R5K-Telecommunications Rights Of Way -Malakoff-g MIAMIBEACH
City of ,vliomi Beoch, 1700 Convention Cenler Drive, Miomi Beoch, Florido 33.l39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO: Mayor Levine and City Commission
FRoM: Raul Asuila, City Attorn"R"lL 0,, f-
Jimmy Morales, City Manag"r$__p
DATE: December 17,2014
SU BJ ECT: Telecommunications First Readinq
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,
LOGATION AND GOLLOCATION; 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 WlTHlN THE JURISDICTION OF THE DESIGN REVIEW BOARD
AND HISTORIC PRESERVATION BOARD RESPECTIVELY; AND CHAPTER
118, ARTICLE VI, "DESIGN REVIEW PROCEDURES," SECTION 118.251,..DES!GN REVIEW CRITERIA," AND ARTICLE X, "HISTORIC
PRESERVATION,'' DIVISION 3, "ISSUANCE OF CERTIFICATE OF
APP ROPRIATEN ESS/CERTI FICATE TO DIG/CERTIFICATE OF
APPROPRIATENESS FOR DEMOLITION,'' SECTION 1 18.564, "DECISIONS
ON CERTIFICATES OF APPROPRIATENESS,'' ADDING CRITERIA FOR
SUCH REVIEW FOR TELECOMMUNICATIONS EQUIPMENT AND
FAGILITIES; PROVIDING FOR CODIFICATION; REPEALER;
SEVERABILITY AND AN EFFEGTIVE DATE.
Agenda ttem RSK
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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.
BAGKGROUND:
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 Clty'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
is set to expire on March 16,2015.
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."
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
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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.
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 City to provide comments on the draft ordinance, requesting to modify
some of the proposed language.
AT&T and Crown Castle have proposed modifications to the draft ordinance. Other
providers or pass-through providers may have input on the draft ordinance. Additionally,
Crown Castle, based upon input from the Historic Preservation Board, intends to request
modification to the draft ordinance to provide one-to-one replacement of existing street
furniture (light poles) with similar looking street furniture that would house the DAS
technology, providing no net gain of street furniture in the ROW.
APPLICABLE LAWS GUIDING DRAFTING OF ORDINANCE:
State law relating to telecommunications:
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(3Xa), Florida Statutes provides: "ln order to foster competition federal
and state law require municipalities to treat providers in a nondiscriminatorv and
competitlvelv 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 mav include onlv those matters
necessarv to manaqe 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(cX7) - 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 aesthetics. lt allows a City to control of number, height, safety issues, and
concerns relating to historic areas. The Act precludes unreasonable discrimination and
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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.
47 USC Section 1455(a) - alkla 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. lt 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:
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
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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 occut, 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 criteria is met, 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 ln short, this section proposes the following:
e Review of sufficiency of space in ROW;o Ensures ADA and FBC Compliance;. Analyzes traffic and pedestrian safety;o Precludes placement of equipment in front of a residential building;. Requires placement of equipment on opposite site from residential structures;o Ensures residential view corridor is not impaired;. Ensures proper pedestrian pathways; ando 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{hrough providers and
communications facility provider fees and charges. lt 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
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workshop, the ordinance now reflects a definltion 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. ln that case, the new language was stricken in order
to prevent the same standard from being reiterated three times in the Code.
There are other edits to the draft ordinance that reflect both underlining and strike
throughs. These provisions were provisions previously reviewed by the Planning Board,
and after the joint Planning/City Commission workshop these provisions were modified
and stricken to better reflect the intent of the elected officials and Planning Board.
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ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND GITY COMMISSION OF THE CITY OF
MIAMI BEAGH, FLORIDA, AMENDING THE CIry CODE, CHAPTER IO4,..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;
GREATING 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 lN 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, SAFEW AND
WELFARE; AND AMENDING THE LAND DEVELOPMENT REGULATIONS OF
THE CITY GODE, CHAPTER 118, ARTICLE II, "BOARDS," DIVISIONS 3 AND
4, "DESIGN REVIEW BOARD" AND "HISTORIC PRESERVATION BOARD,''
SEGTIONS 118.71AND 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
SUGH REVIEW FOR TELECOMMUNICATIONS EQUIPMENT AND
FACILITIES; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY
AND AN EFFECTIVE DATE.
WHEREAS, the provision of telecommunications services to resldents 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
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1 WHEREAS, the City has reviewed its ordinances and has concluded that they must be2 updated in order to address the issues that new and expanded telecommunications equipment3 and poles in the rights-of-way present; and
45 WHEREAS, adoption of the following amendments to Chapter 104 are necessary to6 satisfy the above objectives.
78 NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CIry COMMISSION OF9 THE GITY OF MIAMI BEACH, FLORIDA.
10tt SECTION 1. City Code Chapter 104, "Telecommunications," Article l, "Communications Rights-12 of-Way," is hereby amended as follows:
13T4 ARTICLE I. GOMMUNICATIONS RIGHTS.OF-WAY
15LG Sec. 104-1. Title.
T718 This Article shall be known and may be cited as the "City of Miami Beach Communications19 Rights-of-WayOrdinance."
20
21, Sec. 104-2. lntent and purpose.
2223 lt is the intent of the City to promote the public health, safety and general welfare by: providing24 for the placement or maintenance of communications facilities in the public rights-of-way within25 the City; adopting and administering reasonable rules and regulations not inconsistent with state26 and federal law, including-F.S.jU!_nollUnjl9S!_tg-Florida Statutes $ 337.401, 47 USC S 1455(a)27 and Orders issued bv the FCC{2000)- as thev ilmay be amended from time to time, the City's28 home-rule authority, and in accordance with the provisions of the Federal Teleeemmunieatiens29 Communications Act of +996t93+, as amended and otherfederal and state law; establishing30 reasonable rules and regulations necessary to manage the placement or maintenance of31 communications facilities in the public rights-of-way by all-communications services providers,32 communications facility providers and pass{hrough providers; and minimizing disruption to the33 public rights-of-way. ln regulating its public rights-of-way, the City shall be governed by and34 shall comply with all applicable federal and state laws.
3536 Persons seekino to place or maintain communications facilities on private propertv or propertv
37 owned, leased or controlled bv the Citv. includino riqhts-of-wav shall complv with the provisions
38 of Subpart B. Land Development Reoulations, of the Code of the Citv of Miami Beach. Persons39 seekinq to place or maintain communications facilities in the public riqhts-of-wav also shall40 complv with the provisions of this Chapter.
4t42 Sec. 104-3. Definitions.
4344 For purposes of this Article, the following terms, phrases, words and their derivations shall have45 the meanings given. Where not inconsistent with the context, words used in the present tense46 include the future tense, words in the plural number include the singular number, and words in47 the singular number include the plural number. The words "shall" and "will" are mandatory, and48 "may" is permissive. Words not otheruvise defined shall be construed to mean the common and49 ordinary meaning.
Additions to the Ordinance are underlined.
S+i*et+rcughs represent language removed from the Ordinance.
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1.2 Abandonment shall mean the permanent cessation of all uses of a communications facility;3 provided that this term shall not include cessation of all use of a facility within a physical4 structure where the physical structure continues to be used. By way of example, and not5 limitation, cessation of all use of a cable within a conduit, where the conduit continues to be6 used, shall not be "abandonment" of a facility in public rights-of-way.
78 Cab/e serviee shall mean the transmissien ef videe' audiq er ether pregramming serviee te
g
10 pregrarnmingrsen*i ing- is transmitted ever faeilitiest1, ewned er eperated by the eable serviee previder er ever faeilities ewned er eperated by ene er
T213 ier-ewavet4 er ether equipment direetly te the purehaser's premises, but dees net inelude direet te heme15 +e16 senl€e+
1718 Arfenal roadway shall mean anv street or roadwav that constitutes the hiqhest deqree of19 mobilitv at the hiqhest speed. for lonq. uninterrupted travel, and constitutes the larqest20 proportion of total travel as per the Federal Functional Classification Map maintained bv the2t State of Florida Department of Transportation District Six Office, as amended.
2223 Ctfy shall mean the City of Miami Beach, Florida.
2425 Gemmg#eatiefie faeili9 er faei',ly er sysfem shall mean any permanent er temperary plant,26 egt*ipment and prepe wires; Genduit
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2829 er te be plaeed er maintained in the publie rights ef way ef the City and used er eapable ef being30 useO te transmit iens-seryiees=
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3233 mobilitv and land access functions, linkinq maior land uses to each other or to the arterial34 hiohwav svstem as per the Federal Functional Classification Map maintained bv the State of35 Florida Department of Transportation District Six Office. as amended.
3637 Collocation shall mean the situation in which a communications services provider or a pass-
38 throuoh provider uses an existino structure to locate a second or subsequent antenna. The term39 includes the qround, platform, or roof installation of equipment enclosures. cabinets, or40 buildinqs, and cables. brackets, and other equipment associated with the location and operation41, of the antenna.
4243 Communicafrbns facil/y shall mean a facilitv that mav be used to provide communications44 services, as per Florida Statutes S 337.401, as amended. Multiple cables. conduits, strands, or45 fibers located within the same conduit shall be considered one communications facilitv.
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47 Communrcafions facldy provlder shall mean a person (other than a communications services48 provider operatino one or more communications facilities located within the Citv) who is
49 enqaqed, directlv or indirectlv, in the business of leasinq. licensinq, subleasinq, sublettinq or
Additions to the Ordinance are underlined.
S+ri*e$+eughs represent language removed from the Ordinance.
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t hirinq to one or more communications service providers all or a portion of the tanqible personal
2 propertv used in a communications facilitv, includinq but not limited to, towers, poles, tower3 space, antennas, transmitters, and transmission line. Provisions of this Article that applv only to4 communications facilitv providers shall not applv to communications services providers even if5 the communication services provider also operates, licenses, leases, subleases, or sublets6 communications facilities.
78 Communications services shall mean the transmission, conveyance, or routing of voice, data,9 audio, video, or any other information or signals, includinq video services, to a point, or between10 or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other
1.1. medium or method now in existence or hereafter devised, regardless of the protocol used forL2 such transmission or conveyance, Netwithstanding the feregeing, fer purpeses ef this Article
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1.4 previ erdinanees ef the City@ Article15 "eemrnunieatiens serviees" shal{ net inelude pay telephenes, and nething eentained herein shall
L6L7 @ Florida Statutes Q 202.11, as amended. The term includes such18 transmission. convevance. or routino in which computer processinq applications are used to act19 on the form. code, or protocol of the content for purooses of transmission. convevance, or20 routino without reoard to whether such service is referred to as voice-over-lnternet-protocol2t services or is classified bv the Federal Communications Commission as enhanced or value-22 added. The term does not include:
2324 (a) lnformation services.25 (b) lnstallation or maintenance of wiring or equipment on a customer's premises.26 (c) The sale or rental of tangible personal property.27 (d) The sale of advertising, including, but not limited to, directory advertising.28 (e) Bad check charges.29 (0 Late payment charges.30 (g) Billing and collection services.31 (h) lnternet access service, electronic mail service, electronic bulletin board service, or32 similar on-line computer services.
3334 +ee,
3536 Communications services provider shall mean anya person (other than a communications37 facilitv provider or a pass-throuqh provider)_i ing
3839 @munieatiens serviees previder" shall alse inelude any persen ineluding40 @"-asthat41. way but dees net previde eemmunieatiens serviees, rerm is used in Florida Statutes S 337.401,42 as amended.
4344 Communications seryrces fax shall mean the local communications services tax authorized to45beleviedandcollectedbycountiesandmunicipalities@,uponcharges46 for communications services, pursuant to Florida Statutes S 202.20, as amended.
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Additions to the Ordinance are underlined.
S+i*etnreughs represent language removed from the Ordinance.
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1 Exisfrng Sfrucfure shall mean a structure that exists at the time an application for permission to2 place antennas on the structure is filed with the Citv. The term includes anv structure that can3 structurally support the attachment of antennas in compliance with applicable codes.
45 FCC shall mean the Federal Communications Commission.
57 ln public rights-of-way or in the public rights-of-way shall mean in, on, over, under or across the8 public rights-of-way.
910 Order. as used in the definition of "wireless provider". shall mean:
1112 (a) The followinq orders and rules of the FCC issued in FCC Docket No. 94-102:13 (i) Order adopted on June 12. 1996, with an effective date of October 1.1.4 1996. the amendments to s.20.03 and the creation of s. 20.18 of Title 47 Code15 of Federal Requlations adopted bv the FCC oursuant to such order.16 (ii) Memorandum and Order No. FCC 97-402 adopted on December 23,17 1998.18 (iii) Order No. FCC DA 98-2323 adopted on November 13. 1998.19 (iv) Order No. FCC 98-345 adopted December 31, 1998.
2027 (b) Orders and rules subsequentlv adopted bv the FCC relatino to the provision of22 911 services. includinq Order Number FCC-05-116, adopted Mav 19,2005 and Order23 Number FCC-2014-0011, adopted November 4,2014.24 (c)
2526 Pass-fhrouoh provrder shall include anv person (other than a communications services provider)
27 who places or maintains a communications facilitv in the roads or riohts-of-wav of a municipalitv28 or countv that levies a tax pursuant to Florida Statutes $ 202 and who does not remit taxes29 imposed bv that municipalitv or countv pursuant to Chapter 202 as per Florida Statutes $30 337.401. as amended. A "pass{hrouqh provider" does not provide communications services to31 retail customers in the Citv. Provisions of this Article that applv onlv to pass-throuqh providers
32 shall not applv to communications services providers that provide the services identical or33 similar to those provided bv pass-throuoh providers.
3435 Permrt shall include, but not be limited to Miami Beach public riqht-of-wav permits board or staff36 issued, desiqn review approval and board or staff issued certificates of approoriateness.
3738 Person shall include any individual, Ghildr€nr firm, association, joint venture, partnership, estate,39 trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind,40 successor, assignee, transferee, personal representative, and all other groups or combinations,4t and shall include the City to the extent the City acts as a communications services provlder.
4243 Place or maintain or placement or maintenance or placing or maintaimng shall mean to erect,44 construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A45personthatoWnSorexercisesphysicalcontroloVer46 communications facilities in public rights-of-way, such as the physical control to maintain and47 repair, is "placing or maintaining" the facilities. A person providing service only through resale or48 only through use of a third party's unbundled network elements is not "placing or maintaining"49 the communications facilities through which such service is provided. The transmission and
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1 receipt of radio frequency signals through the airspace of the public rights-of-way does not2 constitute "placing or maintaining" facilities in the public rights-of-way.
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4Publicrights-of-wayshallmeanapublicright-of-way,@highway,street,5 bridge, tunnel or alley for which the City is the authority that has jurisdiction and control and may6 laMully grant access to pursuant to applicable law, and includes the surface, the air space over7 the surface and the area below the surface. "Public rights-of-way" shall not include private8 property-or easements over p "Public rights-of-way" shall not include any real or9 personal City property except as described above and shall not include City buildings, fixtures,10 poles, conduits, facilities or other structures or improvements, regardless of whether they are
1.1. situated in the public rights-of-way.
L2L3 Registrant shall mean a communications services provider, communications facility provider or1.4 pass-through provider that has registered with the City in accordance with the provisions of15 Section 104-4 this Article and holds an effective reqistration.
t6t7 Registration or regisfer shall mean the process described in this Article whereby a18 communications services provider, communications f19 provides certain information to the City.
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21, Repurposed Sfrucfure shall mean an Existino Structure that has been renovated, reconfioured,22 or replaced with a similar structure so as to continue servino its existino purpose while also23 suoporting the attachment of communication facilities or antennas throuqh Stealth Desiqn that is24 approximatelv in the same location as the Existing Structure and in such a manner that does not25 result in a net increase in the number of structures located within the public riqht-of-wav and26 does not interfere with pedestrian or vehicular access, is Americans with Disabilities Act and27 Florida Buildinq Code compliant. Bv wav of illustration onlv. where a liqht pole existino within the28 public riqht of wav is removed and is replaced with a new lioht pole that is substantiallv similar to29 the old liqht pole but now supports the attachment or inteqration of communication facilities, the30 new liqht pole shall be considered a "repurposed structure." Unless stated othenrvise. all31 references to "communications facilities" or "wireless communications facilities" shall also applv32 to repurposed structures. To "repurpose an existinq structure" shall mean the act of renovatinq.33 reconfiqurinq, or replacing an Existinq Structure as described above. The provider that later34 removes a repurposed structure shall reinstall a new light pole, or other applicable pole in the35 ROW, at the direction of the Citv. Durinq the life of the use of the repurposed structure the36 provider shall pav all costs associated with the electricitv. liqht bulbs, maintenance, and37 replacement of the repurposed structure.
3839 Sfea/fh desrqn shall mean a method of camouflaoinq anv tower. antenna or other40 telecommunications facilitv. includinq. but not limited to, supportinq electrical or mechanical4t equipment. which is desiqned to enhance compatibilitv with adiacent land uses and be as42 visuallv unobtrusive as possible. Stealth desiqn mav include a repurposed structure.
4344 Iower shall mean anv structure desiqned solelv or primarilv to support a communications45 services provider's antennas.
4647 Wfeless communicafions facl/y shall mean equipment used to provide wireless service. as the48 phrase, wireless communications facilitv, is further defined and limited in Florida Statutes S49 365.172, as amended. A wireless communications facilitv is a tvpe of communications facilitv.
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t2 WtTeless provrder shall mean a person who provides wireless service and is either (a) subiect to3 the provisions of the order or (b) elects to provide wireless 911 service or E911 service in4 Florida. A wireless provider is a tvpe of communications services provider.
56 [4/r7eless servrce shall mean "commercial mobile radio service" as provided under $S 3(27) and7 332(d) of the Federal Telecommunications Act of 1996, 47 U.S.C. $$ 151 et seq., and the8 Omnibus Budqet Reconciliation Act of 1993, Pub. L. No. 103-66, Auqust 10, 1993, 107 Stat.9 312. as per Florida Statutes S365.172, as amended. The term includes service provided bv anv10 wireless real-time two-wav wire communication device, includino radiotelephone1,t communications used in cellular telephone service; personal communications service; or the12 functional or competitive equivalent of a radio-telephone communications line used in cellular13 telephone service. a personal communications service, or a network radio access line. The termt4 does not include communications services providers that offer mainlv dispatch service in a more15 localized, non-cellular confiquration; providers offerinq onlv data, one-wav, or stored-voice1,6 services on an interconnected basis, providers of air-to-qround services. or public coast17 stations.
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1920 Sec. 1044. Registration for placing or maintaining communications facilities in public2t rights-of-way.
2223 Reoistration application and all information require therein, shall be included in anv Desion24 Review Board or Historic Preservation Board application, as required under sections 104-6,25 118-25'1, or llJ-7{--erl{€-2+l-118-564, of the Citv's Land Development Requlations.
2627 (a) A communications services provider, communications facility provider or pass-28 through provider that desires to place or maintain a communications facility in public29 rights-of-way in the City shall first register with the City in accordance with this Article.30 This Chapter provides no risht of access to the public riqhts-of-wav for (i) persons other31 than communications service providers or (ii) businesses other than providinq
32 communications services. Other uses of the public riqhts-of-wav reasonablv related to33 the provision of communications services mav be allowed in the reasonable discretion of34 the Citv. Subject to the terms and conditions prescribed in this Article, a registrant may35 place or maintain a communications facility in public rights-of-way.
3637 (b) A registration shall not convey any title, equitable or legal, to the registrant in the38 public rights-of-way. Tanoible personal propertv placed in the public riohts-of-wav39 pursuant to this Article shall retain its character as tanqible personal propertv and shall40 not be reoarded as real propertv, fixtures or mixed propertv. Registration under this4L Article governs only the placement or maintenance of communications facilities in public42 rights-of-way. Other ordinances, codes or regulations may apply to the placement or43 maintenance in the public rights-of-way of facilities that are not communications facilities.44 Registration does not excuse a eemmuni@reqistrant from45 obtaining appropriate access or pole attachment agreements before locating its facilities46 on the City's or another person's facilities. Registration does not excuse a47 eemmunieation+ serviees previder reoistrant from complying with all applicable City48 ordinances, codes or regulations, including this Article.
49
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(c) Each communications services provider, communications facility provider or
pass{hrough provider that desires to place or maintain a communications facility.
includinq 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;(2) Name, address and telephone number of the applicant's primary contact
person in connection with the registration, and the person to contact in case of an
emergency;(3) Fer registratiens submitted prier te Oeteber 1, 2001, the applieant shall
serviee er beth;(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
GS) 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
proposinq to place or maintain a wireless communications facilitv operatinq on
spectrum licensed bv the FCC shall supplv the file number of the FCC license
authorizino 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. lf 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. lf 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.
(0 A registrant may cancel a registration upon written notice to the City stating that it
will no longer place or maintain any communications facilities, includinq 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.
(g) Registration does not in and of itself establish a right to place or maintain or
priority for the placement or maintenance of a communications facility in public rights-of-
way within the City but shall establish for the registrant a right to apply for a permit, if
permitting is required by the City. Registrations are expressly subject to any future
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t amendment to or replacement of this Article and further subject to any additional City2 ordinances, as well as any state or federal laws that may be enacted from time to time.
34 (h) Registrant shall renew its registration with the City, annually, by the anniversary5 of the date of initial registration. Each renewal shall include an inventory of the6 communications facilities, poles, towers, underqround lines and equipment cabinets7 reqistrant installed in public riohts-of-wav in the City durinq the last term of the8 reqistration and an inventory of the wireless communications facilities, poles, towers and9 equipment cabinets reqistrant abandoned in the public riqhts-of-wav in the Citv durinq10 the last term of the reqistration. Within 30 days of any change in the information1'1'requiredtobesubmittedpursuanttosubsection(c)hereof,@1,2@aregistrantshallprovideupdatedinformationtotheCity=-g-g"13i1'4i@FailuretorenewaregistrationmayresultintheCityrestricting15 the issuance of additional permits until the eemmunieatiens serviees previder lapsed
16 reoistrant has complied with the registration requirements of this Article.
1718 (i) ln accordance with applicable City ordinances, codes or regulations, a permit19 may+ee required of a that desires to place20 or maintain a communications facility, includino, without limitation. a collocation, in public21. rights-of-way. An etfective registration shall be a condition precedent to obtaining22 Historic Preservation or Desion Review Board approval or a rioht-of-Wav permit.23 Notwithstanding an effective registration, all permitting requirements of the City shall24 apply. A permit may be obtained by or on behalf of a registrant having an effective25 registration if all permitting requirements are met.
2627 Sec. 104-5. Notice of transfer, sale or assignment of assets in public rights-of-way.28 tlaA registrant its29 assets located in public rights-of-way rneident:xcru! to a person holdinq a valid reqistration30 issued pursuant to Section 104-4. hereof. Written notice of anv such proposed transfer, sale or31 assignment assignee-shallJee
3233 with the requirements of this Article, Written netiee ef any sueh transfer, sale er assignment,34shallbeprovidedbysuchregistranttotheCitydaysafre+prroilg35 the effective date of the transfer, sale or assignment. lf the transferee, buyer er assignee is a
3637 t registrant' then the transferee, buyer er assignee
3839 assgnmen+-lf permit applications are pending in the r€gis+ran+b-name of the40 transferor/assionor, the transfereer$gye+-€+-lassignee shall notify the City Manager that the4t transferee-buy6pa,plassignee is the new applicant. Violation of the requirements of this Section42 104-5 will subiect the reqistrant to a fine of up to $500.00 for each dav the reqistrant fails to43 comolv. provided however. Citv does not claim the riqht to approve or denv reoistrants' asset44 transfers or assiqnments to communications services providers operatinq at least one45 communications facilitv within the Citv, and the failure to complv with this section does not void46 anv such asset transfer or assionment. The Citv reserves the rioht to exclude persons other47 than communications services providers from its rights of wav. Transfers or assiqnments of a48 communications facilitv to persons other than a communications services provider who will
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operate at least one communications facilitv within the Citv require compliance with this section
to insure continued use of the public riqhts-of-wav.
5 Sec. 104-6. Placement or maintenance of a communications facility in public rights-of-6 way.
78 (a) A registrant shall at all times comply with and abide by all applicable provisions of9 the state and federal law and City ordinances, codes and regulations in placing or10 maintaining a communications facility in public rights-of-way, including, but not limited to,tL Articles ll and lll of Chapter 98, and Article V of Chapter 1 10 of this Code.
\213 (b) Registrant shall not commence to place or maintain a communications facilitn1.4 includinq without limitation a collocation. in public rights-of-way until all applicable15 permits, if any, have been issued by the City or other appropriate authorityr-exeept;16 provided, however. in the case of an emergency, a reqistrant mav restore its damaoed77 facilities in the riqht-of-wav to their pre-emerqencv condition or replace its destroved18 facilities in the riohts-of-wav with facilities of the same size, character and qualitv, all19 without first applvino for or receivinq a permit. The term "emergency" shall mean a20 condition that affects the public's health, safety or welfare, which includes an unplanned21 out-of-service condition of a pre-existing service. Registrant shall provide prompt notice22totheCityoftheplaeementrepairormai@ofacommunications23 facility in public rights-of-way in the event of an emergency, and shall be required to24 obtain an after-the-fact permit if a permit would have originally been required to perform25 the work undertaken in the public rights-of-way in connection with the emergency.26 Registrant acknowledges that as a condition of granting permits, the City may impose27 reasonable rules or regulations governing the placement or maintenance of a28 communications facility in public rights-of-way. Permits shall apply only to the areas of29 public rights-of-way specifically identified in the permit. The City may issue a blanket30 permit to cover certain activities, such as routine maintenance and repair activities, that31 may othenruise require individual permits.
3233 (c) As part of any permit application to place a new or replace an existing wireless34 communications facility in public rights-of-way, includinq, without limitation, a collocation,35 the registrant shall provide the following:
3637 (1) The location of the proposed facilities, including a description of the38 facilities to be installed, where the facilities are to be located, and the39 approximate size of the facilities that will be located in public rights-of-way;
4041. (2) With respect to proposals to locate a new tower or replace an existino42 tower or wireless communication facilitv in the rioht-of-wav. enqineerino43 documentation demonstratinq either: (i) how the proposed tower or wireless44 communications facilitv can accommodate multiple collocations: (ii) whv the45 Citv's interest in safe. aesthetic, efficient and effective manaqement of the public
46 riohts-of-wav is better served bv the proposed tower or wireless communications47 facilitv than bv a communications facilitv that could accommodate multiple48 collocations. or (iii) whv a reourposed structure is not better suited to or feasible49 for the site:
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(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;
(5) For purposes of assessino impact on riqht of wav resources, effects on
neiqhborinq properties and potential for collocations or repurposed structures,
information on the abilitv of the public riqhts-of-wav to accommodate the
proposed facilitv, includino information that identifies all above-qround and below
qround structures (includinq lioht poles. power poles, equipment boxes and
antenna), currentlv existinq in the public riohts-of-wav in the Citv within a 500-
feet radius of the proposed facilitv. if available (such information mav be provided
without certification as to correctness, to the extent obtained from other
reoistrants with facilities in the public riqhts-of-wav); however, if the applicable
Board determines that it either: (1) better serves the Citv's interests in safe,
aesthetic, efficient and effective manasement of the public riqhts-of-wav: (2) is
necessary to address a documented lack of capacitv for one or more carriers; or
(3) will help minimize the total number of communication facilities necessarv to
serve a particular area, then the 500-foot distance requirement mav 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) lf 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) Fer purpeses ef assessing impaet en right ef way reseurees, effeets en
(9) Whether all or anv portion of the proposed facilities will be rented. hired.
leased, sublet or licensed from or to anv third partv and. if so. the identitv. and
contact information of that third partv: and
({€) Such additional informatlon 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 otheruvise 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 arca of public rights-of-way- and mav consider, a
and without limitation, the sufficiencv of space to accommodate all of the present
communications facilities and pendinq applications pr€j
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place and maintain facilities in that area of the public riohts-of-wav, the sufficiencv of
space to accommodate Citv announced plans for public improvements or proiects that
the Citv determines are in the public interest, the impact on traffic and traffic safetv, and
the impact upon existinq facilities in the riqhts-of-wav. The Citv Manaqer or the
Manaqer's desiqnee mav impose additional reasonable requlations and conditions to
ensure the public health. safetv and welfare. and peaceful eniovment of Citv 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
eemmunieatiens serviees previders reqistrant 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.
(0 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. lf 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-Elorida Slatutes S 337.402
e00g[ 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 F.$Elorida Statutes
SS 337.403 and 337.404{200+* as they may be amended from time to time. Subject to
the aforementioned = Florida Statutes SS 337.403 and 337.404 and other provisions of
law, whenever existing overhead utility distribution facilities are converted to
underground facilities pursuant to Article V of Chapter 110 of this Code, any
eeoqlqtrnieatiens serviees reqistrant 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.
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(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.
0) A registrant shall maintain its communications facilities in public rights-of-way in a
manner consistent with accepted industry practice and applicable law.
(k) ln 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, Gh, Florida Statutes, Chapter 556,{2000), as it may be amended from time
to time.
(l) 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 laMully 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, modifv. abandon or othenrise 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
installation of facilities in the public rights-of-way. lf 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
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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
eemmunieatiens serviees previder reoistrant is required to make under the Underground
FacilityDamagePreventionandSafetyActsetforthin@Chaoter
556{2000}* as amended from time to time. The fact that such plans or survey is on file
with the City shall in no way abrogate the duty of any person to comply with the
aforesaid 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 FS{ Florida Statutes L 202.195
eOO+* 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
reseryes 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 promptlv, 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 followino additional requirements applv when a reoistrant seeks authoritv to
locate a wireless communications facilitv in the public riohts-of-wav:
(1) Reqistrants seekinq to locate wireless communications facilities within the
Citv are encouraged to locate on private propertv or qovernment-owned prooertv
outside of the riqhts-of-wav. An application for a permit to locate wireless
communications facilities within the riohts-of-wav shall explain whv the applicant
is unable to locate the proposed facilities on private propertv or qovernment
owned propertv. The Citv mav not denv an application based solelv on the fact
that the applicant is proposino to place a wireless telecommunications facilitv in
the riqhts-of-wav.
(2) Reoistrants seekino to place, construct or modifv a wireless
communications facilitv in the riqht-of-wav shall either:
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a. collocate wireless communications facilities with the wireless
communications facilities of other wireless providers, as set out in Florida
Statutes S 365.172, as amended, or
b. install their wireless communications facilities on existino
structures within the riqht-of-wav. includinq without limitation existinq
power poles. lioht ooles and telephone poles or
c. repurpose an existinq structure. With respect to proposals to
locate a new tower or replace an existino tower or wireless
communications facilitv in the rioht-of-wav, enoineerinq documentation
demonstratinq either: (i) how the proposed tower communications facilitv
can accommodate multiple collocations: (ii) whv the Citv's interest in safe,
aesthetic, efficient and effective manaqement of the public riqhts-of-wav
is better served bv the proposed tower or wireless communications facilitv
than bv a communications facilitv that could accommodate multiple
collocations: or (iii) whv ether a repurposed structure is not would be
better suited to or feasible for to the site.M
facilitv te be lecat
faeilitv with the wir r cemmunicatien
(3) Reqistrants seekinq to construct wireless communications facilities within
the riohts-of-wav shall locate their wireless communication facilities in the riohts-
of-wav of arterial or collector roadwavs, whenever possible. An application for a
permit to place wireless communication facilities in riohts-of-wav other than those
of arterial or collector roadwavs shall explain whv the applicant is unable to
locate the wireless communications facilities in the riqhts-of-wav of an arterial or
collector roadwav and shall include an enoineerinq analvsis from the aoplicant
demonstratinq to the satisfaction of the Citv enqineer 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 rioht-of-
wav with residential uses on one or both sides, neither towers, poles, equipment,
antennas or other structures shall be placed directlv in front of a residential
structure. lf a riqht- of-wav has residential structures on onlv one side, the
wireless communications facilities shall be located on the opposite side of the
rioht-of-wav, whenever possible. All wireless communications facilities shall be
located such that views from residential structures are not impaired. Newlv
installed poles and towers for wireless communications facilities should be
located in areas with existinq foliaqe or other aesthetic features in order to
obscure the view of the pole or tower. The requirements of this subparaqraph
shall not applv to repurposed structures. when there is a one-to-one reourposino
of an existino structure (ie: existino lioht pole).
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(5) Reoistrants are required to locate wireless communications facilities
within riqhts-of-wav in a manner that minimizes their impact in the Citv. includinq
without limitation Miami Beach Historic Districts. Whenever a reqistrant applies
for a permit to locate a wireless communications facilitv in a riqht-of-wav within a
Miami Beach Historic District, a copv of the permit application shall be
simultaneouslv served on the Citv of Miami Beach Historic Preservation staff. All
other applications for permits to locate a wireless communications facilitv within
the Citv shall be simultaneouslv served on the Desiqn Review staff. Reqistrant
must obtain the approval of the Desiqn Review Board or the Historic Preservation
Board (depending on the proposed facilitv's location and each board's respective
iurisdiction) for the desion and location of the wireless communications facilitv. in
accordance with their respective desion review or appropriateness criteria. The
Citv reserves the riqht to condition the qrant of anv permit to locate a wireless
communications facilitv within the rioht-of-wav upon the reqistrant takinq such
reasonable measures, consistent with the Citv authoritv's iurisdiction, as the Citv
mav determine are necessarv to mitiqate the impact of the wireless
communications facilitv on a Miami Beach Historic District-++-ethe+-+ea+bv
faeilities-anC-+ses. lnstallation of a pole or tower under this Chapter shall not
interfere with a clear pedestrian path, at a minimum the width required bv the
Americans with Disabilities Act and Florida Buildinq Code.
(6) Stealth desiqn 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 facilitv in the riqht-of-wav shall include:
a. photoqraphs clearlv showinq the nature and location of the site
where each wireless communications facilitv is proposed to be located,
b. photoqraphs showinq the location and condition of properties
adiacent to the site of each proposed wireless communications facilitv,
and
c. a description of the stealth desiqn techniques proposed to
minimize the visual impact of the wireless communications facilitv and
shall include oraphic depictions accuratelv representinq the visual impact
of the wireless communications facilities when viewed from the street and
from adiacent properties.
(7) Stealth desiqn of communications facilities to be located on new towers or
wireless communications facilities in the riqhts-of-wav shall eliminate the need to
locate anv qround or elevated equipment (other than antennas) on the exterior of
a tower or wireless communications facilitv. Stealth desion of communications
facilities to be located on existino structures other than towers shall minimize the
need to locate anv qround equipment or elevated equipment (other than
antennas) on the exterior of the structure. The use of foliaoe and veqetation
around anv approved oround equipment mav be required bv the Citv based on
conditions of the specific area where the qround equipment is to be located and
in accordance with Subpart B. Land Development Reoulations, Chapter 126,
Landscapinq.
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(8) Stealth desiqn of communications facilities to be located on structures in the
riqhts-of-wav shall (a) top mount antennas within enclosures that do not extend
the diameter of the supportino structure at the level of antenna attachment and
(b) shall side mount antennas within enclosures that do not extend more than two
feet bevond the exterior dimensions of the supportino structure at the level of
antenna attachment. Under no circumstances shall antennas be mounted less
than eiqht feet above qround level. For purposes of calculatinq (a) and (b).
above, the dimensions of the supportinq structure do not include anv platform.
rack. mount or other hardware used to attach an antenna or antenna enclosure
to the supportinq structure.
(9) The followino additional requirements shall applv to wireless
communications facilities located in the riqhts-of-wav.
a. Each application to locate equipment at oround level on or
adiacent to the exterior of a pole or tower and each proposal to locate
elevated equipment (other than antennas) on or adiacent to the exterior of
a tower or pole shall include enoineerino documentation demonstratino to
the satisfaction of the Citv enqineer that the facilitv cannot emplov stealth
desion and that the prooosed exterior location and confiouration of
equipment proposes the minimum equipment necessarv to achieve
needed function. ln order to avoid the clusterino of multiple items of
approved oround equipment or elevated equipment in a sinqle area. onlv
one equipment box mav be located in anv sinqle location.
b. Where a reqistrant demonstrates that stealth desion cannot be
emploved, the individual approved exterior equipment boxes shall not
exceed 12 cubic feet in volume
three (3) feet high in size.
c. Wireless communications facilities in the riqhts-of-wav must be
spaced a minimum of 500 linear feet of riqhtof-wav apart from each other
except that no distance requirement shall applv to repurposed structures.
This subsection mav be waived upon a factual showinq, supported bv
sworn testimonv or matters subiect to official notice, demonstratino to the
satisfaction of the Citv. as determined bv the Desiqn Review Board or
Historic Preservation Board, dependinq upon which has iurisdiction, that
locatino a specific wireless communications facilitv less than 500 feet
from other wireless communications facilities either: (1) better serves the
Citv's interests in safe, aesthetic. efficient and effective manaqement of
the public riqhts-of-wav than application of the 500 feet limitation: (2) is
necessary to address a documented lack of coveraqe or capacitv for one
or more carriers: or (3) will help minimize the total number of wireless
communication facilities necessarv to serve a particular area. See
Section 104-6(cX5).
d. The size and heiqht of new wireless communications facilitv
towers and poles in the rights-of-wav shall be no oreater than the
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maximum size and heiqht of anv other utilitv or lioht poles located in the
same portion of the riqht-of-wav within the Citv; provided however that
registrants proposinq wireless communications facilities with antennas to
be located on existinq poles or repurposed structures mav increase the
heioht of the existinq pole or repurposed structure up to 6 (six) feet, if
necessarv. to avoid adverselv affectinq existinq pole attachments: and
provided further that the overall heiqht above qround of anv wireless
communications facilitv shall not exceed fortv (40) feet.
e. Wireless communications facilities installed on poles or towers
that are not lioht poles, and repurposed structures that were not orioinallv
liqht poles. shall not be lit unless liqhtino is required to complv with FAA
requirements.
f. Reoistrants shall not place advertisino on wireless
communications facilities installed in the riqhts-of-wav, provided,
however, that repurposed structures that lawfullv supported advertisinq
before beinq repurposed mav continue to support advertisinq as
othenrise permitted bv law.
(10) The Citv's action on proposals to place. construct or modifv wireless
communications facilities shall be subiect to the standards and time frames set
out in Florida Statutes S 365.172.47 USC $ 1455(a), and Orders issued bv the
FCC. as thev mav be amended.
(u) The oblioations imposed bv the requirements of subsections 104-6(tX1) throuqh
104-6(t)(9). above, upon reqistrants proposinq to place or maintain wireless
communications facilities in the public riqhts-of-wav shall also applv to reqistrants
proposino to place or maintain anv other tvpe of communications facilitv in public-riohts-
of-wavs. if that other tvpe of communications facilitv involves placement of over-the-air
radio transmission or reception equipment in the public-riohts-of-wav.
(v) Prior to the issuance of anv permit oertainino to the placement and maintenance
of communications facilities within the public riqhts-of-wav, the Citv mav require the
reqistrant to issue notice of the work to propertv owners who adioin such riohts-of-wav
(the "notification area"), and based on the scope of the proposed work, the number of
affected propertv owners and the potential severitv of the impact to such propertv
owners, mav further require the reqistrant to hold a public information meetinq for
purposes of answerino questions and takinq comments from affected propertv owners.
The notification area mav be expanded at the Citv's discretion and notice shall be
effected in a manner deemed appropriate bv the Citv: 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 meetinq be required, the
reqistrant shall meet with Citv staff as soon as practical to review comments received at
the public information meetino, and attempt to resolve all neoative comments or issues
raised.
(w) Pursuant to FS Florida Statutes $ 337.401(cX1Xb€OOO) and other applicable
provisions of law, and notwithstanding any other provisions of this Code, the City hereby
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elects not to charge permit fees to any registrant for permits to do work in the publlc
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:8 (1) Violation of permit conditions, including conditions set forth in the permit, this9 Article or other applicable City ordinances, codes or regulations governing placement or10 maintenance of communications facilities in public rights-of-way;1,1 (2) Misrepresentation or fraud by registrant in a registration or permit application toL2 the City;1,3 (3) Failure to properly renew or ineffectiveness of registration. or74 (4) Failure to relocate or remove facilities as may be lawfully required by the City.15 The City Manager shall provide notice and an opportunity to cure any violation of (1) through (4)16 above, each of which shall be reasonable under the circumstances.
1718 Sec. 104-8. Appeals.
1920 Any person aggrieved by any action or decision of the City Manager, or his or her designee,27 with regard to any aspect of registration under this Article may appeal to the special master22 appointed pursuant to Article ll of Chapter 30 of this Code by filing with the special master,23 within 30 days after receipt a written decision of the City Manager, or his or her designee, a24 notice of appeal, which shall set forth concisely the action or decision appealed from and the25 reasons or grounds for the appeal. No requests for extension of time for filing an appeal will be26 permitted. The only appeal that shall be considered are those appeals that allege that there is27 error in any order, requirement, decision, or determination made by an administrative official in28 the enforcement of this Article. The special master shall set such appeal for hearing on the very29 next available date following such notice of appeal and cause notice thereof to be given to the30 appellant and the Citv Manaqer, or his or her designee shall present the case on behalf of the31 City. The special master shall hear and consider all facts material to the appeal and render a32 decision within 20 calendar days of the date of the hearing. The special master may affirm,33 reverse or modify the action or decision appealed from; provided, that the special master shall34 not take any action which conflicts with or nullifies any of the provisions of this Article. Any35 person aggrieved by any decision of the special master on an appeal shall be entitled to apply36 to the Circuit Court for a review thereof by Petition for Writ of Certiorari in accordance with the37 applicable court rules.
3839 Sec. 104-9. lnvoluntary termination of registration.
4041. (a) The City may terminate a registration if:42 (1) A federal or state authority suspends, denies, er-revokes or othenruise43 fails to qrant a @ certification or license required to44 provide communications services;45 (2) The registrant's placement or maintenance of a communications facility in46 the public rights-of-way presents an extraordinary danger to the general public or47 other users of the public rights-of-way and the registrant fails to remedy the48 danger promptly after receipt of written notice;-er49 (3) The reoistrant violates Florida Statutes S 843.025, as amended:
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(4) The reqistrant violates Florida Statutes $ 843.165, as amended; or(!) 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 (3O 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. lf 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) ln 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.lf 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 g0 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) ln 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) ln 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 certlfication or license with the governing federal or state
agency, if required for provision of such service, and is registered with the City, if
required.
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Sec. 104-10. Existing communications facilities in public rights-of-way.
A communications services provider, communications f
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. The Gity Manager may grant reasenable extensiens ef
existing nen eenferming eemmunieatiens faeilities whieh eannet be breught inte eemplianee
Sec. 104-1 1. lnsurance.
(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 com pensation-Florida statutory req u irements.(2) Comprehensivegeneralliability.
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. !ndemnification.
(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+y5{slq-€Ffacilities 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
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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 S 768.28-€€00)r, as it may be
amended from time to time.
(b) The indemnification requirements shall survive and be in effect after the
termination or cancellation of a registration.
Sec. 104-13. Construction bond.
(a) Prior to issuing a permit where the work under the permit will require restoration
of public rights-of-way, a City may require a construction bond to secure proper
performance under the requirements of any permits and the restoration of the public
rights-of-way. Twelve 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." Notwithstandl
not be required if the cost of restoration is less than the amount of the securitv fund filed
bv reoistrant under Citv 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
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1 performance at all times. ln the event a registrant fails to perform its duties and obligations2 imposed upon the registrant by the provisions of this Article, subject to_section 104-15 of this3 Article, there shall be recoverable, jointly and severally from the principal and surety of the4 security fund, any damages or loss suffered by the City as a result, including the full amount of5 any compensation, indemnification or cost of removal, relocation or abandonment of any6 facllities of the registrant in public rights-of-way, plus a reasonable allowance for attorneys' fees,7 up to the full amount of the security fund. Notwithstanding the foregoing, the City may in its8 discretion not require a security fund or may accept a corporate guarantee of the registrant or its9 parent company.
107L Sec. 104-15. Enforcement remedies.
!213 (a) A registrant's failure to comply with provisions of this Article shall constitute at4 violation of this Article and shall subject the registrant to the code enforcement15 provisions and procedures as provided in Chapter 30 of this Code, including theLO provisions of Chapter 30 that allow the City to seek relief as otherwise provided by law.
t718 (b) Failure of the City to enforce any requirements of this Article shall not constitute a19 waiver of the City's right to enforce that violation or subsequent violations of the same20 type or to seek appropriate enforcement remedies.
2722 Sec. 104-16. Abandonment of a communications facility.
2324 (a) Upon abandonment of a communications facility owned by a registrant in public25 rights-of-way, the registrant shall notify the City within 90 days.
2627 (b) The City may direct the registrant by written notice to remove all or any portion of28 such abandoned facility at the registrant's sole expense if the City determines that the29 abandoned facility's presence interferes with the public health, safety or welfare, which30 shall include, but shall not be limited to, a determination that such facility: (1)31 compromises safety at any time for any public rights-of-way user or during construction32 or maintenance in public rights-of-way; (2) prevents another person from locating33 facilities in the area of public rights-of-way where the abandoned facility is located when34 other alternative locations are not reasonably available; or (3) creates a maintenance35 condition that is disruptive to the public rights-of-way's use. ln the event of (2) above, the36 City may require the third person to coordinate with the registrant that owns the existing37 facility for joint removal and placement, where agreed to by the registrant.
3839 (c) ln the event that the City does not direct the removal of the abandoned facility,40 the registrant, by its notice of abandonment to the City, shall be deemed to consent to4L the alteration or removal of all or any portion of the facility by the City or another person42 at such third party's cost.
4344 (d) lf the registrant fails to remove all or any portion of an abandoned facility as45 directed by the City within a reasonable time period as may be required by the City46 under the circumstances, the City may perform such removal and charge the cost of the47 removal against the registrant.
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Sec. 104-17. Force majeure.
ln the event a registrant's performance of or compliance with any of the provisions of this Article
is prevented by a cause or event not within the registrant's control, such inability to perform or
comply shall be deemed excused and no penalties or sanctions shall be imposed as a result,
provided, however, that such registrant uses all practicable means to expeditiously cure or
correct any such inability to perform or comply. For purposes of this Article, causes or events
not within a registrant's control shall include, without limitation, acts of god, floods, earthquakes,
landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil
disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or
court. Causes or events within registrant's control, and thus not falling within this section, shall
include, without limitation, registrant's financial inability to perform or comply, economic
hardship, and misfeasance, malfeasance or nonfeasance by any of registrant's directors,
officers, employees, contractors or agents.
Sec. 104-18. Reservation of rights and remedies.
(a) The City reserves the right to amend this Article as it shall find necessary in the
lavrrful exercise of its police powers.
(b) This Article shall be applicable to all communications facilities placed in thepublicrights-of-wayonoraftertheeffectivedateofthis@
(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 franchlse, 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 p-.S-EjoriOa Statutes SS
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 FS Florida Statutes S
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 FS{
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Florida Statutes S 202.20, plus 0.12 percent, as permitted by Florida Statutes $
337.401, for a total of 5.22 percenl.
(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
@) Pass{hrough 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
the maximum annual amount allowed under-#=$ Florida Statute $ 337.401, as
amended. For purposes of calculatinq pavments hereunder. each separate pole or
tower installed or maintained bv a pass-throuoh provider or communications facilitv
provider for purposes of supportinq antennas or other overthe-air radio transmission
or reception equipment in the public riqhts-of-wav shall comprise a separate
communications facilitv subiect to assessment of a separate permit fee in the amountof$500.00upal|owedunderspecifiedinFlorida
Statutes S 337.401, whichever is higher, to the extent that Florida Statutes 5337.401
is applicable.
@) The annual amount referenced in subsection 104-20(a), above, shall be due and
payable on October 1 of everv vear. Fees not paid within ten davs after the due date
shall bear interest at the rate of one oercent per month from the date due until paid.
The acceptance of anv pavment required hereunder bv the Citv shall not be
construed as an acknowledqement that the amount paid is the correct amount due,
nor shall such acceptance of pavment be construed as a release of anv claim which
the Citv mav have for additional sums due and pavable or authorization to install anv
facilities in the Citv's riohts-or-wav.
SECTION 2.City Code Chapter 118, "Administration and Review Procedures," Article ll,
"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
advisor to the City Commission, and may impose binding criteria, as provided in Chapter
82, Article Vll, 'Art in Public Places," Division 4, "Procedures.] This authoritv shall
include review and aoproval of desion and location within public riqhts-of-wav outside of
locallv desionated historic districts of all wireless communications facilities,
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imprevements and f
strueturesl-as defined in Chapter 104, "Telecommunication," Article l, "Communications
Riohts-of-Wav" 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.
(5)To hear and decide appeals of the planning director when deciding matters pursuant
to section 1 18-260.
SECTION 3. City Code Chapter 118, "Administration and Review Procedures," Article
"Boards," Division 4, "Historic Preservation Board," Section 118-102, "Powers and duties,"
hereby amended as follows:
Sec. 1 18-102. 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 compatlbility of proposed
alteration or development within designated historic sites or historic districts.
(3) lssue 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 authoritv shall include review and approval of desiqn and location
within public riohts-of-wav inside of locallv desionated historic districts of all wireless
communications facilities, imprevements and f
@as defined in Chap Article l,
"Communications Riohts-of-Wav," and under the standards provided therein, at section
104(6Xt).
(4) Recommend restoration of property to its prior condition as required by section
1 18-533 when the property has been altered in violation of this division.
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t2 (5) Advise the board of adjustment with regard to variances associated with3 properties designated as historic sites, historic buildings, historic structures, historic4 improvements, historic landscape features or any building or structure located within a5 historic district or a National Register District through written recommendation to be read6 into the record by the planning and zoning director at the board of adjustment's hearing.
78 (6) Facilitate the redevelopment of historic sites and districts by directing the9 planning department, and other City departments, to provide advisory and technical10 assistance to property owners, applicants for certificates of appropriateness.
1.1.t2 (7) Make and prescribe by-laws and application procedures that are reasonably13 necessary and appropriate for the proper administration and enforcement of the1,4 provisions of this division. The board shall prescribe forms for use by applicants when15 requesting action under this division. The board may authorize any one of its members16 to administer oaths and to certify official documents.
7718 (8) Award historic markers or plaques upon the recommendation of the City19 manager and with the consent of the City Commission.
202L (9) Update and revise the historic properties database.
2223 (10) Advocate that the City administration explore and advise the Historic24 Preservation Board and the building official as to alternatives available for stabilizing and25 preserving inadequately maintained and/or unsafe buildings or structures within the26 City's designated historic districts or on designated historic sites.
2728 (11) Review all new construction, alterations, modifications and improvements to any29 building, structure, improvement, landscape feature, public interior or site individually30 designated in accordance with Sections 118-59'1 , 118-592 and 118-593, or located31 within an historic district.
3233 (12) To review any and all amendments to this Code affecting historic preservation34 issues; specifically division 4 of Article ll of Chapter 118 entitled "Historic Preservation35 Board," and Article X of Chapter 1 18 entitled "historic preservation," pursuant to Section36 1 18-163.
37
3839 SECTION 4. City Code Chapter llS, "Administration and Review Procedures," Article Vl,40 "Design Review Procedures," Section 118-251, "Design Review Criteria," is hereby amended as47 follows:42***43 Sec. 118-251. Desiqn review criteria.
4445 (a) Design review encompasses the examination of architectural drawings for46 consistency with the criteria stated below, with regard to the aesthetics, appearances,47 safety, and function of any new or existing structure and physical attributes of the project48 in relation to the site, adjacent structures and surrounding community. The board and49 the planning department shall review plans based upon the below stated criteria, criteria
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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. lf 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 watennrays.
(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.
(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 flre 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 tratfic flow on these roads and to permit vehicles a rapid and safe ingress and
egress to the site.
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(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.
(1 1) 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
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) ln addition to the foreqoinq criteria, Section 104-6(t) of the Citv Code the
felleYvins criteria frem
OrCi+ane+shall applv to the Desiqn Review Board's review of anv prooosal to place,
construct. modifv or maintain a wireless communications facilitv or other over the air
radio transmission or radio reception facilitv in the public-riqhts-of-wav.
(i) With respeet te p
reeiskant must dem
can accemmedate mu
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that 6euld ac€emmo
s365:172(12XbX
(ii) Reeistrants s
eitv are enceuraqed
Chapter 1g'1: An ap te lecate wireless
faeilities within t
tRef; eitv Cede $10
(iii) Reqistrant ,-- censtruct er mo
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€€rmfrt
Statutes S 365;172B: install their wl
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te eenstruct a new a
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en existine struet
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s365,172(12XbX
(iv) Reqistran
riqhts e{ wav sha acilities in th
wav ef arterial er co
plaee wireless eemm
lecate the wireles
wireless eemmunie a+i€'r++Re+r
FlerkJa Statutes S3
(v) Whenever wireles
with residential r€n+
wireless communica
rieht ef wav, whene
lecated such that v
installed peles affi/ireless cemmun
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lecated in areas wit
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(x) Where a reqistra
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q365,172(bX5) an
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(xi) Wireless Gemm
minimum ef 500 line
requirement mav be wa
the eitv that lecat
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(xii) The size and h
the riqhts ef wav sha
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increase the heieffi
if necessarv: te avo
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faeilitv shall net e
Flerida Statutes S
(xiii) Wireless co
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law fRef: Flerida S
(xv) The Citv's a€tio
ffi;365:172: asamen
(A) The previsiens
(B) The preyisrens iffi
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replacements; in ea
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(e) The Brevisions
review te land dev i+dmi{ati€n
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(D) The previsiens G,f Flerida Statut
se+i$fv struetural safe
(E) The previsiens
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(F) The previsiens
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(G) The reeuirement
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appearan€e=
SECTION 5. City Code Chapter 1 18, "Administration and Review Procedures," Article X,
"Historic Preservation," Division 3, "lssuance of Certificate of Appropriateness/Certificate to
Dig/Certificate of Appropriateness for Demolition," Section 1 18-564, "Decisions on certificates of
appropriateness," is hereby amended as follows:
Sec. 1{ 8-564. 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 lnterior's Standards for Rehabilitation and Guidelines
for Rehabilitating Historic Buildings as revised from time to time; and
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b. Other guidelines/policiesiplans adopted or approved by resolution or
ordinance by the City Commission.
(2) ln 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
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
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d.
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1.4
f.
structures and primary public interior areas for developments requiring
a building permit in areas of the City identified in section 1 18-503
The proposed structure, and/or additions to an existing structure is-are
appropriate to and compatible with the environment and adjacent
structures, and enhanees-enhance the appearance of the surrounding
properties, or the purposes for which the district was created.
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.
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.
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.
Landscape and paving materials shall be reviewed to ensure an
adequate relationship with and enhancement of the overall site plan
design.
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.
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
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g
h.
Additions to the Ordinance are underlined.
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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.
All buildings shall have an appropriate and fully integrated rooftop
architectural treatment which substantially screens all mechanical
equipment, stairs and elevator towers.
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).
All portions of a project fronting a street or sidewalk shall incorporate
an amount of transparency at the first level necessary to achieve
pedestrian com pati bility.
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.
+ ln addition to the foreqoinq criteria. Section 104-6(t), and the
requirements of Chapter 104. of the Citv Code shall applv to the
Desiqn Review Board's review of anv proposal to place. construct,
modifv or maintain a wireless communications facilitv or other over the
air radio transmission or radio reception facilitv in the public-riqhts-of-
wav, additien te the f ine
criteria fre{n Chapt
ether ever the air r
publiG riehts ef wa\fi
S-
riqht ef wav; th at-{he
bv the prepesed cemrurnioatiens facil
facilitv that ceuld
Statutes s365;17'
t+-
Additions to the Ordinance are underlined.
S+nke$+eughs represent language removed from the Ordinance.
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fa6ilities within
er qevernment ewned
Repurpese Existl suant te the City'
Riehts ef Wav Ordin
x€itair+why+he
er qevernment ewne
y-
Florida Statutes S
s+r{J€tu+etq within the riq
4re{€ss
wireless cemmunica
wireless previde l€€s
ef
€G-
faeilities within t
riehts ef wav ef aft
readwavs; wheneve
'ter than these ef a
frem the applicant
the areas Brepesed in
gg-
rieht ef wav with res
peles: eeuipment;
i+ front ef a residen
that views from resi
Additions to the Ordinance are underlined.
S+i*etnreushs represent language removed from the Ordinance.
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installed peles an
features in erder to
requirements ef th
reBlacement ef an ex
gf,-
minimi"e the visua
Flerida Statutes q
i
ereund er elevated e
en the exterier ef th
based en cenditien
is te be lecated an q+
Requlatiens: Ghap
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enclesures that do
within enclesures
the exterier dimens
rnounted less than eh
€{€4-6(t)€+
cannet emplev stea
neeessarv te achieve
ef multiple items o
Additions to the Ordinance are underlined.
S+i*et+rcughs represent language removed from the Ordinance.
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anv sinqle lecatio
Cede S10'1 G(tXgXil
ee-
empleved: the indl
Flerida Statutes S
gqr
frem ea6h ether: This
netioe: demenstra
wireless cemmuni6
te address a decumen
€)+ari.l+-h€'lp minimize the
neeessarv te serve a p
ensure cemBlianee w
lRef, Flerida Stat
SS-
reeistrants BreBesl
the eitv's Telecem
increase the heiehL
6 (six) feet; if neo
u{*-
that are net liqht p
Citv's Teleeemmuni
UA#--
Additions to the Ordinance are underlined.
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repurposed struetu
repurpesed pursu s Riqhts ef Wav O
Flerida Statutes Q
YY-
wireless cemmHnio €tanCards
includinq witheu H
aaa-
€€€-
tewer replacement rll heiqht ef the t
n€tin€r€€sedi
eee-
limitinq review te l
witheut lirni+at -s+ueture---ean
reasenablv be used
eannet be served from
ef a prepesed tewer
gtx,=-
limitine setbaeks
neeessarv te satisfv s
Citv te Gee?erate iens
that prehibit a Brov
distri€+
tvpes ef censtruofio
mmm-
nnn. (G) The reeuirements
limitinq review ef o
medifieatiens (b inM
SECTION 6. GODIFICATION.
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
Additions to the Ordinance are underlined.
Str*et+rcughs represent language removed from the Ordinance.
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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.
lf 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 shalltake effect ten days following adoption.
PASSED and ADOPTED this day of
ATTEST:
2014.
Philip Levine, Mayor
Rafael E. Granado, City Clerk
APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUIIONLp,"t ,i.,r,i- ,ir Q-lAJ@u
CITY ATTORNEY Date
Underscore denot6's new language
Str*e-tn+eugh denotes stricken lang uage
First Reading:
Second Reading:
Additions to the Ordinance are underlined.
S+nk+n+eughs represent language removed from the Ordinance.
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