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2015-3924 Ordinance TELECOMMUNICATIONS RIGHTS OF WAY ORDINANCE ORDINANCE NO. 2015-3924 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CITY CODE, CHAPTER 104, "TELECOMMUNICATIONS," ARTICLE I, "COMMUNICATIONS RIGHTS OF WAY," BY AMENDING AND PROVIDING DEFINITIONS; AMENDING THE REGISTRATION PROCESS; AMENDING THE PERMIT APPLICATION PROCESS TO REQUIRE THE ISSUANCE OF PERMITS; TO REQUIRE DESIGN AND APPROPRIATENESS REVIEW AND APPROVAL BY THE DESIGN REVIEW BOARD AND HISTORIC PRESERVATION BOARD; CREATING STANDARDS FOR COMMUNICATIONS FACILITIES DESIGN, LOCATION AND COLLOCATION; ADDING STANDARDS FOR SITE IMPROVEMENTS, USE OF AND RESTORATION OF SITES AND RIGHTS-OF- WAY, INCLUDING DISTANCE SEPARATION BETWEEN COMMUNICATIONS FACILITIES AND BETWEEN SUCH FACILITIES AND RESIDENTIAL USES AND CONTRIBUTING BUILDINGS IN HISTORIC DISTRICTS; TO PROVIDE FOR COMPENSATION TO THE CITY FOR THE USE OF PUBLIC RIGHTS-OF- WAY FOR THESE PURPOSES; AND AMENDING SUCH OTHER SECTIONS AS ARE APPROPRIATE TO PROTECT THE PUBLIC HEALTH, SAFETY AND WELFARE; AND AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE, CHAPTER 118, ARTICLE II, "BOARDS," DIVISIONS 3 AND 4, "DESIGN REVIEW BOARD" AND "HISTORIC PRESERVATION BOARD," SECTIONS 118-71 AND 118-102, "POWERS AND DUTIES," TO ADD REVIEW AND APPROVAL OF IMPROVEMENTS IN THE RIGHTS-OF-WAY AS BEING. WITHIN THE JURISDICTION OF THE DESIGN REVIEW BOARD AND HISTORIC PRESERVATION BOARD RESPECTIVELY; AND CHAPTER 118, ARTICLE VI, "DESIGN REVIEW PROCEDURES," SECTION 118-251, "DESIGN REVIEW CRITERIA," AND ARTICLE X, "HISTORIC PRESERVATION," DIVISION 3, "ISSUANCE OF CERTIFICATE OF APPROPRIATENESS/CERTIFICATE TO DIG/CERTIFICATE OF APPROPRIATENESS FOR DEMOLITION," SECTION 118-564, "DECISIONS ON CERTIFICATES OF APPROPRIATENESS," ADDING CRITERIA FOR SUCH REVIEW FOR TELECOMMUNICATIONS EQUIPMENT AND FACILITIES; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the provision of telecommunications services to residents of and visitors to the City of Miami Beach ("City") is both an important amenity and often necessity of public and private life in the City; and WHEREAS, the demand for telecommunications services has grown exponentially in recent years, requiring the continual upgrading of telecommunications equipment and services to satisfy such demand; and WHEREAS, the placement of telecommunications equipment and poles in the public rights-of-way to satisfy the demand for telecommunications services raise important issues with respect to the City's responsibility to manage its public rights-of-way; and WHEREAS, the City has reviewed its ordinances and has concluded that they must be updated in order to address the issues that new and expanded telecommunications equipment and poles in the rights-of-way present; and WHEREAS, adoption of the following amendments to Chapter 104 are necessary to satisfy the above objectives. NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA. SECTION 1. City Code Chapter 104, "Telecommunications," Article I, "Communications Rights- of-Way," is hereby amended as follows: ARTICLE I. COMMUNICATIONS RIGHTS-OF-WAY 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 reasonable rules and regulations not inconsistent with state and federal law, including F.S., but not limited to, Florida Statutes § 337.401, 47 USC § 1455(a) and Orders issued by the FCC (2000)„ as they 11-may be amended from time to time, the City's home-rule authority, and in accordance with the provisions of the -:- - - --e••••-•'-- •_- Communications Act of 19961934, as amended, 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, communications facility providers and pass-through 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. Persons seeking to place or maintain communications facilities on private property or property owned, leased or controlled by the City, including rights-of-way shall comply with the provisions of Subpart B, Land Development Regulations, of the Code of the City of Miami Beach. Persons seeking to place or maintain communications facilities in the public rights-of-way also shall comply with the provisions of this Chapter. 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. 2 of 40 • Abandonment shall mean the permanent cessation of the use 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. It may also mean the discontinued use of obsolete technology in favor of new technology, which would require the removal of the discontinued. abandoned. technology. programming service, regar-cl-loss of whether the programming is transmitted over facilities • - - -- -':-• - -• - - -- 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. Arterial roadway shall mean any street or roadway that constitutes the highest degree of mobility at the highest speed, for long, uninterrupted travel, and constitutes the largest proportion of total travel as per the Federal Functional Classification Map maintained by the State of Florida Department of Transportation District Six Office, as amended. City shall mean the City of Miami Beach, Florida. ,••_. •e - ---- .. .e me •, •• - - - - erne - -- used to transmit, convey, route, receive, distribute, provide or offer communications services. Communisatiens-Collector roadway shall mean any street or roadway that provides a mix of mobility and land access functions, linking maior land uses to each other or to the arterial highway system as per the Federal Functional Classification Map maintained by the State of Florida Department of Transportation District Six Office, as amended. Collocation shall mean the situation in which a communications services provider or a pass- through provider uses an existing structure to locate a second or subsequent antenna. The term includes the ground, platform, or roof installation of equipment enclosures, cabinets, or buildings, and cables, brackets, and other equipment associated with the location and operation of the antenna. Communications facility shall mean a facility that may be used to provide communications services, as per Florida Statutes § 337.401, as amended. Multiple cables, conduits, strands, or fibers located within the same conduit shall be considered one communications facility. Communications facility provider shall mean a person (other than a communications services provider operating one or more communications facilities located within the City) who is engaged, directly or indirectly, in the business of leasing, licensing, subleasing, subletting or hiring to one or more communications service providers all or a portion of the tangible personal 3 of 40 property used in a communications facility, including but not limited to, towers, poles, tower space, antennas, transmitters, and transmission line. Provisions of this Article that apply only to communications facility providers shall not apply to communications services providers even if the communication services provider also operates, licenses, leases, subleases, or sublets communications facilities. Communications services shall mean the transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals, including video services, 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. :•••,• - - -=•-= -- - -- -- - e- == - - -• Article providers may be subject to other ordinances of the City. For the purposes of this Article does not include: , as per Florida Statutes § 202.11, as amended. The term includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice-over-Internet-protocol services or is classified by the Federal Communications Commission as enhanced or value- added. The term 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. (f) 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. (9)Direct to home satellite service. Communications services provider shall mean a }a person (other than a communications facility provider or a pass-through provider) including a municipality or county providing "-as that : - -- - ••-•• -•. - -="-- -•-- • -- - :-: •- '_- way but does not provide communications services. term is used in Florida Statutes § 337.401, as amended. Communications services tax shall mean the local communications services tax authorized to be levied and collected by counties and municipalities pursuant to F.S. § 202.20, upon charges for communications services, pursuant to Florida Statutes § 202.20, as amended. Existing Structure shall mean a structure that exists at the time an application for permission to place antennas on the structure is filed with the City. The term includes any structure that can structurally support the attachment of antennas in compliance with applicable codes. FCC shall mean the Federal Communications Commission. 4 of 40 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. Order, as used in the definition of"wireless provider", shall mean: (a) The following orders and rules of the FCC issued in FCC Docket No. 94-102: (i) Order adopted on June 12, 1996, with an effective date of October 1, 1996, the amendments to s. 20.03 and the creation of s. 20.18 of Title 47 Code of Federal Regulations adopted by the FCC pursuant to such order. (ii) Memorandum and Order No. FCC 97-402 adopted on December 23, 1998. (iii) Order No. FCC DA 98-2323 adopted on November 13, 1998. (iv) Order No. FCC 98-345 adopted December 31, 1998. (b) Orders and rules subsequently adopted by the FCC relating to the provision of 911 services, including Order Number FCC-05-116, adopted May 19, 2005 and Order Number FCC-2014-0011, adopted November 4, 2014. (c) Pass-through provider shall include any person (other than a communications services provider) who places or maintains a communications facility in the roads or rights-of-way of a municipality or county that levies a tax pursuant to Florida Statutes § 202 and who does not remit taxes imposed by that municipality or county pursuant to Chapter 202 as per Florida Statutes 337.401, as amended. A "pass-through provider" does not provide communications services to retail customers in the City. Provisions of this Article that apply only to pass-through providers shall not apply to communications services providers that provide the services identical or similar to those provided by pass-through providers. Permit shall include, but not be limited to Miami Beach public right-of-way permits board or staff issued, design review approval and board or staff issued certificates of appropriateness. Person shall include any individual, shil-d-ren, 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 person 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 not 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 5 of 40 property-or easements over 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, communications facility provider or pass-through provider that has registered with the City in accordance with the provisions of Section 104-4 this Article and holds an effective registration. Registration or register shall mean the process described in this Article whereby a communications services provider, communications facility provider or pass-through provider provides certain information to the City. Re•ur•osed Structure shall mean an Existin. Structure owned b the Cit that has been renovated, reconfigured, or replaced with a similar structure so as to continue serving its existing purpose while also supporting the attachment of communication facilities or antennas through Stealth Design that is approximately in the same location as the Existing Structure and in such a manner that does not result in a net increase in the number of structures located within the public right-of-way, shall be installed near the outer boundaries of the Public Rights- of-Wa to the extent •ossible and does not interfere with •edestrian or vehicular access is Americans with Disabilities Act, Florida Building Code, and Florida Department of Transportation's Manual of Uniform Minimum Standards for Design. Construction and Maintenance for Stree s and Hi•hwa s as same ma be amended from time to time compliant. By way of illustration only, where a light pole existing within the public right of way is removed and is replaced with a new light pole that is substantially similar to the old light pole but now supports the attachment or integration of communication facilities, the new light pole shall be considered a "repurposed structure." Unless stated otherwise, all references to "communications facilities" or"wireless communications facilities" shall also apply to repurposed structures. To "repurpose an existing structure" shall mean the act of renovating, reconfiguring, or replacing an Existing Structure as described above. The provider that later removes a repurposed structure shall reinstall a new light pole, or other applicable pole in the ROW, at the direction of the City. During the life of the use of the repurposed structure the provider shall pay all costs associated with the electricity, light bulbs, maintenance, and replacement of the repurposed structure. Stealth design shall mean a method of camouflaging any tower, antenna or other telecommunications facility, including, but not limited to, supporting electrical or mechanical equipment, which is designed to enhance compatibility with adjacent land uses and be as visually unobtrusive as possible. Stealth design may include a repurposed structure. Tower shall mean any structure designed solely or primarily to support a communications services provider's antennas. Wireless communications facility shall mean equipment used to provide wireless service, as the phrase, wireless communications facility, is further defined and limited in Florida Statutes 365.172, as amended. A wireless communications facility is a type of communications facility. Wireless provider shall mean a person who provides wireless service and is either (a) subject to the provisions of the order or (b) elects to provide wireless 911 service or E911 service in Florida. A wireless provider is a type of communications services provider. 6 of 40 Wireless service shall mean "commercial mobile radio service" as provided under§§ 3(27) and 332(d) of the Federal Telecommunications Act of 1996, 47 U.S.C. §§ 151 et seq., and the Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, August 10, 1993, 107 Stat. 312, as per Florida Statutes .5365.172, as amended. The term includes service provided by any wireless real-time two-way wire communication device, including radio-telephone communications used in cellular telephone service; personal communications service; or the functional or competitive equivalent of a radio-telephone communications line used in cellular telephone service, a personal communications service, or a network radio access line. The term does not include communications services providers that offer mainly dispatch service in a more localized, non-cellular configuration; providers offering only data, one-way, or stored-voice services on an interconnected basis; providers of air-to-ground services; or public coast stations. Sec. 104-4. Registration for placing or maintaining communications facilities in public rights-of-way. Registration application and all information require therein, shall be included in any Design Review Board or Historic Preservation Board application, as required under sections 104-6, 118-251, or 117 71, or 118 251 118-564, of the City's Land Development Regulations. (a) A communications services provider, communications facility provider or pass- through 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. This Chapter provides no right of access to the public rights-of-way for (i) persons other than communications service providers or (ii) businesses other than providing communications services. Other uses of the public rights-of-way reasonably related to the provision of communications services may be allowed in the reasonable discretion of the City. 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. Tangible personal property placed in the public rights-of-way pursuant to this Article shall retain its character as tangible personal property and shall not be regarded as real property, fixtures or mixed property. 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 -=•• •• _ -'-- '-• - -- : _ .':- registrant 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 registrant from complying with all applicable City ordinances, codes or regulations, including this Article. (c) Each communications services provider, communications facility provider or pass-through provider that desires to place or maintain a communications facility., including without limitation a collocation, 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; 7 of 40 (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; - --' '-' -.*. -- - - - - --- .. -- e ' - - state whether it providcs local service or toll service or both; (43) 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 (45) 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. An applicant proposing to place or maintain a wireless communications facility operating on spectrum licensed by the FCC shall supply the file number of the FCC license authorizing such wireless service. (d) Registration application fees: no registration application fees shall be imposed for registration under this Article. (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 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 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 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, including without limitation collocations, 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. right to place or maintain or Registration does not in and of itself establish a ri (g) 9 9 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, annually, by the anniversary of the date of initial registration. Each renewal shall include an inventory of the communications facilities, poles, towers, underground lines and equipment cabinets registrant installed in public rights-of-way in the City during the last term of the registration and an inventory of the wireless communications facilities, poles, towers and equipment cabinets registrant abandoned in the public rights-of-way in the City during 8 of 40 the last term of the registration. Within 30 days of any change in the information required to be submitted pursuant to subsection (c) hereof, cept, as of October 1, 2001, subsection (c)(3), a registrant shall provide updated information to the City. If 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 lapsed registrant has complied with the registration requirements of this Article. (i) In accordance with applicable City ordinances, codes or regulations, a permit leis required of a -=•• •• --'-- •e' - -- : : .•:- registrant that desires to place or maintain a communications facility, including, without limitation, a collocation, in public rights-of-way. An effective registration shall be a condition precedent to obtaining Historic Preservation or Design Review Board approval or a right-of-Way 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. Sec. 104-5. Notice of transfer, sale or assignment of assets in public rights-of-way. if-aA registrant transfers, sells or assigns shall not transfer, sell or assign all or any portion of its assets located in public rights-of-way incident except to a person holding a valid registration issued pursuant to Section 104-4, hereof. Written notice of any such proposed transfer, sale or assignment of the registrant's as✓cts, the transferee, buyer or , along with assignee- shall be - "e - -=••e • - -- - •• /transferee's signed and sworn certification of its compliance with the requirements of this Article. • -- -- '-- = _ - . __- _ - - _ - e _ ---•-- shall be provided by such registrant to the City within 20 City at least five (5) days after prior to the effective date of the transfer, sale or assignment. -- _ - - --, e- . - : - --- • - - . . •._. •. 14 I ._ • a•- _1 . . ._ . - - . assignment. If permit applications are pending in the registrant's name of the transferor/assignor, the transferecycr or /assignee shall notify the City Manager that the transfers /assignee is the new applicant. Violation of the requirements of this Section 104-5 will subject the registrant to a fine of up to $500.00 for each day the registrant fails to comply; provided however, City does not claim the right to approve or deny registrants' asset transfers or assignments to communications services providers operating at least one communications facility within the City, and the failure to comply with this section does not void any such asset transfer or assignment. The City reserves the right to exclude persons other than communications services providers from its rights of way. Transfers or assignments of a communications facility to persons other than a communications services provider who will operate at least one communications facility within the City require compliance with this section to insure continued use of the public rights-of-way. Sec. 104-6. 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 this Code. 9 of 40 (b) Registrant shall not commence to place or maintain a communications facility, including without limitation a collocation, in public rights-of-way until all applicable permits, if any, have been issued by the City or other appropriate authority, except; provided, however, in the case of an emergency, a registrant may restore its damaged facilities in the right-of-way to their pre-emergency condition or replace its destroyed facilities in the rights-of-way with facilities of the same size, character and quality, all without first applying for or receiving a permit. The term "emergency" shall mean a condition that affects the public's health, safety or welfare, which includes an unplanned out-of-service condition of a pre-existing service. Registrant shall provide prompt notice to the City of the placement repair or maintenance replacement 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 of a 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. Communication facilities providers and pass-through providers understand and acknowledge that the City's policies strongly favor strengthening utility infrastructure. in particular as it relates to flooding and hurricane related events. Subject to any applicable regulatory approval, the communication facility providers and pass-through providers will implement an infrastructure hardening plan for any facilities within the City's boundaries. (c) As part of any permit application to place a new or replace an existing wireless communications facility in public rights-of-way, including, without limitation, a collocation, the registrant shall provide the following: (1) The location of the proposed facilities, including a description of the facilities to be installed, where the facilities are to be located, and the approximate size of the facilities that will be located in public rights-of-way; (2) With respect to proposals to locate a new tower or replace an existing tower or wireless communication facility in the right-of-way, engineering documentation demonstrating either: (i) how the proposed tower or wireless communications facility can accommodate multiple collocations; (ii) why the City's interest in safe, aesthetic, efficient and effective management of the public rights-of-way is better served by the proposed tower or wireless communications facility than by a communications facility that could accommodate multiple collocations; or (iii) why a repurposed structure is not better suited to or feasible for the site; (3) A description of the manner in which the facility will be installed (i.e. anticipated construction methods or techniques); (4) A maintenance of traffic plan for any disruption of the public rights-of-way; 10 of 40 (5) For purposes of assessing impact on right of way resources, effects on neighboring properties and potential for collocations or repurposed structures, information on the ability of the public rights-of-way to accommodate the proposed facility, including information that identifies all above-ground and below ground structures (including light poles, power poles, equipment boxes and antenna), currently existing in the public rights-of-way in the City within a 500- feet radius of the proposed facility, if available (such information may be provided without certification as to correctness, to the extent obtained from other registrants with facilities in the public rights-of-way); however, if the applicable Board determines that it either: (1) better serves the City's interests in safe, aesthetic, efficient and effective management of the public rights-of-way; (2) is necessary to address a documented lack of capacity for one or more carriers; or (3) will help minimize the total number of communication facilities necessary to serve a particular area, then the 500-foot distance requirement may be modified. The applicant shall provide competent substantial evidence to reflect that the above conditions are met, in order to waive the 500 foot distance requirements, and ensure compliance with all the other requirements of this Chapter; (6) If appropriate given the facility proposed, an estimate of the cost of restoration to the public rights-of-way; (7) The timetable for construction of the project or each phase thereof, and the areas of the City which will be affected; (8) , e. ee - = - - '..-- - e - - =- =- neighboring properties and potential for collocations, or repurposed structures, (e) Whether all or any portion of the proposed facilities will be rented, hired, leased, sublet or licensed from or to any third party and, if so, the identity, and contact information of that third party; and (9) Prior to installation of any new or additional equipment in the rights-of-way, including but not limited to collocation at a specific site. the communications provider or pass through provider shall be required to remove any and all obsolete, unutilized or abandoned equipment. Any application to install new or additional equipment shall identify the abandoned. obsolete or unutilized equipment that shall be removed prior to the installation of any new or additional technology or equipment in the rights-of-way. (10) If there exists a telecommunication facility by the same provider or pass through provider within the right-of-way that is adjacent to or within 15 feet of the proposed new telecommunication facility location. the telecommunication provider or pass through provider shall be required to remove and consolidate the equipment into one facility. so as to not create a second location for street furniture within such a minimal distance. 11 of 40 (10) Such additional information as the City finds reasonably necessary with respect to the placement or maintenance of the communications facility that is the subject of the permit application to review such permit application. (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— and may consider, among other things and without limitation, the sufficiency of space to accommodate all of the present communications facilities and pending applications e -- "e - "e :e = - "e -" to place and maintain facilities in that area of the public rights-of-way, the sufficiency of space to accommodate City announced plans for public improvements or projects that the City determines are in the public interest, the impact on traffic and traffic safety, and the impact upon existing facilities in the rights-of-way. The City Manager or the Manager's designee may impose additional reasonable regulations and conditions to ensure the public health, safety and welfare, and peaceful enjoyment of City residents and businesses. (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 serviccs providers registrant that does 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 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 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 F.S Florida Statutes § 337.402 (2000),1 as it may be amended. For 12 months following the original completion of the work, the registrant shall guarantee its restoration work and shall correct any restoration work that does not satisfy the requirements of this Article at its own expense. (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€,S-Florida Statutes §§ 337.403 and 337.401 (2000),1 as they may be amended from time to time. Subject to the aforementioned : Florida Statutes §§ 337.403 and 337.404 and other provisions of 12 of 40 law, whenever existing overhead utility distribution facilities are converted to underground facilities pursuant to Article V of Chapter 110 of this Code, any -e---- _ -'-- •e' - -- e e .'e- registrant 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. (j) 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 F.S. ch. Florida Statutes, Chapter 556, (2000), as it may be amended from time to time. (I) 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. (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. (o) 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, modify, abandon or otherwise dispose of public rights-of-way, and the City makes no warranties or representations regarding the availability of any added, vacated, modified 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 13 of 40 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 registrant is required to make under the Underground Facility Damage Prevention and Safety Act set forth in F.S. ch. Florida Statutes Chapter 556 (2000),1 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 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 .-§ Florida Statutes 1 202.195 (2000),1 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 promptly, 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 30 days advance written notice to arrange for such temporary relocation. (t) The following additional requirements apply when a registrant seeks authority to locate a wireless communications facility in the public rights-of-way: (1) Registrants seeking to locate wireless communications facilities within the City are encouraged to locate on private property or government-owned property outside of the rights-of-way. An application for a permit to locate wireless communications facilities within the rights-of-way shall explain why the applicant is unable to locate the proposed facilities on private property or government owned property. The City may not deny an application based solely on the fact that the applicant is proposing to place a wireless telecommunications facility in the rights-of-way. 14 of 40 (2) Registrants seeking to place, construct or modify a wireless communications facility in the right-of-way shall either: a. collocate wireless communications facilities with the wireless communications facilities of other wireless providers, as set out in Florida Statutes § 365.172, as amended, or b. install their wireless communications facilities on existing structures within the right-of-way, including without limitation existing •ower •oles li•ht •oles and tele•hone •oles in a stealth desi•n or c. repurpose an existing structure. With respect to proposals to locate a new tower or replace an existing tower or wireless communications facility in the right-of-way, engineering documentation demonstrating either: (i) how the proposed tower communications facility can accommodate multiple collocations; (ii) why the City's interest in safe, aesthetic, efficient and effective management of the public rights-of-way is better served by the proposed tower or wireless communications facility than by a communications facility that could accommodate multiple collocations; or (iii) why ether a repurposed structure is not would be better suited to or feasible for to the site. construct a new antenna support structure for a wircless communicatio4s unable to construct the wireless communications facility on existing (3) Registrants seeking to construct wireless communications facilities within the rights-of-way shall locate their wireless communication facilities in the rights- of-way of arterial or collector roadways, whenever possible. An application for a permit to place wireless communication facilities in rights-of-way other than those of arterial or collector roadways shall explain why the applicant is unable to locate the wireless communications facilities in the rights-of-way of an arterial or collector roadway and shall include an engineering analysis from the applicant demonstrating to the satisfaction of the City engineer the need to locate the wireless communication facilities in the areas proposed in the application. (4) Whenever wireless communications facilities must be placed in a right-of- way with residential uses on one or both sides, neither towers, poles, equipment, antennas or other structures shall be placed directly in front of a residential structure. If a right- of-way has residential structures on only one side, the wireless communications facilities shall be located on the opposite side of the right-of-way, whenever possible. All wireless communications facilities shall be located such that views from residential structures are not impaired. Newly installed poles and towers for wireless communications facilities should be located in areas with existing foliage or other aesthetic features in order to obscure the view of the pole or tower. The requirements of this subparagraph shall not apply to repurposed structures, when there is a one-to-one repurposinq of an existing structure (ie: existing light pole). 15 of 40 (5) Registrants are required to locate wireless communications facilities within rights-of-way in a manner that minimizes their impact in the City, including without limitation Miami Beach Historic Districts. Whenever a registrant applies for a permit to locate a wireless communications facility in a right-of-way within a Miami Beach Historic District, a copy of the permit application shall be simultaneously served on the City of Miami Beach Historic Preservation staff. All other applications for permits to locate a wireless communications facility within the City shall be simultaneously served on the Design Review staff. Registrant must obtain the approval of the Design Review Board or the Historic Preservation Board (depending on the proposed facility's location and each board's respective jurisdiction) for the design and location of the wireless communications facility, in accordance with their respective design review or appropriateness criteria. The City reserves the right to condition the grant of any permit to locate a wireless communications facility within the right-of-way upon the registrant taking such reasonable measures, consistent with the City authority's jurisdiction, as the City may determine are necessary to mitigate the impact of the wireless communications facility on a Miami Beach Historic District—or—ether—nearby facilitics and uses. Installation of a pole or tower under this Chapter shall not interfere with a clear pedestrian path, at a minimum the width required by the Americans with Disabilities Act and Florida Building Code. (6) Stealth design shall be utilized wherever possible in order to minimize the visual impact of wireless communications facilities. Each application for a permit to place a wireless communications facility in the right-of-way shall include: a. photographs clearly showing the nature and location of the site where each wireless communications facility is proposed to be located, b. photographs showing the location and condition of properties adjacent to the site of each proposed wireless communications facility, and c. a description of the stealth design techniques proposed to minimize the visual impact of the wireless communications facility and shall include graphic depictions accurately representing the visual impact of the wireless communications facilities when viewed from the street and from adjacent properties. f 7) Stealth design of communications facilities to be located on new towers or wireless communications facilities in the rights-of-way shall eliminate the need to locate any ground or elevated equipment (other than antennas) on the exterior of a tower or wireless communications facility. Stealth design of communications facilities to be located on existing structures other than towers shall minimize the need to locate any ground equipment or elevated equipment (other than antennas) on the exterior of the structure. The use of foliage and vegetation around any approved ground equipment may be required by the City based on conditions of the specific area where the ground equipment is to be located and in accordance with Subpart B, Land Development Regulations, Chapter 126, Landscaping. 16 of 40 (8) Stealth design of communications facilities to be located on structures in the rights-of-way shall (a) top mount antennas within enclosures that do not extend the diameter of the supporting structure at the level of antenna attachment and (b) shall side mount antennas within enclosures that do not extend more than two feet beyond the exterior dimensions of the supporting structure at the level of antenna attachment. Under no circumstances shall antennas be mounted less than eight feet above ground level. For purposes of calculating (a) and (b), above, the dimensions of the supporting structure do not include any platform, rack, mount or other hardware used to attach an antenna or antenna enclosure to the supporting structure. (9) The following additional requirements shall apply to wireless communications facilities located in the rights-of-way: a. Each application to locate equipment at ground level on or adjacent to the exterior of a pole or tower and each proposal to locate elevated equipment(other than antennas) on or adjacent to the exterior of a tower or pole shall include engineering documentation demonstrating to the satisfaction of the City engineer that the facility cannot employ stealth design and that the proposed exterior location and configuration of equipment proposes the minimum equipment necessary to achieve needed function. In order to avoid the clustering of multiple items of approved ground equipment or elevated equipment in a single area, only one equipment box may be located in any single location. b. Where a registrant demonstrates that stealth design cannot be employed, the individual approved exterior equipment boxes shall not exceed 12 cubic feet in volume two (2) feet wide, by two (2) feet deep, by c. Wireless communications facilities in the rights-of-way must be spaced a minimum of 500 linear feet of right-of-way apart from each other except that no distance requirement shall apply to repurposed structures. This subsection may be waived upon a factual showing, supported by sworn testimony or matters subject to official notice, demonstrating to the satisfaction of the City, as determined by the Design Review Board or Historic Preservation Board, depending upon which has jurisdiction, that locating a specific wireless communications facility less than 500 feet from other wireless communications facilities either: (1) better serves the City's interests in safe, aesthetic, efficient and effective management of the public rights-of-way than application of the 500 feet limitation; (2) is necessary to address a documented lack of coverage or capacity for one or more carriers; or (3) will help minimize the total number of wireless communication facilities necessary to serve a particular area. See Section 104-6(c)(5). d. The size and height of new wireless communications facility towers and poles in the rights-of-way shall be no greater than the maximum size and height of any other utility or light poles located in the same portion of the right-of-way within the City; provided however that registrants proposing wireless communications facilities with antennas to 17 of 40 be located on existing poles or repurposed structures may increase the height of the existing pole or repurposed structure up to 6 (six) feet, if necessary, to avoid adversely affecting existing pole attachments; and provided further that the overall height above ground of any wireless communications facility shall not exceed forty (40) feet or exceed the existin. hei s ht of an existin. li s ht sole in the Cit 's ri s ht-of-wa , which ever height is greater. Any repurposed structure within Lincoln Road Mall shall not exceed 60 feet. to replace the existing 60 foot light poles within the center of the pedestrian mall. e. Wireless communications facilities installed on poles or towers that are not light poles, and repurposed structures that were not originally light poles, shall not be lit unless lighting is required to comply with FAA requirements. f. Registrants shall not place advertising on wireless communications facilities installed in the rights-of-way, provided, however, that repurposed structures that lawfully supported advertising before being repurposed may continue to support advertising as otherwise permitted by law. (10) The City's action on proposals to place, construct or modify wireless communications facilities shall be subject to the standards and time frames set out in Florida Statutes § 365.172, 47 USC § 1455(a), and Orders issued by the FCC, as they may be amended. (u) The obligations imposed by the requirements of subsections 104-6(t)(1) through 104-6(t)(9), above, upon registrants proposing to place or maintain wireless communications facilities in the public rights-of-way shall also apply to registrants proposing to place or maintain any other type of communications facility in public-rights- of-ways, if that other type of communications facility involves placement of over-the-air radio transmission or reception equipment in the public-rights-of-way. (v) Prior to the issuance of any permit pertaining to the placement and maintenance of communications facilities within the public rights-of-way, the City may require the registrant to issue notice of the work to property owners who adjoin such rights-of-way, (the "notification area"), and based on the scope of the proposed work, the number of affected property owners and the potential severity of the impact to such property owners, may further require the registrant to hold a public information meeting for purposes of answering questions and taking comments from affected property owners. The notification area may be expanded at the City's discretion and notice shall be effected in a manner deemed appropriate by the City; provided, however, the notification area, as expanded, shall not exceed a radius of 375 feet from the site of the proposed communications facilities. Should a public information meeting be required, the registrant shall meet with City staff as soon as practical to review comments received at the public information meeting, and attempt to resolve all negative comments or issues raised. (w) Pursuant to Florida Statutes § 337.401(c)(1)(b{2000) and other applicable provisions of law, and notwithstanding any other provisions of this Code, the City hereby 18 of 40 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: (1) 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; (2) Misrepresentation or fraud by registrant in a registration or permit application to the City; (3) Failure to properly renew or ineffectiveness of registration. or (4) Failure to relocate or remove facilities as may be lawfully required by the City. The City Manager shall provide notice and an opportunity to cure any violation of(1) through (4) 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 this Code by filing with the special master, within 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 following such notice of appeal and cause notice thereof to be given to the appellant 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 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. 104-9. Involuntary termination of registration. (a) The City may terminate a registration if: (1) A federal or state authority suspends, denies, or—revokes or otherwise fails to grant a registrant's registrant any certification or license required 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; (3) The registrant violates Florida Statutes § 843.025, as amended; c4) The registrant violates Florida Statutes § 843.165, as amended; or 19 of 40 L5) The abandonment by the registrant of all of its communications facilities in public rights-of-way and noncompliance with section 104-16 hereof. (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 (35) above is applicable as the reason therefore, and describing the proposed action of the City with respect thereto. The registrant shall have 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 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 noncompliance 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 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 of the 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, communications facility provider or pass-through provider with an existing communications facility in the public rights-of-way of the City has 60 days from the effective date of this Article to comply with the terms of this Article, including, but not limited to, registration, or be in violation thereof. -- _ --_- ••- . - - - _ --- - - - -- "e' timc for existing facilities to come into compliance or, in the alternative, may grandfather any 20 of 40 • through commercially reasonable measures. 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 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 self-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: $1,000,000.00 combined single limit each occurrence. (3) Automobile liability. Bodily injury and property damage: $1,000,000.00 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 systcm 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 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 F.S Florida Statutes § 768.28 (2000)„ as it may be amended from time to time. 21 of 40 (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 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." Notwithstanding the foregoing, a construction bond will not be required if the cost of restoration is less than the amount of the security fund filed by registrant under City Code Section 104-14. (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 $25,000.00, 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 of: (a) transfer, sale, assignment or removal of all communications facilities in public rights-of-way; or (b) 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 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. 22 of 40 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 this 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 of a communications facility. (a) Registrants shall comply with the provisions of Section 104-6(9) and (10). relating to abandoned equipment and the addition of equipment. Further. ulJpon abandonment of a communications facility owned by a registrant in public rights-of-way, the registrant shall notify the City, in writing. within 90 days. Additionally. registrants shall comply with the provisions of section 104-4(h) relating to annual registration and updating of facilities. (b) The City may shall 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. (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. not to exceed sixty (60) days. 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 and utilize the bond required pursuant to Section 104-14, for this purpose. 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, 23 of 40 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 communications facilities placed in the public rights-of-way on or after the effective date of this A - - - - 'e -- - :: : - 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. (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 of the rate of the 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 percent established by F.S Florida Statutes §§ 202.19 and 202.20, plus 0.40 percent, as permitted by Section 13 of Chapter 2001-140 of the Laws of Florida, plus 0.12 percent, as permitted by S Florida Statutes § 337.401, for a total of 5.62 percent. (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 percent established by F.S. § Florida Statutes 5 202.20, plus 0.12 percent, as permitted by Florida Statutes § 337.401, for a total of 5.22 percent. (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. Sec. 104-20. Pass-Through Provider and Communications Facility Provider Fees and Charges (a) Pass-through providers and communications facility providers that maintain one or more communications facilities in the City's roads or rights-of-way shall pay the City 24 of 40 the maximum annual amount allowed under F.S. Florida Statute $ 337.401, as amended. For purposes of calculating payments hereunder, each separate pole or tower installed or maintained by a pass-through provider or communications facility provider for purposes of supporting antennas or other over-the-air radio transmission or reception equipment in the public rights-of-way shall comprise a separate communications facility subject to assessment of a separate permit fee in the amount of $500.00 up teorto the maximum amount allowed under specified in Florida Statutes § 337.401, whichever is higher, to the extent that Florida Statutes §337.401 is applicable. 0b. The annual amount referenced in subsection 104-20(a), above, shall be due and payable on October 1 of every year. Fees not paid within ten days after the due date shall bear interest at the rate of one percent per month from the date due until paid. 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 or authorization to install any facilities in the City's rights-or-way. SECTION 2. City Code Chapter 118, "Administration and Review Procedures," Article II, "Boards," Division 3, "Design Review Board," Section 118-71, "Powers and duties," is hereby amended as follows: Sec. 118-71. Powers and duties. The Design Review Board shall have the following powers and duties: (1)To promote excellence in urban design. (2)To review all applications requiring design review approval for all properties not located within a designated historic district or not designated as a historic site. For works of art in the art in public places program, the Design Review Board shall serve as P P P 9 9 advisor to the City Commission, and may impose binding criteria, as provided in Chapter 82, Article VII, "Art in Public Places," Division 4, "Procedures." This authority shall include review and approval of design and location within public rights-of-way outside of locally designated historic districts of all wireless communications facilities, structures" as defined in Chapter 104, "Telecommunication," Article I, "Communications Rights-of-Way" under the standards provided therein. (3)To prepare and recommend adoption of design plans pertaining to neighborhood studies. (4)To promote reduced crime and fear of crime through the use of crime prevention through environmental design guidelines and strategies, as approved by the City Commission. 25 of 40 (5)To hear and decide appeals of the planning director when deciding matters pursuant to section 118-260. SECTION 3. City Code Chapter 118, "Administration and Review Procedures," Article II, "Boards," Division 4, "Historic Preservation Board," Section 118-102, "Powers and duties," is hereby amended as follows: * * * Sec. 118-102. Powers and duties. The Historic Preservation Board shall: (1) Recommend to the planning board, and City Commission, the designation of historic buildings, structures, improvements, landscape features, public interiors, and historic sites or districts. (2) Prepare and recommend for adoption specific guidelines for each designated site or district to be used to evaluate the appropriateness and compatibility of proposed alteration or development within designated historic sites or historic districts. (3) Issue or deny certificates of appropriateness, certificates to dig and certificates of appropriateness for demolition in accordance with procedures specified in this division, excluding certificates of appropriateness for demolition for City-owned buildings and other improvements as hereinafter specified on City-owned property and public rights-of- ways, and property owned by the Miami Beach Redevelopment Agency, for which properties the Historic Preservation Board shall serve as advisor to the City Commission. This authority shall include review and approval of design and location within public rights-of-way inside of locally designated historic districts of all wireless communications facilities, ••• : - -••-• - •_ • - - , '-- - •: ...• •:- '••' - '-•, - • • T p & e rc "as defined in Chapter 104, "Telecommunication," Article I, "Communications Riqhts-of-Way," and under the standards provided therein, at section 104(6)(t). (4) Recommend restoration of property to its prior condition as required by section 118-533 when the property has been altered in violation of this division. (5) Advise the board of adjustment with regard to variances associated with properties designated as historic sites, historic buildings, historic structures, historic improvements, historic landscape features or any building or structure located within a historic district or a National Register District through written recommendation to be read into the record by the planning and zoning director at the board of adjustment's hearing. (6) Facilitate the redevelopment of historic sites and districts by directing the planning department, and other City departments, to provide advisory and technical assistance to property owners, applicants for certificates of appropriateness. (7) Make and prescribe by-laws and application procedures that are reasonably necessary and appropriate for the proper administration and enforcement of the provisions of this division. The board shall prescribe forms for use by applicants when 26of40 requesting action under this division. The board may authorize any one of its members to administer oaths and to certify official documents. (8) Award historic markers or plaques upon the recommendation of the City manager and with the consent of the City Commission. (9) Update and revise the historic properties database. (10) Advocate that the City administration explore and advise the Historic Preservation Board and the building official as to alternatives available for stabilizing and preserving inadequately maintained and/or unsafe buildings or structures within the City's designated historic districts or on designated historic sites. (11) Review all new construction, alterations, modifications and improvements to any building, structure, improvement, landscape feature, public interior or site individually designated in accordance with Sections 118-591, 118-592 and 118-593, or located within an historic district. (12) To review any and all amendments to this Code affecting historic preservation issues; specifically division 4 of Article II of Chapter 118 entitled "Historic Preservation Board," and Article X of Chapter 118 entitled "historic preservation," pursuant to Section 118-163. SECTION 4. City Code Chapter 118, "Administration and Review Procedures," Article VI, "Design Review Procedures," Section 118-251, "Design Review Criteria," is hereby amended as follows: Sec. 118-251. Design review criteria. • (a) Design review encompasses the examination of architectural drawings for consistency with the criteria stated below, with regard to the aesthetics, appearances, safety, and function of any new or existing structure and physical attributes of the project in relation to the site, adjacent structures and surrounding community. The board and the planning department shall review plans based upon the below stated criteria, criteria listed in neighborhood plans, if applicable, and design guidelines adopted and amended periodically by the Design Review Board and/or Historic Preservation Board. Recommendations of the planning department may include, but not be limited to, comments from the building department and the public works department. If the board determines that an application is not consistent with the criteria, it shall set forth in writing the reasons substantiating its finding. The criteria referenced above are as follows: (1) The existing and proposed conditions of the lot, including but not necessarily limited to topography, vegetation, trees, drainage, and waterways. (2) The location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress, drainage facilities, utility services, landscaping structures, signs, and lighting and screening devices. • 27 of 40 (3) The dimensions of all buildings, structures, setbacks, parking spaces, floor area ratio, height, lot coverage and any other information that may be reasonably necessary to determine compliance with the requirements of the underlying zoning district, and any applicable overlays, for a particular application or project. (4) The color, design, selection of landscape materials and architectural elements of exterior building surfaces and primary public interior areas for developments requiring a building permit in areas of the City identified in section 118-252. (5) The proposed site plan, and the location, appearance and design of new and existing buildings and structures are in conformity with the standards of this Article and other applicable ordinances, architectural and design guidelines as adopted and amended periodically by the Design Review Board and Historic Preservation Board and all pertinent master plans. (6) The proposed structure, and/or additions or modifications to an existing structure, indicates sensitivity to and is compatible with the environment and adjacent structures, and enhances the appearance of the surrounding properties. (7) The design and layout of the proposed site plan, as well as all new and existing buildings shall be reviewed so as to provide an efficient arrangement of land uses. Particular attention shall be given to safety, crime prevention and fire protection, relationship to the surrounding neighborhood, impact on contiguous and adjacent buildings and lands, pedestrian sight lines and view corridors. (8) Pedestrian and vehicular traffic movement within and adjacent to the site shall be reviewed to ensure that clearly defined, segregated pedestrian access to the site and all buildings is provided for and that all parking spaces are usable and are safety and conveniently arranged; pedestrian furniture and bike racks shall be considered. Access to the site from adjacent roads shall be designed so as to interfere as little as possible with traffic flow on these roads and to permit vehicles a rapid and safe ingress and egress to the site. (9) Lighting shall be reviewed to ensure safe movement of persons and vehicles and reflection on public property for security purposes and to minimize glare and reflection on adjacent properties. Lighting shall be reviewed to assure that it enhances the appearance of structures at night. (10) Landscape and paving materials shall be reviewed to ensure an adequate relationship with and enhancement of the overall site plan design. (11) Buffering materials shall be reviewed to ensure that headlights of vehicles, noise, and light from structures are adequately shielded from public view, adjacent properties and pedestrian areas. (12) The proposed structure has an orientation and massing which is sensitive to and compatible with the building site and surrounding area and which creates or maintains important view corridor(s). (13) The building has, where feasible, space in that part of the ground floor fronting a street or streets which is to be occupied for residential or commercial uses; likewise, the 28 of 40 upper floors of the pedestal portion of the proposed building fronting a street, or streets shall have residential or commercial spaces, shall have the appearance of being a residential or commercial space or shall have an architectural treatment which shall buffer the appearance of the parking structure. from the •surrounding area and is integrated with the overall appearance of the project. (14) The building shall have an appropriate and fully integrated rooftop architectural treatment which substantially screens all mechanical equipment, stairs and elevator towers. (15) An addition on a building site shall be designed, sited and massed in a manner which is sensitive to and compatible with the existing improvement(s). (16) All portions of a project fronting a street or sidewalk shall incorporate an architecturally appropriate amount of transparency at the first level in order to achieve pedestrian compatibility and adequate visual interest. (17) The location, design, screening and buffering of all required service bays, delivery bays, trash and refuse receptacles, as well as trash rooms shall be arranged so as to have a minimal impact on adjacent properties. (18) In addition to the foregoing criteria, Section 104-6(t) of the City Code the - - •-- • - --- -- - 1 I •• Z--. -•■ •• _ •_- •_- - A shall apply to the Design Review Board's review of any proposal to place, construct, modify or maintain a wireless communications facility or other over the air radio transmission or radio reception facility in the public-rights-of-way. --- e - 14 1 - -. •-. - -- -.• - - - • - - --- -- -• •-- [Ref City rode �1 04 6(t)(1)1• A. -= =-- - - - -,....-• -- - - - - - - communications facilities of other wireless providers, as set out in Florida Statutes § 365.172, as amended, or; B. install their wiFetess communications facilities on • tinq 29 of 40 to construct a new antenna support structure for a wircles✓ demonstrate that the registrant is both (i) unable to collocate the wireless communications facility with the wireless facilities of other wireless csar,ma'AVIV/m=!.�.��•�•� _�.���.���VAV7I• locate the wireless communications facilities in the rights of way of an arterial or ._ with residential uses on one or both sides, neither towers, poles, equipment, antennas or other structures shall be placed directly in front of a residential located such that views from residential structures are not impaired. Newly installed poles and towers for wireless communications facilities should be located in areas with existing foliage or other aesthetic features, wherever .- ._ IIi i • (vii) Stealth design of communications facilities to be located on new structures communications facilities to be located on existing structures other than towers e_. -- . e. •-- -- - - .. ■- _ _...-. •.• nde R1(4 6(t)(7\7• 30 of 40 rights-of-way shall:(A) top mount antennas within enclosures that do not extend the diameter of the supporting structure at the level of antenna attachment and (B) shall side mount antennas within enclosures that do not extend more than nde 1 nit- 6(+X8)1• --- - - - -- - - - - - - - - - --- - - - - - ■- -. I4 • minimum of 500 linear feet of right of way apart from each other. This .. the total number of communication facilities necessary to serve a particular area. above conditions are met, in order to waive the 500 foot distance requirements,• - -- - - - --i AMrWV/W�--►-� LS•� -.x.2.4.4 VI,CJ/VI facilities with antennas to be located on existing poles or repurposed structures - - 31 of 40 further that the overall height above ground of any wirelcss communications - ■- - -e ea I . -- -- - '- - - I . - -- --- .I • - •-- - 1 • . • . . - ■- - •-•• •e- -- - • ■- -- 1 ■ ■ • •• -- ■ - weeea - -- •-- - ---, ' - -- --• -- - increased; antenna placement (y), that residential areas cannot be served from replacement tower, a modified tower or a collocation is necessary to provide desired service; of construction, and 32 of 40 a-ppea rance SECTION 5. City Code Chapter 118, "Administration and Review Procedures," Article X, "Historic Preservation," Division 3, "Issuance of Certificate of Appropriateness/Certificate to Dig/Certificate of Appropriateness for Demolition," Section 118-564, "Decisions on certificates of appropriateness," is hereby amended as follows: Sec. 118-564. Decisions on certificates of appropriateness. (a) A decision on an application for a certificate of appropriateness shall be based upon the following: (1) Evaluation of the compatibility of the physical alteration or improvement with surrounding properties and where applicable compliance with the following: a. The Secretary of Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings as revised from time to time; and b. Other guidelines/policies/plans adopted or approved by resolution or ordinance by the City Commission. (2) In determining whether a particular application is compatible with surrounding properties the Historic Preservation Board shall consider the following: a. Exterior architectural features. b. General design, scale, massing and arrangement. • c. Texture and material and color. d. The relationship of subsections a., b., c., above, to other structures and features of the district. e. The purpose for which the district was created. f. The relationship of the size, design and siting of any new or reconstructed structure to the landscape of the district. g. An historic resources report, containing all available data and historic documentation regarding the building, site or feature. h. The original architectural design or any subsequent modifications that have acquired significance. (3) The examination of architectural drawings for consistency with the criteria stated below, with regard to the aesthetics, appearances, safety, and function of any new or existing structure, public interior space and physical attributes of the 33 of 40 project in relation to the site, adjacent structures and properties, and surrounding community. The Historic Preservation Board and planning department shall review plans based upon the below stated criteria and recommendations of the planning department may include, but not be limited to, comments from the building department. The criteria referenced above are as follows: a. The location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress, drainage facilities, utility services, landscaping structures, signs, and lighting and screening devices. b. The dimensions of all buildings, structures, setbacks, parking spaces, floor area ratio, height, lot coverage and any other information that may be reasonably necessary to determine compliance with the requirements of the underlying zoning district, and any applicable overlays, for a particular application or project. c. The color, design, surface finishes and selection of landscape materials and architectural elements of the exterior of all buildings and structures and primary public interior areas for developments requiring a building permit in areas of the City identified in section 118-503 d. The proposed structure, and/or additions to an existing structure is-are appropriate to and compatible with the environment and adjacent structures, and enhances enhance the appearance of the surrounding properties, or the purposes for which the district was created. e. The design and layout of the proposed site plan, as well as all new and existing buildings and public interior spaces shall be reviewed so as to provide an efficient arrangement of land uses. Particular attention shall be given to safety, crime prevention and fire protection, relationship to the surrounding neighborhood, impact on preserving historic character of the neighborhood and district, contiguous and adjacent buildings and lands, pedestrian sight lines and view corridors. f. Pedestrian and vehicular traffic movement within and adjacent to the site shall be reviewed to ensure that clearly defined, segregated pedestrian access to the site and all buildings is provided for and that any driveways and parking spaces are usable, safely and conveniently arranged and have a minimal impact on pedestrian circulation throughout the site. Access to the site from adjacent roads shall be designed so as to interfere as little as possible with vehicular traffic flow on these roads and pedestrian movement onto and within the site, as well as permit both pedestrians and vehicles a safe ingress and egress to the site. g. Lighting shall be reviewed to ensure safe movement of persons and vehicles and reflection on public property for security purposes and to minimize glare and reflection on adjacent properties and consistent with a City master plan, where applicable. 34 of 40 h. Landscape and paving materials shall be reviewed to ensure an adequate relationship with and enhancement of the overall site plan design. i. Buffering materials shall be reviewed to ensure that headlights of vehicles, noise, and light from structures are adequately shielded from public view, adjacent properties and pedestrian areas. j. Any proposed new structure shall have an orientation and massing which is sensitive to and compatible with the building site and surrounding area and which creates or maintains important view corridor(s). k. All buildings shall have, to the greatest extent possible, space in that part of the ground floor fronting a sidewalk, street or streets which is to be occupied for residential or commercial uses; likewise, the upper floors of the pedestal portion of the proposed building fronting a sidewalk street, or streets shall have residential or commercial spaces, or shall have the appearance of being a residential or commercial space or shall have an architectural treatment which shall buffer the appearance of a parking structure from the surrounding area and is integrated with the overall appearance of the project. I. All buildings shall have an appropriate and fully integrated rooftop architectural treatment which substantially screens all mechanical equipment, stairs and elevator towers. m. Any addition on a building site shall be designed, sited and massed in a manner which is sensitive to and compatible with the existing improvement(s). n. All portions of a project fronting a street or sidewalk shall incorporate an amount of transparency at the first level necessary to achieve pedestrian compatibility. o. The location, design, screening and buffering of all required service bays, delivery bays, trash and refuse receptacles, as well as trash rooms shall be arranged so as to have a minimal impact on adjacent properties. P. q- In addition to the foregoing criteria, Section 104-6(t), and the requirements of Chapter 104, of the City Code shall apply to the Historic Preservation Design-Review-Board's review of any proposal to place, construct, modify or maintain a wireless communications facility or other over the air radio transmission or radio reception facility in the public-rights-of-way. -: - : -- : -: : - • - . - -- - - '-- • - • e-- - - •, - -- - - 35 of 40 communications facility or other over the air radio transmission or collocations or (B) that the City's interest in safe, aesthetic, efficient - - sallumay1Ar/LJ�..►-���.�'t . �-. tea-rr.-AV/VI• •-- - 1 m -•• • A • -- •e- - -_ ••• - - - • _ _ w� communications facilities of other wireless providers, as set out in Florida Statutes § 365.172, as amended, or; aa. B. install their wireless communications facilities on existing demonstrate that the registrant is both (i) unable to collocate the wireless communications facility with the wireless facilities of other wireless providers and (ii) unable to construct the wirelcs:, or - -- facilities within the rights of way shall locate their wirelesv locate the wireless communications facilities in the rights of way of an 36 of 40 engineer the need to locate the wireless communication facilities in ee right of way with residential uses on one or both sides, neither towers, in front of a residential structure. If a right of way has residential structures on only one side, the wireless communications facilities possible. All wireless communications facilities shall be located such installed poles and towers for wireless communications facilities should be located in areas with existing foliage or other aesthetic features in order to obscure the view of the pole or tower. The structures" as defined in Chapter 104, provided there is a one for one - -- - - - -- - - - -- -- - -- - - 365. 172(b)(5) and City Code R104-6(t)(4)1• g jj. (vii) Stealth design of communications facilities to be located on new a tower. Stealth design of communications facilities to be located on existing structures other than towers shall minimize the need to locate on the exterior of the structure. The use of foliage and vegetation • - -- - -- -- '- - - • • • ■ -- - - ■■ P- _ _■■•_■ • enclosures that do not extend the diameter of the supporting structure at the level of antenna attachment and (B) shall side mount antennas within enclosures that do not extend more than two (2) feet beyond the exterior dimensions of the supporting structure at the level of used to attach an antenna or antenna enclosure to the supporting §1 04-6(t)(Q\7• 37 of 40 mm. - - -- - - - - - - - - - --- - - - necessary to achieve needed function. In order to avoid the clustering „de X104-6(tvcava)1 oo- wireless communications facilities if the Board determines that it (1) better serves the City's interests in safe, aesthetic, efficient and to address a documented lack of capaCity for one or more carriers; or (3) will help minimize the total number of communication facilities competent substantial evidence to reflect that the above conditions are met, in order to waive the 500 foot distance requirements, and - e- - - �rerr�r%J t•����■�'�-�� ',.-rm-ssAILAILIJI• �J• •- - • - - -•• •■ ■• •-- • • • ■- - -- it 38 of 40 • ity Code '1(1� 6(t)(9)(e\7• ww. communications fasrifities installed in the rights of way except that , wireless communications facilitics shall be subject to the standards and time framcis set out in Florida Statutes § 365.172, as amended, aaa. cw. not increased; eee. cannot be served from outside residential areas or (z) that the height collocation is necessary to provide desired service; ggg. district; ickk. m m m mrrn-rr nnn. _ -: _' -•--- a •_- — - - - -= • - 39of40 size type or appearance yr , SECTION 6. CODIFICATION. It is the intention of the City Commission, and it is hereby ordained that the provisions of this ordinance shall become and be made part of the Code of the City of Miami Beach as amended; that the sections of this ordinance may be renumbered or relettered to accomplish such intention; and that the word "ordinance" may be changed to "section" or other appropriate word. SECTION 7. REPEALER. All ordinances or parts of ordinances and all section and parts of sections in conflict herewith be and the same are hereby repealed. SECTION 8. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 9. EFFECTIVE DATE. This Ordinance shall take effect ten days following adoption. PASSED and ADOPTED this f1 day of iebicWri , 20 14 ATTEST: ' Philip Levine, vl ay./ "„/ Ra ael E. Granado, City Clerk 7 Underscore denotes new Ian..1 r r=""11%,, denotes str, :- lingla 1 h�i APPROVED AS TO .••'' .,{_ ''•• '♦♦ FORM & LANGUAGE (Sponsored by Commi J• .'x • F• X UTION First Reading: RATEp: _ k Second Reading: :INCORP 0 I♦ ' ��� CffYA�f�r 4 oin o F:\ATTO\BOUE\Crown LEase Telecommunications\Telecommunications ROW 1-20-2015 [revised 2-10-151.docx 40 of 40 , , CP- MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Levine and City Commission FROM: Raul Aguila, City Attorne I ' Jimmy Morales, City Ma a DATE: February 11, 2015 ="! SUBJECT: Telecommunications Ordinance Second Reading TITLE: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING THE CITY CODE, CHAPTER 104, "TELECOMMUNICATIONS," ARTICLE I, "COMMUNICATIONS RIGHTS OF WAY," BY AMENDING AND PROVIDING DEFINITIONS; AMENDING THE REGISTRATION PROCESS; AMENDING THE PERMIT APPLICATION PROCESS TO REQUIRE THE ISSUANCE OF PERMITS; TO REQUIRE DESIGN AND APPROPRIATENESS REVIEW AND APPROVAL BY THE DESIGN REVIEW BOARD AND HISTORIC PRESERVATION BOARD; CREATING STANDARDS FOR COMMUNICATIONS FACILITIES DESIGN, LOCATION AND COLLOCATION; ADDING STANDARDS FOR SITE IMPROVEMENTS, USE OF AND RESTORATION OF SITES AND RIGHTS-OF-WAY, INCLUDING DISTANCE SEPARATION BETWEEN COMMUNICATIONS FACILITIES AND BETWEEN SUCH FACILITIES AND RESIDENTIAL USES AND CONTRIBUTING BUILDINGS IN HISTORIC DISTRICTS; TO PROVIDE FOR COMPENSATION TO THE CITY FOR THE USE OF PUBLIC RIGHTS-OF-WAY FOR THESE PURPOSES; AND AMENDING SUCH OTHER SECTIONS AS ARE APPROPRIATE TO PROTECT THE PUBLIC HEALTH, SAFETY AND WELFARE; AND AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CITY CODE, CHAPTER 118, ARTICLE II, "BOARDS," DIVISIONS 3 AND 4, "DESIGN REVIEW BOARD" AND "HISTORIC PRESERVATION BOARD," SECTIONS 118-71 AND 118-102, "POWERS AND DUTIES," TO ADD REVIEW AND APPROVAL OF IMPROVEMENTS IN THE RIGHTS-OF-WAY AS BEING WITHIN THE JURISDICTION OF THE DESIGN REVIEW BOARD AND HISTORIC PRESERVATION BOARD RESPECTIVELY; AND CHAPTER 118, ARTICLE VI, "DESIGN REVIEW PROCEDURES," SECTION 118- 251, "DESIGN REVIEW CRITERIA," AND ARTICLE X, "HISTORIC PRESERVATION," DIVISION 3, "ISSUANCE OF CERTIFICATE OF APPROPRIATENESS/CERTIFICATE TO DIG/CERTIFICATE OF APPROPRIATENESS FOR DEMOLITION," SECTION 118-564, "DECISIONS ON CERTIFICATES OF APPROPRIATENESS," ADDING CRITERIA FOR SUCH REVIEW FOR TELECOMMUNICATIONS EQUIPMENT AND FACILITIES; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY AND AN EFFECTIVE DATE. Agenda Item R S a Date 2-U-f City Commission Memorandum Telecommunications Ordinance—Second Reading February 11, 2015 RECOMMENDATION: The City Commission should review the ordinance and if accepted, approve the ordinance on first reading and set a second reading public hearing for adoption. BACKGROUND: On January 15, 2014, the City Commission directed the drafting of an ordinance to address the issues raised by the Crown Castle applications. This referral provided an opportunity for members of the City Commission to review the draft ordinance and provide policy guidance to the City Attorney's Office and Administration. The ordinance was originally discussed by the Committee on its March 19, 2014 agenda, continued to the April 9, 2014 meeting, and was further continued to the May 7, 2014 meeting. At the May 7, 2014 meeting the Land Use and Development Committee adopted a motion to refer this Ordinance to the Planning Board, and to bring the Ordinance back for further discussion to the Committee on June 12, 2014 following review by the Planning and Public Works Departments. On May 21, 2014 the City Commission adopted a motion to schedule the Ordinance for review by the Planning Board at its July 22, 2014 meeting. On July 22, the Planning Board reviewed the ordinance, adopted changes, and recommended it to the City Commission for adoption. Zoning in progress for 150 days based on the Planning Board recommendation expires on December 19, 2014. • On September 17, 2014 the City Commission adopted a resolution setting a six-month moratorium on the acceptance of applications and the issuance of permits or approvals for wireless personal telecommunications services towers ("Towers) in the public right-of-way to give additional time to review the regulations applicable to Towers, due to the rapid changes in Tower technology and concerns over the design and placement of the Towers within the City's right-of-way. The changing technology may require or provide for an extensive proliferation of street furniture within the City's rights-of-way. The City desires time to review the draft ordinance in order to develop a mechanism that would minimize adverse impacts to the City's public rights-of-way. The six-month moratorium was set to expire on March 16, 2015. At first reading of the Ordinance, which was held on December 17, 2014, the City Commission moved to end the moratorium, which is reflected under Resolution Prior to first reading on December 17th, the City vetted the draft ordinance: The Land Use and Development Committee discussed the ordinance during the October 1, 2014 meeting. At that time the LUDC requested that a joint workshop of the City Commission and Planning Board be held on October 28, 2014. A Power Point presentation was presented at that time. Commissioner Joy Malakoff attended the joint workshop. The workshop attendees recommended a one-for-one replacement of street furniture with collocated equipment — having a replacement light pole installed, with the telecommunications equipment internalized within the pole; to limit the large telecommunications boxes from being placed in the ROW; for the City to develop sample "light" pole designs for the various City districts; and to work with the State on state roads to utilize a similar street furniture "swap." Page 2of7 City Commission Memorandum Telecommunications Ordinance—Second Reading February 11, 2015 Prior to the enactment of the moratorium in September, Crown Castle filed applications with the City to obtain permits for Distributed Antenna System (DAS) nodes, a type of wireless personal telecommunications services tower, at twenty-five locations throughout the City, in public rights- of-way. To date, the Design Review Board has approved five applications, with one pending on appeal to the City Commission. Twenty applications were filed for Certificates of Appropriateness from the Historic Preservation Board. Upon lifting of the moratorium, the City understands that Crown Castle may submit additional applications for DAS node approval in other locations around the City. This DAS system is intended to supplement existing wireless communications networks in the City by strengthening the signal between existing antenna towers providing cellular and digital communications signals to the modern digital network of smartphones, tablets and computers. Due to the action on December 17, 2014, to lift the moratorium, the City is now processing the remaining applications of Crown Castle. Several will be scheduled for hearing before the Historic Preservation Board, under the guidelines of the ordinance as approved at first reading. At first reading, the attorney for Crown Castle orally affirmed to the City Commission that the applications to be processed by the City would comply with the ordinance approved at first reading. Crown Castle is the successor in interest to Sprint and Nextel, which already have telecommunications systems in the City, both at a fixed location, the City parking garage at 1550 Collins Avenue, and at 45 other locations in the City's rights-of-way, which Crown Castle acquired from Nextel. These former Nextel sites are still run by Nextel for use by the City, but are now controlled by Crown Castle. AT&T a wireless personal telecommunications service provider, has also recently contacted the P p � Y City to provide comments on the draft ordinance, requesting to modify some of the proposed language. The revisions requested are encompassed in the ordinance for second reading. FPL and FPL Fiber Net have also provided input into the draft ordinance, which input is also reflected in the second and final reading of the ordinance. During the December 17, 2014 first reading of the ordinance the Commission provided direction to ensure that the code provides additional and stronger language relating to the removal of obsolete or dated equipment or poles from the rights-of-way. This language was inserted into the Ordinance. At Page 2, under the definition of "abandonment" the following sentence was added: "It may also mean the discontinued use of obsolete technology in favor of new technology, which would require the removal of the discontinued, abandoned, technology." Sections 104-6(c)(9) and (10) and 104-16 were also modified. These proposed revisions were moved by Commissioner Malakoff and accepted by the Commission. APPLICABLE LAWS GUIDING DRAFTING OF ORDINANCE: • State law relating to telecommunications: Page 3 of 7 City Commission Memorandum Telecommunications Ordinance—Second Reading February 11, 2015 Section 337.401, Florida Statutes provides: "Local governmental entities that have jurisdiction and control of public roads are authorized to prescribe and enforce reasonable rules or regulations as to the placement and maintenance (in, under, across or over) utility or communications services lines." Section 337.401(3)(a), Florida Statutes provides: "In order to foster competition federal and state law require municipalities to treat providers in a nondiscriminatory and competitively neutral manner in imposing rules or regulations governing placement or maintenance of utilities in ROW." (emphasis added) Section 337.401(3)(b), Florida Statutes provides: "Cities still retain their police power to regulate and manage municipal rights-of-way. However, the rules as to communication services "must be related to the placement and maintenance of facilities in the ROW, must be reasonable and nondiscriminatory, and may include only those matters necessary to manage the ROW." (emphasis added) The City may collect the state Communications Services tax under Section 202.20, Florida Statutes. The City does collect this statutorily determined tax. Federal laws relating to telecommunications: 47 USC Section 332(c)(7) - 1996 Federal Telecommunications Act- Creates Federal Shot Clocks and FCC regulation of New Towers/Antennas/DAS The Act provides that local zoning principles generally not affected, and allows a City to regulate P 9P p 9 Y � Y 9 aesthetics. It allows a City to control of number, height, safety issues, and concerns relating to historic areas. The Act precludes unreasonable discrimination and precludes a city ordinance from prohibit service (from creating a gap in service) by providers. Health Risks cannot be considered: The 1996 Federal Telecommunications Act provides that local governments are precluded from regulating radio frequency (RF) emissions of a telecommunications facility— provided the facility complies with FCC regulations. The FCC exempts telecommunications facilities from having to demonstrate compliance with the standards if located 10 meters above ground level. The FCC does not conduct measurements of RF radiation from conventional cellular antenna sites. The FCC could reverse a zoning decision if there is any evidence showing concern over radiation as the basis, in part, for the decision. Shot Clocks The FCC provides a City: (1) 90 days for review of a completed application for collocation; and (2) 150 days for other completed applications. Failure to meet these "shot clock" deadlines creates a legal presumption that the zoning agency "failed to act" under federal law and will give an applicant the ability to bring legal action, in an expedited process, within 30 days of the deadline having passed. State law provides City 90 business days after receipt of a complete application to approve the request, or it is "deemed approved." Section 365.172(d), Florida Statutes. Page 4 of 7 City Commission Memorandum Telecommunications Ordinance—Second Reading February 11, 2015 47 USC Section 1455(a) —a/k/a Section 6409(a) of the Middle Class Tax Relief Act— Regulates existing facilities and specifically provides: "Notwithstanding [the Telecom Act], a local government [1] may not deny, and shall approve, any [2] eligible facilities request for a modification of an [3] existing wireless tower or base station that does not [4] substantially change the physical dimensions of such tower or base station." FCC Order 14-153 (10-17-2014) This FCC order provides "clarification" on the application of the FTA and the Middle Class Tax Relief Act. The order streamlines rules on collocation — and provides "categorical exclusion" from review for collocations. The order specifies that the same shot clocks for DAS technology as for towers. It provides more flexibility for DAS in Historic Districts. Further, Collocation defined broadly to allow collocations on poles and in utility/communication ROWs. DRAFT ORDINANCE: Below is a synopsis of the material modifications proposed to the telecommunications ordinance, including all revisions made during first reading of the Ordinance on December 17, 2014: Section 104-2, provides the intent of the ordinance specifies that anyone seeking to place or maintain communications facilities in the right-of way must comply with the ordinance. Section 104-3, modifies the definitions and adds definitions for arterial roadway, collector roadway, collocation, communications facility, communication facility providers, pass-through providers, "repurposed structures", stealth design, and wireless service. The definition of a "repurposed structure" is new to the draft ordinance, and it encompasses the vocalized intent of the Land Use and Development Committee to allow a provider to conduct a one-to-one swap- out of light poles so that the City does not experience any additional street furniture being placed in the rights-of-way. Section 104-4 requires registration for placing or maintaining communications facilities in public rights-of-way, and requires an annual update of all equipment in the City's rights-of-way held by a single provider. Section 104-5 requires the provider to provide notice to the City of any transfer, sale or assignment of assets in the City's rights-of-way. Section 104-6 provides for the review of an application to place equipment in the right-of-way, including collocation or repurposed structures requests. The ordinance requires specific information as to the location and size of equipment to be installed; proof that collocation cannot occur; and safeguards for the city as to aesthetics, safety, and efficient management of the City's rights-of-way. The ordinance provides a 500 feet distance requirement between facilities, unless collocation is to occur, or a specific service coverage need is documented. The provider must comply with Americans with Disabilities Act and Florida Building Code. The provider must document that the use could not first be placed on private property. Thereafter, once that Page 5 of 7 City Commission Memorandum Telecommunications Ordinance—Second Reading February 11, 2015 i criteria s m et, then collocation or a repurposed structure is the preferred mechanism for utilizing the right-of-way by a provider. The application would be heard either by the Design Review Board or the Historic Preservation Board, depending on which board would have jurisdiction. The provider's equipment (facility) would be required to be located either on an arterial or collector road, and not directly fronting a residential property, and should be landscaped, if possible. Stealth designs, like a repurposed structure, are recommended. Equipment boxes, if needed may not exceed two feet wide, by feet deep, by three feet in height. In short, this section proposes the following: • Review of sufficiency of space in ROW; • Ensures ADA and FBC Compliance; • Analyzes traffic and pedestrian safety; • Precludes placement of equipment in front of a residential building; • Requires placement of equipment on opposite site from residential structures; • Ensures residential view corridor is not impaired; • Ensures proper pedestrian pathways; and • Limits ground equipment or elevated equipment on the rights-of-way. Many of the other sections of the Code relating to suspension of permits, appeals, involuntary termination of registration, existing communication facilities in rights-of-way, insurance, indemnification, construction bond, security fund, enforcement of remedies, abandonment of a communications facility, force majeure, reservation of rights and remedies, establishment of the rate of the communications services tax were not materially modified. Section 104-20 was substantially modified and relates to pass-through providers and communications facility provider fees and charges. It provides for a $500 fee per pole, on annual basis. The revisions to section 118-71, 118-251, 118-102, and 118-564 provide the powers to the Design Review Board and the Historic Preservation Board to hear the applications identified in Section 104-6. Please note, both Crown Castle and AT&T have provided input in the drafting of this ordinance. To meet the intent of the Planning Board/Commission during the October workshop, the ordinance now reflects a definition for "repurposed structure." Not all requests for modifications to the ordinance were included, but, those that appeared to enhance the ordinance were. For example, rather than reiterating the same code provisions in the DRB and HPB sections of the code, the Telecommunications Ordinance was simply referenced. In that case, the new language was stricken in order to prevent the same standard from being reiterated three times in the Code. Additionally, due to a request by FPL and FPL Fiber Net, the ordinance was clarified at second reading, that the intent for a "repurposed" structure, was to allow for the repurposing of the City's street furniture. Obviously, street furniture (poles) owned by FPL, or another entity, cannot be repurposed without the consent of the owner of that pole. As such, the ability to repurpose the City's street lights (street furniture) has been clarified. Additionally, the draft ordinance proposes no more than a 40 foot height for street furniture, Page 6 of 7 City Commission Memorandum Telecommunications Ordinance—Second Reading February 11, 2015 except for the light poles within Lincoln Road. Those poles measure at 60 feet in height. As such, the repurposing of those poles, will be to the height as currently maintained by the City — to 60 feet. The City Commission specifically directed that there be language in the ordinance relating to removal of the street furniture, upon the discontinuance of use of the telecommunications facility or equipment. This provision can be found at section 104-14. There are other edits to the draft ordinance that reflect both underlining and strike throughs. The reason for this edit to show the evolution of the ordinance over the past year. 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Cn m v, .E a U 3~Cr N m m N ?.' .o.0 c c Z. 0 o LL O m >— w E a o E o EE m E U w t or m N 2 m °LH? _ m N m 3o a LL �' c wi P, Q , Q Q2I QEQW > n'`=o ¢-iooF Y N U O= N L a6 am C m c Q o N m j-- 9 2 0 y,'�� - T 2 CI) • o ed c"Q Q r • C 0 Q • c C Lm D+E2 Er',ri V E m aa-. Q °� Emv ac 0 c". 1 m N- v -I- ' rC. 1 E.a "E.c o o m-teO a E am m "c a m m : E =F-'- m a C' •° C C Q c v -c-V U >LL,a.6 m E m m a 8 C•E° w m �U j U• --*- 4 -co« �C m r U, U C a W C Q F-g m W.O m.1-2 E •C N 92 m i m C .L n T m W L E ` C L N W 111f[I( , FO m C O m m r O O Y Y m N m m O N O.- m a C N O.c,J X T O.!a ? C M O Gm Em Q O O E L 7 h ▪ m �+ m Z0 r C ZU r Q O ;p& n00. m .12-QQ W p Q.�2m -".m C Q4v5am000 W O Q.a0LLQco7 LLUC rOQ'Q.Q bn G2 ii a z^r:` a L L I.-._ N; 0\ Brian W.Moore at � AT&T Florida T:(305)347-5560 Q�7Ct General Attorney-Florida 150 West Flagler Street F:(305)577-4491 Authorized House Counsel Admitted in New Jersey Suite 1910 bm1694 @att.com Miami,FL 33130 February 11, 2015 VIA E-MAIL Eve A. Boutsis, Deputy City Attorney Miami Beach Office of the City Attorney 1700 Convention Center Drive Miami Beach, FL 33139 ov e-mail:EveBoutsis miamibeachfl. @ g Re: Second Reading of Telecommunications Rights of Way Ordinance (the"Ordinance") Dear Eve: I planned on attending the Second Reading in person today, but I'm still recovering from a couple of medical procedures I've had in the past week. Please accept this letter in lieu of my personal appearance, and you may read or submit this into the record as needed. There is universal agreement that the residents, businesses and visitors in Miami Beach have a current need and demand for more wireless coverage and capacity. It is further undeniable that the demand for coverage and capacity will only continue to grow. In order to meet that demand, the industry will need access to rights-of-way in the City to install wireless infrastructure. As FCC Commissioner Pai has noted, wireless infrastructure is the"unsung hero of the ongoing mobile broadband revolution wireless industry." A critical first step in making sure that the industry has access to City rights-of-way is the passage of the Ordinance, which establishes non-discriminatory rules for using rights-of-way. Accordingly, AT&T respectfully requests that the City pass the Ordinance on Second Reading. Thank you for your consideration. Sincerely, Brian W. Moore Brian W. Moore (signed electronically) cc: Alex Dominguez, Area Manager, AT&T External Affairs � U{S�A'� q.7C_7'' Proud Sponsor of the U.S.Olympic Team f• Miff 1915 . 2015 MIAMI EAC H City of Miami Beach, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachii.gov December 2, 2014 • Ken Detzner, Secretary of State State of Florida R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399-0250 Re: City of Mi.axni Beach Proposed Telecommunications Ordinance First Reading Scheduled for December 17, 2014 15 day notice pursuant to Section 337.401(d) Dear Mr. Detzner: Pursuant to the requirements of Section 337.401(d),Florida Statutes,enclosed please find a copy of the City of Miami Beach's proposed revised telecommunications ordinance governing a telecommunications company placing or maintaining telecommunications facilities in the City's roads or rights-of-way. First reading has been advertised and scheduled for December 17, 2014. Second reading is proposed for 2015. Please publish the notice on a designated interne website as required by the statute.. Thank you. Very truly yours, 1111, Eve A. Boutsis, Deputy City Attorney EAB/da Enclosure We ore committed to providing excellent public service and safety to ail who live, work,and play in our vibrant,tropical,historic community. TELECOMMUNICATIONS RIGHTS OF WAY ORDINANCE 1 2 3 ORDINANCE NO. 4 5 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF 6 MIAMI BEACH, FLORIDA, AMENDING THE CITY CODE, CHAPTER 104, 7 "TELECOMMUNICATIONS," ARTICLE I, "COMMUNICATIONS RIGHTS OF 8 WAY," BY AMENDING AND PROVIDING DEFINITIONS; AMENDING THE 9 REGISTRATION PROCESS; AMENDING THE PERMIT APPLICATION 10 PROCESS TO REQUIRE THE ISSUANCE OF PERMITS; TO REQUIRE 11 DESIGN AND APPROPRIATENESS REVIEW AND APPROVAL BY THE 12 DESIGN REVIEW BOARD AND HISTORIC PRESERVATION BOARD; 13 CREATING STANDARDS FOR COMMUNICATIONS FACILITIES DESIGN, 14 LOCATION AND COLOCATION; ADDING STANDARDS FOR SITE 15 IMPROVEMENTS, USE OF AND RESTORATION OF SITES AND RIGHTS-OF- 16 WAY, INCLUDING DISTANCE SEPARATION BETWEEN COMMUNICATIONS 17 FACILITIES AND BETWEEN SUCH FACILITIES AND RESIDENTIAL USES 18 AND CONTRIBUTING BUILDINGS IN HISTORIC DISTRICTS; TO PROVIDE 19 FOR COMPENSATION TO THE CITY FOR THE USE OF PUBLIC RIGHTS-OF- 20 WAY FOR THESE PURPOSES; AND AMENDING SUCH OTHER SECTIONS 21 AS ARE APPROPRIATE TO PROTECT THE PUBLIC HEALTH, SAFETY AND 22 WELFARE; AND AMENDING THE LAND DEVELOPMENT REGULATIONS OF 23 THE CITY CODE, CHAPTER 118, ARTICLE II, "BOARDS," DIVISIONS 3 AND 24 4, "DESIGN REVIEW BOARD" AND "HISTORIC PRESERVATION BOARD," 25 SECTIONS 118-71 AND 118-102, "POWERS AND DUTIES," TO ADD REVIEW 26 AND APPROVAL OF IMPROVEMENTS IN THE RIGHTS-OF-WAY AS BEING 27 WITHIN THE JURISDICTION OF THE DESIGN REVIEW BOARD AND 28 HISTORIC PRESERVATION BOARD RESPECTIVELY; AND CHAPTER 118, 29 ARTICLE VI, "DESIGN REVIEW PROCEDURES," SECTION 118-251, 30 "DESIGN REVIEW CRITERIA," AND ARTICLE X, "HISTORIC 31 PRESERVATION," DIVISION 3, "ISSUANCE OF CERTIFICATE OF 32 APPROPRIATENESS/CERTIFICATE TO DIG/CERTIFICATE OF 33 APPROPRIATENESS FOR DEMOLITION," SECTION 118-564, "DECISIONS 34 ON CERTIFICATES OF APPROPRIATENESS," ADDING CRITERIA FOR 35 SUCH REVIEW FOR TELECOMMUNICATIONS EQUIPMENT AND 36 FACILITIES; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY LITY 37 AND AN EFFECTIVE DATE. 38 39 WHEREAS, the provision of telecommunications services to residents of and visitors to 40 the City of Miami Beach ("City") is both an important amenity and often necessity of public and 41 private life in the City; and 42 43 WHEREAS, the demand for telecommunications services has grown exponentially in 44 recent years, requiring the continual upgrading of telecommunications equipment and services 45 to satisfy such demand; and 46 47 WHEREAS, the placement of telecommunications equipment and poles in the public 48 rights-of-way to satisfy the demand for telecommunications services raise important issues with 49 respect to the City's responsibility to manage its public rights-of-way; and 50 • 1 WHEREAS, the City has reviewed its ordinances and has concluded that they must be 2 updated in order to address the issues that new and expanded telecommunications equipment 3 and poles in the rights-of-way present; and 4 5 WHEREAS, adoption of the following amendments to Chapter 104 are necessary to 6 satisfy the above objectives. 7 8 NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF 9 THE CITY OF MIAMI BEACH, FLORIDA. 10 11 SECTION 1. City Code Chapter 104, "Telecommunications," Article I, "Communications Rights- 12 of-Way," is hereby amended as follows: 13 14 ARTICLE I. COMMUNICATIONS RIGHTS-OF-WAY 15 16 Sec. 104-1. Title. 17 18 This Article shall be known and may be cited as the "City of Miami Beach Communications 19 Rights-of-Way Ordinance." 20 21 Sec. 104-2. Intent and purpose. 22 23 It is the intent of the City to promote the public health, safety and general welfare by: providing 24 for the placement or maintenance of communications facilities in the public rights-of-way within 25 the City; adopting and administering reasonable rules and regulations not inconsistent with state 26 and federal law, including F.S., but not limited to, Florida Statutes § 337.401 (2000), as it may 27 be amended from time to time, the City's home-rule authority, and in accordance with the 28 provisions of the Federal Telecommunication:Communications Act of 44961934, as amended, 29 and other federal and state law; establishing reasonable rules and 'regulations necessary to 30 manage the placement or maintenance of communications facilities in the public rights-of-way 31 by all communications services providers, communications facility providers and pass-through 32 providers; and minimizing disruption to the public rights-of-way. In regulating its public rights-of- 33 l way, the City shall be governed by and shall comply with all applicable federal and state laws. 34 35 Persons seeking to place or maintain communications facilities on private property or property 36 owned, leased or controlled by the City. including rights-of-way shall comply with the provisions 37 of Subpart B, Land Development Regulationsi of the Code of the City of Miami Beach. Persons 38 seeking to place or maintain communications facilities in the public rights-of-way also shall 39 comply with the provisions of this Chapter. 40 41 Sec. 104-3. Definitions. 42 43 For purposes of this Article, the following terms, phrases, words and their derivations shall have 44 the meanings given. Where not inconsistent with the context, words used in the present tense 45 include the future tense, words in the plural number include the singular number, and words in 46 the singular number include the plural number. The words "shall" and "will" are mandatory, and 47 "may" is permissive. Words not otherwise defined shall be construed to mean the common and 48 ordinary meaning. 49 Additions to the Ordinance are underlined. tr-ikethroughs represent language removed from the Ordinance. 2 of 42 1 Abandonment shall mean the permanent cessation of all uses of a communications facility; 2 provided that this term shall not include cessation of all use of a facility within a physical 3 structure where the physical structure continues to be used. By way of example, and not 4 limitation, cessation of all use of a cable within a conduit, where the conduit continues to be 5 1 used, shall not be "abandonment" of a facility in public rights-of-way. 6 7 ' Coble z.ervice shall mean the transmission of video, audio, or other programming service to 8 purchasers, and the purchaser interaction, if any, req-uired for the selection or use of any such 10 e..- : e - - e . -- _-- - ' - = = ' --" - --e e etz, - - e e - e 11 more other dealers of corn, i i ;orvieos. The term includes point to point and point to 12 ---r 'ee'- e; 'e- - e . e e_ _.... .: - e e e-e - e - . - 13 or other equipment directly to the purchaser's premises, but does not include direct to hem` 14 - - , - - - -• e- e.e' - -`= •- 15 ref 16 17 Arterial roadway shall mean any street or roadway that constitutes the highest degree of 18 mobility at the highest speed, for long, uninterrupted travel. and constitutes the largest 19 proportion of total travel as per the Federal Functional CIassification Map maintained by the 20 State of Florida Department of Transportation District Six Office, as amended. 21 22 I City shall mean the City of Miami Beach, Florida. 23 24 - --... - -. - --• - - -- _- . e-r------ a -• e :-. 25 -=-•e•- - - e e e- = '- e e -_e - _e"= e.- 26 poles, antennae, converters, splice boxes, ca-bi-nats, hand holes, r anholc6, vaults, drains, 27 - =-- .. • -� -ee: - _ _ e ---- e -- - e ..-: e. -- .--e 28 e O e ---= e r -r -` „^ '• -- e-e '. *e- e ' - . e -- City-and used nr nnpablc of being 29 used totra - e- -. . e' 'e_ e'e .'e- a e•_ -_ -- =-. 30 31 Commu► cations-Collector roadway shall mean any street or roadway that provides a mix of 32 mobility and land access functions, linking major land uses to each other or to the arterial 33 highway system as per the Federal Functional Classification Map maintained by the State of 34 Florida Department of Transportation District Six Office, as amended. 35 36 Colocation shall mean the situation in which a second or subsequent communications services 37 provider or a pass-through provider uses an existing structure to locate a second or subsequent 38 antenna. The term includes the ground, platform, or roof installation of equipment enclosures, 39 cabinets, or buildings, and cables, brackets, and other equipment associated with the location 40 and operation of the antenna. 41 42 Communications facility shall mean a facility that may be used to provide communications 43 services, as per Florida Statutes § 337.401, as amended. Multiple cables, conduits, strands, or 44 fibers located within the same conduit shall be considered one communications facility. 45 46 Communications facility provider shall mean a Person (other than a communications services 47 provider operating one or more communications facilities located within the City) who is 48 engaged. directly or indirectly, in the business of leasing, licensing, subleasing, subletting or 49 hiring to one or more communications service providers all or a portion of the tangible personal Additions to the Ordinance are underlined. Striket iroug#s represent language removed from the Ordinance. 3 of 42 1 •ro ert used in a communications facilit . including but not limited to. towers. •oles tower 2 space. antennas, transmitters. and transmission line. Provisions of this Article that apoly only to 3 communications facility providers shall not apply to communications services providers even if 4 the communication services provider also operates, licenses, leases, subleases, or sublets 5 communications facilities. 6 7 Communications services shall mean the transmission, conveyance, or routing of voice, data, 8 audio, video, or any other information or signals, including video services, to a point, or between 9 or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other 10 medium or method now in existence or hereafter devised, regardless of the protocol used for 11 such transmission or conveyance. • :•. • - -.e'-e a- e e e'-., . .. ._ - t • Article 12 "___ - - •••-- " • -.•_ 11 • -e ••-_ ... -- e- -' •_- 11-e••••. •-. --e - ' - - .'_- 1 J 13 providers may be subject to other ordinances of the City. e -- -- -- e •• Article; 14 "communications services" shall not include pay telephone , --e. e -• - -=' --e a- • -- 15 e- .e- .-e e - e e- ^ - ^ e e- e .--e - e-e. 'ea e ,., , ---. .• - e 16 does—no Prclude: , as per Florida Statutes § 202.11, as amended. The term includes such 17 transmission, conveyance, or routing in which computer processing applications are used to act 18 on the form, code. or protocol of the content for purposes of transmission, conveyance, or 19 routing without reaard to whether such service is referred to as voice-over-Internet-protocol 20 services or is classified by the Federal Communications Commission as enhanced or value- 21 added. The term does not include: 22 23 (a) information services. 24 (b) Installation or maintenance of wiring or equipment on a customer's premises. 25 (c) The sale or rental of tangible personal property. 26 (d) The sale of advertising, including, but not limited to, directory advertising. 27 (e) Bad check charges. 28 (f) Late payment charges. 29 (g) Billing and collection services. 30 (h) Internet access service, electronic mail service, electronic bulletin board service, or 31 similar on-line computer services. 32 33 ( • w' - e .:...- _ - ' - - 34 35 Communications services provider shall mean anya person (other than a communications 36 facility provider or a pass-through provider)_' unicipalit who is a 377 "provider of communications services through the placement or maintenance of u 38 _e----- '-- 'e- - •- a-- '- '=. e - _a••.._ --{'e- - '_ e e •e •- - e 39 .-- -e- - e • - .e."- - ---•-•:- • e .=-' " as that places or maintains a•40 _e..•. -- -- e_e •_ •e- e _ e_ ee- -e - .e---- -- °=- - . 41 term is used in Florida Statutes § 337.401, as amended. 42 43 Communications services tax shall mean the local communications services tax authorized to 44 be levied and collected by counties and municipalities pursuant to F.S. § 202.20, upon charges 45 for communications services, pursuant to Florida Statutes § 202.20, as amended. 46 47 Existing Structure shall mean a structure that exists at the time an application for permission to 48 place antennas on the structure is filed with the City. The term includes any structure that can 49 structurally support the attachment of antennas in compliance with applicable codes. I Additions to the Ordinance are underlined. St;ikethroughc represent language removed from the Ordinance. 4 of 42 1 2 FCC shall mean the Federal Communications Commission. 3 In public rights-of-way or in the public rights-of-way shall mean in, on, over, under or across the 4 public rights-of-way. 5 6 Order. as used in the definition of"wireless provider", shall mean: 7 8 (a) The following orders and rules of the FCC issued in FCC Docket No. 94-102: 9 (1) Order adopted on June 12, 1996. with an effective date of October 1, 10 1996, the amendments to s.20.03 and the creation of s.20.18 of Title 47 Code of 11 Federal Regulations adopted by the FCC pursuant to such order. 12 (ii) Memorandum and Order No. FCC 97-402 adopted on December 23, 13 1998. _ 14 (iii) Order No. FCC DA 98-2323 adopted on November 13, 1998. 15 (4)(iv) Order No. FCC 98-345 adopted December 31, 1998. 16 17 •(a)(b) Orders and rules subsequently adopted by the FCC relating to the provision of 18 911 services, including Order Number FCC-05-116, adopted May 19, 2005 and Order 19 Number FCC-2014-0011, adopted November 4, 2014. 20 f .LL 21 22 Pass-through provider shall include any person (other than a communications services provider) 23 who places or maintains a communications facility in the roads or rights-of-way of a municipality 24 or county that levies a tax pursuant to Florida Statutes § 202 and who does not remit taxes 25 imposed by that municipality or county pursuant to Chapter 202 as per Florida Statutes_§ 26 337.401. as amended. A "pass-through provider" does not provide communications services to 27 retail customers in the City. Provisions of this Article that apply only to pass-through providers 28 shall not apply to communications services providers that provide the services identical or 29 1 similar to those provided by pass-through providers. 30 31 Permit shall include, but not be limited to Miami Beach public right-of-way permits board or staff 32 issued, design review approval and board or staff issued certificates of appropriatness. 33 � 34 Person shall include any individual, children;firm, association,joint venture, partnership, estate, 35 trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, 36 successor, assignee, transferee, personal representative, and ail other groups or combinations, 37 1 and shall include the City to the extent the City acts as a communications services provider. 38 39 Place or maintain or placement or maintenance or placing or maintaining shall mean to erect, 40 construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A 41 communications services providerA person that owns or exercises physical control over 42 communications facilities in public rights-of-way, such as the physical control to maintain and 43 repair, is "placing or maintaining" the facilities. A person providing service only through resale or 44 only through use of a third party's unbundled network elements is not "placing or maintaining" 45 the communications facilities through which such service is provided. The transmission and 46 receipt of radio frequency signals through the airspace of the public rights-of-way does not 47 constitute "placing or maintaining"facilities in the public rights-of-way. 48 1 Additions to the Ordinance are underlined. i-1%14 44s represent language removed from the Ordinance. 5 of 42 1 I Public rights-of-way shall mean a public right-of-way, public utility eaaoment, highway, street, 2 bridge, tunnel or alley for which the City is the authority that has jurisdiction and control and may 3 lawfully grant access to pursuant to applicable law, and includes the surface, the air space over 4 the surface and the area below the surface. "Public rights-of-way" shall not include private 5 I property- or easements over private property. "Public rights-of-way" shall not include any real or 6 personal City property except as described above and shall not include City buildings, fixtures, 7 poles, conduits, facilities or other structures or improvements, regardless of whether they are 8 situated in the public rights-of-way. 9 10 Registrant shall mean a communications services provider, communications facility provider or 11 pass-through provider that has registered with the City in accordance with the provisions of 12 1 Section 104-4 this Article and holds an effective registration. 13 14 Registration or register shall mean the process described in this Article whereby a 15 1 communications services provider, communications facility provider or pass-through provider 16 provides certain information to the City. 17 28 Repurposed Structure shall mean an Existing Structure that has been renovated, reconfigured, 19 or replaced with a similar structure so as to continue serving its existing purpose while also 20 supporting the attachment of communication facilities or antennas through Stealth Design that is 21 approximately in the same location as the Existing Structure and in such a manner that does not 22 result in a net increase in the number of structures located within the public right-of-way and 23 does not interfere with pedestrian or vehicular access, is Americans with Disabilities Act and 24 Florida Building Code compliant. By way of illustration only, where a light pole existing within the 25 public right of way is removed and is replaced with a new light pole that is substantially similar to 26 the old light pole but now supports the attachment or integration of communication facilities, the 27 new light pole shall be considered a "repurposed structure." Unless stated otherwise, all 28 references to "communications facilities" or "wireless communications facilities" shall also apply 29 to repurposed structures. To "repurpose an existing structure" shall mean the act of renovating, 30 reconfiguring, or replacing an Existing Structure as described above. The provider that later 31 removes a repurposed structure shall reinstall a new light poles or other applicable pole in the 32 ROW, at the direction of the City. During the life of the use of the repurposed structure the 33 provider shall pay all costs associated with the electriCity, light bulbs, maintenance, and 34 replacement of the repurposed structure. 35 36 Stealth design shall mean a method of camouflaging any tower, antenna or other 37 telecommunications facility, including, but not limited to, supporting electrical or mechanical 38 equipment, which is designed to enhance compatibility with adjacent land uses and be as 39 visually unobtrusive as possible. Stealth design may include a repurposed structure. 40 41 Tower shall mean any structure designed primarily to support a communications services 42 provider's antennas. 43 44 Wireless communications facility shall mean equipment used to provide wireless service, as the 45 phrase, wireless communications facility, is further defined and limited in Florida Statutes_§ 46 365.172, as amended. A wireless communications facility is a type of communications facility. 47 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 6 of 42 1 Wireless provider shall mean a person who provides wireless service and is either (a) subject to 2 the provisions of the order or (b) elects to provide wireless 911 service or E911 service in 3 Florida. A wireless provider is a type of communications services provider. 4 5 Wireless service shall mean "commercial mobile radio service" as provided under 3(27) and, 6 332(d) of the Federal Telecommunications Act of 1996, 47 U.S.C. 151 et seq., and the 7 Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, August 10, 1993. 107 Stat. 8 312. as per Florida Statutes '5365.172, as amended. The term includes service provided by any 9 wireless real-time two-way wire communication device, including radio-telephone 10 communications used in cellular telephone service; personal communications service; or the 11 functional or competitive equivalent of a radio-telephone communications line used in cellular 12 telephone service, a personal communications service, or a network radio access line. The term 13 does not include communications services providers that offer mainly dispatch service in a more 14 localized. noncellular configuration: providers offering only data, one-way, or stored-voice 15 services on an interconnected basis; providers of air-to-ground services; or public coast 16 stations. 17 18 Sec. 104-4. Registration for placing or maintaining communications facilities in public 19 rights-of-way. 20 Registration application and all information require therein, shall be included in any Design 21 Review Board or Historic Preservation Board application, as required under sections 104-6, 22 117-71, or 118-251, of the City's Land Development Regulations. 23 24 (a) A communications services provider, communications facility provider or pass- 25 through provider that desires to place or maintain a communications facility in public 26 rights-of-way in the City shall first register with the City in accordance with this Article. 27 This Chapter provides no right of access to the public rights-of-way for (i) persons other 28 than communications service providers or (ii) businesses other than providing 29 communications services. Other uses of the public rights-of-way reasonably related to 30 the provision of communications services may be allowed in the reasonable discretion of 31 the City. Subject to the terms and conditions prescribed in this Article, a registrant may 32 place or maintain a communications facility in public rights-of-way. 33 34 (b) A registration shall not convey any title, equitable or legal, to the registrant in the 35 public rights-of-way. Tangible personal property placed in the public rights-of-way 36 pursuant to this Article shall retain its character as tangible personal property and shall 37 not be regarded as real property, fixtures or mixed property. Registration under this 38 Article governs only the placement or maintenance of communications facilities in public 39 rights-of-way. Other ordinances, codes or regulations may apply to the placement or 40 maintenance in the public rights-of-way of facilities that are not communications facilities. 41 Registration does not excuse a communications services providorregistrant from 42 obtaining appropriate access or pole attachment agreements before locating its facilities 43 on the City's or another person's facilities. Registration does not excuse a 44 communications-cervices registrant from complying with all applicable City 45 ordinances, codes or regulations, including this Article.: 46 47 (c) Each communications services provider, communications facility provider or 48 pass-through provider that desires to place or maintain a communications facility, l Additions to the Ordinance are underlined. Strikethrougtas represent language removed from the Ordinance. 7 of 42 1 ( including without limitation a coiocation. in public rights-of-way in the City shall file a 2 single registration with the City which shall include the following information: 3 4 (1) Name of the applicant; 5 (2) Name, address and telephone number of the applicant's primary contact 6 person in connection with the registration, and the person to contact in case of an 7 emergency; 8 (3) For registrations submitted prior to October 1, 2001, the applicant shall 9 state whether it provides local service or toll service or both; 10 (4) Evidence of the insurance coverage required under this Article and 11 acknowledgment that registrant has received and reviewed a copy of this Article, 12 which acknowledgment shall not be deemed an agreement; and 13 (5) The number of the applicant's certificate of authorization or license to 14 provide communications services issued by the Florida Public Service 15 t Commission or the Federal Communications Commission. An applicant 16 proposing to place or maintain a wireless communications facility operating on 17 spectrum licensed by the FCC shall supply the file number of the FCC license 18 authorizing such wireless service. 19 20 (d) Registration application fees: no registration application fees shall be imposed for 21 registration under this Article. 22 23 (e) The City shall review the information submitted by the applicant. Such review 24 shall be by the City Manager or his or her designee. If the applicant submits information 25 in accordance with subsection (c) above, the registration shall be effective and the City 26 shall notify the applicant of the effectiveness of registration in writing. If the City 27 determines that the information has not been submitted in accordance with subsection 28 (c) above, the City shall notify the applicant of the non-effectiveness of registration, and 29 reasons for the non-effectiveness, in writing. The City shall so reply to an applicant 30 within 30 days after receipt of registration information from the applicant. Non- 31 effectiveness of registration shall not preclude an applicant from filing subsequent 32 applications for registration under the provisions of this section. An applicant has 30 33 days after receipt of a notice of non-effectiveness of registration to appeal the decision 34 as provided in section 104-8 hereof. 35 36 (f) A registrant may cancel a registration upon written notice to the City stating that it 37 will no longer place or maintain any communications facilities, including without limitation, 38 colocations. in public rights-of-way within the City and will no longer need to obtain 39 permits to perform work in public rights-of-way. A registrant cannot cancel a registration 40 if the registrant continues to place or maintain any communications facilities in public 41 rights-of-way. 42 43 (g) Registration does not in and of itself establish a right to place or maintain or 44 priority for the placement or maintenance of a communications facility in public rights-of- 45 way within the City but shall establish for the registrant a right to apply for a permit, if 46 permitting is required by the City. Registrations are expressly subject to any future 47 amendment to or replacement of this Article and further subject to any additional City 48 ordinances, as well as any state or federal laws that may be enacted from time to time. 49 Additions to the Ordinance are underlined. Sket' #s represent language removed from the Ordinance. 8 of 42 1 (h) Registrant shall renew its registration with the City, annually, by the fifth 2 anniversary of the date of initial registration. Each renewal shall include an inventory of 3 the communications facilities applicant installed in the City during the last term of the 4 registration and : . -__- - _-•'.- _ . -- _ - .an inventory of the communications 5 facilities applicant abandoned in the City during the last term of the registration. Within 6 30 days of any change in the information required to be submitted pursuant to 7 subsection (c) hereof, except, as of October 1, 2001, subsection (c)(3), a registrant shall 8 provide updated information to the City. -: '-{: -•_ - '- -- --- - e 9 e-- - --c . •-: _ - -- '- : -- t'e- - _ -e- Failure to renew 10 a registration may result in the City restricting the issuance of additional permits until the 11 1 communications services providerlapsed registrant has complied with the registration 12 requirements of this Article. 13 14 (i) in accordance with applicable City ordinances, codes or regulations, a permit 15 may bcis required of a -='- a': __ •e• - . e = -*registrant that desires to place 16 or maintain a communications facility, including, without limitation, a colocation. in public 17 rights-of-way. An effective registration shall be a condition precedent to obtaining 18 Historic Preservation or Desian Review Board approval or a right-of-Way permit. 19 Notwithstanding an effective registration, all permitting requirements of the City shall 20 apply. A permit may be obtained by or on behalf of a registrant having an effective 21 registration if all permitting requirements are met. 22 23 Sec. 104-5. Notice of transfer, sale or assignment of assets in public rights-of-way. 24 If aA registrant tra-A-sTers s-eIls or assignsshall not transfer, sell or assian all or any portion of its 25 assets located in public rights-of-way incidentexcept to a person holding a valid registration 26 issued pursuant to Section 104-4. hereof. Written notice of any such proposed transfer, sale or 27 assignment of the registrant's assets, the transfcreo, buyer or , along with assignee shad-fie 28 =ere- .se e -=' = - . ---- /transferee's signed and sworn certification of its compliance 29 with the requirements of this Article. '4 -- e : _- _.- _- - _ 30 ate' rticle, shall be provided by such registrant to the City within 20City at least five (5) 31 days eprior to the effective date of the transfer, sale or assignment. If the transferee, buyer 32 e - • - --. _ - - ' --.- .. -e + . �.-. �. . �^ � ,- e '..- a -s ^: e 33 peg+ - . e _ ':--- _t __ ,. ' , _ - - -- 3 1 34 e_ . e 'e--- e e e ze e. e 35 transfer, sale or assignment. If permit applications are pending in the registrant's•name of the 36 transferor/assignor, the transferee, buyer or /assignee shall notify the City Manager that the 37 transferee, buyer or/assignee is the new applicant. Violation of the requirements of this Section 38 104-5 will subject the registrant to a fine of up to $500.00 for each day the registrant fails to 39 comply; provided however. City does not claim the right to approve or deny registrants' asset 40 transfers or assignments to communications services providers operating at least one 41 communications facility within the City, and the failure to comply with this section does not void 42 any such asset transfer or assignment. The City reserves the right to exclude persons other 43 than communications services providers from its rights of way. Transfers or assignments of a 44 communications facility to persons other than a communications services provider who will 45 operate at least one communications facility within the City require compliance with this section 46 to insure continued use of the public rights-of-way, 47 48 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 9 of 42 1 Sec. 104-6. Placement or maintenance of a communications facility in public rights-of- 2 way. 3 (a) A registrant shall at all times comply with and abide by all applicable provisions of 4 the state and federal law and City ordinances, codes and regulations in placing or 5 maintaining a communications facility in public rights-of-way, including, but not limited to, 6 Articles II and 11; of Chapter 98, and Article V of Chapter 110 of this Code. 7 8 (b) Registrant shall not commence to place or maintain a communications facility, 9 including without limitation a colocation,_ in public rights-of-way until all applicable 10 permits, if any, have been issued by the City or other appropriate authority, except;, 11 provided, however. in the case of an emergency, a registrant may restore its damaged 12 facilities in the right-of-way to their pre-emergency condition or replace its destroyed 13 facilities in the rights-of-way with facilities of the same size, character and quality, all 14 without first apolving for or receiving a permit. The term "emergency" shall mean a 15 condition that affects the public's health, safety or welfare, which includes an unplanned 16 out-of-service condition of a pre-existing service. Registrant shall provide prompt notice 17 ( to the City of the pla-Geffiefft repair or m- ten3nsereplacement of a communications 18 facility in public rights-of-way in the event of an emergency, and shall be required to 19 obtain an after-the-fact permit if a permit would have originally been required to perform 20 the work undertaken in the public rights-of-way in connection with the emergency. 21 Registrant acknowledges that as a condition of granting permits, the City may impose 22 reasonable rules or regulations governing the placement or maintenance of a 23 communications facility in public rights-of-way. Permits shall apply only to the areas of 24 public rights-of-way specifically identified in the permit. The City may issue a blanket 25 permit to cover certain activities, such as routine maintenance and repair activities, that 26 may otherwise require individual permits. 27 28 (c) As part of any permit application to place a new or replace an existing 29 I communications facility in public rights-of-way, including, without limitation, a colocation, 30 the registrant shall provide the following: 31 32 (1) The location of the proposed facilities, including a description of the 33 facilities to be installed, where the facilities are to be located, and the 34 approximate size of the facilities that will be located in public rights-of-way; 35 36 ` (2) With respect to proposals to locate or replace a tower in the riaht-of-way. 37 engineering documentation demonstratinc either (i) how the proposed 38 communications facility can accommodate multiple colocations; (ii) why the City's 39 interest in safe, aesthetic, efficient and effective management of the public rights- 40 of-way is better served by the proposed communications facility than by a 41 communications facility that could accommodate multiple colocations; or whether 42 a repurposed structure would be better suited to the site; 43 44 (3) A description of the manner in which the facility will be installed (i.e. 45 anticipated construction methods or techniques); 46 47 (4) A maintenance of traffic plan for any disruption of the public rights-of-way; 48 Additions to the Ordinance are underlined. S-trikethroughs represent language removed from the Ordinance. 10of42 1 (5) Information on the ability of the public rights-of-way to accommodate the 2 proposed facility, including information that identifies all above-ground facilities 3 currently existing within 500 feet of the proposed facility to which the permit 4 application applies, and extending 500 feet beyond such areas within the City, if 5 available (such information shall may be provided without certification as to 6 correctness, to the extent obtained from other personsregistrants with facilities in 7 the public rights-of-way): However. if the applicable Board determines that it (1) 8 better serves the City's interests in safe, aesthetic, efficient and effective 9 management of the public rights-of-way; and (2) is necessary to address a 10 documented lack of capacity for one or more carriers; or (3) will help minimize 11 the total number of communication facilities necessary to serve a particular area, 12 then the 500 foot distance requirement may be modified. The applicant shall 13 provide competent substantial evidence to reflect that the above conditions are 14 met, in order to waive the 500 foot distance requirements, and ensure 15 compliance with all the other requirements of this Chapter; 16 17 (6) If appropriate given the facility proposed, an estimate of the cost of 18 restoration to the public rights-of-way; 19 20 (7') The timetable for construction of the project or each phase thereof, and 21 I the areas of the City which will be affected; 22 23 (8) For purposes of assessing impact on right of way resources, effects on 24 neighboring properties and potential for colocations, or repurposed structures, an • 25 inventory of all light poles, power poles and communications facilities placed in or 26 authorized to be placed in the areas to which the permit application applies, and 27 extending 500 feet beyond such areas within the City; 28 29 (9) Whether all or any portion of the proposed facilities will be rented, hired, 30 leased, sublet or licensed from or to any third party and, if so, the identity, and 31 contact information of that third party; and 32 33 (10) Such additional information as the City finds reasonably necessary with 34 respect to the placement or maintenance of the communications facility that is 35 the subject of the permit application to review such permit application. 36 37 (d) To the extent not otherwise prohibited by state or federal law, the City shall have 38 the power to prohibit or limit the placement of new or additional communications facilities 39 within a particular area of public rights-of-way.— and may consider, among other things 40 and without limitation. the sufficiency of space to accommodate all of the present, 41 projected and possible requests to place and maintain facilities in that area of the public 42 rights-of-way, the sufficiency of space to accommodate City plans for public 43 improvements or projects that the City determines are in the public interest, the impact 44 on traffic and traffic safety, and the impact upon existing facilities in the rights-of-way. 45 The City Manager or the Manager's designee may impose additional reasonable 46 regulations and conditions to ensure the public health, safety and welfare, and peaceful 47 enjoyment of City residents and businesses. 48 Additions to the Ordinance are underlined. atr+ represent language removed from the Ordinance. 11 of 42 1 (e) All communications facilities shall be placed or maintained so as not to 2 unreasonably interfere with the use of the public rights-of-way by the public and with the 3 rights and convenience of property owners who adjoin any of the public rights-of-way. 4 The use of trenchless technology (i.e., directional bore method) for the installation of 5 facilities in the public rights-of-way as well as joint trenching or the co-location of facilities 6 in existing conduit is strongly encouraged, and should be employed wherever feasible. 7 To the extent not prohibited by federal and state law, the City shall require any 8 ( communications scrviccs providcrsregistrant that does not have communications 9 facilities in the City as of the date of adoption of this Article to place any new cables, 10 wires, fiber optics, splice boxes and similar communications facilities underground, 11 unless such communications facilities can be co-located on existing poles. The City 12 Manager may promulgate reasonable rules and regulations concerning the placement or 13 maintenance of a communications facility in public rights-of-way consistent with this 14 Article and other applicable law. 15 16 (f) All safety practices required by applicable law or accepted industry practices and 17 standards shall be used during the placement or maintenance of communications 18 facilities. 19 20 (g) After the completion of any placement or maintenance of a communications 21 facility in public rights-of-way or each phase thereof, a registrant shall, at its own 22 expense, restore the public rights-of-way to its original condition before such work. If the 23 registrant fails to make such restoration within 30 days, or such longer period of time as 24 may be reasonably required under the circumstances, following the completion of such 25 placement or maintenance, the City may perform restoration and charge the costs of the 26 i restoration against the registrant in accordance with F.SFlorida Statutes § 337.402 27 (2000),1 as it may be amended. For 12 months following the original completion of the 28 work, the registrant shall guarantee its restoration work and shall correct any restoration 29 work that does not satisfy the requirements of this Article at its own expense. 30 31 (h) Removal or relocation at the direction of the City of a registrant's communications 32 facility in public rights-of-way shall be governed by the provisions of F.SFlorida Statutes 33 §§ 337.403 and 337.404 (2000),, as they may be amended from time to time. Subject to 34 the aforementioned F.S Florida Statutes §§ 337.403 and 337.404 and other provisions of 35 law, whenever existing overhead utility distribution facilities are converted to 36 underground facilities pursuant to Article V of Chapter 110 of this Code, any 37 ._----_-'__ •e- - _ e '- registrant having communications facilities on poles 38 that are to be removed shall arrange for the conversion to underground facilities on the 39 same terms and conditions as the other utilities that are being converted to underground 40 facilities. 41 42 (1) A permit from the City constitutes authorization to undertake only certain 43 activities in public rights-of-way in accordance with this Article, and does not create a 44 property right or grant authority to impinge upon the rights of others who may have an 45 interest in the public rights-of-way. 46 47 (j) A registrant shall maintain its communications facilities in public rights-of-way in a 48 manner consistent with accepted industry practice and applicable law. 49 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 12 of 42 1 (k) In connection with excavation in the public rights-of-way, a registrant shall, where 2 applicable, comply with the underground facility damage prevention and safety act set 3 1 forth in F.S. ch. Florida Statutes, Chapter 556 (2000),= as it may be amended from time 4 to time. 5 6 (I) Registrant shall use and exercise due caution, care and skill in performing work 7 in the public rights-of-way and shall take all reasonable steps to safeguard work site 8 areas. 9 10 (m) Upon request of the City, and as notified by the City of the other work, 11 construction, installation or repairs referenced below, a registrant may be required. to 12 coordinate placement or maintenance activities under a permit with any other work, 13 construction, installation or repairs that may be occurring or scheduled to occur within a 14 reasonable timeframe in the subject public rights-of-way, and registrant may be required 15 to reasonably alter its placement or maintenance schedule as necessary so as to 16 minimize disruptions and disturbance in the public rights-of-way. 17 18 (n) A registrant shall not place or maintain its communications facilities so as to 19 interfere with, displace, damage or destroy any facilities, including but not limited to, 20 sewers, gas or water mains, storm drains, pipes, cables or conduits of the City or any 21 other person's facilities lawfully occupying the public rights-of-way of the City. 22 23 (o) The City makes no warranties or representations regarding the fitness, suitability, 24 or availability of the City's public rights-of-way for the registrant's communications 25 facilities and any performance of work, costs incurred or services provided by registrant 26 shall be at registrant's sole risk. Nothing in this Article shall affect the City's authority to 27 add, vacate, modify, abandon or otherwise dispose of public rights-of-way, and the City 28 makes no warranties or representations regarding the availability of any added, vacated, 29 modified or abandoned public rights-of-way for communications facilities. 30 31 (p) The City shall have the right to make such inspections of communications 32 facilities placed or maintained in public rights-of-way as it finds necessary to ensure 33 compliance with this Article. 34 35 (q) A permit application to place a new or replace an existing communications facility 36 in public rights-of-way shall include plans showing the location of the proposed 37 installation of facilities in the public rights-of-way. If the plans so provided require 38 revision based upon actual installation, the registrant shall promptly provide revised 39 plans. The plans shall be in a hard copy format or an electronic format specified by the 40 City, provided such electronic format is maintained by the registrant. Such plans in a 41 format maintained by the registrant shall be provided at no cost to the City. Upon 42 completion of any communications facilities, the communications services provider shall 43 furnish to the City, at no cost to the City, one complete set of sealed "as built" plans, or 44 in the case of any underground communications facilities, a sealed survey showing the 45 exact location of such communications facilities, including their depth; or in either case, 46 such other documentation describing the location (including height or depth, as the case 47 may be), of communications facilities as the City Manager, or his or her designee, may 48 approve. This requirement shall be in addition to, and not in lieu of, any filings the 49 1 _=--••-• _- - -- : .':- registrant_ is required to make under the Underground Additions to the Ordinance are underlined. Strikethrough&represent language removed from the Ordinance. 13 of 42 1 Facility Damage Prevention and Safety Act set forth in F.S. ch.Florida Statutes Chapter 2 556 (2000),t as amended from time to time. The fact that such plans or survey is on file 3 with the City shall in no way abrogate the duty of any person to comply with the 4 aforesaid Underground Facility Damage Prevention and Safety Act when performing 5 work in the public rights-of-way. Any proprietary confidential business information 6 obtained from a registrant in connection with a permit application or a permit shall be 7 I held confidential by the City to the extent provided in R.-§ Florida Statutes § 202.195 8 (2000}„ as amended from time to time. 9 10 (r) The City reserves the right to place and maintain, and permit to be placed or 11 maintained, sewer, gas, water, electric, storm drainage, communications, and other 12 types of facilities, cables or conduit, and to do, and to permit to be done, any 13 underground and overhead installation or improvement that may be deemed necessary 14 or proper by the City in public rights-of-way occupied by the registrant, and the City also 15 reserves the right to reserve any portion of the public rights-of-way for its own present or 16 future use. The City further reserves without limitation the right to alter, change, or cause 17 to be changed, the grading, installation, relocation, or width of the public rights-of-way 18 within the limits of the City and within said limits as same may from time to time be 19 altered. 20 21 (s) A registrant shall promptly, at the request of any person holding a permit issued 22 by the City, temporarily raise or lower its communications facilities to permit the work 23 authorized by the permit. The expense of such temporary raising or lowering of facilities 24 shall be paid by the person requesting the same, and the registrant shall have the 25 authority to require such payment in advance. The registrant shall be given not less than 26 30 days advance written notice to arrange for such temporary relocation. 27 28 (t) The following additional requirements apply when a registrant seeks authority to 29 locate a wireless communications facility in the public rights-of-way: 30 31 (1) Registrants seeking to locate wireless communications faculties within the 32 City are encouraged to locate on private property or government-owned property 33 outside of the rights-of-way. An application for a permit to locate wireless 34 communications facilities within the rights-of-way shall explain why the applicant 35 is unable to locate the proposed facilities on private property or government 36 owned property. The City may not deny an application based solely on the fact 37 that the applicant is proposing to place a telecommunications facility in the rights- 38 of-way. 39 40 (2) Registrants seeking to place, construct or modify a wireless 41 communications facility in the right-of-way shall: 42 43 a. collocate wireless communications facilities with the wireless 44 communications facilities of other wireless providers, as set out in Florida 45 Statutes § 365.172, as amended, or 46 47 b. install their wireless communications facilities on existing 48 structures within the right-of-way, including without limitation existing 49 power poles. light poles and telephone poles or repurpose an existing Additions to the Ordinance are underlined. Strikethrouahs represent language removed from the Ordinance. 14 of 42 1 structure. An application for a permit to construct a new antenna support 2 structure for a wireless communications facility to be located within the 3 right-of-wa should ex lain wh the a licant is both 'r unable to 4 collocate the wireless communications facility with the wireless facilities of 5 other wireless providers and (ii) unable to construct the wireless 6 communications facility on existing structures within the right-of-way or 7 , repurpose an existing structure. S 9 ( (3) Registrants seeking to construct wireless communications facilities within 10 the rights-of-way shall locate their wireless communication facilities in the rights- 11 of-way of arterial or collector roadways, whenever possible. An application for a 12 permit to place wireless communication facilities in rights-of-way other than those 13 of arterial or collector roadways shall explain why the applicant is unable to 14 locate the wireless communications facilities in the rights-of-way of an arterial or 15 collector roadway and shall include an engineering analysis from the applicant 16 demonstrating to the satisfaction of the City engineer the need to locate the 17 wireless communication facilities in the areas proposed in the application. 18 19 (4) Whenever wireless communications facilities must be placed in a right-of- 20 way with residential uses on one or both sides, neither towers, poles. equipment, 21 antennas or other structures shall be placed directly in front of a residential 22 structure. If a right- of-way has residential structures on only one side, the 23 wireless communications facilities shall be located on the opposite side of the 24 right-of-way, whenever possible. All wireless communications facilities shall be 25 located such that views from residential structures are not impaired. Newly 26 installed poles and towers for wireless communications facilities should be 27 located in areas with existing foliage or other aesthetic features in order to 28 obscure the view of the pole or tower. The requirements of this subparagraph 29 shall not apply to repurposed structures, when there is a one-to-one repurposinq 30 of an existing structure (ie: existing light pole). 31 32 (5) Registrants are required to locate wireless communications facilities 33 within rights-of-way in a manner that minimizes their impact in the City, including 34 without limitation Miami Beach Historic Districts. Whenever a registrant applies 35 for a permit to locate a wireless communications facility in a right-of-way within a 36 Miami Beach Historic District, a copy of the permit application shall be 37 simultaneously served on the City of Miami Beach Historic Preservation staff. All 38 other applications for permits to locate a wireless communications facility within 39 the City shall be simultaneously served on the Design Review staff. Registrant 40 must obtain the approval of the Design Review Board or the Historic Preservation 41 Board (depending on the proposed facility's location and each board's respective - 42 jurisdiction)for the design and location of the wireless communications facility, in 43 accordance with their respective design review or appropriateness criteria. The 44 City reserves the right to condition the grant of any permit to locate a wireless 45 communications facility within the right-of-way upon the registrant taking such 46 • reasonable measures, consistent with the City authority's jurisdiction, as the City 47 may determine are necessary to mitigate the impact of the wireless 48 communications facility on a Miami Beach Historic District or other nearby 49 facilities and uses. installation of a pole or tower under this Chapter shall not Additions to the Ordinance are underlined. Strikethro -hs represent language removed from the Ordinance. 15 of 42 1 interfere with a clear pedestrian path. at a minimum the width required by the 2 Americans with Disabilities Act and Florida Building Code. 3 4 (6) Stealth design shall be utilized wherever possible in order to minimize the 5 visual impact of wireless communications facilities. Each application for a permit 6 to place a wireless communications facility in the right-of-way shall include: 7 8 a. photographs clearly showing the nature and location of the site 9 where each wireless communications facility is proposed to be located, 10 11 b. photographs showing the location and condition of properties 12 adjacent to the site of each proposed wireless communications facility, 13 and 14 15 I c. a description of the stealth design techniques proposed to 16 minimize the visual impact of the wireless communications facility and 17 shall include graphic depictions accurately representing the visual impact 18 of the wireless communications facilities when viewed from the street and 19 from adjacent properties. 20 21 (7) Stealth design of communications facilities to be located on new 22 structures in the rights-of-way shall eliminate the need to locate any ground or 23 elevated equipment (other than antennas) on the exterior of a tower. Stealth 24 design of communications facilities to be located on existing structures other than 25 towers shall minimize the need to locate any ground equipment or elevated 26 equipment (other than antennas) on the exterior of the structure. The use of 27 foliage and vegetation around any approved ground equipment may be required 28 by the City based on conditions of the specific area where the ground equipment 29 is to be located and in accordance with Subpart B, Land Development 30 Regulations, Chapter 126, Landscaping. 31 32 18) Stealth design of communications facilities to be located on structures in the 33 rights-of-way shall (a) top mount antennas within enclosures that do not extend 34 the diameter of the supporting structure at the level of antenna attachment and 35 (b) shall side mount antennas within enclosures that do not extend more than two 36 feet beyond the exterior dimensions of the supporting structure at the level of 37 antenna attachment. Under no circumstances shall antennas be mounted less 38 than eight feet above ground level. For purposes of calculating (a) and (b), 39 above, the dimensions of the supporting structure do not include any platform, 40 rack, mount or other hardware used to attach an antenna or antenna enclosure 41 to the supporting structure. 42 43 (9) The following additional requirements shall apply to wireless 44 communications facilities located in the rights-of-way: 45 46 a. Each application to locate equipment at ground level on or 47 adjacent to the exterior of a pole or tower and each proposal to locate 48 elevated equipment (other than antennas) on or adjacent to the exterior of 49 a tower or pole shall include engineering documentation demonstrating to Additions to the Ordinance are underlined. Striket we, ghs represent language removed from the Ordinance. 16 of 42 1 the satisfaction of the City engineer that the facility cannot employ stealth 2 design and that the proposed exterior location and configuration of 3 equipment proposes the minimum equipment necessary to achieve 4 needed function. In order to avoid the clustering of multiple items of 5 approved ground equipment or elevated equipment in a single area, only 6 one equipment box may be located in any single location. 7 8 b. Where a registrant demonstrates that stealth design cannot be 9 employed. the individual approved exterior equipment boxes shall not 10 exceed two (2) feet wide. by two..(2) feet deep, by three (3) feet high in 11 size. 12 13 c. Wireless communications facilities in the rights-of-way must be 14 spaced a minimum of 500 linear feet of right-of-way apart from each other 15 except that no distance requirement shall apply to repurposed structures. 16 This subsection may be waived upon a factual showing, supported by 17 sworn testimony or matters subject to official notice, demonstrating to the 18 satisfaction of the City, as determined by the Design Review Board or 19 Historic Preservation Board, depending upon which has jurisdiction, that 20 locating a specific wireless communications facility less than 500 feet 21 from other wireless communications facilities either: (1) better serves the 22 City's interests in safe, aesthetic, efficient and effective management of 23 the public rights-of-way than application of the 500 feet limitation: (2) is 24 necessary to address a documented lack of capaCity for one or more 25 carriers; or (3) will help minimize the totat number of communication 26. 1 facilities necessa o serve a .articular area. See Section 104-6(c)(5). 27 28 d. The size and height of wireless communications facility towers 29 and poles in the rights-of-way shall be no greater than the maximum size 30 and height of any other utility or light poles located in the same portion of 31 the right-of-way within the City: orovided however that registrants 32 proposing wireless communications facilities with antennas to be located 33 on existin soles or resu •used structures ma increase the heisht of the 34 existing pole or repurposed structure up to 6 (six) feet, if necessary, to 35 avoid adversely affecting existing pole attachments; and provided further 36 ! that the overall height above ground of any wireless communications 37 facility shall not exceed forty(40) feet. 38 39 e. Wireless communications facilities installed on poles or towers 40 that are not light poles, and repurposed structures that were not originally 41 light poles, shall not be lit unless lighting is required to comply with FAA 42 requirements. 43 44 f. Registrants shall not place advertising on wireless 45 communications facilities installed in the rights-of-way, provided. 46 however, that repurposed structures that lawfully supported advertising 47 before being repurposed may continue to support advertising as 48 I otherwise permitted by law. 49 Additions to the Ordinance are underlined. ctriketh o ighs represent language removed from the Ordinance. 17 of 42 1 (10) The City's action on proposals to place, construct or modify wireless 2 communications facilities shall be subject to the standards and time frames set 3 out in Florida Statutes § 365.172, as amended. 4 5 (u) The obligations imposed by the reauirements of subsections 104-6(t)(1) 6 through 104-6(t)(9). above, upon registrants proposing to place or maintain 7 wireless communications facilities in the public rights-of-way shall also apply to s registrants proposing to place or maintain any other type of communications facility in 9 I public-rights-of-ways. if that other type of communications facility involves placement of 10 i over-the-air radio transmission or reception equipment in the public-rights-of-way. 11 12 (v) Prior to the issuance of any permit pertaining to the olacement and maintenance 13 of communications facilities within the public rights-of-way. the City may require the 14 registrant to issue notice of the work to property owners who adjoin such rights-of-way 15 (the "notification area"), and based on the scope of the proposed work, the number of 16 affected property owners and the potential severity of the impact to such property 17 owners. may further require the registrant to hold a public information meeting for 18 purposes of answering questions and taking comments from affected property owners. 19 The notification area may be expanded at the City's discretion and notice shall be 20 effected in a manner deemed appropriate by the City, provided, however, the notification 21 area, as expanded, shall not exceed a radius of 375 feet from the site of the proposed 22 communications facilities. Should a public information meeting be required, the 23 registrant shall meet with City staff as soon as practical to review comments received at 24 the public information meeting. and attempt to resolve all negative comments or issues 25 raised. 26 27 (w) Pursuant to F.SFlorida Statutes § 337.401(c)(1)(b) (2000) and other applicable 28 provisions of law, and notwithstanding any other provisions of this Code, the City,City 29 hereby elects not to charge permit fees to any registrant for permits to do work in the 30 public rights-of-way. 31 32 33 Sec. 104-7. Suspension of permits. 34 35 The City may suspend a permit for work in the public rights-of-way for one or more of the 36 following reasons: 37 (1) Violation of permit conditions, including conditions set forth in the permit, this 38 Article or other applicable City ordinances, codes or regulations governing placement or 39 maintenance of communications facilities in public rights-of-way; 40 (2) Misrepresentation or fraud by registrant in a registration or permit application to 41 the City; 42 ( (3) Failure to properly renew or ineffectiveness of registration-; or 43 (4) Failure to relocate or remove facilities as may be lawfully required by the City. 44 The City Manager shall provide notice and an opportunity to cure any violation of(1)through (4) 45 above, each of which shall be reasonable under the circumstances. 46 47 Sec. 104-8. Appeals. 48 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 18 of 42 1 Any person aggrieved by any action or decision of the City Manager, or his or her designee, 2 with regard to any aspect of registration under this Article may appeal to the special master 3 appointed pursuant to Article II of Chapter 30 of this Code by filing with the special master, 4 within 30 days after receipt a written decision of the City Manager, or his or her designee, a 5 notice of appeal, which shall set forth concisely the action or decision appealed from and the 6 reasons or grounds for the appeal. No requests for extension of time for filing an appeal will be 7 permitted. The only appeal that shall be considered are those appeals that allege that there is S error in any order, requirement, decision, or determination made by an administrative official in 9 the enforcement of this Article. The special master shall set such appeal for hearing on the very 10 next available date following such notice of appeal and cause notice thereof to be given to the 11 I appellant and the City manager, and the City Manager, or his or her designee shall present the 12 case on behalf of the City. The special master shall hear and consider all facts material to the 13 appeal and render a decision within 20 calendar days of the date of the hearing. The special 14 master may affirm, reverse or modify the action or decision appealed from; provided, that the 15 special master shall not take any action which conflicts with or nullifies any of the provisions of 16 this Article. Any person aggrieved by any decision of the special master on an appeal shall be 17 entitled to apply to the Circuit Court for a review thereof by Petition for Writ of Certiorari in 18 accordance with the applicable court rules. 19 20 Sec. 104-9. Involuntary termination of registration. 21 22 (a) The City may terminate a registration if: 23 (1) A federal or state authority suspends, denies, or-revokes or otherwise 24 fails to grant a registrant'sregistrant any certification or license required to provide 25 communications services; 26 (2) The registrant's placement or maintenance of a communications facility in 27 the public rights-of-way presents an extraordinary danger to the general public or 28 other users of the public rights-of-way and the registrant fails to remedy the 29 danger promptly after receipt of written notice;-49r 30 (3) The registrant violates Florida Statutes § 843.025, as amended; 31 (4) The registrant violates Florida Statutes § 843.165. as amended; or 32 L5) The abandonment by the registrant of all of its communications facilities 33 in public rights-of-way and noncompliance with section 104-16 hereof. 34 35 (b) Prior to termination, the registrant shall be notified by the City Manager, or his or 36 her designee, with a written notice setting forth all matters pertinent to the proposed 37 I termination action, including which of (1) through (35) above is applicable as the reason 38 therefore, and describing the proposed action of the City with respect thereto. The 39 registrant shall have 60 days after receipt of such notice within which to address or 40 eliminate the reason or within which to present a plan, satisfactory to the City Manager 41 to accomplish the same. If the plan is rejected, the City Manager shall provide written 42 notice of such rejection to the registrant and shall make a recommendation to the mayor 43 and City Commission regarding a decision as to termination of registration. The City 44 Manager, or his or her designee, shall provide notice to registrant of any resolution or 45 other action to be taken up at any meeting of the mayor and City Commission and 46 registrant shall be granted the opportunity to be heard at such meeting. A decision by a 47 City to terminate a registration may only be accomplished by an action of the mayor and 48 City Commission. A registrant shall be notified by written notice of any decision by the Additions to the Ordinance are underlined. Strikothroughs represent language removed from the Ordinance. 19 of 42 1 Mayor and City Commission to terminate its registration. Such written notice shall be 2 sent within seven days after the decision. 3 4 (c) In the event of termination, the former registrant shall: (1) notify the City of the 5 assumption or anticipated assumption by another registrant of ownership of the 6 registrant's communications facilities in public rights-of-way; or (2) provide the City with 7 an acceptable plan for disposition of its communications facilities in public rights-of-way. 8 If a registrant fails to comply with this subsection (c), which determination of 9 noncompliance is subject to appeal as provided in section 104-8 hereof, the City may 10 exercise any remedies or rights it has at law or in equity, including but not limited to 11 requiring the registrant within 90 days of the termination, or such longer period as may 12 be agreed to by the registrant, to remove some or all of the facilities from the public 13 rights-of-way and restore the public rights-of-way to its original condition before the 14 removal. 15 16 (d) In any event, a terminated registrant shall take such steps as are necessary to 17 render safe every portion of the communications facilities remaining in the public rights- 18 of-way of the City. 19 20 (e) In the event of termination of a registration, this section does not authorize the 21 City to cause the removal of communications facilities used to provide another service 22 for which the registrant or another person who owns or exercises physical control over 23 the facilities holds a valid certification or license with the governing federal or state 24 agency, if required for provision of such service, and is registered with the City, if 25 required. 26 27 28 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 20 of 42 1 Sec. 104-10. Existing communications facilities in public rights-of-way. 2 3 A communications services provider, communications facility provider or pass-through provider 4 with an existing communications facility in the public rights-of-way of the City has 60 days from 5 the effective date of this Article to comply with the terms of this Article, including, but not limited 6 to, registration, or be in violation thereof. .The City Manager may grant reasonable extensions of 7 time for existing facilities to come into compliance or, in the alternative, may grandfather any 8 existing non-conforming communications facilities which cannot be brought into compliance 9 through commercially reasonable measures. 10 11 Sec. 104-11. Insurance. 12 13 (a) A registrant shall provide, pay for and maintain satisfactory to the City the types 14 of insurance described herein. All insurance shall be from responsible companies duly 15 authorized to do business in the State of Florida and having a rating reasonably 16 acceptable to the City. All liability policies shall provide that the City is an additional 17 insured as to the activities under this Article. The required coverages must be evidenced 18 by properly executed certificates of insurance forms. The certificates must be signed by 19 the authorized representative of the insurance company and shall be filed and 20 maintained with the City annually. Thirty days advance written notice by registered, 21 certified or regular mail or facsimile as determined by the City must be given to the City 22 of any cancellation, intent not to renew or reduction in the policy coverages. The 23 insurance requirements may be satisfied by evidence of self-insurance or other types of 24 insurance acceptable to the City. 25 26 (b) The limits of coverage of insurance required shall be not less than the following: 27 (1) Worker's compensation and employer's liability insurance. 28 Worker's compensation—Florida statutory requirements. 29 (2) Comprehensive general liability. 30 Bodily injury and property damage: $1,000,000.00 combined single limit 31 each occurrence. 32 (3) Automobile liability. 33 Bodily injury and property damage: $1,000,000.00 combined single limit 34 each accident. 35 36 Additions to the Ordinance are underlined. Strikethroughc represent language removed from the Ordinance. 21 of 42 1 Sec. 104-12. Indemnification. 2 3 (a) A registrant shall, at its sole cost and expense, indemnify, hold harmless, and 4 defend the City, its officials, boards, members, agents, and employees, against any and 5 all claims, suits, causes of action, proceedings, judgments for damages or equitable 6 relief, and costs and expenses incurred by the City arising out of the placement or 7 I maintenance of its communications system or facilities in public rights-of-way, regardless 8 of whether the act or omission complained of is authorized, allowed or prohibited by this 9 Article, provided, however, that a registrant's obligation hereunder shall not extend to 10 any claims caused by the negligence, gross negligence or wanton or willful acts of the 11 City. This provision includes, but is not limited to, the City's reasonable attorneys' fees 12 incurred in defending against any such claim, suit or proceedings. The City agrees to 13 notify the registrant, in writing, within a reasonable time of the City receiving notice, of 14 any issue it determines may require indemnification. Nothing in this section shall prohibit 15 the City from participating in the defense of any litigation by its own counsel and at its 16 own cost if in the City's reasonable belief there exists or may exist a conflict, potential 17 conflict or appearance of a conflict. Nothing contained in this section shall be construed 18 or interpreted: (1) as denying to either party any remedy or defense available to such 19 party under the laws of the State of Florida; or (2) as a waiver of sovereign immunity 20 ! beyond the waiver provided in F.SFlorida Statutes § 768.28 (2000),1 as it may be 21 amended from time to time. 22 23 (b) The indemnification requirements shall survive and be in effect after the 24 termination or cancellation of a registration. 25 26 Sec. 104-13. Construction bond. 27 28 (a) Prior to issuing a permit where the work under the permit will require restoration 29 of public rights-of-way, a City may require a construction bond to secure proper 30 performance under the requirements of any permits and the restoration of the public 31 rights-of-way. Twelve months after the completion of the restoration in public rights-of- 32 way in accordance with the bond, the registrant may eliminate the bond. However, the 33 City may subsequently require a new bond for any subsequent work in the public rights- 34 of-way. The construction bond shall be issued by a surety having a rating reasonably 35 acceptable to the City; shall be subject to the approval of the City's risk manager; and 36 shall provide that: "For twelve (12) months after issuance of this bond, this bond may not 37 be canceled, or allowed to lapse, until sixty (60) days after receipt by the City, by 38 certified mail, return receipt requested, of a written notice from the issuer of the bond of 39 intent to cancel or not to renew." 40 41 (b) The rights reserved by the City with respect to any construction bond established 42 pursuant to this section are in addition to all other rights and remedies the City may have 43 under this Article, or at law or equity. 44 45 (c) The rights reserved to the City under this section are in addition to all other rights 46 of the City, whether reserved in this Article, or authorized by other law, and no action, 47 proceeding or exercise of a right with respect to the construction bond will affect any 48 other right the City may have. 49 l Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 22 of 42 1 Sec. 104-14. Security fund. 2 3 At the time of registration, the registrant shall be required to file with the City, for City approval, 4 an annual bond, cash deposit or irrevocable letter of credit in the sum of $25,000.00, having as 5 a surety a company qualified to do business in the State of Florida, and acceptable to the City 6 Manager, or his or her designee, which shall be referred to as the "security fund." The security 7 fund shall be maintained from such time through the earlier of: (a) transfer, sale, assignment or 8 removal of all communications facilities in public rights-of-way; or (b) 12 months after the 9 termination or cancellation of any registration. The security fund shall be conditioned on the full 10 and faithful performance by the registrant of all requirements, duties and obligations imposed 11 upon registrant by the provisions of this Article. The security fund shall be furnished annually or 12 as frequently as necessary to provide a continuing guarantee of the registrant's full and faithful 13 performance at all times. In the event a registrant fails to perform its duties and obligations 14 imposed upon the registrant by the provisions of this Article, subject to_section 104-15 of this 15 Article, there shall be recoverable, jointly and severally from the principal and surety of the 16 security fund, any damages or loss suffered by the City as a result, including the full amount of 17 any compensation, indemnification or cost of removal, relocation dr abandonment of any 18 facilities of the registrant in public rights-of-way, plus a reasonable allowance for attorneys' fees, 19 up to the full amount of the security fund. Notwithstanding the foregoing, the City may in its 20 discretion not require a security fund or may accept a corporate guarantee of the registrant or its 21 parent company. 22 23 Sec. 104-15. Enforcement remedies. 24 25 (a) A registrant's failure to comply with provisions of this Article shall constitute a 26 violation of this Article and shall subject the registrant to the code enforcement 27 provisions and procedures as provided in Chapter 30 of this Code, including the 28 provisions of Chapter 30 that allow the City to seek relief as otherwise provided by law. 29 30 (b) Failure of the City to enforce any requirements of this Article shall not constitute a 31 waiver of the City's right to enforce that violation or subsequent violations of the same 32 type or to seek appropriate enforcement remedies. 33 34 Sec. 104-16. Abandonment of a communications facility. 35 36 (a) Upon abandonment of a communications facility owned by a registrant in public 37 rights-of-way, the registrant shall notify the City within 90 days. 38 39 (b) The City may direct the registrant by written notice to remove all or any portion of 40 such abandoned facility at the registrant's sole expense if the City determines that the 41 abandoned facility's presence interferes with the public health, safety or welfare, which 42 shall include, but shall not be limited to, a determination that such facility: (1) 43 compromises safety at any time for any public rights-of-way user or during construction 44 or maintenance in public rights-of-way; (2) prevents another person from locating 45 facilities in the area of public rights-of-way where the abandoned facility is located when 46 other alternative locations are not reasonably available; or (3) creates a maintenance 47 condition that is disruptive to the public rights-of-way's use. In the event of(2) above, the 48 City may require the third person to coordinate with the registrant that owns the existing 49 facility for joint removal and placement, where agreed to by the registrant. Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 23 of 42 1 2 (c) In the event that the City does not direct the removal of the abandoned facility, 3 the registrant, by its notice of abandonment to the City, shall be deemed to consent to 4 the alteration or removal of all or any portion of the facility by the City or another person 5 at such third party's cost. 6 7 (d) If the registrant fails to remove all or any portion of an abandoned facility as 8 directed by the City within a reasonable time period as may be required by the City 9 under the circumstances, the City may perform such removal and charge the cost of the 10 removal against the registrant. 11 12 Sec. 104-17. Force majeure. 13 14 In the event a registrant's performance of or compliance with any of the provisions of this Article 15 is prevented by a cause or event not within the registrant's control, such inability to perform or 16 comply shall be deemed excused and no penalties or sanctions shall be imposed as a result, 17 provided, however, that such registrant uses all practicable means to expeditiously cure or 18 correct any such inability to perform or comply. For purposes of this Article, causes or events 19 not within a registrant's control shall include, without limitation, acts of god, floods, earthquakes, 20 landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil 21 disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or 22 court. Causes or events within registrant's control, and thus not falling within this section, shall 23 include, without limitation, registrant's financial inability to perform or comply, economic 24 hardship, and misfeasance, malfeasance or nonfeasance by any of registrant's directors, 25 officers, employees, contractors or agents. 26 27 Sec. 104-18. Reservation of rights and remedies. 28 29 (a) The City reserves the right to amend this Article as it shall find necessary in the 30 lawful exercise of its police powers. 31 32 (b) This Article shall be applicable to all communications facilities placed in the 33 public rights-of-way on or after the effective date of this Article and shall apply to all 34 existing communications facilities in the public rights-of-way prior to the effective date of 35 this Article, to the full extent permitted by state and federal law. 36 37 (c) The adoption of this Article is not intended to affect any rights or defenses of the 38 City or a communications service provider under any existing franchise, license or other 39 agreements with a communications services provider. 40 • 41 (d) Nothing in this Article shall affect the remedies the City or the registrant has 42 available under applicable law. 43 44 (e) Any person who uses the communications facilities of a registrant, other than the 45 registrant that owns the facilities, shall not be entitled to any rights to place or maintain 46 . such facilities in excess of the rights of the registrant that places or maintains the 47 facilities. 48 49 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 24 of 42 • 1. Sec. 104-19. Establishment of the rate of the communications services tax. 2 3 (a) For the fiscal year of the City commencing on October 1, 2001, and ending on 4 September 30, 2002, the City hereby establishes the rate of the communications 5 1 services tax as the base rate of 5.10 percent established by F.SFlorida Statutes §§ 6 202.19 and 202.20, plus 0.40 percent, as permitted by Section 13 of Chapter 2001-140 7 I of the Laws of Florida, plus 0.12 percent, as permitted by F.S Florida Statutes § 8 337.401, for a total of 5.62 percent. 9 10 (b) On and after October 1, 2002, the City hereby establishes the rate of the 11 communications services tax as the base rate of 5.10 percent established by F.S. 12 §Florida Statutes § 202.20, plus 0.12 percent, as permitted by F.SFlorida Statutes § 13 337.401, for a total of 5.22 percent. 14 15 (c) The City hereby instructs the Florida Department of Revenue to collect the 16 communications services tax at the rates set forth in subsections (a) and (b) of this 17 section. 18 19 Sec_ 104-20. Pass-Through Provider and Communications Facility Provider Fees and 20 Charges 21 22 (a) Pass-through providers and communications facility providers that maintain one or 23 more communications facilities in the City's roads or rights-of-way shall pay the City 24 the maximum annual amount allowed under Florida Statute § 337.401, as amended. 25 For purposes of calculating payments hereunder, each separate pole or tower 26 installed or maintained by a pass-through provider or communications facility 27 provider for purposes of supporting antennas or other over-the-air radio transmission 28 or reception equipment in the public rights-of-way shall comprise a separate 29 communications facility subject to assessment of a separate permit fee in the amount 30 of $500.00_up toor the maximum amount allowed under specified in Florida Statutes 31 § 337.401, whichever is higher, to the extent that Florida Statutes §337.401 is 32 applicable. 33 34 111) The annual amount referenced in subsection 104-20(a), above, shall be due and 35 payable on October 1 of every year. Fees not paid within ten days after the due date 36 shall bear interest at the rate of one percent per month from the date due until paid. 37 The acceptance of any payment required hereunder by the City shall not be 38 construed as an acknowledgement that the amount paid is the correct amount due, 39 nor shall such acceptance of payment be construed as a release of any claim which 40 the City may have for additional sums due and payable or authorization to install any 41 facilities in the City's rights-or-way.. 42 43 44 Additions to the Ordinance are underlined. c+,-,leeth G„atis represent language removed from the Ordinance. 25 of 42 1 SECTION 2. City Code Chapter 118, "Administration and Review Procedures," Article II, 2 "Boards," Division 3, "Design Review Board," Section 118-71, "Powers and duties," is hereby 3 amended as follows: 4 5 Sec. 118-71. Powers and duties. 6 7 The Design Review Board shall have the following powers and duties: 8 9 (1)To promote excellence in urban design. 10 11 (2)To review all applications requiring design review approval for all properties not 12 located within a designated historic district or not designated as a historic site. For works 13 of art in the art in public places program, the Design Review Board shall serve as 14 advisor to the City Commission, and may impose binding criteria, as provided in Chapter 15 82, Article VII, "Art in Public Places," Division 4, "Procedures." This authority shall 16 include review and approval of design and location within public rights-of-way outside of 17 locally designated historic districts of all improvements and fixtures, including without 18 limitation. utility equipment and poles, telecommunications equipment and poles, and 19 street furniture and "repurposed structures" as defined in Chapter 104, 20 "Telecommunication,"Article I, "Communications Rights-of-Way". 21 22 (3)To prepare and recommend adoption of design plans pertaining to neighborhood 23 studies. 24 25 (4)To promote reduced crime and fear of crime through the use of crime prevention 26 through environmental design guidelines and strategies, as approved by the City 27 Commission. 28 29 (5)To hear and decide appeals of the planning director when deciding matters pursuant 30 to section 118-260. 31 32 *.....* 33 34 SECTION 3. City Code Chapter 118, "Administration and Review Procedures," Article II, 35 "Boards," Division 4, "Historic Preservation Board," Section 118-102, "Powers and duties," is 36 hereby amended as follows: 37 * 38 Sec. 118-102. Powers and duties. 39 40 The Historic Preservation Board shall: 41 42 (1) Recommend to the planning board, and City Commission, the designation of 43 historic buildings, structures, improvements, landscape features, public interiors, and 44 historic sites or districts. 45 46 (2) Prepare and recommend for adoption specific guidelines for each designated site 47 or district to be used to evaluate the appropriateness and compatibility of proposed 48 alteration or development within designated historic sites or historic districts. 49 Additions to the Ordinance are underlined. Strikothroughs represent language removed from the Ordinance. 26 of 42 1 (3) Issue or deny certificates of appropriateness, certificates to dig and certificates of 2 appropriateness for demolition in accordance with procedures specified in this division, 3 excluding certificates of appropriateness for demolition for City-owned buildings and 4 other improvements as hereinafter specified on City-owned property and public rights-of- 5 ways, and property owned by the Miami Beach Redevelopment Agency, for which 6 properties the Historic Preservation Board shall serve as advisor to the City 7 Commission. This authority shall include review and approval of design and location 8 within public rights-of-way inside of locally designated historic districts of all 9 improvements and fixtures. including without limitations utility equipment and poles, 10 telecommunications equipment and poles, and street furniture and "repurposed 11 structures" as defined in Chapter 104, "Telecommunication," Article I, "Communications 12 _Rights-of-Way'_ 13 14 (4) Recommend restoration of property to its prior condition as required by section 15 118-533 when the property has been altered in violation of this division. 16 17 (5) Advise the board of adjustment with regard to variances associated with 18 properties designated as historic sites, historic buildings, historic structures, historic 19 improvements, historic landscape features or any building or structure located within a 20 historic district or a National Register District through written recommendation to be read 21 into the record by the planning and zoning director at the board of adjustment's hearing. 22 23 (6) Facilitate the redevelopment of historic sites and districts by directing the 24 planning department, and other City departments, to provide advisory and technical 25 assistance to property owners, applicants for certificates of appropriateness. 26 27 (7) Make and prescribe by-laws and application procedures that are reasonably 28 necessary and appropriate for the proper administration and enforcement of the 29 provisions of this division. The board shall prescribe forms for use by applicants when 30 requesting action under this division. The board may authorize any one of its members 31 to administer oaths and to certify official documents. 32 33 (8) Award historic markers or plaques upon the recommendation of the City 34 manager and with the consent of the City Commission. 35 36 (9) Update and revise the historic properties database. 37 38 (10) Advocate that the City administration explore and advise the Historic 39 Preservation Board and the building official as to alternatives available for stabilizing and 40 preserving inadequately maintained and/or unsafe buildings or structures within the 41 City's designated historic districts or on designated historic sites. 42 43 (11) Review all new construction, alterations, modifications and improvements to any 44 building, structure, improvement, landscape feature, public interior or site individually 45 designated in accordance with Sections 118-591, 118-592 and 118-593, or located 46 within an historic district. 47 48 (12) To review any and all amendments to this Code affecting historic preservation 49 issues; specifically division 4 of Article II of Chapter 118 entitled "Historic Preservation 1 Additions to the Ordinance are underlined. Strikethrought3 represent language removed from the Ordinance. 27 of 42 1 Board," and Article X of Chapter 118 entitled "historic preservation," pursuant to Section 2 118-163. 3 4 5 SECTION 4. City Code Chapter 118, "Administration and Review Procedures," Article VI, 6 "Design Review Procedures," Section 118-251, "Design Review Criteria," is hereby amended as 7 follows: 8 * * 9 Sec. 118-251. Design review criteria. 10 11 (a) Design review encompasses the examination of architectural drawings for 12 consistency with the criteria stated below, with regard to the aesthetics, appearances, 13 safety, and function of any new or existing structure and physical attributes of the project 14 in relation to the site, adjacent structures and surrounding community. The board and 15 the planning department shall review plans based upon the below stated criteria, criteria 16 listed in neighborhood plans, if applicable, and design guidelines adopted and amended 17 periodically by the Design Review Board and/or Historic Preservation Board. 18 Recommendations of the planning department may include, but not be limited to, 19 comments from the building department and the public works department. If the board 20 determines that an application is not consistent with the criteria, it shall set forth in 21 writing the reasons substantiating its finding. The criteria referenced above are as 22 follows: 23 24 (1) The existing and proposed conditions of the lot, including but not necessarily 25 limited to topography, vegetation, trees, drainage, and waterways. 26 27 (2) The location of all existing and proposed buildings, drives, parking spaces, 28 walkways, means of ingress and egress, drainage facilities, utility services, landscaping 29 structures, signs, and lighting and screening devices. 30 31 (3) The dimensions of all buildings, structures, setbacks, parking spaces, floor area 32 ratio, height, lot coverage and any other information that may be reasonably necessary 33 to determine compliance with the requirements of the underlying zoning district, and any 34 applicable overlays, for a particular application or project. 35 36 (4) The color, design, selection of landscape materials and architectural elements of 37 exterior building surfaces and primary public interior areas for developments requiring a 38 building permit in areas of the City identified in'section 118-252 39 40 (5) The proposed site plan, and the location, appearance and design of new and 41 existing buildings and structures are in conformity with the standards of this Article and 42 other applicable ordinances, architectural and design guidelines as adopted and 43 amended periodically by the Design Review Board and Historic Preservation Board and 44 all pertinent master plans. 45 46 (6) The proposed structure, and/or additions or modifications to an existing structure, 47 indicates sensitivity to and is compatible with the environment and adjacent structures, 48 and enhances the appearance of the surrounding properties. 49 I Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 28 of 42 1 (7) The design and layout of the proposed site plan, as well as all new and existing 2 buildings shall be reviewed so as to provide an efficient arrangement of land uses. 3 Particular attention shall be given to safety, crime prevention and fire protection, 4 relationship to the surrounding neighborhood, impact on contiguous and adjacent 5 buildings and lands, pedestrian sight lines and view corridors. 6 7 (8) Pedestrian and vehicular traffic movement within and adjacent to the site shall be 8 reviewed to ensure that clearly defined, segregated pedestrian access to the site and all 9 buildings is provided for and that all parking spaces are usable and are safety and 10 conveniently arranged; pedestrian furniture and bike racks shall be considered. Access 11 to the site from adjacent roads shall be designed so as to interfere as little as possible 12 with traffic flow on these roads and to permit vehicles a rapid and safe ingress and 13 egress to the site. 14 15 (9) Lighting shall be reviewed to ensure safe movement of persons and vehicles and 16 reflection on public property for security purposes and to minimize glare and reflection 17 on adjacent properties. Lighting shall be reviewed to assure that it enhances the 18 appearance of structures at night. 19 20 (1 0) . Landscape and paving materials shall be reviewed to ensure an adequate 21 relationship with and enhancement of the overall site plan design. 22 23 (11) Buffering materials shall be reviewed to ensure that headlights of vehicles, noise, 24 and light from structures are adequately shielded from public view, adjacent properties 25 and pedestrian areas. 26 27 (12) The proposed structure has an orientation and massing which is sensitive to and 28 compatible with the building site and surrounding area and which creates or maintains 29 important view corridor(s). 30 31 (13) The building has, where feasible, space in that part of the ground floor fronting a 32 street or streets which is to be occupied for residential or commercial uses; likewise, the 33 upper floors of the pedestal portion of the proposed building fronting a street, or streets 34 shall have residential or commercial spaces, shall have the appearance of being a 35 residential or commercial space or shall have an architectural treatment which shall 36 buffer the appearance of the parking structure from the surrounding area and is 37 integrated with the overall appearance of the project. 38 39 (14) The building shall have an appropriate and fully integrated rooftop architectural 40 treatment which substantially screens all mechanical equipment, stairs and elevator 41 towers. 42 43 (15) An addition on a building site shall be designed, sited and massed in a manner 44 which is sensitive to and compatible with the existing improvement(s). 45 46 (16) All portions of a project fronting a street or sidewalk shall incorporate an 47 architecturally appropriate amount of transparency at the first level in order to achieve 48 pedestrian compatibility and adequate visual interest. 49 1 Additions to the Ordinance are underlined. Strikcthrou s represent language removed from the Ordinance. 29 of 42 1 (17) The location, design, screening and buffering of all required service bays, 2 delivery bays, trash and refuse receptacles, as well as trash rooms shall be arranged so 3 as to have a minimal impact on adjacent properties. 4 5 (18) In addition to the foregoing criteria. the following criteria from the City of Miami 6 Beach Communications Rights-of-Way Ordinance shall apply to any proposal to place, 7 construct, modify or maintain a wireless communications facility or other over the air 8 radio transmission or radio reception facility in the public-rights-of-way: 9 10 (1) With respect to proposals to locate or replace a tower in the right-of-way, the 11 registrant must demonstrate either (A) that the proposed communications facility 12 can accommodate multiple colocations or (B) that the City's interest in safe, 13 aesthetic, efficient and effective management of the public rights-of-way is better • 14 served by the proposed communications facility than by a communications facility 15 that could accommodate multiple colocations [Ref. Florida Statutes is ,1365.172(12)(b)(5) and City Code §104-6(c)(2)1i 17 18 (ii) Registrants seeking to locate wireless communications facilities within the 19 City are encouraged to locate on private property or government owned property 20 outside of the rights-of-ways or to repurpose existing structures pursuant to 21 Chapter 104. An application for a permit to locate wireless communications 22 facilities within the rights-of-way shall explain why the applicant is unable to 23 locate the proposed facilities on private property or government owned property 24 [Ref. City Code §104-6(1)(1)1; 25 26 (iii Registrants seeking to •lace construct or modif a wireless communications 27 facility in the right-of-way shall: 28 29 A. collocate wireless communications facilities with the wireless 30 communications facilities of other wireless providers, as set out in Florida 31 Statutes 365,172. as amended, or; 32 B. install their wireless communications facilities on eExistirq 33 sStructures within the right-of-way, including without limitation existing 34 power poles, light poles and telephone poles. An application for a permit 35 to construct a new antenna support structure for a wireless 36 communications facility to be located within the right-of-way should 37 demonstrate that the registrant is both (i) unable to collocate the wireless 38 communications facility with the wireless facilities of other wireless 39 providers and (ii) unable to construct the wireless communications facility 40 on existing structures within the right-of-way. or 41 42 C. Repurpose an Existing Structure [Ref. Florida Statutes 43 §365.172(12)(b)(1)) and City Code ,5104-6(t)(2)1_ 44 45 (iv) Registrants seeking to construct wireless communications facilities within the 46 rights-of-way shall locate their wireless communication facilities in the rights-of- 47 way of arterial or collector roadways, whenever possible. A registrant seeking to 48 place wireless communication facilities in rights-of-way other than those of 49 arterial or collector roadways shall demonstrate that the registrant is unable to Additions to the Ordinance are underlined. Strikethroughs,represent language removed from the Ordinance. 30 of 42 1 locate the wireless communications facilities in the rights-of-way of an arterial or 2 collector roadway and shall include an engineering analysis from the applicant 3 demonstrating to the satisfaction of the City engineer the need to locate the 4 wireless communication facilities in the areas proposed in the application. [Ref. 5 Florida Statutes §365.172(12)(b)(3) and City Code §104-6(t)(3)1; 6 7 (v) Whenever wireless communications facilities must be placed in a riaht-of-way 8 with residential uses on one or both sides, neither towers. poles, equipment, 9 antennas or other structures shall be placed directly in front of a residential 10 structure. If a right- of-way has residential .structures on only one side, the 11 wireless communications facilities shall be located on the opposite side of the 12 right-of-way, whenever possible. All wireless'communications facilities shall be 13 located such that views from residential structures are not impaired. Newly 14 installed poles and towers for wireless communications facilities should be 15 located in areas with existing foliage or other aesthetic features, wherever 16 possible in order to obscure the view of the pole or tower. The requirements of 17 this subparagraph shall not apply to "repurposed structures" as defined in the 18 City's Telecommunications Rights-of-Way Ordinance, when there is a one-to-one . 19 repurposing of an existing structure. [Ref. Florida Statutes §§365.172(12)(b)(3) 20 and 365.172(b)(5), and City Code §104-6(t)(4)1; 21 22 (vi) Stealth design shall be utilized wherever possible in order to minimize the 23 visual impact of wireless communications facilities [Ref. Florida Statutes 24 §365.172(12)(b)(5) and City Code §104-6(t)(6); 25 26 (vii) Stealth design of communications facilities to be located on new structures 27 in the rights-of-way shall eliminate the need to locate any ground or elevated 28 equipment (other than antennas) on the exterior of a tower. Stealth design of 29 communications facilities to be located on existing structures other than towers 30 shall minimize the need to locate any around equipment or elevated equipment 31 (other than antennas) on the exterior of the structure. The use of foliage and 32 vegetation around any approved ground equipment may be required by the City 33 based on conditions of the specific area where the ground equipment is to be 34 located and in accordance with Subpart B, Land Development Reaulations, • 35 Chapter 126, Landscaping [Ref. Florida Statutes §365.172(12)(b)(5) and City 36 Code §104-6(t)(7)1. 37 - 38 (viii) Stealth design of communications facilities to be located on structures in the 39 rights-of-way shall:(A) top mount antennas within enclosures that do not extend 40 the diameter of the supporting structure at the level of antenna attachment and 41 (B) shall side mount antennas within enclosures that do not extend more than 42 two feet beyond the exterior dimensions of the supporting structure at the level of 43 antenna attachment. Under no circumstances shall antennas be mounted less 44 than eight feet above ground level. For purposes of calculating (A) and (B), 45 above, the dimensions of the supporting structure do not include any platform, 46 rack. mount or other hardware used to attach an antenna or antenna enclosure 47 to the supporting structure [Ref. Florida Statutes §365.172512)(b)(5) and City 48 Code §104-6(t)(8)1: Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 31 of 42 1 (ix) Each application to locate equipment at ground level on or adjacent to the 2 exterior of a pole or tower and each proposal to locate elevated equipment (other 3 than antennas) on or adjacent to the exterior of a tower or pole shall include 4 engineering documentation demonstrating to the satisfaction of the City engineer 5 that the facility cannot employ stealth design and that the proposed exterior 6 location and configuration of equipment proposes the minimum equipment 7 necessary to achieve needed function. In order to avoid the clustering of multiple 8 items of approved ground equipment or elevated equipment in a single area, only 9 one equipment box may be located in any single Iocation [Ref. Florida Statutes 10 §365.172(b)(5) and City Code $104-6(t)(9)(a)1; 11 12 (x) Where a registrant demonstrates that stealth design cannot be employed, the 13 individual approved exterior equipment boxes shall not exceed two (2) feet wide, 14 by two (2) feet deep, by three (3) feet high in size [Ref. Florida Statutes 15 §365.172(b)(5) and City Code §104-6(t)(9)(b)li 16 17 (xi) Wireless communications facilities in the rights-of-way must be spaced a 18 minimum of 500 linear feet of right-of-way apart from each other. This 19 requirement may be waived upon a factual showing, supported by sworn 20 testimony or matters subject to official notice, demonstrating to the satisfaction of 21 the City that locating a specific wireless communications facility less than 500 22 feet from other wireless communications facilities if the Board determines that it 23 (1) better serves the City's interests in safe, aesthetic, efficient and effective 24 management of the public rights-of-way; and (2) is necessary to address a 25 documented lack of capaCity for one or more carriers;_or (3) will help minimize 26 the total number of communication facilities necessary to serve a particular area. 27 The applicant shall provide competent substantial evidence to reflect that the 28 above conditions are met, in order to waive the 500 foot distance requirements, 29 and ensure compliance with all the other requirements of this Chapter. [Ref.. 30 Florida Statutes §337.401(3)(b) and City Code §104-6(t)(9)(c)1; 31 32 (xii) The size and height of wireless communications facility towers and poles in 33 the rights-of-way shall be no greater than the maximum size and height of any 34 other utility or light poles located in the same portion of the right-of-way within the 35 City; provided however that registrants proposing wireless communications 36 facilities with antennas to be located on existing poles or repurposed structures 37 pursuant to the City's Telecommunica io s Rights-of-Way Ordinance, may 38 increase the height of the existing pole pr repurposed structure up to 6 (six) feet, 39 if necessary, to avoid adversely affecting existing pole attachments; and provided 40 further that the overall height above ground of any wireless communications • 41 facility shall not exceed forty (40) feet. [Ref. Florida Statutes 365.172(b)(5), 42 Florida Statutes §337.401(3)(b) and City Code §104-6(t)(9)(d)1; 43 44 (xiii) Wireless communications facilities installed on poles or towers that are not 45 light poles, and repurposed structures pursuant to the City's Telecommunications 46 Rights-of-Way Ordinance that were not originally light poles. shall not be lit 47 unless lighting is required to comply with FAA requirements'Ref. Florida Statutes 48 365.172(b)(5) and City Code §104-6(t)(9)(e)1; Additions to the Ordinance are underlined. St4kcthrougbs represent language removed from the Ordinance. 32 of 42 1 (xiv) Registrants shall not place advertising on wireless communications facilities 2 installed in the rights-of-way except that repurposed structures that lawfully 3 d suppo ad rte vertising before being repurposed_pursuant to the City`s Rig ts-of_ 4 Way Ordinance may con ' ue SURD advertising as otherwise permitted bv_ 5 law [Ref. Florida Statutes §365.172(b)(5) and City Code §104-6(t)(9)(f}1; and 6 7 (xv) The City's action on proposals to place, construct or modify wireless 8 communications facilities shall be subject to the standards and time frames set 9 out in Florida Statutes § 365.172. as amended, including without limitation: 10 11 (A) The provisions of Florida Statute §365.172(12)(a)(1) and 12 365.172(12)(a)(3) favoring colocation among wireless providers; 13 14 (B) The provisions of Florida Statute §365.172(12)(a)(5) allowing 15 certain modifications of existing towers and certain types of tower 16 replacements, in each case if the overall height of the tower is not 17 increased; 18 19 (C) The provisions of Florida Statute §365.172(12)(b)(1) limiting 20 review to land development and zoning issues, including without limitation 21 (x) evidence that no existing structure can reasonably be used for 22 antenna placement (y), that residential areas cannot be served from 23 outside residential areas or (z) that the height of a proposed tower, a 24 replacement tower, a modified tower or a colocation is necessary to 25 provide desired service; 26 27 (D) The provisions of Florida Statute §365.172(12)(b)(2) limiting 28 setbacks and distance separations to the minimum distance necessary to 29 satisfy structural safety and aesthetic concerns: 30 31 (E) The provisions of Florida Statute §365.172(12)(b)(3) requiring the 32 City to cooperate with wireless providers to avoid government actions that 33 prohibit a provider from serving a residential area or a zoning district; 34 35 (F) The provisions of Florida Statute §365.172(12)(b)(5) permitting 36 design requirements and aesthetic requirements consistent with those 37 adopted under Florida Statute Chapter 553 and applied to all similar types 38 of construction, and 39 40 (G) The requirements of Florida Statute §365.172(12)(e) limiting 41 review of certain wireless communications replacements or modifications 42 (but not towers) involving no discernible changes in size, type or 43 appearance. 44 45 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 33 of 42 1 SECTION 5. City Code Chapter 118, "Administration and Review Procedures," Article X, 2 "Historic Preservation," Division 3, "Issuance of Certificate of Appropriateness/Certificate to 3 Dig/Certificate of Appropriateness for Demolition," Section 118-564, "Decisions on certificates of 4 appropriateness," is hereby amended as follows: 5 6 7 8 Sec. 118-564. Decisions on certificates of appropriateness. 9 10 (a) A decision on an application for a certificate of appropriateness shall be based 11 upon the following: 12 13 (1) Evaluation of the compatibility of the physical alteration or improvement • 14 with surrounding properties and where applicable compliance with the following: 15 16 a. The Secretary of Interior's Standards for Rehabilitation and Guidelines 17 for Rehabilitating Historic Buildings as revised from time to time; and 18 19 b. Other guidelines/policies/plans adopted or approved by resolution or 20 ordinance by the City Commission. 21 22 (2) In determining whether a particular application is compatible with surrounding 23 properties the Historic Preservation Board shall consider the following: 24 25 a. Exterior architectural features. 26 27 b. General design, scale, massing and arrangement. 28 29 • c. Texture and material and color. 30 31 d. The relationship of subsections a., b., c., above, to other structures 32 and features of the district. 33 34 e. The purpose for which the district was created. 35 36 f. The relationship of the size, design and siting of any new or 37 reconstructed structure to the landscape of the district. 38 39 g. An historic resources report, containing all available data and historic 40 documentation regarding the building, site or feature. 41 42 h. The original architectural design or any subsequent modifications that 43 have acquired significance. 44 45 (3) The examination of architectural drawings for consistency with the criteria 46 stated below, with regard to the aesthetics, appearances, safety, and function of 47 any new or existing structure, public interior space and physical attributes of the 48 project in relation to the site, adjacent structures and properties, and surrounding 49 community. The Historic Preservation Board and planning department shall Additions to the Ordinance are underlined. Strikethr©ughs represent language removed from the Ordinance. 34 of 42 1 review plans based upon the below stated criteria and recommendations of the 2 planning department may include, but not be limited to, comments from the 3 building department. The criteria referenced above are as follows: 4 5 a. The location of all existing and proposed buildings, drives, parking 6 spaces, walkways, means of ingress and egress, drainage facilities, 7 utility services, landscaping structures, signs, and lighting and 8 screening devices. 9 10 b. The dimensions of all buildings, structures, setbacks, parking spaces, 11 floor area ratio, height, lot coverage and any other information that 12 may be reasonably necessary to determine compliance with the 13 requirements of the underlying zoning district, and any applicable 14 overlays, for a particular application or project. 15 16 c. The color, design, surface finishes and selection of landscape 17 materials and architectural elements of the exterior of all buildings and 18 structures and primary public interior areas for developments requiring 19 a building permit in areas of the City identified in section 118-503 20 21 d. The proposed structure, and/or additions to an existing structure is 22 appropriate to and compatible with the environment and adjacent 23 structures, and enhances the appearance of the surrounding 24 . properties, or the purposes for which the district was created. 25 26 e. The design and layout of the proposed site plan, as well as all new 27 and existing buildings and public interior spaces shall be reviewed so 28 as to provide an efficient arrangement of land uses. Particular 29 attention shall be given to safety, crime prevention and fire protection, 30 relationship to the surrounding neighborhood, impact on preserving 31 historic character of the neighborhood and district, contiguous and 32 adjacent buildings and lands, pedestrian sight lines and view 33 corridors. 34 35 f. Pedestrian and vehicular traffic movement within and adjacent to the 36 site shall be reviewed to ensure that clearly defined, segregated 37 pedestrian access to the site and all buildings is provided for and that 38 any driveways and parking spaces are usable, safely and 39 conveniently arranged and have a minimal impact on pedestrian 40 circulation throughout the site. Access to the site from adjacent roads 41 shall be designed so as to interfere as little as possible with vehicular • 42 traffic flow on these roads and pedestrian movement onto and within 43 the site, as well as permit both pedestrians and vehicles a safe 44 ingress and egress to the site. 45 46 g. Lighting shall be reviewed to ensure safe movement of persons and 47 vehicles and reflection on public property for security purposes and to 48 minimize glare and reflection on adjacent properties and consistent 49 with a City master plan, where applicable. Additions to the Ordinance are underlined. Strikethrougla-c represent language removed from the Ordinance. 35 of 42 1 2 h. Landscape and paving materials shall be reviewed to ensure an 3 adequate relationship with and enhancement of the overall site plan 4 design. 5 6 . i. Buffering materials shall be reviewed to ensure that headlights of 7 vehicles, noise, and light from structures are adequately shielded from 8 public view, adjacent properties and pedestrian areas. 9 10 j. Any proposed new structure shall have an orientation and massing 11 which is sensitive to and compatible with the building site and 12 surrounding area and which creates or maintains important view 13 corridor(s). 14 15 k. All buildings shall have, to the greatest extent possible, space in that 16 part of the ground floor fronting a sidewalk, street or streets which is 17 to be occupied for residential or commercial uses; likewise, the upper 18 floors of the pedestal portion of the proposed building fronting a 19 sidewalk street, or streets shall have residential or commercial 20 spaces, or shall have the appearance of being a residential or 21 commercial space or shall have an architectural treatment which shall 22 buffer the appearance of a parking structure from the surrounding 23 area and is integrated with the overall appearance of the project. 24 25 1. All buildings shall have an appropriate and fully integrated rooftop 26 architectural treatment which substantially screens all mechanical 27 equipment, stairs and elevator towers. • 28 29 m. Any addition on a building site shall be designed, sited and massed in 30 a manner which is sensitive to and compatible with the existing 31 improvement(s). 32 33 n. All portions of a project fronting a street or sidewalk shall incorporate 34 an amount of transparency at the first level necessary to achieve 35 pedestrian compatibility. 36 37 o. The location, design, screening and buffering of all required service 38 bays, delivery bays, trash and refuse receptacles, as well as trash 39 rooms shall be arranged so as to have a minimal impact on adjacent 40 properties. 41 42 p. In addition to the foregoing criteria 3(a) through 3(o), the following 43 criteria from Chapter 104 shall apply to any proposal to place, 44 construct, modify or maintain a wireless communications facility or 45 other over the air radio transmission or radio reception facility in the 46 public-rights-of-way: 47 48 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 36 of 42 1 (i) With respect to proposals to locate or replace a tower in 2 the right-of-way, the registrant must demonstrate either (A) that 3 the proposed communications facility can accommodate multiple 4 colocations or (B) that the City's interest in safe, aesthetic. 5 efficient and effective management of the public rights-of-way is 6 better served by the proposed communications facility than by a 7 communications facility that could accommodate multiple 8 colocations [Ref. Florida Statutes 5365.172(12)(b)(5) and City 9 Code §104-6(c)(2)1; • 10 11 (ii) Registrants seeking to locate wireless communications 12 facilities within the City are encouraged to locate on private 13 property or government owned property outside of the rights-of- 14 way=, or to Repurpose Existing Structures pursuant to the City's 15 Communications Rights-of-Way Ordinance An application for a 16 permit to locate wireless communications facilities within the 17 rights-of-way shall explain why the applicant is unable to locate 38 the proposed facilities on private property or government owned 19 property [Ref. City Code §104-6(t)(1)l; 20 21 (iii) Registrants seeking to place, construct or modify a wireless 22 communications facility in the right-of-way shall: 23 24 A. collocate wireless communications facilities with the 25 wireless communications facilities of other wireless 26 providers, as set out in Florida Statutes § 365.172, as 27 amended, or1 28 B. install their wireless communications facilities on 29 existing structures within the right-of-way, including without 30 limitation existing power poles, light poles and telephone 31 poles. An application for a permit to construct a new 32 antenna support structure for a wireless communications 33 facility to be located within the right-of-way should 34 demonstrate that the registrant is both (i) unable to 35 collocate the wireless communications facility with the 36 wireless facilities of other wireless providers and (ii) unable 37 to construct the wireless communications facility on 38 existing structures within the right-of-way, or 39 C Repurpose an Existing Structure [Ref. Florida 40 Statutes §365.172(12)(b)11)) and City Code §104-6(t)(2)] • 41 42 (iv) Registrants seeking to construct wireless communications 43 facilities within the rights-of-way shall locate their wireless 44 communication facilities in the rights-of-way of arterial or collector 45 roadways, whenever possible. A registrant seeking to place 46 wireless communication facilities in rights-of-way other than those 47 of arterial or collector roadways shall demonstrate that the 48 registrant is unable to locate the wireless communications facilities 49 in the rights-of-way of an arterial or collector roadway and shall Additions to the Ordinance are underlined. Std -s represent language removed from the Ordinance. 37 of 42 1 include an engineering analysis from the applicant demonstrating 2 to the satisfaction of the City engineer the need to locate the 3 wireless communication facilities in the areas proposed in the 4 application [Ref. Florida Statutes §365.172(12)(b)(3) and City 5 Code §104-6(t)(3)1; 6 7 (v) Whenever wireless communications facilities must be placed 8 in a right-of-way with residential uses on one or both sides, neither 9 towers, poles, equipment, antennas or other structures shall be 10 placed directly in front of a residential structure. If a right- of-way 1.1 has residential structures on only one side, the wireless 12 communications facilities shall be located on the opposite side of 13 the right-of-way, Whenever possible. All wireless communications 14 facilities shall be located such that views from residential 15 structures are not impaired. Newly installed poles and towers for 16 wireless communications facilities should be located in areas with 17 existing foliage or other aesthetic features in order to obscure the 18 view of the pole or tower. The requirements of this subparagraph 19 shall not apply to "repurposed structures" as defined in Chapter 20 104, provided there is a one-for-one replacement of an existing 21 structure for a repurposed structure at the same general location. 22 [Ref. Florida Statutes §§365.172(12)(b)(3) and 365.172(b)(5), and 23 City Code §104-6(t)(4)1; 24 25 (vi) Stealth design shall be utilized wherever possible in order to 26 minimize the visual impact of wireless communications facilities 27 [Ref. Florida Statutes §365.172(12)(b)(5) and City Code §104- 28 6(t)(6)1: 29 30 (vii) Stealth design of communications facilities to be located on 31 new structures in the rights-of-way shall eliminate the need to 32 locate any ground or elevated equipment (other than antennas) on 33 the exterior of a tower. Stealth design of communications facilities 34 to be located on existing structures other than towers shall 35 minimize the need to locate any ground equipment or elevated 36 equipment (other than antennas) on the exterior of the structure. 37 The use of foliage and vegetation around any approved ground 38 equipment may be required by the City based on conditions of the 39 specific area where the ground equioment is to be located and in 40 accordance with Subpart B. Land Development Regulations. 41 Chapter 126, Landscaping fRef. Florida Statutes 42 §365.172(12)(b)(5) and City Code §1O4-6(t)(7)I; 43 44 (viii) Stealth design of communications facilities to be located on 45 structures in the rights-of-way shall (A) top mount antennas within 46 enclosures that do not extend the diameter of the supporting 47 structure at the level of antenna attachment and (B) shall side 48 mount antennas within enclosures that do not extend more than 49 two (2) feet beyond the exterior dimensions of the supporting Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 38 of 42 1 structure at the level of antenna attachment. Under no 2 circumstances shall antennas be mounted less than eight (8) feet 3 above ground level. For purposes of calculating (A) and (B), 4 above, the dimensions of the supporting structure do not include 5 any platform. rack, mount or other hardware used to attach an 6 antenna or antenna enclosure to the supporting structure [Ref. 7 Florida Statutes §365.172(121(b'l(5) and City Code §104-6(t)(8)1; 8 9 (ix) Each application to locate equipment at ground level on or 10 adjacent to the exterior of a pole or tower and each proposal to 11 locate elevated equipment (other than antennas) on or adjacent to 12 the exterior of a tower or pole shall include engineering 13 documentation demonstrating to the satisfaction of the City 14 engineer that the facility cannot employ stealth design and that the 15 proposed exterior location and configuration of equipment 16 proposes the minimum equipment necessary to achieve needed 17 function. In order to avoid the clustering of multiple items of 18 approved ground equipment or elevated equipment in a single 19 area. only one equipment box may be located in any single 20 location [Ref. Florida Statutes §365.172(b'(5) and City Code 21 §104-6(t)(9)(a)1; 22 23 (x) Where a registrant demonstrates that stealth design cannot be 24 employed, the individual approved exterior eauipment boxes shall 25 not exceed two feet wide, by two feet deep, by three feet high in 26 size [Ref. Florida Statutes .5365.172(b)(5) and City Code §104- 27 6(t)(9)(b)1: 28 29 (xi) Wireless communications facilities in the rights-of-way must 30 be spaced a minimum of five hundred linear feet of right-of-way, 31 apart from each other. This requirement may be waived upon a 32 factual showing, supported by sworn testimony or matters subject 33 to official notice, demonstrating to the satisfaction of the City that 34 locating a specific wireless communications facility less than 500 35 feet from other wireless communications facilities if the Board 36 determines that it (1) better serves the City's interests in safe, 37 aesthetic, efficient and effective management of the public rights- 38 of-way: and (2) is necessary to address a documented lack of 39 capaCity for one or more carriers; or (31 will help minimize the 40 total number of communication facilities necessary to serve a 41 particular area. The applicant shall provide competent substantial 42 evidence to reflect that the above conditions are met, in order to 43 waive the 500 foot distance requirements, and ensure compliance 44 with all the other requirements of this Chapter. Ref. Florida 45 Statutes §337.401(3)(b) and City Code §104-6(t)(9)(c}1; 46 47 (xii) The size and height of wireless communications facility 48 towers and poles in the rights-of-way shall be no greater than the 49 maximum size and height of any other utility or lightpoles located 1 Additions to the Ordinance are underlined. Strikethroughs represent language removed from the Ordinance. 39 of 42 . 1 1 in the same portion of the right-of-way within the City: provided 2 however that registrants proposing wireless communications 3 facilities with antennas to be located on existing poles pr 4 repurposed structures pursuant to the City's Telecommunications 5 Rights-of-Way Ordinance may increase the height of the existing 6 or repurposed structures pole up to 6 (six) feet, if necessary, to 7 avoid adversely affecting existing pole attachments; and provided 8 further that the overall height above ground of any wireless 9 communications facility shall not exceed 40 feet (Ref. Florida 10 Statutes §365.172(b)(5), Florida Statutes §337.401(3)(b) and City 11 Code §104-6(t)(9)(d11; 12 13 (xiii) Wireless communications facilities installed on poles or 14 towers that are not light poles and repurposed structures pursuant 15 to the City's Telecommunications Rights-of-Way Ordinance that 16 were not originally light poles shall not be lit unless lighting is 17 required to comply with FAA requirements jRef. Florida Statutes 18 §365.172(b)(5) and City Code §104-6(t)(9)(e)1i 19 20 (xiv) Registrants shall not place advertising on wireless 21 communications facilities installed in the rights-of-way except that 22 repurposed structures that lawfully supported advertising before 23 being repurposed pursuant to the City's Rights-of-Way Ordinance 24 may continue to support advertising as otherwise permitted by law. 25 [Ref. Florida Statutes §_365.172(b)(5) and City Code §104- 26 6(t)(9)(f)1; and 27 28 (xv) The City's action on proposals to place, construct or modify 29 wireless communications facilities shall be subject to the 30 standards and time frames set out in Florida Statutes § 365.172, 31 as amended, including without limitation: 32 33 (A) The provisions of Florida Statute 34 §365.172(121(21(1) and 365.172(12)(a)(3) favoring 35 colocation among wireless providers: 36 37 (B) The provisions of Florida Statute 38 365.172(12)(a)(5) allowing certain modifications of 39 existing towers and certain types of tower replacements, in 40 each case if the overall height of the tower is not 41 increased; 42 43 (C) The provisions of Florida Statute 44 §365.172(12)(b)(1) limiting review to land development and 45 zoning issues, including without limitation (x) evidence that 46 no existing structure can reasonably be used for antenna 47 placement (y), that residential areas cannot be served from, 48 outside residential areas or (z) that the height of a 1 Additions to the Ordinance are underlined. StrikethFoughs represent language removed from the Ordinance. 40 of 42 1 proposed tower, a replacement tower, a modified tower or 2 a colocation is necessary to provide desired service; 3 4 (D) The provisions of Florida Statute 5 §365.172(12)(b)(2) limiting setbacks and distance 6 separations to the minimum distance necessary to satisfy 7 structural safety and aesthetic concerns; 8 9 (E) The provisions of Florida Statute 10 §365.172(12)(b)(3) requiring the City to cooperate with 11 wireless providers to avoid government actions that 12 prohibit a provider from serving a residential area or a 13 zoning district; 14 15 (F) The p rovisions of Florida Statute r 16 §365.172(12)(b)(5) permitting design requirements and 17 aesthetic requirements consistent with those adopted 18 under Florida Statute Chapter 553 and applied to all similar 19 types of construction, and 20 21 (G) The requirements of Florida Statute 22 §365.172(12)(e) limiting review of certain wireless 23 communications replacements or modifications (but not 24 towers) involving no discernible changes in size, type or 25 appearance. 26 27 SECTION 6. CODIFICATION. 28 It is the intention of the City Commission, and it is hereby ordained that the provisions of this 29 ordinance shall become and be made part of the Code of the City of Miami Beach as amended; 30 that the sections of this ordinance may be renumbered or relettered to accomplish such 31 intention; and that the word "ordinance" may be changed to "section" or other appropriate word. 32 33 SECTION 7. REPEALER. 34 All ordinances or parts of ordinances and all section and parts of sections in conflict herewith be 35 and the same are hereby repealed. 36 37 SECTION 8. SEVERABILITY. 38 If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder 39 shall not be affected by such invalidity. 40 41 SECTION 9. EFFECTIVE DATE. 42 This Ordinance shall take effect ten days following adoption. 43 44 PASSED and ADOPTED this_ day of , 2014. 45 46 ATTEST: 47 48 Philip Levine, Mayor 49 Additions to the Ordinance are underlined. Strik�ethrourg. s represent language removed from the Ordinance. 41 of 42 • 1 1 Rafael E. Granado, City Clerk 2 3 4 5 6 APPROVED AS TO 7 FORM AND LANGUAGE 8 & FOR EXECUTION 9 10 CITY ATTORNEY Date 11 12 13 Underscore denotes new language 14 Strike through denotes stricken language 15 16 First Reading: 17 Second Reading: 18 19 • Additions to the Ordinance are underlined. St et ough represent language removed from the Ordinance. 42 of 42