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LTC 150-2017 RFP 2017-074-WG for Interactive Digital Media Kiosksi\AIAM, BEACH OFFICE OF THE CITY ATTORNEY LETTER TO COMMISSION LTC No. 150-2017 TO: Mayor Philip Levine and Members of the City Commission FROM: Raul J. Aguila, City Attor , Y� DATE: March 20, 2017 SUBJECT: RFP -2017 -074 -WG for Interactive Digital Media Kiosks On March 3, 2017, Vice Mayor Rosen -Gonzalez requested a legal opinion with respect to the applicability of the Miami -Dade County Sign Ordinance to RFP -2017 -074 -WG for Interactive Digital Media Kiosks. On March 14, 2017, I provided Vice Mayor Rosen -Gonzalez with my legal opinion. As a courtesy to the Mayor and City Commission, a copy of this opinion is attached hereto. RJA/RAP/ag MIBEACH OFFICE OF THE CITY ATTORNEY TO: \\ FROM: Raul J. Aguila, City Attorney .JC DATE: March 14, 2017 SUBJECT: RFP No. 2017 -074 -WG for Interactive Digital Media Kiosks (the "RFP") Commissioner Kristen Rosen -Gonzalez MEMORANDUM You have asked for a legal opinion with respect to the applicability of Chapter 33, Article VI of the Miami -Dade County Code regarding signs ("County Sign Code"), to the above -referenced RFP. The express purpose of the County Sign Code is to ensure that signs do not, because of size, location, method of construction and installation, or manner of display: (1) Endanger the public safety; or (2) Create distractions that may jeopardize pedestrian or vehicular traffic safety; or (3) Mislead, confuse, or obstruct the vision of people seeking to locate or identify uses or premises; and (4) Destroy or impair aesthetic or visual qualities of Miami -Dade County which is so essential to tourism and the general welfare. See County Sign Code, Section 33-83. In enacting the County Sign Code, the Miami -Dade County Board of County Commissioners expressly sought to encourage "the use of signs with a scale, graphic character, and type of lighting compatible with buildings and uses in the area, so as to support and complement land use objectives." Id. The pertinent provisions regulating illuminated signs and digital signs are set forth in Sections 33-95 and 33-96 of the County Sign Code, and include provisions relating to movement of images, brightness, time requirements for changes of message displays, limitations on auditory components, specific requirements for certain point of sale signage at specified locations, among other specifications. The County Sign Code imposes responsibility on municipalities to enforce the County Sign Code within their boundaries. Id., Section 33-82. In addition, the County Sign Code itself contemplates the granting of use variances and/or area variances, if specified requirements are met. Id., Sections 33-96(1) and (2). Importantly, the County Sign Code does not contain any absolute prohibition on the procurement of kiosks or messaging displays. In fact, with respect to the procurement of digital kiosks, on or about January, 2017, Miami -Dade County approved a contract with a kiosk provider to install over 300 digital kiosks at multiple locations throughout the County (with Memorandum — RFP No. 2017 -074 -WG for Interactive Digital Media Kiosks March 14, 2017 Page 2 the mock-ups depicting the proposed kiosks as being over nine feet tall, and with 50 inch screens), and with the ability to authorize an unlimited number of additional kiosks at a later date. With respect to the County's compliance with its own County Sign Code, the County's contract itself does not even appear to include a single reference to the County Sign Code, and instead requires the vendor to comply with all applicable laws and permitting requirements in performing its obligations under the agreement. Unlike the County's recent procurement of over 300 kiosks, the City's RFP is far more limited in nature and scope. Although the City's initial RFP anticipated 15-30 kiosks would be installed at various locations such as Lincoln Road, Ocean Drive, or the Convention Center, among other locations, my understanding is that an addendum to the RFP is being issued to clarify that the City does not make any commitments whatsoever to purchase any specific number of kiosks, or to install kiosks at any specific locations. Rather, the RFP will ask bidders to assume, for evaluation purposes, that the contract will cover 15 kiosks, with the exact number and locations to be determined at a later date by the City, at its sole discretion. Assuming the RFP is successfully awarded, the City would, as a threshold matter, include language similar to that utilized by Miami -Dade County in its kiosk contract, requiring the kiosk provider to perform its obligations under the agreement in accordance with all applicable laws and regulatory approvals that may be required. After the contract is awarded and the City makes a determination as to the number, the locations, and specifications for the kiosks the City will procure, the City and/or the kiosk provider would then be required to obtain regulatory design approval from the applicable City board, such as the Design Review Board or the Historic Preservation Board (for any kiosks in the Lincoln Road, Ocean Drive or other historic district), in accordance with the City's signage requirements, as set forth in Chapter 138 of the City Code. In summary, at this early stage of the RFP process, with the final design subject to design review and approval, and with the proposed locations for the kiosks yet to be determined, it is my opinion that proceeding with the RFP does not violate the County Sign Code or the City's sign requirements, On a more candid note, as it appears that Miami -Dade County, the City of Miami, and other municipalities are proceeding with kiosks and other digital messaging projects, all of which could be interpreted as being in conflict with the County Sign Code, I submit that the compliance issues with respect to the procurement of kiosks are secondary and can be addressed in the ordinary course, and that the primary issues at hand, such as those you have previously expressed concerning "visual pollution," all involve important policy questions which merit the City Commission's full consideration.' RJA/RAP/ag 1 With respect to the legal issues, and in an effort to ensure compliance, I will make certain that any contract arising out of this RFP includes the appropriate provisions to require the vendor to comply with all applicable laws, and to provide that the placement of any kiosks within the City of Miami Beach is subject to, and contingent upon, regulatory approval by the appropriate City board. We are committed to providing excellent public service and safety to all who live, work, and play in aur vibrant, tropical. historic community.