R5E-Telecommunications Rights Of Way -Malakoff-b
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MIAMIBEACH
FROM: Raul Aguila, City Attorn "RJimmy Morales, City Maffiel
l_
Clty ol Mloml Beoch, I 700 Convention Center Drive, Miomi Beoch, Florido 33139, www.miomibeochfl.gov
COMMISSION MEMORANDUM
TO: Mayor Levine and City Commission
DATE: February 11,2015
SUBJECT: Telecommunications Ordinance Second Reading
TITLE: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE C!ry OF
MIAMI BEACH, FLORIDA, AMENDING THE CITY CODE, CHAPTER 104,,,TELECOMMUNICATIONS," ARTICLE l, ,'COMMUNICATTONS 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 APPROPRTATENESS
REVIEW AND APPROVAL BY THE DESIGN REVIEW BOARD AND HISTORIC
PRESERVATION BOARD; CREATING STANDARDS FOR COMMUNICATIONS
FACILITIES DESIGN, LOCATION AND COLLOCATION; ADDTNG STANDARDS
FOR SITE IMPROVEMENTS, USE OF AND RESTORATION OF SITES AND
RIGHTS.OF.WAY, INGLUDING DISTANCE SEPARATION BETWEEN
COMMUNICATIONS FACILIT!ES AND BETWEEN SUGH FACTLITTES AND
RESIDENTIAL USES AND CONTRIBUTING BUILDINGS IN HISTORIC DISTRIGTS;
TO PROVIDE FOR COMPENSATION TO THE CITY FOR THE USE OF PUBLIC
RIGHTS.OF.WAY FOR THESE PURPOSES; AND AMENDTNG SUGH OTHER
SECTIONS AS ARE APPROPRIATE TO PROTECT THE PUBLTC HEALTH,
SAFETY AND WELFARE; AND AMENDING THE LAND DEVELOPMENT
REGULATIONS OF THE C!ry CODE, CHAPTER 118, ARTICLE II, "BOARDS,"
DIVISIONS 3 AND 4, "DESIGN REVIEW BOARD" AND "HISTORIC
PRESERVATION BOARD," SECTIONS 118-71 AND 118.102, "POWERS AND
DUTIES," TO ADD REVIEW AND APPROVAL OF IMPROVEMENTS IN THE
RIGHTS.OF.WAY AS BEING WITHIN THE JURISDICTION OF THE DESTGN
REVIEW BOARD AND HISTORIC PRESERVATION BOARD RESPEGTTVELY; AND
CHAPTER 118, ARTICLE VI, "DESIGN REVIEW PROCEDURES," SECTION 118.251, "DESIGN REVIEW GRITERIA," AND ARTICLE X, ,,HISTORIC
PRESERVATION," DIVISION 3, "ISSUANCE OF CERTIFTCATE OF
APPROPRIATE N ESS/CERTI FICATE TO DIG/CERTIFICATE OF
APPROPRIATENESS FOR DEMOLITION," SEGTION 118.564, "DECISIONS ON
CERTIFICATES OF APPROPRIATENESS," ADDING CRITERIA FOR SUCH
REVIEW FOR TELECOMMUNICATIONS EQUIPMENT AND FAGILITIES;
PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY AND AN
EFFECTIVE DATE.
Agenda ltem RSE
Date 2-ll4{417
City Commission Memorandum
Telecommunications Ordinance - Second Reading
February 11,2015
RECOMMENDATION:
The City Commission should review the ordinance and if accepted, approve the ordinance on
first reading and set a second reading public hearing for adoption.
BACKGROUND:
On January 15, 2014, the City Commission directed the drafting of an ordinance to address the
issues raised by the Crown Castle applications. This referral provided an opportunity for
members of the City Commission to review the draft ordinance and provide policy guidance to
the City Attorney's Office and Administration. The ordinance was originally discussed by the
Committee on its March 19, 2014 agenda, continued to the April 9, 2014 meeting, and was
further continued to the May 7,2014 meeting.
At the May 7, 2014 meeting the Land Use and Development Committee adopted a motion to
refer this Ordinance to the Planning Board, and to bring the Ordinance back for further
discussion to the Committee on June 12, 2014 following review by the Planning and Public
Works Departments. On May 21, 2014 the City Commission adopted a motion to schedule the
Ordinance for review by the Planning Board at its July 22, 2014 meeting. On July 22, the
Planning Board reviewed the ordinance, adopted changes, and recommended it to the City
Commission for adoption. Zoning in progress for 150 days based on the Planning Board
recommendation expires on December 19, 2014.
On September 1 7, 2014 the City Commission adopted a resolution setting a six-month
moratorium on the acceptance of applications and the issuance of permits or approvals for
wireless personal telecommunications services towers ("Towers) in the public right-of-way to
give additional time to review the regulations applicable to Towers, due to the rapid changes in
Tower technology and concerns over the design and placement of the Towers within the City's
right-of-way. The changing technology may require or provide for an extensive proliferation of
street furniture within the City's rights-of-way. The City desires time to review the draft
ordinance in order to develop a mechanism that would minimize adverse impacts to the City's
public rights-of-way. The six-month moratorium was set to expire on March 16,2015. At first
reading of the Ordinance, which was held on December 17, 2014, the City Commission moved
to end the moratorium, which is reflected under Resolution
Prior to first reading on December 17th, the city vetted the draft ordinance:
The Land Use and Development Committee discussed the ordinance during the October 1,
2014 meeting. At that time the LUDC requested that a joint workshop of the City Commission
and Planning Board be held on October 28,2014. A Power Point presentation was presented
at that time. Commissioner Joy Malakoff attended the joint workshop. The workshop attendees
recommended a one-for-one replacement of street furniture with collocated equipment - having
a replacement light pole installed, with the telecommunications equipment internalized within the
pole; to limit the large telecommunications boxes from being placed in the ROW; for the City to
develop sample "light" pole designs for the various City districts; and to work with the State on
state roads to utilize a similar street furniture "swap."
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City Commission Memorandum
Te leco m m u n icatio n s O rd i n a nce - Second R e ad i n g
February 11,2015
Prior to the enactment of the moratorium in September, Crown Castle filed applications with the
City to obtain permits for Distributed Antenna System (DAS) nodes, a type of wireless personal
telecommunications services tower, at twenty-five locations throughout the City, in public rights-
of-way. To date, the Design Review Board has approved five applications, with one pending on
appeal to the City Commission. Twenty applications were filed for Certificates of
Appropriateness from the Historic Preservation Board. Upon lifting of the moratorium, the City
understands that Crown Castle may submit additional applications for DAS node approval in
other locations around the City. This DAS system is intended to supplement existing wireless
communications networks in the City by strengthening the signal between existing antenna
towers providing cellular and digital communications signals to the modern digital network of
smartphones, tablets and computers.
Due to the action on December 17,2014, to liftthe moratorium, the City is now processing the
remaining applications of Crown Castle. Several will be scheduled for hearing before the
Historic Preservation Board, under the guidelines of the ordinance as approved at first reading.
At first reading, the attorney for Crown Castle orally affirmed to the City Commission that the
applications to be processed by the City would comply with the ordinance approved at first
reading.
Crown Castle is the successor in interest to Sprint and Nextel, which already have
telecommunications systems in the City, both at a fixed location, the City parking garage at
1550 Collins Avenue, and at45 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 personaltelecommunications service provider, has also recently contacted the
City to provide comments on the draft ordinance, requesting to modify some of the proposed
language. The revisions requested are encompassed in the ordinance for second reading.
FPL and FPL Fiber Net have also provided input into the draft ordinance, which input is also
reflected in the second and final reading of the ordinance.
During the December 17, 2014 first reading of the ordinance the Commission provided direction
to ensure that the code provides additional and stronger language relating to the removal of
obsolete or dated equipment or poles from the rights-of-way. This language was inserted into
the Ordinance. At Page 2, under the definition of "abandonment" the following sentence was
added: "lt mav also mean the discontinued use of obsolete technoloqy in favor of new
technologv, which would require the removal of the discontinued, abandoned.
technoloqv." Sections 104-6(c)(9) and (10) and 104-16 were also modified. These
proposed revisions were moved by Commissioner Malakoff and accepted by the
Commission.
APPLICABLE LAWS GUIDING DRAFTING OF ORDINANGE:
State law relating to telecommunications:
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419
City Commission Memorandum
Telecomm unication s Ordinance - Second Readi ng
February 11,2015
Section 337.401, Florida Statutes provides: "Local governmental entities that have jurisdiction
and control of public roads are authorized to prescribe and enforce reasonable rules or
regulations as to the placement and maintenance (in, under, across or over) utility or
communications services lines."
Section 337.401(3Xa), Florida Statutes provides: "ln order to foster competition federal and
state law require municipalities to treat providers in a nondiscriminatorv and competitivelv
neutral manner in imposing rules or regulations governing placement or maintenance of utilities
in ROW." (emphasis added)
Section 337.401(3Xb), 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 nondiscriminatorv, and may include only those matters necessary 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(c)(7) - 1996 Federal Telecommunications Act- Creates Federal Shot
Clocks and FCC regulation of New Towers/Antennas/DAS
The Act provides that localzoning 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 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 revlew 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.
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City Commission Memorandum
Te leco m m u n ication s O rd i n a nce - Second Re ad i ng
February 11,2015
47 USC Section 1455(a) - alVa Section 6a09(a) of the Middle Class Tax Relief Act - Regutates
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."
FGC Order 14-153 (10-17-20141
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 ORDINANGE:
Below is a synopsis of the material modifications proposed to the telecommunications
ordinance, including all revisions made during first reading of the Ordinance on December 17,
2014.
Section 104-2, provides the intent of the ordinance specifies that anyone seeking to place or
maintain communications facilities in the right-of way must comply with the ordinance.
Section 104-3, modifies the definitions and adds definitions for arterial roadway, collector
roadway, collocation, communications facility, communication facility providers, pass-through
providers, "repurposed structures", stealth design, and wireless service. The definition of a
"repurposed structure" is new to the draft ordinance, and it encompasses the vocalized intent of
the Land Use and Development Committee to allow a provider to conduct a one-to-one swap-
out of light poles so that the City does not experience any additional street furniture being
placed in the rights-of-way.
Section 104-4 requires registration for placing or maintaining communications facilities in public
rights-of-way, and requires an annual update of all equipment in the City's rights-of-way held by
a single provider.
Section 104-5 requires the provider to provide notice to the City of any transfer, sale or
assignment of assets in the City's rights-of-way.
Section 104-6 provides for the review of an application to place equipment in the right-of-way,
including collocation or repurposed structures requests. The ordinance requires specific
information as to the location and size of equipment to be installed; proof that collocation cannot
occur; and safeguards for the city as to aesthetics, safety, and efficient management of the
City's rights-of-way. The ordinance provides a 500 feet distance requirement between facilities,
unless collocation is to occur, or a specific service coverage need is documented. The provider
must comply with Americans with Disabilities Act and Florida Building Code. The provider must
document that the use could not first be placed on private property. Thereafter, once that
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City Commission Memorandum
Telecommunications Ordinance - Second Reading
February 11,2015
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:
o Review of sufficiency of space in ROW;. Ensures ADA and FBC Compliance;. Analyzes traffic and pedestrian safety;. Precludes placement of equipment in front of a residential building;o Requires placement of equipment on opposite site from residential structures;o Ensures residential view corridor is not impaired;o 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-through 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 workshop, the
ordinance now reflects a definition for "repurposed structure." Not all requests for modifications
to the ordinance were included, but, those that appeared to enhance the ordinance were. For
example, rather than reiterating the same code provisions in the DRB and HPB sections of the
code, the Telecommunications Ordinance was simply referenced. ln that case, the new
language was stricken in order to prevent the same standard from being reiterated three times
in the Code.
Additionally, due to a request by FPL and FPL Fiber Net, the ordinance was clarified at second
reading, that the intent for a "repurposed" structure, was to allow for the repurposing of the
City's street furniture. Obviously, street furniture (poles) owned by FPL, or another entity, cannot
be repurposed without the consent of the owner of that pole. As such, the ability to repurpose
the City's street lights (street furniture) has been clarified.
Additionally, the draft ordinance proposes no more than a 40 foot height for street furniture,
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City Commission Memorandum
Telecommunications Ordinance - Second Reading
February 11,2015
except for the light poles within Lincoln Road. Those poles measure at 60 feet in height. As
such, the repurposing of those poles, will be to the height as currently maintained by the City -
to 60 feet.
The City Commission specifically directed that there be language in the ordinance relating to
removal of the street furniture, upon the discontinuance of use of the telecommunications facility
or equipment. This provision can be found at section 104-14.
There are other edits to the draft ordinance that reflect both underlining and strike throughs. The
reason for this edit to show the evolution of the ordinance over the past year. These provisions
with both underling, and a complete strike through reflects the efforts to modify and enhance the
ordinance. lt includes the edits requested by the Planning Board, the Historic Preservation
Board, the Design Review Board, and the joint Planning/City Commission workshop.
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Teleconauururcenorus Rlcxrs or Wey ORolrueruce
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND G!ry COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING THE CIry GODE, GHAPTER 104,..TELECOMMUNICATIONS," ARTICLE !, "COMMUNICATIONS RIGHTS OF
WAY,,, BY AMENDING AND PROVIDING DEFINITIONS; AMENDTNG THE
REGlsrRATloN PROGESS; AMENDING THE pERMtr AppLrcATtoN
PROGESS To REQUIRE THE lssuANcE oF pERMtrS; To REeurRE
DESIGN AND APPROPRIATENESS REVTEW AND APPROVAL BY THE
DESIGN REVIEW BOARD AND HISTORTC PRESERVATION BOARD;
CREATING STANDARDS FOR COMMUNICATIONS FAGILITIES DESIGN,
LOCATION AND COLLOCATION; ADDTNG STANDARDS FOR S|TE
IMPROVEMENTS, USE OF AND RESTORATION OF SITES AND RIGHTS-OF.
WAY, INCLUDING DISTANCE SEPARATION BETWEEN COMMUNICATTONS
FACILITIES AND BETWEEN SUCH FACILITIES AND RESIDENTIAL USES
AND CONTRIBUTING BUILDINGS lN HlsroRtc DlsrRtcrs; To pRovtDE
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 ClTy CODE, CHAPTER 119, ARTTCLE !!, ,,BOARDS," DIVISIONS 3 AND
4, "DESIGN REVIEW BOARD" AND "HISTORIC PRESERVATTON BOARD,"
sEcTloNS 119-71AND { 1g-1O2,,,POWERS AND DUT|ES," TO ADD REVIEW
AND APPROVAL OF IMPROVEMENTS IN THE RIGHTS.OF.WAY AS BEING
WITHIN THE JURISDIGTION OF THE DESIGN REVIEW BOARD ANDHlsroRlc PRESERVATION BOARD RESPEGIVELY; AND cHAprER 118,
ARTICLE VI, "DESIGN REVIEW PROCEDURES," SECTION 118-251,
"DESIGN REVIEW CRITERIA," AND ARTICLE X, ,,HISTORIC
PRESERVATION," DIVISION 3, "ISSUANCE OF CERTIFICATE OF
APPROPRIATEN ESS/CERTI F!CATE TO DIG/CERTIFIGATE OF
APPROPRIATENESS FOR DEMOLITION," SECTION 118.564, "DECTSIONSON CERTIFICATES OF APPROPRIATENESS," ADDING CRITERIA FORSUCH REVIEW FOR TELECOMMUNICATTONS EQUIPMENT AND
FAGILITIES; PROVIDING FOR CODIFICATION; REPEALER; SEVERABILITY
AND AN EFFECTIVE DATE.
WHEREAS, the provision of telecommunications services to residents of and visitors to
the City of Miami Beach ("City") is both an important amenity and often necessity of public and
private life in the City; and
WHEREAS, the demand for telecommunications services has grown exponentially in
recent years, requiring the continual upgrading of telecommunications equipment and services
to satisfy such demand; and
WHEREAS, the placement of telecommunications equipment and poles in the public
rights-of-way to satisfy the demand for telecommunications services raise important issues with
respect to the City's responsibility to manage its public rights-of-way; and
424
WHEREAS, the City has reviewed its ordinances and has concluded that they must be
updated in order to address the issues that new and expanded telecommunications equipment
and poles in the rights-of-way present; and
WHEREAS, adoption of the following amendments to Chapter 104 are necessary to
satisfy the above objectives.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND GIry COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA.
SECTION 1. City Code Chapter 104, "Telecommunications," Article l, "Communications Rights-
of-Way," is hereby amended as follows:
ARTICLE I. COMMUNICATIONS RIGHTS.OF.WAY
Sec. 104-f . Title.
This Article shall be known and may be cited as the "City of Miami Beach Communications
Rights-of-Way Ordinance."
Sec. 104-2. lntentand purpose.
It is the intent of the City to promote the public health, safety and general welfare by: providing
for the placement or maintenance of communications facilities in the public rights-of-way within
the City; adopting and administering reasonable rules and regulations not inconsistent with state
and federal law, including#.. but no!_limtled 'tg-Florida Statutes g 337.401, 47 USC $ 1455(a)
and Orders issued bv the FCC€O0OI-as thev i$may be amended from time to time, the City'shome-ruleauthority,andinaccordancewiththeprovisionsoftheffiiens
Communications Act of +996193+. as amended.and otherfederal and state law; establishing
reasonable rules and regulations necessary to manage the placement or maintenance of
communications facilities in the public rights-of-way by a{l-communications services providers,
communications facility providers and pass{hrough providers; and minimizing disruption to the
public rights-of-way. ln regulating its public rights-of-way, the City shall be governed by and
shall comply with all applicable federal and state laws.
Persons seekinq to place or maintain communications facilities on private propertv or propertv
oYvned, leased or controlled bv the Citv. includino riohts-of-wav shall complv with the provisions
of Subpart B, Land Development Requlations. of the Code of the Citv of Miami Beacll. Persons
seekino to place or maintain communications facilities in the public riqhts-of-wav also shall
complv with the provisions of this Chapter.
Sec. I 04-3. Definitions.
For purposes of this Article, the following terms, phrases, words and their derivations shall have
the meanings given. Where not inconsistent with the context, words used in the present tense
include the future tense, words in the plural number include the singular number, and words in
the singular number include the plural number. The words "shall" and "will" are mandatory, and
"may" is permissive. Words not othenruise defined shall be construed to mean the common and
ordinary meaning.
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Abandonment shall mean the permanent cessation of the use e+l--uses of a communications
facility; provided that this term shall not include cessation of all use of a facility within a physical
structure where the physical structure continues to be used. By way of example, and not
limitation, cessation of all use of a cable within a conduit, where the conduit continues to be
used, shall not be "abandonment" of a facility in public rights-of-way. lt mav also mean the
OiscontinueO use o
removat ot tne Oisco
Ca6le serviee shall mean the kansmissien ef videe; audie, er ether ^regramming serviee te
pu+ehaserq- and the purehaser interaetien; if any; required fer the seleetien er use ef any sueh
pregramminglserviee; regardless ef whether the pregramming is transmitted ever faeilities
ewned er eperated by the eable serviee previder er ever faeilities ewned er eperated by ene er
ierewave
musie
seR*i€es=
Arfenal roadway shall mean anv street or roadwav that constitutes the hiqhest deqree of
mobilitv at the hiohest speed. for lonq. uninterrupted travel, and constitutes the laroest
proportion of total travel as per the Federal Functional Classification Map maintained bv the
State of Florida Department of Transportation District Six Office. as amended.
C/y shall mean the City of Miami Beach, Florida.
Cemmsnieafiens faelrfy er faefl,ry er sysfem shall mean any permanent er temperary prant,equi ables; wiresi c€nduits; duets; fiber epties;
er te be plaeed er maintained in the publie rights ef way ef the City and used er eapable ef being
iee+
mobilitv and land access functions, linkinq maior land uses to each other or to the arterial
hiohwav svstem as per the Federal Functional Classification Map maintained bv the State of
Florida Department of Transportation District Six Office, as amended.
Col/ocafion shall mean the situation in which a communications services provider or a pass-
throuoh provider uses an existinq structure to locate a second or subsequent antenna. The term
includes the oround, platform, or roof installation of equipment enclosures. cabinets. or
buildinqs. and cables, brackets, and other equipment associated with the location and operation
of the antenna.
Communicafions facffiy shall mean a facilitv that mav be used to orovide communications
services, as per Florida Statutes $ 337.401, as amended. Multiple cables, conduits, strands. or
fibers located within the same conduit shall be considered one communications facilitv.
Communicafions facltfv provrder shall mean a person (other than a communications services
provider operatino one or more communications facilities located within the Citv) who is
enqaqed. directlv or indirectlv, in the business of leasino. licensinq. subleasinq, sublettinq or
hirinq to one or more communications service oroviders all or a portion of the tanqible personal
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Drooertv used in a communications facilitv, includino but not limited to. towers, poles. tower
sDace, antennas. transmitters. and transmission line. Provisions of this Article that applv onlv to
communications facilitv providers shall not applv to communications services providers even if
the communlcation services provider also operates. licenses, leases. subleases. or sublets
communications facilities.
Communications seryrces shall mean the transmission, conveyance, or routing of voice, data,
audio, video, or any other information or signals, includinq video services, to a point, or between
or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other
medium or method now in existence or hereafter devised, regardless of the protocol used for
such transmission or conveyance, Netwithstanding the feregeing, fer purpeses ef this Article
"eable serviee;" is net ineluded in the definitien ef "eemmunieatiens serviees," and eable serviee
previders-+ay be subjeet te ether erdinanees ef the City@ Article
"eemmunieatiens serviees" shall net inelude pa" telephenes, and nething eentained herein shall
e publie rights ef way, Sueh terrn alse@ Florida Statutes $ 202.11, as amended. The term includes such
transmission, convevance, or routinq in which computer processino applications are used to act
on the form. code, or protocol of the content for purposes of transmission, convevance. or
routinq without reoard to whether such service is referred to as voice-over-lnternet-protocol
services or is classified bv the Federal Communications Commission as enhanced or value-
added. The term does not include:
(a) lnformation services.(b) lnstallation or maintenance of wiring or equipment on a customer's premises.(c) The sale or rental of tangible personal property.
(d) The sale of advertising, including, but not limited to, directory advertising.(e) Bad check charges.(0 Late payment charges.(g) Billing and collection services.(h) lnternet access service, electronic mail service, electronic bulletin board service, or
similar on-line computer services.
iee
Communications serytbes provider shall mean aflyA person (other than a communications
fr.ilitu ororid"r" or. " omr{hroroh provider)_ineluding a mun ing
t+ng
a+t#r€ipa+t:ty-er€eunty"-as that
way but dees net previde eemmunieatiens serviees, term is used in Florida Statutes $ 337.401.
as amended.
Communications services fax shall mean the local communications services tax authorized tobeleviedandcollectedbycountiesandmunicipalities@,uponcharges
for communications services, pursuant to Florida Statutes S 202.20, as amended.
Exrsfino Sfrucfure shall mean a structure that exists at the time an application for permission toplace antennas on the structure is filed with the Citv. The term includes anv structure that can
structurallv support the attachment of antennas in compliance with applicable codes.
FCC shall mean the Federal Communications Commission.
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ln public rights-of-way or in the public rights-of-way shall mean in, on, over, under or across the
public rights-of-way.
Order. as used in the definition of "wireless provider". shall mean:
(a) The followinq orders and rules of the FCC issued in FCC Docket No. 94-102:(i) Order adopted on June 12. 1996, with an effective date of October 1.
1996, the amendments to s. 20.03 and the creation of s. 20.18 of Title 47 Code
of Federal Reoulations adopted bv the FCC pursuant to such order.(ii) Memorandum and Order No. FCC 97-402 adopted on December 23.
1 998.(iii) Order No. FCC DA 98-2323 adopted on November 13. 1998.(iv) Order No. FCC 98-345 adopted December 31. 1998.
(b) Orders and rules subsequentlv adopted bv the FCC relatino to the provision of
911 services, includinq Order Number FCC-05-116, adopted Mav 19.2005 and Order
Number FCC-2014-001 1, adopted November 4, 2014.
(c)
Pass-fhrouqh provrder shall include anv person (other than a communications services provider)
who places or maintains a communications facilitv in the roads or riqhts-of-wav of a municipalitv
or countv that levies a tax pursuant to Florida Statutes $ 202 and who does not remit taxes
imposed bv that municipalitv or countv pursuant to Chapter 202 as per Florida Statutes Q
337.401. as amended. A "pass-throuqh provide/' does not provide communications services to
retail customers in the Citv. Provisions of this Article that applv onlv to pass{hrouqh providers
shall not applv to communications services providers that provide the services identical or
similar to those provided bv pass-throuoh providers.
Permtt shall include, but not be limited to Miami Beach public rioht-of-wav permits board or staff
issued, desiqn review approval and board or staff issued certificates of appropriateness.
Person shall include any individual, €h+lCrenr firm, association, joint venture, partnership, estate,
trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind,
successor, assignee, transferee, personal representative, and all other groups or combinations,
and shall include the City to the extent the City acts as a communications services provider.
Place or maintain or placement or maintenance or placing or maintaimng shall mean to erect,
construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. AperSonthatownsorexercisesphysicalcontroloVer
communications facilities in public rights-of-way, such as the physical control to maintain and
repair, is "placing or maintaining" the facilities. A person providing service only through resale or
only through use of a third party's unbundled network elements is not "placing or maintaining"
the communications facilities through which such service is provided. The transmission and
receipt of radio frequency signals through the airspace of the public rights-of-way does not
constitute "placing or maintaining" facilities in the public rights-of-way.
Publicrights-of-wayshallmeanapublicright-of-way,@highway,street,
bridge, tunnel or alley for which the City is the authority that has jurisdiction and control and may
lawfully grant access to pursuant to applicable law, and includes the surface, the air space over
the surface and the area below the surface. "Public rights-of-way" shall not include private
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property-or easements over p "Public rights-of-way" shall not include any real or
personal City property except as described above and shall not include City buildings, fixtures,
poles, conduits, facilities or other structures or improvements, regardless of whether they are
situated in the public rights-of-way.
Registrant shall mean a communications services provider, communications facility provider or
pass-through provider that has registered with the City in accordance with the provisions of
Section 104-4 this Article and holds an effective reqistration.
Registration or regisfer shall mean the process described in this Article whereby a
communications services provider, communications fu
provides certain information to the City.
Repurposed Sfrucfure shall mean an Existinq Structure owned bv the Citv that has been
renovated, reconfioured. or replaced with a similar structure so as to continue servino its
existino purpose while also supportinq the attachment of communication facilities or antennas
throuqh Stealth Desiqn that is approximatelv in the same location as the Existino Structure and
in such a manner that does not result in a net increase in the number of structures located
within the public riqht-of-wav. shall be installe
of-Wa to the exten and does not interfere with pedestrian or vehicular accesg is
Americans with Disabilities Act, Florida Buildinq Code, and Florida Depad
ltaintenance tor Str
Bv wav of illustration onlv. where a liqht pole existino within the public riqht of wavls removed
and is replaced with a new lisht pole that is substantiallv similar to the old lioht pole but now
suDDorts the attachment or inteqration of communication facilities. the new lioht pole shall be
cohsidered a "repurposed structure." Unless stated othenryise. all references to
"comffiunications facilities" or "wireless communications facilities" shall also applv to repurposed
Structures. To "repurpose an existinq structure" shall mean the act of renovatino, reconfiourinq,
or replacino an Existino Structure as described above. The provider that later removes a
reDurDosed structure shall reinstall a new lioht pole. or other applicable pole in the ROW, at the
direction of the Citv. Durino the life of the use of the repurposed structure the provider shall pav
all costs associated with the electricitv, liqht bulbs. maintenance. and replacement of the
repurposed structure.
Sfea/fh desrqn shall mean a method of camouflaoino anv tower. antenna or other
telecommunications facilitv, including, but not limited to. supportino electrical or mechanical
equiDment, which is desioned to enhance compatibilitv with adiacent land uses and be as
visuallv unobtrusive as possible. Stealth desion mav include a repurposed structure.
Iower shall mean anv structure desioned solelv or primarilv to support a communications
services provider's antennas.
Wi'7eless provrder shall mean a person who provides wireless service and is either (a) subiect to
the provisions of the order or (b) elects to provide wireless 911 service or Eg11 service in
Florida. A wireless provider is a tvpe of communications services provider.
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W7eless service shall mean "commercial mobile radio service" as provided under $$ 3(27) and
332(d) of the Federal Telecommunications Act of 1996, 47 U.S.C. SS 151 et seq., and the
Omnibus Budqet Reconciliation Act of 1993. Pub. L. No. 103-66. Auqust 10. 1993. 107 Stat.
312. as perFlorida Statutes S365.172, as amended. Theterm includes service provided bv anv
wireless real-time two-wav wire communication device, includino radio-telephone
communications used in cellular telephone service: personal communications service: or the
functional or competitive equivalent of a radio-telephone communications line used in cellular
telephone service. a personal communications service. or a network radio access line. The term
does not include communications services providers that offer mainlv dispatch service in a more
localized. non-cellular confiquration: providers offerinq onlv data. one-wav, or stored-voice
services on an interconnected basis: providers of air-to-oround services: or public coast
stations.
Sec. 104-4. Registration for placing or malntaining communications facilities in public
rights-of-way.
Reoistration application and all information require therein. shall be included in anv Desiqn
Review Board or Historic Preservation Board application, as required under sections 104-6.
118-251. orffi118-564. of the Citv's Land Development Requlations.
(a) A communications services provider, communications facility provider or pass-
through provider that desires to place or maintain a communications facility in public
rights-of-way in the City shall first register with the City in accordance with this Article.
This Chapter provides no riqht of access to the public riqhts-of-wav for (i) persons other
than communications service providers or (ii) businesses other than providinq
communications services. Other uses of the public riohts-of-wav reasonablv related to
the provision of communications services mav be allowed in the reasonable discretion of
the Citv. Subject to the terms and conditions prescribed in this Article, a registrant may
place or maintain a communications facility in public rights-of-way.
(b) A registration shall not convey any title, equitable or legal, to the registrant in the
public rights-of-way. Tanqible personal property placed in the public riqhts-of-wav
pursuant to this Article shall retain its character as tanoible personal propertv and shall
not be reqarded as real propertv, fixtures or mixed propertv. Registration under this
Article governs only the placement or maintenance of communications facilities in public
rights-of-way. Other ordinances, codes or regulations may apply to the placement or
maintenance in the public rights-of-way of facilities that are not communications facilities.
Registration does not excuse a eemmuni from
obtaining appropriate access or pole attachment agreements before locating its facilities
on the City's or another person's facilities. Registration does not excuse a
eemmunieatiens serviees previder reqistrant from complying with all applicable City
ordinances, codes or regulations, including this Article.
(c) Each communications services provider, communications facility provider or
pass-through provider that desires to place or maintain a communications facility,
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;
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(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;
n;(4O 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
65) 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
proposino to place or maintain a wireless communications facilitv operatino 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 permitjf
.Registrationsareexpresslysubjecttoanyfuture
amendment to or replacement of this Article and further subject to any additional City
ordinances, as well as any state or federal laws that may be enacted from time to time.
(h) Registrant shall renew its registration with the City, annually, by the anniversary
of the date of initial registration. Each renewal shall include an inventorv of the
communications facilities, poles. towers, underqround lines and equipment cabinets
reoistrant installed in public riqhts-of-wav in the Citv durino the last term of the
reoistration and an inventorv of the wireless communications facilities, poles. towers and
equipment cabinets reqistrant abandoned in the public riohts-of-wav in the Citv durino
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the last term of the reqistration. Within 30 days of any change in the informationrequiredtobesubmittedpursuanttosubsection(c)hereof,@
@aregistrantshallprovideupdatedinformationtotheCity-J{-ne
i@FailuretorenewaregistrationmayresultintheCityrestricting
the issuance of additional permits until the
reqistrant has complied with the registration requirements of this Article.
(i) ln accordance with applicable City ordinances, codes or regulations, a permit
mey+els required of a that desires to place
or maintain a communications facility, includinq, without limitation, a collocation. in public
rights-of-way. An effective registration shall be a condition precedent to obtaining
Historic Preservation or Desiqn Review Board approval or a riqht-of-Wav permit.
Notwithstanding an effective registration, all permitting requirements of the City shall
apply. A permit may be obtained by or on behalf of a registrant having an effective
registration if all permitting requirements are met.
Sec. 104-5. Notice of transfer, sale or assignment of assets in pubtic rights-of-way.lfef registrant its
assets located in public rights-of-way flq€iden+-exge! to a person holdinq a valid reqistration
issued pursuantto Section 104-4, hereof. Written notice of anv such proposed transfer, sale orassignment . alonq with assignee-shalt*e
with the requirements of this Article, Written netiee ef any sueh transfer, sale er assignment,shallbeprovidedbysuchregistranttothecitydaysafte+pdor.]q
the effective date of the transfer, sale or assignment. lf the transferee, buyer er assignee is a
ignree is net required te re register, lf the
sh€lH€gisieHs-Previded in ^^^+i^^ {n hereef within 60 days ef the transfer, sale er
assignmen+-lf permit applications are pending in the registrar+U€-name of the
transferor/assignor, the transfereer$uyer-er-lassignee shall notify the City Manager that the
transferee-buy6rr-6rslassignee is the new applicant. Violation of the requirements of this Section
104-5 will subiect the reoistrant to a fine of up to $500.00 for each dav the reoistrant fails to
comOlv: provided however, Citv does not claim the rioht to approve or denv reqistrants' asset
transfers or assiqnments to communications services providers operatino at least one
communications facilitv within the Citv, and the failure to complv with this section does not void
anv such asset transfer or assionment. The Citv reserves the rioht to exclude persons other
than communications services providers from its riqhts of wav. Transfers or assionments of a
communications facilitv to persons other than a communications services provider who will
oDerate at least one communications facilitv within the Citv require compliance with this section
to insure continued use of the public riqhts-of-wav.
Sec. 104-6. Placement or maintenance of a communications facitity in public rights-of-
way.
(a) A registrant shall at all times comply with and abide by all applicable provisions of
the state and federal law and City ordinances, codes and regulations in placing or
maintaining a communications facility in public rights-of-way, including, but not limited to,
Articles ll and lll of Chapter 98, and Article V of Chapter 1 10 of this Code.
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(b) Registrant shall not commence to place or maintain a communications facility.
includino without limitation a collocation, in public rights-of-way until all applicable
permits, if any, have been issued by the City or other appropriate authority--exeept;
provided. however, in the case of an emergency, a reqistrant mav restore its damaoed
facilities in the rioht-of-wav to their Dre-emeroencv condition or renlaee ife r{cefrnrrar{
fa.c.ilities,in the riqhts-of-wav with facilities of the same size. character and qualitv, all
without first applvino for or receivino a permit. The term "emergency" shall mean a
condition that affects the public's health, safety or welfare, which includes an unplanned
out-of-service condition of a pre-existing service. Registrant shall provide prompt noticetotheCityoftheplaeementrepairor@ofacommunications
facility in public rights-of-way in the event of an emergency, and shall be required to
obtain an afterthe-fact permit if a permit would have originally been required to perform
the work undertaken in the public rights-of-way in connection with the emergency.
Registrant acknowledges that as a condition of granting permits, the City may impose
reasonable rules or regulations governing the placement or maintenance of a
communications facility in public rights-of-way. Permits shall apply only to the areas of
public rights-of-way specifically identified in the permit. The City may issue a blanket
permit to cover certain activities, such as routine maintenance and repair activities, that
may otherwise require individual permits.
(c) As part of any permit application to place a new or replace an existing wireless
communications facility in public rights-of-way, includinq. without limitation, a collocation,
the registrant shall provide the following:
(1) The location of the proposed facilities, including a description of the
facilities to be installed, where the facilities are to be located, and the
approximate size of the facilities that will be located in public rights-of-way;
(2) With respect to proposals to locate a new tower or replace an existino
tower or wireless communication facilitv in the riqht-of-wav. enoineerinq
documentation demonstratinq either: (i) how the proposed tower or wireless
communications facilitv can accommodate multiple collocations: (ii) whv the
Citv's interest in safe. aesthetic, efficient and effective manaoement of the public
lights-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 a repurposed structure is not better suited to or feasible
for the site:
(3) A description of the manner in which the facility will be installed (i.e.
anticipated construction methods or techniques);
(4) A maintenance of traffic plan for any disruption of the public rights-of-way;
Cqmmunication facl
acfnowteOoe tnat t
ellvsioundaries-
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(5) For purposes of assessinq impact on riqht of wav resources, effects on
neiqhborino properties and potential for collocations or repurposed structures,
information on the abilitv of the public riohts-of-wav to accommodate the
proposed facilitv, includino information that identifies all above-qround and below
qround structures (includinq liqht 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
reqistrants 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 manaqement of the public riohts-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;
t8I Fer purpeses ef assessing impaet en right ef way reseurees' effeets ennei iat ter eetteea
in er autherized ien appties;
(e) Whether all or any 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
(g) Prior to instal
inctuOing but not l
orovider or oass throuoh orovider shall be reouired to remove anv and all
obsolete. unutill
additional eouioment shall identifv the abandoned. obsolete or unutilized
eouioment that shall be removed orior to the installation of anv new or additional
technoloov or eouioment in the riohts-of-wav.
(10) lf there exists a telecommunication facilitv bv the same orovider or oass
throuoh orovider within the rioht-of-wav that is adiacent to or within 15 feet of the
proposed new tete im
orovider or oass throuoh orovider shall be reouired to remove and consolidate
the eouioment into one facilitv. so as to not create a second location for street
furniture within such a minimal distance.
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fl-Q Such additional information as the City finds reasonably necessary with
respect to the placement or maintenance of the communications facility that is
the subject of the permit application to review such permit application.
(d) To the extent not othenruise 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 particulat area 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 prej
place and maintain facilities in that area of the public riqhts-of-wav. the sufficiencv of
sDace 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 Manaoer or the
Manaqer's desiqnee mav impose additional reasonable reoulations 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 "eqistrant 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 FS_Florida Statutes S 337.402(200+* 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 FSElorida Stalutes
SS 337.403 and 337.404{200+* as they may be amended from time to time. SuOlect to
the aforementioned ' Florida Statutes SS 337.403 and 337.404 and other provisions of
12 of 40
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law, whenever existing overhead utility distribution facilities are converted to
underground facilities pursuant to Article V of Chapter 110 of this Code, any
eemmunieatiens serviees previders 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.
(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 lavtrfully 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 otherwise dispose of public rights-of-way, and the City
makes no warranties or representations regarding the availability of any added, vacated,
modified or abandoned public rights-of-way for communications facilities.
(p) The City shall have the right to make such inspections of communications
facilities placed or maintained in public rights-of-way as it finds necessary to ensure
compliance with this Article.
(q) A permit application to place a new or replace an existing communications facilityin public rights-of-way shall include plans showing the location of the proposed
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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
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@Chapter
556-(200+* 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 F.S{ Florida Statutes L 202.195
ee00f* as amended from time to time.
(r) The City reserves the right to place and maintain, and permit to be placed or
maintained, sewer, gas, water, electric, storm drainage, communications, and other
types of facilities, cables or conduit, and to do, and to permit to be done, any
underground and overhead installation or improvement that may be deemed necessary
or proper by the City in public rights-of-way occupied by the registrant, and the City also
reserves the right to reserve any portion of the public rights-of-way for its own present or
future use. The City further reserves without limitation the right to alter, change, or cause
to be changed, the grading, installation, relocation, or width of the public rights-of-way
within the limits of the City and within said limits as same may from time to time be
altered.
(s) A registrant shall 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 riqhts-of-wav:
(1) Reoistrants seekino to locate wireless communications facilities within the
Citv are encouraged to locate on private propertv or oovernment-owned propertv
outside of the riqhts-of-wav. An application for a permit to locate wireless
communications facilities within the riqhts-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 proposinq to place a wireless telecommunications facilitv in
the riqhts-of-wav.
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(2) Reqistrants seekinq to place, construct or modifv a wireless
communications facilitv in the rioht-of-wav shall either:
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 poles and telephone poles or
c. repurpose an existinq structure. With respect to proposals to
locate a new tower or replace an existinq tower or wireless
communications facilitv in the riqht-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 manaoement 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.
Genstruot a netJv ant i€,r1s
facility te be leeat
ffi unabte te eetteo iens
faeility with the w
unaOte te eenstru*
(3) Reoistrants seekinq to construct wireless communications facilities within
the riqhts-of-wav shall locate their wireless communication facilities in the riohts-
of-wav of arterial or collector roadwavs, whenever possible. An application for a
Dermit 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 riohts-of-wav of an arterial or
collector roadwav and shall include an enqineerino analvsis from the applicant
demonstratino 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 subparaoraph
shall not applv to repurposed structures, when there is a oneto-one repurposino
of an existino structure (ie: existino liqht pole).
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(5) Reqistrants are required to locate wireless communications facilities
within riohts-of-wav in a manner that minimizes their impact in the Citv, includinq
without limitation Miami Beach Historic Districts. Whenever a reoistrant applies
for a permit to locate a wireless communications facilitv in a rioht-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 (dependino on the prooosed facilitv's location and each board's respective
iurisdiction) for the desiqn and location of the wireless communications facilitv. in
accordance with their respective desiqn review or appropriateness criteria. The
Citv reserves the riqht to condition the orant 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-cr-othe+-+earbv
faellities-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. photographs clearlv showinq the nature and location of the site
where each wireless communications facilitv is proposed to be located,
b. photooraphs showino the location and condition of properties
adiacent to the site of each proposed wireless communications facilitv.
and
c. a description of the stealth desion techniques proposed to
minimize the visual impact of the wireless communications facilitv and
shall include qraphic depictions accuratelv representino the visual impact
of the wireless communications facilities when viewed from the street and
from adiacent properties.
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 foliaqe and veoetation
around anv approved qround equipment mav be required bv the Citv based on
conditions of the specific area where the oround equipment is to be located and
in accordance with Subpart B, Land Development Requlations. Chapter 126.
Landscapinq.
(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 desiqn of communications
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439
(8) Stealth desiqn of communications facilities to be located on structures in the
riOhts-of-wav shall (a) top mount antennas within enclosures that do not extend
the diameter of the supportinq 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 eioht feet above oround 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 followinq additional requirements shall applv to wireless
communications facilities located in the riohts-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 enqineerinq documentation demonstratino to
the satisfaction of the Citv enoineer that the facilitv cannot emplov stealth
desiqn and that the prooosed exterior location and confiouration of
eOuipment proposes the minimum equipment necessary to achieve
needed function. ln order to avoid the clusterinq of multiple items of
aooroved 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
sDaced a minimum of 500 linear feet of rlqht-of-wav apart from each other
exceDt 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. demonstratinq to the
satisfaction of the Citv, as determined bv the Desion Review Board or
Historic Preservation Board, dependino 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 manaoement of
the public riqhts-of-wav than application of the 500 feet limitation: (2) is
nec€ssarv to address a documented lack of coveraoe 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 riohts-of-wav shall be no qreater than the
maximum size and heioht of anv other utilitv or liqht poles located in the
same portion of the riqht-of-wav within the Citv: provided however that
reqistrants proposinq wireless communications facilities with antennas to
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440
be located on existino poles or repurposed structures mav increase the
heiqht of the existino pole or repurposed structure up to 6 (six) feet, if
necessarv, to avoid adverselv affectinq existino pole attachments: and
provided further that the overall heioht above qround of anv wireless
communications facilitv shall not exceed fortv (40) feet or_exeeealthe
existing heioht of , which
ever neight is greatff. Any repuroosed stru
snalt not exceeO OO
tne center of tne oe
e. Wireless communications facilities installed on poles or towers
that are not liqht poles. and repurposed structures that were not orioinallv
lioht poles, shall not be lit unless liqhtinq is required to complv with FAA
requirements.
f. Reoistrants shall not place advertisinq on wireless
communications facilities installed in the riohts-of-wav. provided.
however, that repurposed structures that lawfullv supported advertisino
before beino repurposed mav continue to support advertisino as
otherwise 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 $ 365.172,47 USC S 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) throush
104-6(tX9). above. upon reoistrants proposinq to place or maintain wireless
communications facilities in the public riqhts-of-wav shall also applv to reqistrants
oroOosino to place or maintain anv other tvpe of communications facilitv in public-riqhts-
of-wavs. if that other tvpe of communications facilitv involves placement of overthe-air
radio transmission or reception equipment in the public-rights-of-wav.
(v) Prior to the issuance of anv permit pertaininq to the placement and maintenance
of communications facilities within the public riohts-of-wav, the Citv mav require the
reoistrant to issue notice of the work to propertv owners who adioin such riqhts-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 reoistrant to hold a public information meetino for
DurDoses of answerinq questions and taking 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 exDanded. shall not exceed a radius of 375 feet from the site of the proposed
communications facilities. Should a public information meetinq be required. the
reoistrant shall meet with Citv staff as soon as practical to review comments received at
the public information meetinq, and attempt to resolve all neqative comments or issues
raised.
(w) Pursuant to ES Florida Statutes S 337.401(cXtXb€00O) and other appticabte
provisions of law, and notwithstanding any other provisions of this Code, the City hereby
18 of40
441
elects not to charge permit fees to any registrant for permits to do work in the public
rights-of-way.
Sec. 104-7. Suspension of permits.
The City may suspend a permit for work in the public rights-of-way for one or more of the
following reasons:(1) Violation of permit conditions, including conditions set forth in the permit, this
Article or other applicable City ordinances, codes or regulations governing placement or
maintenance of communications facilities in public rights-of-way;(2) Misrepresentation or fraud by registrant in a registration or permit application to
the City;(3) Failure to properly renew or ineffectiveness of registration: or(4) Failure to relocate or remove facilities as may be lawfully required by the City.
The City Manager shall provide notice and an opportunity to cure any violation of (1) through (4)
above, each of which shall be reasonable under the circumstances.
Sec. 104-8. Appeals.
Any person aggrieved by any action or decision of the City Manager, or his or her designee,
with regard to any aspect of registration under this Article may appeal to the special master
appointed pursuant to Article ll of Chapter 30 of this Code by filing with the special master,
within 30 days after receipt a written decision of the City Manager, or his or her designee, a
notice of appeal, which shall set forth concisely the action or decision appealed from and the
reasons or grounds for the appeal. No requests for extension of time for filing an appeal will be
permitted. The only appeal that shall be considered are those appeals that allege that there is
error in any order, requirement, decision, or determination made by an administrative official in
the enforcement of this Article. The special master shall set such appeal for hearing on the very
next available date following such notice of appeal and cause notice thereof to be given to the
appellant and the Citv Manaoer, or his or her designee shall present the case on behalf of the
City. The special master shall hear and consider all facts material to the appeal and render a
decision within 20 calendar days of the date of the hearing. The special master may affirm,
reverse or modify the action or decision appealed from; provided, that the special master shall
not take any action which conflicts with or nullifies any of the provisions of this Article. Any
person aggrieved by any decision of the special master on an appeal shall be entitled to apply
to the Circuit Court for a review thereof by Petition for Writ of Certiorari in accordance with the
applicable court rules.
Sec. 104-9. lnvoluntary termination of registration.
(a) The City may terminate a registration if:(1) A federal or state authority suspends, denies, er-revokes or othenryise
fails to orant a registran+b-qiglranl :py certification or license required to
provide communications services;(2) The registrant's placement or maintenance of a communications facility in
the public rights-of-way presents an extraordinary danger to the general public or
other users of the public rights-of-way and the registrant fails to remedy the
danger promptly after receipt of written notice;-er(3) The reqistrant violates Florida Statutes S 843.025, as amended:(4) The reoistrant violates Florida Statutes S 843.165. as amended: or
19 of40
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(!) 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 90 days of the termination, or such longer period as may
be agreed to by the registrant, to remove some or all of the facilities from the public
rights-of-way and restore the public rights-of-way to its original condition before the
removal.
(d) 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 certification or license with the governing federal or state
agency, if required for provision of such service, and is registered with the City, if
required.
Sec. 104-10. Existing communications facilities in public rights-of-way.
A communications services provider, communications 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 City Manager may grant reasenable extensiens ef
time fer existing faeilities te eeme inte eemplianee er, in the alternative, may grandfather any
20 ot 40
443
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 additionat
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 bythe authorized representative of the insurance company and shall be filed and
maintained with the City annually. Thirty days advance written notice by registered,
certified or regular mail or facsimile as determined by the City must be given to the City
of any cancellation, intent not to renew or reduction in the policy coverages. The
insurance requirements may be satisfied by evidence of self-insurance or other types of
insurance acceptable to the City.
(b) The limits of coverage of insurance required shall be not less than the following:(1) Worker's compensation and employer's liability insurance.
Worker's compensation-Florida statutory requirements.(2) 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 singre rimit
each accident.
Sec. 1 04-1 2. lndemnification.
(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+ys{sm-€r-facilities in public rights-of-way, regardless
of whether the act or omission complained of is authorized, allowed or prohibited by this
Article, provided, however, that a registrant's obligation hereunder shall not extend to
any claims caused by the negligence, gross negligence or wanton or willful acts of the
City. This provision includes, but is not limited to, the City's reasonable attorneys'fees
incurred in defending against any such claim, suit or proceedings. The City agrees to
notify the registrant, in writing, within a reasonable time of the City receiving notice, of
any issue it determines may require indemnification. Nothing in this section shall prohibit
the City from participating in the defense of any litigation by its own counsel and at its
own cost if in the City's reasonable belief there exists or may exist a conflict, potential
conflict or appearance of a conflict. Nothing contained in this section shall be construed
or interpreted: (1) as denying to either party any remedy or defense available to such
party under the laws of the State of Florida; or (2) as a waiver of sovereign immunity
beyond the waiver provided in FS-Elorida_statules S 768.28{200+, as it may be
amended from time to time.
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(b) The indemnification requirements shall survive and be in effect after the
termination or cancellation of a registration.
Sec. 104-{3. 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: "Fortwelve (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." Notwithstandi
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. {04-14. Security fund.
At the time of registration, the registrant shall be required to file with the City, for City approval,
an annual bond, cash deposit or irrevocable letter of credit in the sum of $25,000.00, having as
a surety a company qualified to do business in the State of Florida, and acceptable to the City
Manager, or his or her designee, which shall be referred to as the "security fund." The security
fund shall be maintained from such time through the earlier of: (a) transfer, sale, assignment or
removal of all communications facilities in public rights-of-way; or (b) 12 months after the
termination or cancellation of any registration. The security fund shall be conditioned on the full
and faithful performance by the registrant of all requirements, duties and obligations imposed
upon registrant by the provisions of this Article. The security fund shall be furnished annually or
as frequently as necessary to provide a continuing guarantee of the registrant's full and faithful
performance at all times. ln the event a registrant fails to perform its duties and obligations
imposed upon the registrant by the provisions of this Article, subject to_section 104-i5 of this
Article, there shall be recoverable, jointly and severally from the principal and surety of the
security fund, any damages or loss suffered by the City as a result, including the full amount of
any compensation, indemnification or cost of removal, relocation or abandonment of any
facilities of the registrant in public rights-of-way, plus a reasonable allowance for attorneys' fees,
up to the full amount of the security fund. Notwithstanding the foregoing, the City may in its
discretion not require a security fund or may accept a corporate guarantee of the registrant or its
parent company.
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Sec. 104-15. Enforcement remedies.
(a) A registrant's failure to comply with provisions of this Article shall constitute a
violation of this Article and shall subject the registrant to the code enforcement
provisions and procedures as provided in Chapter 30 of this Code, including the
provisions of Chapter 30 that allow the City to seek relief as otherwise provided by law.
(b) Failure of the City to enforce any requirements of this Article shall not constitute a
waiver of the City's right to enforce that violation or subsequent violations of the same
type or to seek appropriate enforcement remedies.
Sec. 104-16. Abandonment of a communications facility.
(a) negistrants shall
to abandoned eouio pon abandonment
of a communications facility owned by a registrant in public rights-of-way, the registrant
shall notify the City, in-luriting within 90 days. nOOitionattv, regl
tne orovisions of s
(b) The City r+ay shall direct the registrant by written notice to remove all or any
portion of such abandoned facility at the registrant's sole expense if the City determines
that the abandoned facility's presence interferes with the public health, safety or welfare,
which shall include, but shall not be limited to, a determination that such facility: (1)
compromises safety at any time for any public rights-of-way user or during construction
or maintenance in public rights-of-way; (2) prevents another person from locating
facilities in the area of public rights-of-way where the abandoned facility is located when
other alternative locations are not reasonably available; or (3) creates a maintenance
condition that is disruptive to the public rights-of-way's use. ln the event of (2) above, the
City may require the third person to coordinate with the registrant that owns the existing
facility for joint removal and placement, where agreed to by the registrant.
(c) ln the event that the City does not direct the removal of the abandoned facility,
the registrant, by its notice of abandonment to the City, shall be deemed to consent to
the alteration or removal of all or any portion of the facility by the City or another person
at such third party's cost.
(d) lf the registrant fails to remove all or any portion of an abandoned facility as
directed by the City within a reasonable time period. not to exceed sixty as
may be required by the City under the circumstances, the City may perform such
removal and charge the cost of the removal against the registrant and utilize the bond
rezuireO oursuant to S is+utBosc.
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,
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landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil
disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or
court. Causes or events within registrant's control, and thus not falling within this section, shall
include, without limitation, registrant's financial inability to perform or comply, economic
hardship, and misfeasance, malfeasance or nonfeasance by any of registrant's directors,
officers, employees, contractors or agents.
Sec. 104-18. Reservation of rights and remedies.
(a) The City reserves the right to amend this Article as it shall find necessary in the
lawful exercise of its police powers.
(b) This Article shall be applicable to all communications facilities placed in the
publicrights-of-wayonoraftertheeffectivedateofthis
this Artiele, te the full extent permitted b..state and federal law.
(c) The adoption of this Article is not intended to affect any rights or defenses of the
City or a communications service provider under any existing franchise, license or other
agreements with a communications services provider.
(d) Nothing in this Article shall affect the remedies the City or the registrant has
available under applicable law.
(e) Any person who uses the communications facilities of a registrant, other than the
registrant that owns the facilities, shall not be entitled to any rights to place or maintain
such facilities in excess of the rights of the registrant that places or maintains the
facilities.
Sec. 104-19. Establishment of the rate of the communications services tax.
(a) For the fiscal year of the City commencing on October 1,2001, and ending on
September 30, 2002, the City hereby establishes the rate of the communications
services tax as the base rate of 5.10 percent established by +Eloricla Stglutes SS
202.19 and 202.20, plus 0.40 percent, as permitted by Section 13 of Chapter 2OO1-140
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{
Florida Statutes S 202.20, plus 0.12 percent, as permitted by Florida Statutes g
337 .401, for a total of 5.22 percent.
(c) The City hereby instructs the Florida Department of Revenue to collect the
communications services tax at the rates set forth in subsections (a) and (b) of this
section.
Sec. 104-20. Pass-Through Provider and Communications Facility Provider Fees and
Gharges
@) Passthrough 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
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the maximum annual amount allowed under-FS Florida Statute S 337.40'1. as
omended. For purposes of calculatinq pavments hereunder, each separate pole or
tower installed or maintained bv a pass-throuqh provider or communications facilitv
provider for purposes of supportino antennas or other over-the-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$500.00upallowedunderspecifiedinFlorida
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 every vear. Fees not paid within ten davs after the due date
shall bear interest at the rate of one percent 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 riqhts-or-wav.
SECTION 2. City Code Chapter llS, "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 approval of desion and location within public riohts-of-wav outside of
locallv desiqnated historic districts of all wireless communications facilities,
struetureslas defined in Chapter 104. "Telecommunication." Article l, "Communications
Rights-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.
25 of 40
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(5)To hear and decide appeals of the planning director when deciding matters pursuant
to section 118-260.
SECTION 3. City Code Chapter llS, "Administration and Review Procedures," Article ll,
"Boards," Division 4, "Historic Preservation Board," Section 118-102, "Powers and duties," is
hereby amended as follows:
Sec. 118-102. Powers and duties.
The Historic Preservation Board shall:
(1) Recommend to the planning board, and City Commission, the designation of
historic buildings, structures, improvements, landscape features, public interiors, and
historic sites or districts.
(2) Prepare and recommend for adoption specific guidelines for each designated site
or district to be used to evaluate the appropriateness and compatibility of proposed
alteration or development within designated historic sites or historic districts.
(3) 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
Mas defined in Chapter 104, "Telecommunication." 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.
(5) Advise the board of adjustment with regard to variances associated with
properties designated as historic sites, historic buildings, historic structures, historic
improvements, historic landscape features or any building or structure located within a
historic district or a National Register District through written recommendation to be read
into the record by the planning and zoning director at the board of adjustment's hearing.
(6) Facilitate the redevelopment of historic sites and districts by directing the
planning department, and other City departments, to provide advisory and technical
assistance to property owners, applicants for certificates of appropriateness.
(7) Make and prescribe by-laws and application procedures that are reasonably
necessary and appropriate for the proper administration and enforcement of the
provisions of this division. The board shall prescribe forms for use by applicants when
26 of 40
449
requesting action under this division. The board may authorize any one of its members
to administer oaths and to certify official documents.
(8) Award historic markers or plaques upon the recommendation of the City
manager and with the consent of the City Commission.
(9) Update and revise the historic properties database.
(10) Advocate that the City administration explore and advise the Historic
Preservation Board and the building official as to alternatives available for stabilizing and
preserving inadequately maintained and/or unsafe buildings or structures within the
City's designated historic districts or on designated historic sites.
(11) Review all new construction, alterations, modifications and improvements to any
building, structure, improvement, landscape feature, public interior or site individually
designated in accordance with Sections 118-591 , 118-592 and 118-593, or located
within an historic district.
(12) To review any and all amendments to this Code affecting historic preservation
issues; specifically division 4 of Article ll of Chapter 118 entitled "Historic Preservation
Board," and Article X of Chapter 1 18 entitled "historic preservation," pursuant to Section
1 1 8-1 63.
SECTION 4. City Code Chapter llS, "Administration and Review Procedures," Article Vl,
"Design Review Procedures," Section 118-251, "Design Review Criteria," is hereby amended as
follows:
Sec. 118-251. Desiqn review criteria.
(a) Design review encompasses the examination of architectural drawings for
consistency with the criteria stated below, with regard to the aesthetics, appearances,
safety, and function of any new or existing structure and physical attributes of the project
in relation to the site, adjacent structures and surrounding community. The board and
the planning department shall review plans based upon the below stated criteria, criteria
listed in neighborhood plans, if applicable, and design guidelines adopted and amended
periodically by the Design Review Board and/or Historic Preservation Board.
Recommendations of the planning department may include, but not be limited to,
comments from the building department and the public works department. 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 watenuays.
(2) The location of all existing and proposed buildings, drives, parking spaces,
walkways, means of ingress and egress, drainage facilities, utility services, landscaping
structures, signs, and lighting and screening devices.
27 ot 40
450
(3) The dimensions of all buildings, structures, setbacks, parking spaces, floor area
ratio, height, lot coverage and any other information that may be reasonably necessary
to determine compliance with the requirements of the underlying zoning district, and any
applicable overlays, for a particular application or project.
(4) The color, design, selection of landscape materials and architectural elements of
exterior building surfaces and primary public interior areas for developments requiring a
building permit in areas of the City identified in section 118-252.
(5) The proposed site plan, and the location, appearance and design of new and
existing buildings and structures are in conformity with the standards of this Article and
other applicable ordinances, architectural and design guidelines as adopted and
amended periodically by the Design Review Board and Historic Preservation Board and
all pertinent master plans.
(6) The proposed structure, and/or additions or modifications to an existing structure,
indicates sensitivity to and is compatible with the environment and adjacent structures,
and enhances the appearance of the surrounding properties.
(7) The design and layout of the proposed site plan, as well as all new and existing
buildings shall be reviewed so as to provide an efficient arrangement of land uses.
Particular attention shall be given to safety, crime prevention and fire protection,
relationship to the surrounding neighborhood, impact on contiguous and adjacent
buildings and lands, pedestrian sight lines and view corridors.
(8) Pedestrian and vehicular traffic movement within and adjacent to the site shall be
reviewed to ensure that clearly defined, segregated pedestrian access to the site and all
buildings is provided for and that all parking spaces are usable and are safety and
conveniently arranged; pedestrian furniture and bike racks shall be considered. Access
to the site from adjacent roads shall be designed so as to interfere as little as possible
with traffic flow on these roads and to permit vehicles a rapid and safe ingress and
egress to the site.
(9) Lighting shall be reviewed to ensure safe movement of persons and vehicles and
reflection on public property for security purposes and to minimize glare and reflection
on adjacent properties. Lighting shall be reviewed to assure that it enhances the
appearance of structures at night.
(10) Landscape and paving materials shall be reviewed to ensure an adequate
relationship with and enhancement of the overall site plan design.
(11) Buffering materials shall be reviewed to ensure that headlights of vehicles, noise,
and light from structures are adequately shielded from public view, adjacent properties
and pedestrian areas.
(12) The proposed structure has an orientation and massing which is sensitive to and
compatible with the building site and surrounding area and which creates or maintains
important view corridor(s).
(13) The building has, where feasible, space in that part of the ground floor fronting a
street or streets which is to be occupied for residential or commercial uses; likewise, the
28 of 40
451
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 foreooinq criteria, Section 104-6(t) of the Citv Code the
fellewine Griteria
Odinanee-shall applv to the Desion 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.
fi) With respeot to
ees+heti+€#i€ient and effective managemen
€65 172(12XbX5
(ii) Reqistrants s
pertY er gevernmen
Chapter 10l, An app
facilities within t
epeftv er qevernment ewneW
fiii\ Resistrants
faeilitv in the rish
A- eellecate wireles
wireless previde
Statutes t 365:172
ieatiens faeititl
itneut timitati ineffitercenenepetes,
29 of 40
452
te censtruet a new a
previders and (ii te censtruct the-wl
C, nepurpese an Cxl
(iv) Reqistrants s
It Aemenstrate tn
leeate the wireless
ineerinq analvsis frem the applicant
te the
wiretess eemmuniea
neriAa Statutes $
(v) Wnenever wirete
ri ll wireless cem
teeateO-+uen+nat views frem resiA
pessiblein-erder te ebseure the vl
this subparaeraph s
CitY's Telecemmun
(a
(vi) Stealth desiq
visual impaot ef wl
(viD Stealth desi
in-+he-+rghts-ef-wav shall eliminatequiffi) en the exterier o
tewers
e et felaee and
the eitv
e tne greund equipment is to be
e€d€-s{€4€${7}li
30 of 40
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(viii) Stealth des
riehts-o+way shall:(A) tep m
the diameter ef the s
(B) shall side meun
structure at the lev
nees shall antenn
nv platferm;
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eeCe4{€4€+H{8}l+
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The a?plieant shal
rements ef this Gha
neriea Statutes S
in
aximum size and he
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31 of 40
454
further that the eve iens
faeititv snatl net e
ligfr+ peles; and re iens
niehts ef Way Ordin
(xiv) Reqistr:ants
+
Wav grAinanee mav een
(xv) The eitY's aetl
es set
nded, includinq w
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s previdersi
(C) The Brevisiens
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in€r€asedi
(e) The Brevisiens
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(g) The previsiens
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(E) The previsiens o
eitv teeeeperatew
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32 of 40
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f*t net tewerst invo
apBea+an€e;
SECTION 5. City Code Chapter llS, "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. 118-564. Decisions on certificates of appropriateness.
(a) A decision on an application for a certificate of appropriateness shall be based
upon the following:
(1) Evaluation of the compatibility of the physical alteration or improvement
with surrounding properties and where applicable compliance with the following:
a. The Secretary of lnterior's Standards for Rehabilitation and Guidelines
for Rehabilitating Historic Buildings as revised from time to time; and
b. Other guidelines/policies/plans adopted or approved by resolution or
ordinance by the City Commission.
(2) ln determining whether a particular application is compatible with surrounding
properties the Historic Preservation Board shall consider the following:
a. Exterior architectural features.
b. Generaldesign, scale, massing and arrangement.
c. Texture and material and color.
d. The relationship of subsections a., b., c., above, to other structures
and features of the district.
e. The purpose for which the district was created.
f. The relationship of the size, design and siting of any new or
reconstructed structure to the landscape of the district.
g. An historic resources report, containing all available data and historic
documentation regarding the building, site or feature.
h. The original architectural design or any subsequent modifications that
have acquired significance.
(3) The examination of architectural drawings for consistency with the criteria
stated below, with regard to the aesthetics, appearances, safety, and function of
any new or existing structure, public interior space and physical attributes of the
33 of 40
456
project in relation to the site, adjacent structures and properties, and surrounding
community. The Historic Preservation Board and planning department shall
review plans based upon the below stated criteria and recommendations of the
planning department may include, but not be limited to, comments from the
building department. The criteria referenced above are as follows:
a. The location of all existing and proposed buildings, drives, parking
spaces, walkways, means of ingress and egress, drainage facilities,
utility services, landscaping structures, signs, and lighting and
screening devices.
b. The dimensions of all buildings, structures, setbacks, parking spaces,
floor area ratio, height, lot coverage and any other information that
may be reasonably necessary to determine compliance with the
requirements of the underlying zoning district, and any applicable
overlays, for a particular application or project.
c. The color, design, surface finishes and selection of landscape
materials and architectural elements of the exterior of all buildings and
structures and primary public interior areas for developments requiring
a building permit in areas of the City identified in section 1 18-503
d. The proposed structure, and/or additions to an existing structure is-are
appropriate to and compatible with the environment and adjacent
structures, and enhaneesflhance the appearance of the surrounding
properties, or the purposes for which the district was created.
e. The design and layout of the proposed site plan, as well as all new
and existing buildings and public interior spaces shall be reviewed so
as to provide an efficient arrangement of land uses. Particular
attention shall be given to safety, crime prevention and fire protection,
relationship to the surrounding neighborhood, impact on preserving
historic character of the neighborhood and district, contiguous and
adjacent buildings and lands, pedestrian sight lines and view
corridors.
f. Pedestrian and vehicular traffic movement within and adjacent to the
site shall be reviewed to ensure that clearly defined, segregated
pedestrian access to the site and all buildings is provided for and that
any driveways and parking spaces are usable, safely and
conveniently arranged and have a minimal impact on pedestrian
circulation throughout the site. Access to the site from adjacent roads
shall be designed so as to interfere as little as possible with vehicular
traffic flow on these roads and pedestrian movement onto and within
the site, as well as permit both pedestrians and vehicles a safe
ingress and egress to the site.
g. Lighting shall be reviewed to ensure safe movement of persons and
vehicles and reflection on public property for security purposes and to
minimize glare and reflection on adjacent properties and consistent
with a City master plan, where applicable.
34 of 40
457
h. Landscape and paving materials shall be reviewed to ensure an
adequate relationship with and enhancement of the overall site plan
design.
i. Buffering materials shall be reviewed to ensure that headlights of
vehicles, noise, and light from structures are adequately shielded from
public view, adjacent properties and pedestrian areas.
j. Any proposed new structure shall have an orientation and massing
which is sensitive to and compatible with the building site and
surrounding area and which creates or maintains important view
corridor(s).
k. All buildings shall have, to the greatest extent possible, space in that
part of the ground floor fronting a sidewalk, street or streets which is
to be occupied for residential or commercial uses; likewise, the upper
floors of the pedestal portion of the proposed building fronting a
sidewalk street, or streets shall have residential or commercial
spaces, or shall have the appearance of being a residential or
commercial space or shall have an architectural treatment which shall
buffer the appearance of a parking structure from the surrounding
area and is integrated with the overall appearance of the project.
l. All buildings shall have an appropriate and fully integrated rooftop
architectural treatment which substantially screens all mechanical
equipment, stairs and elevator towers.
m. Any addition on a building site shall be designed, sited and massed ina manner which is sensitive to and compatible with the existing
improvement(s).
n. All portions of a project fronting a street or sidewalk shall incorporate
an amount of transparency at the first level necessary to achieve
pedestrian com patibility.
o. The location, design, screening and buffering of all required service
bays, delivery bays, trash and refuse receptacles, as well as trash
rooms shall be arranged so as to have a minimal impact on adjacent
properties.
p.
+ ln addition to the foreooinq criteria. Section 104-6(t), and the
requirements of chapter 104. of the citv code shall applv to the
Historic Preservatlm Desien-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-riohts-of-wav
threush 3(e); the frem Ghapter 10 | s
35 of 40
458
in € wireless
eemmunieatiens fa
ragre-reeeptien faei t itv in
f-
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the
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Statutes Sg65,172
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36 of 40
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engineer-+he-raeeC-+e leeate the wireles
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ien
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iOa Statutes
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37 of 40
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mm-
ate
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ier lecation
neeessarv te aenieve nee
t bex mav be leeateanv__siffiterioa statutes $
eede t1g'1 6(t)(9
eO-
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qq-
spa€eC-€--minimum ef five hundrc
frem eaeh ether; Thi
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te address a deeume ierEi-€r
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38 of 40
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tnat are net tisht Bo
Citv's Telecemmun
erieineilv-l+sh+-€ele€ shall net be lit u
eemptv witn fnn reeul
eemmunieatiens tae
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dinen€+-mev
centinue te suppeft
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Yf-
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g65,172, as amendd
irq€{udins-ryi+heu+-limitati€n:
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tewer is
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inetuAins
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minimum diEtaneeffiratsatetvanaaes
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39 of 40
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e discernible ehM
SECTION 6. CODIFICATION.
It is the intention of the City Commission, and it is hereby ordained that the provisions of
this ordinance shall become and be made part of the Code of the City of Miami Beach as
amended; that the sections of this ordinance may be renumbered or relettered to accomplish
such intention; and that the word "ordinance" may be changed to "section" or other appropriate
word.
SECTION 7. REPEALER.
All ordinances or parts of ordinances and all section and parts of sections in conflict
herewith be and the same are hereby repealed.
SECTION 8. SEVERABILITY.
lf any section, subsection, clause or provision
remainder shall not be affected by such invalidity.
SECTION 9. EFFECTIVE DATE.
of this Ordinance is held invalid, the
This Ordinance shall take effect ten days following adoption.
PASSED and ADOPTED this day of
ATTEST:
Philip Levine, Mayor
Rafael E. Granado, City Clerk
Underscore denotes new language
S+ike+n+eugh denotes stricken lang uage
(Sponsored by Commissioner Joy Malakoff)
First Reading:
Second Reading:
F:/ATTo/BouE\crown Lease Telecommunications\ Telecommunications Row 1-20-15 draft.doc
204.
,5[R[8UR8ilB'
& FOR EXECUTION
\-z3-lJ
-
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40 of 40
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