of the Miami Beach City Code. The sections of this Ordinance may be renumbered or
relettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
Section 5.
26th day of May
This Ordinance shall take effect ten (10) days after its adoption on the
,2001.
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"
.
PASSED on First Reading this 18th day of April
PASSED and ADOPTED on Second Reading this 16th day of
7UJ
,2001.
May
MAYOR
ATTEST:
~\~ f~~G~
CITY CLERK
Ordinance No. 2001-3306
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
~~
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s4f1/D1
Date
,2001.
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\\ci.miami-beach.fl.us
TO:
FROM:
SUBJECT:
COMMISSION MEMORANDUM NO. .32.l:Q.L-
Mayor Neisen Kasdin and DATE: May 16,2001
Members of the City Commission
Jorge M. Gonzalez ~ . r./
City Manager ~~
SECOND READING - PUBLIC HEARING
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, RELATING TO COMMUNICATIONS
FACILITIES IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR TITLE;
PROVIDING FOR INTENT AND PURPOSE; PROVIDING FOR
DEFINITIONS; PROVIDING FOR REGISTRATION FOR PLACING OR
MAINTAINING COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-
OF-WAY; PROVIDING FOR NOTICE FOR TRANSFER, SALE OR
ASSIGNMENT OF ASSETS IN PUBLIC RIGHTS-OF-WAY; PROVIDING
FOR PLACEMENT OR MAINTENANCE OF A COMMUNICATIONS
FACILITY IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR SUSPENSION
OF PERMITS; PROVIDING FOR APPEALS; PROVIDING FOR
INVOLUNTARY TERMINATION OF REGISTRATION; PROVIDING FOR
EXISTING COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-
WAY; PROVIDING FOR INSURANCE; PROVIDING FOR
INDEMNIFICATION; PROVIDING FOR CONSTRUCTION BOND;
PROVIDING FOR SECURITY FUND; PROVIDING FOR ENFORCEMENT
REMEDIES; PROVIDING FOR ABANDONMENT OF A
COMMUNICATIONS FACILITY; PROVIDING FOR FORCE MAJEURE;
PROVIDING FOR RESERVATION OF RIGHTS AND REMEDIES;
ESTABLISHING THE RATE OF THE COMMUNICATIONS SERVICES
TAX; REPEALING ALL ORDINANCES AND RESOLUTIONS IN
CONFLICT HEREWITH; PROVIDING FOR SEVERABILITY; PROVIDING
FOR CODIFICATION; AND PROVIDING FOR AN EFFECTIVE DATE.
RECOMMENDATION
The Administration recommends that the City Commission approve the proposed Ordinance on
second reading after a public hearing.
ANALYSIS
On July 1,2000, Florida's Communication Services Tax Simplification Act (Chapter 2000-260 of
the Laws of Florida), became effective without the Governor's signature. In the 2001 session, the
Legislature enacted Senate Bill 1878 which implemented
AGENDA ITEM
DATE
Rsc-
c:.;--It. -Of
Chapter 2000-260 of the Laws of Florida. The 2000 and 2001 legislation are hereinafter collectively
referred to as the "Act".
The Act creates a single tax rate applicable to each municipality and county in place of assorted
franchise fees and taxes. The tax replaces the 7% gross receipts tax on telecommunications services,
the present 5% cable franchise fee in the City of Miami Beach (of which the County gets 1 %) and
the 1 % telecommunications franchise fee that is paid by BellSouth. Pursuant to federal law, the
Internet cannot be taxed until after October 20, 2001, although several bills have already been
introduced in Congress to extend this exemption. Thus, the new tax does not include Internet
services, which may be added at some time in the future when the federal prohibition terminates_
This may be to the City's detriment since the new franchise agreement with Charter Communications
includes in the definition of gross revenues not only 1nternet services, but advertising revenues and
every other source of income that Charter Communications would have with respect to its television
franchise in the City. It should also be understood that the Act essentially abrogates all
telecommunications franchise agreements, such as the one with BellSouth (the City's agreement with
BellSouth terminates in 2003 in any event) and replaces it with the Communications Services Tax
(the "Communications Tax").
The effect of the Act on the franchise agreement that was recently negotiated with Charter
Communications is different: The cable television franchise agreement remains in place, except to
the extent that the right to receive franchise fees has been terminated. Thus, provisions in the cable
television franchise agreement for in-kind services, such as the government and education access
channels will generally remain in place.
The Act requires that the Legislature set a conversion rate of the Communications Tax for each
municipality and county in the 2001 Session. On March 2, 2001, the Revenue Estimating
Conference met to approve the tax rates to be sent to the Legislature. The City's conversion rate
was tentatively set at 4.70% on a revenue base (FY 1999) of $95,243,864. The conversion rate was
increased to 5.10% for FY 2002; and at the original rate of 4.70% for FY 2003 and thereafter.
Additionally, the City was given the right to adopt a discretionary rate of 5.10% for every year
thereafter and also to add the difference between the two rates (0.40%) to the FY 2002 rate in order
to assure revenue neutrality and protect the City's revenue base. Staff is recommending the adoption
ofthe discretionary rates of 5.62% for FY 2002 and 5.22% for FY 2003 and thereafter.
Additionally, the Act provides that prior to July 1,2001 the City must elect whether it will charge
Communications Services Providers for permits to do work in the Rights-of-Way. The City's
"replaceable revenues," based on the amounts actually collected in FY 1999 were set (based on
figures provided by the Administration) at $3,984,038. The City has the option to either (a) waive
permit fees for Communications Services Providers and increase the FY 2002 rate by 0.12% and
increase the 5.10% to 5.22% for each FY thereafter, or (b) charge permit fees and reduce the tax rate
by 0.12% in FY 2002 and each FY thereafter, less the amount of the permit fees received. Total
permit fees received for work in the Rights-of-Way in FY 2000 were $71,797, of which only $3,017
could be identified as attributable to BellSouth. The Act restricts permit fees for work in the Rights-
2
of-Way to the direct costs of issuing the permit, with a maximum allowable fee of $100 per permit.
Thus, if the revenue base of $95,243,864 is assumed for FY 2003, the Communications Tax would
yield the following under the available options (exclusive of the deduction for permit fees in option
(b), above):
Projected
Ootion Tax Rate Revenue
(a) Waive Permit Fees 5.22% $4,971,730
(b) Charge Permit Fees 4.98% $4_743.144
Difference 0.24% $ 228 585
For FY 2002, the Administration recommends that the City take advantage of the option to increase
the rate to 5.62% (and waive permit fees). This would produce $5,352,705 in revenues, assuming
the revenue base remains at the 1999 amount of $95,243,864.00.
Taking a sample resident as paying $24 per month for local telephone, $25 per month for intrastate
calls, and $50 per month each for cell phone and cable TV, the effect on the sample resident's
monthly bills would be $0.38 based on a tax rate of 5.62%. This computation is shown in Exhibit
A attached hereto. Additionally, a significant amount ofthe tax will be paid by the City's hotels on
the amounts charged to guests for telephone service.
Since the difference is greater than the total permit fees for all work done in the Rights-of-Way in
FY 2000, it is to the City's advantage to waive permit fees for Communications Services Providers
and receive the Communications Tax at the higher rate. Please note that these numbers are estimates
based on the FY 1999 revenue base, which may be increased or decreased in the future.
The election to waive permit fees for Communications Services Providers is made in Section 104-
6(t) of the proposed Ordinance.
Other salient provisions of the Ordinance are:
~ Section 104-4 of the Ordinance requires Communications Services Providers who use the
Rights-of-Way to register with the City, and Section 104-10 requires Communications
Services Providers that presently have Communications Facilities in the Right-of-Way to
come into compliance with the Ordinance.
~ Section 104-5 of the Ordinance requires notice of any transfer, sale or assignment of assets
in the Right-of-Way and requires the new owner to register as required by Section 104-4.
~ Section 104-6 requires every Registrant to obtain permits for any Communications Facilities
that are placed in the Rights-of-Way and requires compliance with all Federal and State laws,
3
as well as the City Code. This section also provides that Communications Facilities may not
unreasonably interfere with the use of the Rights-of-Way or adjoining private property,
expresses a preference for "trenchless" technology, requires restoration of the Rights-of-Way
to their original condition, requires compliance with the Underground Facility Damage
Prevention and Safety Act (i.e., "One-Call"), requires coordination of work whenever
possible in order to minimize disruption of the Rights-of-Way, requires "as-builts" or surveys
showing the exact location of Communications Facilities that are in the Rights-of-Way and
sets standards for Wireless Facilities (as defined in Section 104-6) that are placed in the
Rights-of-Way.
~ Section 104-7 provides for suspension of Permits under certain circumstances.
~ Section 104-8 provides that any action of the City Manager or his or her designee that is
taken pursuant to the Ordinance may be appealed to the Special Master created under Article
30 ofthe City Code.
~ Section 104-9 of the Ordinance provides for involuntary termination of registration in certain
instances.
~ Sections 104-11 through 104-14 provide for insurance, indemnification to the City,
construction bonds and a security fund, all of which are intended to hold the City harmless
with regard to work that is undertaken by Communications Services Providers in the Rights
-of- Way and to assure that the Rights-of-Way are restored to their original condition upon
completion of such work.
~ Section 104-18 provides for the City's rights and remedies in the event ofa violation of the
Ordinance.
Several issues with regard to this Ordinance were raised at the joint meeting of the Finance and
Citywide Projects Committee and the Land Use Committee on April 9th. The first issue was whether
the City has the right to regulate the placement of utility poles in the Rights-of-Way. The City's
outside counsel for telecommunications matters advises that there was an amendment being
considered in the State Legislature that would allow the City to prohibit utility poles in the Rights-of-
Way and make them subject to all of the City's Land Use Regulations. We expect that this would
be subject to some engineering considerations; and we may have to amend the proposed Ordinance
or the Land Use Regulations after we have an opportunity to fully analyze the bills passed in the
2001 Legislative Session. The second issue had to do with the placement of new utility poles in
areas where all other utilities are already underground. Our outside counsel advises that the City can
force new Communications Facilities underground in such areas and the language of Section 104-6
of the proposed Ordinance has been slightly modified in this regard. The last issue was whether any
part of the proposed Ordinance applies to pay telephones. We have modified the definition of
"Communications Services" to assure that pay telephone companies CanIlot use this Ordinance to
establish any rights to place pay telephones in the Public Rights-of-Way.
4
In summary, the proposed Ordinance has three major purposes: The first is to assure that the City
will be able to control work done in the Rights-of-Way by Communications Services Providers after
it can no longer enter into franchise agreements with them; the second is to assure that all
Communications Services Providers are treated in a nondiscriminatory and competitively neutral
manner as required by Federal and State law; and the third is to make an election required by the Act
that will be in the best financial interest of the City. Therefore, the Administration recommends that
the proposed Ordinance should be adopted on second reading after a public hearing.
~O'LEVL\COMMMEMO\ROW-ORD2.WPD
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Exhibit A
Simplified Communications Tax Computations
Effect on Sample Resident
Current Tax/Fee Structure
Service
Bill Amount
Local Telephone
Non-Local Intrastate Calls
Cell Phone
Cable TV
$24
$25
$50
$50
Total
$149
$7.99
Rate
1.00%
7.00%
7.00%
5.00%
Tax/Fee Bill
$0.24
$1.75
$3.50
$2.50
Communications Tax Structure - Conversion Rate
Service Bill Amount Rate Tax/Fee Bill
Local Telephone $24 5.22% $1.25
Non-Local Intrastate Calls $25 5.22% $1.31
Cell Phone $50 5.22% $2.61
Cable TV $50 5.22% $2.61
Total $149 $7.78
Communications Tax Structure - Optional Rate
Service
Bill Amount
Local Telephone
Non-Local Intrastate Calls
Cell PhDne
Cable TV
$24
$25
$50
$50
$149
Total
Rate
5.62%
5.62%
5.62%
5.62%
Tax/Fee Bill
$1.35
$1.41
$2.81
$2.81
$8.37
CITY OF MIAMI BEACH
NOTICE OF PUBLIC HEARINGS
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NOTICE IS HEREBY given that public hearings will be held by the Mayor and City Commission of the City of Miami Beach,
Florida. in the Commission Chambers. 3rd Floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida. on
Wednesday, May 16, 2001, al4the limes listed below. to consider the adoption of the follQwing ordinances:
at 10:30 a.m.:
AN ORDINANCE AMENDING ORDINANCE NO. 789. THE CLASSIFIED EMPLOYEES SALARY ORDINANCE. BY
DELETING SECTIONS 1 OF ORDINANCE NO. 789, AS AMENDED BY ORDINANCE 2000-3251 AND SUBSTITUTING
THEREFORE A NEW SECTION 1, INCREASING THE MINIMUM AND THE MAXIMUM OF THE SALARY RANGE BY
3.25% FOR GROUP VI OF THE CLASSIFIED EMPLOYEES. FOR THOSE CLASSIFICATIONS IN GROUP VI. BEING IN
THE.CLASSIFIED SERVICE. EFFECTIVE WITH THE PAY PERIOD BEGINNING APRIL 23. 2001; PROVIDING FOR A
REPEALER. SEVERABILITY, CODIFICATION. AND EFFECTIVE DATES.
8110:45 a.m.:
AN ORDINANCE. AMENDING ORDINANCE NO. 1605. THE UNCLASSIFIED EMPLOYEES SALARY ORDINANCE. BY
DELETING SECTIONS 1 AND 2 OF ORDINANCE NO. 1605. AS AMENDED BY ORDINANCE 2000-3252 AND
SUBSTITUTING THEREFORE A NEW SECTION 1, INCREASING THE MINIMUM AND THE MAXIMUM OF THE
SALARY RANGE BY 3.25% FOR THE UNCLASSIFIED EMPLOYEES EFFECTIVE WITH THE PAY PERIOD BEGINNING
APRIL 23. 2001; PROVIDING FOR A REPEALER. SEVARABILlTY. CODIFICATION. AND EFFECTIVE DATES.
Inquiries may be directed 10 Human Resources at (305) 673.7524.
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1" AN ORDINANCE RELATING TO COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY: PROVIDING FOR
TITLE: PROVIDING FOR INTENT AND PURPOSE: PROVIDING FOR DEFINITIONS: PROVIDING FOR REGISTRATION
FOR PLACING OR MAINTAINING COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY: PROVIDING FOR
NOTICE FOR TRANSFER, SALE OR ASSIGNMENT OF ASSETS IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR
PLACEMENT OR MAINTENANCE OF A COMMUNICATIONS FACILITY IN A PUBLIC RIGHTS-OF-WAY; PROVIDING
FOR SUSPENSION OF PERMITS; PROVIDING FOR APPEALS: PROVIDING FOR INVOLUNTARY TERMINATION OF
REGISTRATION: PROVIDING FOR EXISTING COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY;
PROVIDING FOR INSURANCE; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR CONSTRUCTION BOND;
PROVIDING FOR SECURITY FUND; PROVIDING FOR ENFORCEMENT REMEDIES; PROVIDING FOR
ABANDONMENT OF A COMMUNICATIONS FACILITY; PROVIDING FOR FORCE MAJEURE: PROVIDING FOR
RESERVATION OF RIGHTS AND REMEDIES; REPEALING ALL ORDINANCES AND RESOLUTIONS IN CONFLICT
'HEREWITH; PROVIDING FOR SEVERABILITY: PROVIDING FOR CODIFICATION; AND PROVIDING FOR AN
EFFECTIVE DATE.
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Inquiries may be directed to Ihe City Attorney's Office at (305) 673--7470
ALL INTERESTED PARTIES are Invited 10 appear at this meeling. or be represented by an agent, or 10 express their views
in writing addressed to the City Commission, cJo the City Clerk, 1700 Convention Cen1er Drive, 1 st Floor, City Hall, Miami
Beach, Florida 33139. Copies of lhese ordinances are available for public inspection during normal business hours in lhe
City Clerk's Office, 1700 Convention Center Drive, 1st Floor, City Hall, Miami Beach. Florida 33139. This meeting may be
continued and under such circumstances additional legal notic.e would n~t be provided.
Robert E. Parcher, City Clerk
City of Miami Beach
f'ursuant 10 Section 286.0105, Fla. Stat.. tM City hereby advises ltIe public that if a person decides 10 appeal any decision made by
the City Commission wilh respect 10 any matter considered at its meeting or its hearing. such person must ensure thai a verbatim
record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is 10 be based. This
notice does not conslitute consent by the City lor the introduction or admission of otherwise inadmissible or irrelevant evidence, nor
does it authorize challenges or appeals not otherwise allowed by law. .
In accordance with the Americans with Oisabililies Act of 1990. persons needing special accommodation to participate in this
proceeding should contact the City Clerk's Office no later that lour days prior to the proceeding, lelephonf.! (305) 673-7411 lor
assistance: if hearing impaired, lelephone the Florida Relay Service numbers, (800) 955.6771 (TOO) or (800) 955.8770 (VOICE) for
assistance,.... ,'.:.. ..:...:....:.,_...:":...~.."..~_.:.-..- " . .....,.1.,./.. (Ai1lf0020)
OFFICE OF THE CITY ATTORNEY
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MURRAY H. DUBBIN
City Attorney
July 2, 2001
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
Revenue Accounting - Communications Services Tax
Florida Department of Revenue
Post Office Box 6609
Tallahassee, Florida 32399-6609
Re: Communications Services TaxlRate Election
To Whom It May Concern:
On May 16, 2001, the City of Miami Beach adopted the attached Telecommunications
Ordinance (Ord. No. 2001-3306) after second reading and public hearing.
Please note that under Section 104-6(t) of the attached Ordinance, the City of Miami Beach
elected not to charge permit fees to any registrant for permits to do work in the public rights-of-way,
and in Section 104-19 of the Ordinance, the City adopted its telecommunications services tax rates
5.62% for fiscal year 2002 and 5.22% for fiscal year 2003 and thereafter.
If anything further is required in connection with this matter, please do not hesitate to contact
me at your convenience.
Please acknowledge receipt of the attached Ordinance by signing and returning the enclosed
copy of this letter in the stamped, addressed envelope provided.
Very truly yours,
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Lawrence A. Levy
First Assistant City Attorney
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Receipt Acknowledged
By:
Print Name:
Date:
cc: Murray H. Dubbin, City Attorney (w/o enclosures)
Jorge M. Gonzalez, City Manager (w/o enclosures)
Robert Parcher, City Clerk (w/o enclosures)
Patricia D. Walker, Finance Director (w/o enclosures)
f'....mnEvl.'FII..SCIII!i'I.ET1UlrIREVNSLET,WI'D
1700 Convention Center Drive -- Fourth Floor -- Miami Beach, Florida 33139