Loading...
HomeMy WebLinkAboutOrdinance 2018-531 ORDINANCE NO. 2018 5--;1 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, REPEALING ARTICLE II ENTITLED "TELECOMMUNICATIONS RIGHT OF WAY" ORDINANCE (SECTIONS 129-20 THROUGH 129-61) OF CHAPTER 129 IN"ITS ENTIRETY; AMENDING ARTICLE III OF CHAPTER 129 ENTITLED "COMMUNICATIONS RIGHTS-OF-WAY" ORDINANCE; PROVIDING FOR INTENT AND PURPOSE; PROVIDING FOR DEFINITIONS; PROVIDING FOR REGISTRATION FOR PLACING OR MAINTAINING COMMUNICATIONS FACILITIES IN THE PUBLIC RIGHTS-OF-WAY; PROVIDING REQUIREMENT OF A PERMIT; PROVIDING APPLICATION REQUIREMENTS AND REVIEW PROCEDURES; PROVIDING FOR A PERFORMANCE CONSTRUCTION BOND; PROVIDING FOR CONSTRUCTION METHODS; PROVIDING DEVELOPMENT AND OBJECTIVE DESIGN STANDARDS; PROVIDING FOR FEES AND TAXES; PROVIDING FOR ENFORCEMENT REMEDIES; PROVIDING FOR SEVERABILITY AND REPEALER; PROVIDING FOR CONFLICTS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, City of Sunny Isles Beach, Florida ("City") staff periodically reviews City Ordinances and makes recommendations to the City Commission to revise its Ordinances; and WHEREAS, the City Commission of the City of Sunny Isles Beach has determined that the - - ,following amendments promote and protect the general health, safety and welfare of the residents of the City of Sunny Isles Beach by regulating the siting of communications facilities and utility poles within the public rights-of-way; and, WHEREAS, this Ordinance accommodates the growing needs and demand for communications services; and WHEREAS,-this Ordinance seeks to address expressly new communications facilities and technologies, while also protecting, preserving, and maintaining the public safety and aesthetic characters of areas where such public rights-of-way exist; and WHEREAS, Section 337.401, Florida Statutes, addresses inter alia, the authority of local governments to regulate the placement and maintenance of communications facilities in the public rights-of-way; and WHEREAS, Section 337.401(3)(g), Florida Statutes, provides that a local government may not use its authority over the placement of facilities in its rights-of-way as a basis for asserting or exercising regulatory control over a provider of communications services regarding matters within the exclusive jurisdiction of the Florida Public Service Commission or Federal Communications Commission, including, but not limited to, the operations, systems, qualifications, services, service quality, service territory, and prices of a provider of communications services; and WHEREAS, in 2017, Florida enacted the Advanced Wireless Infrastructure Deployment Act, Section 337.401(7), Florida Statutes ("Wireless Act"); and WHEREAS, the Wireless Act addresses local governments regulation of the installation of utility poles in the public rights-of-way to collocate small wireless facilities, and the placement and maintenance of small wireless facilities and micro wireless facilities in the public rights-of-way; and WHEREAS, the Wireless Act provides that a local government may adopt by ordinance objective design standards requiring a small wireless facility to meet reasonable location context, color, stealth, and concealment requirements, objective design standards requiring a new utility pole intended to support the collocation of small wireless facilities that replace an existing facility to be of substantially similar design, material, and color, and reasonable spacing requirements concerning the location of ground-mounted equipment; and WHEREAS, the Wireless Act also provides that a local government may adopt by ordinance provisions for insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, municipal liability, and municipal warranties provided such provisions are reasonable and nondiscriminatory; and WHEREAS, it is the City Commission's intent to exercise its authority over the placement and maintenance of communications facilities in its rights-of-way to the full extent consistent with applicable state and federal law; and WHEREAS, it is the City Commission's further intent to treat each such communications services provider in a reasonable, nondiscriminatory, and competitively neutral manner in exercising such authority to the extent consistent with applicable law; and, WHEREAS, the City's rights-of-way are essential for the travel of persons and the transport of goods throughout the City and are a unique and physically limited resource requiring proper management by the City to ensure public safety, maximize efficiency, minimize costs to City taxpayers for the foregoing uses, reasonably balance the potential inconvenience to and negative effects upon the public from the placement and maintenance of communications facilities in the -rights-of-way-against-the substantial benefits that accrue from such placement and maintenance, and promote the public health, safety and general welfare; and WHEREAS, a duly noticed public hearing as required by law was held by the City Commission of the City of Sunny Isles Beach, at which public hearing all residents and interested persons were given an opportunity to be heard; and, WHEREAS, the City Clerk submitted the proposed ordinance to the Secretary of State pursuant to Section 337.401(3)(d); and WHEREAS, the City Commission for the City of Sunny Isles Beach, Florida finds and declares that this ordinance is in the best interest of the public health, safety and welfare of the citizens and residents of the City of Sunny Isles Beach, Florida and that it advances a significant and important governmental interest, 2 City of Sunny Isles Beach CROW Ordinance 10-17-18 NOW, THEREFORE,.BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH as follows: SECTION 1. Recitals Adopted. That each of the above stated recitals is hereby adopted and confirmed. SECTION 2. Repeal of Chapter 129, Article II, Sections 129-20 through 129-61. The City Commission hereby repeals Chapter 129, Article II, Sections 129-20 — 129-61 of the Code of Ordinances, City of Sunny Isles Beach, Florida, in its entirety, as follows': § 129-20. - Short title. Reserved. This article shall be known as the "Telecommunications Right of Way" Ordinance. § 129-21. - Definitions. Reserved. As used in this article, the following terms shall have the meanings indicated: DIRECTOR The Director of Public Works or his or her designee. GROSS RECEIPTS All revenues received by the licensee on recurring local service revenues for services provided within the incorporated limits of Sunny Isles Beach. MUNICIPAL RIGHT OF WAY USE LICENSE The right granted by the City to use public rights of way to provide telecommunications services, within the City to the public or to other providers, as specified by the terms of this article. PUBLIC RIGHTS OF WAY Public streets, rights of way and public easements including-the area on, over, or under the surface in the unincorporated areas and the public streets, rights of way and easements for which Sunny Isles Beach Public Works Department has primary jurisdiction for issuing-permits- TELECOMMUNICATIONS COMPANY, CARRIER OR PROVIDER Includes every apolitical subdivision in the state, offering two way telecommunications service to the public for hire within this state by the use of a telecommunication facility. The term "telecommunications • certificated telecommunications company, a commercial mobile radio service provider, a facsimile for hire, a cable television company providing cable service as defined in 47 U.S.C. § 522, or an open video system as defined in'17 CFR Part 76, as amended from time to time. TELECOMMUNICATIONS SERVICES Includes all telecommunications related services by a telecommunications company including, but not limited to, local telephone service, private communications service, local exchange telephone service, interexchange carriers, international telecommunications carriers, toll telephone service, alternate access vendor and all other providers of basic local telecommunications services, nonbasic telecommunications services and all other Words are intended to be deleted; words underlined are intended to be added. 3 City of Sunny Isles Beach CROW Ordinance 10-17-18 telecommunications setwices including all telecommunications services authorized by the Florida Public Service Commission. provide telecommunications services. § 129-22. - Intent and purposes. Reserved. The purpose of this article is to establish a competitively neutral policy for usage of public rights of way for the provision of telecommunications services and enable the City to: A. Permit nondiscriminatory access to the public right of way for providers of telecommunications services; and B. Manage the public rights of way in order to minimize the impact and cost to the citizens of the -- commercial use of public rights of way in a nondiscriminatory manner; and D. Promote competition among telecommunications service providers and encourage the universal availability of advanced telecommunications services to all residents and businesses of the City; and E. Minimize the congestion, inconvenience, visual impact, and other adverse effects on the City's public rights of way. § 129-23. - Applicability. Reserved. This section applies to all telecommunications service providers under Title II of the solely by means of wireless.,--transmission which do not us:; - :.• - . :€-way: This section applicable FCC rules and regulations. § 129-24. - Municipal right of way use license required. Reserved. A. It shall by unlawful for any person to construct or operate a telecommunications system upon, B. Subject to all existing permitting processes, the licensee is authorized to occupy, install, lay, erect, construct, remove, relocate and maintain in, on, over or upon any and all of the public right of ways, as they now exist or may be her-after constructed, opened, laid out or extended within the present limits of the City any and all such conduits, cables, fiber optic lines, poles, wires, supports and other structures and appurtenances as may be r-asonably necessary for the construction, maintenance and operation of a telecommunications system. Except as provided above, this license does not convey the right.to attach cable er conduit to poles, or occupy or use real or personal property owned by the City of Sunny Isles Beach. C. Any license granted under this article shall be nonexclusive, and the issuance of a license will not expressly or implicitly preclude the City from issuance of other licenses to telecommunications companies or affect the City's right to authorize use of public rights of way for other lawful purposes to other persons as it determines appropriate. 4 City of Sunny Isles Beach CROW Ordinance 10-17-18 D. This license authorizes the licensee to use the public rights of way to provide telecommunications services only. Use of the public rights of way for any other purpose requires separate authorization. -. -• • - . .. -- use of any public property that does not act as rights of ways. Such property shall not fall within the purview of this article. § 129-25. - Municipal right of way use license application. Reserved. Any person desiring to install and/or operate a telecommunications system by using public rights of way in the City shall submit an application to the Director in accordance with this article. The application shall be in a form to be prescribed by the Director and the City Manager, shall deseribc the services the applicant wishes to provide, outline applicant's proposed network relating to physical facilities to be installed in the rights of way and potential impact on the physical rights of way. All applications to construct operate or maintain any telecommunications services system in the City or to traverse any portion of the City for the transmitting or conveying of such service application must be submitted and be accompanied by an application filing fee of $2,500. In addition, the City may charge a supplementary application fee to reimburse the City for any external costs it incurs in the course of receiving and rendering a decision on the application. Each application for registration, renewal registration and duplicate registration shall be on a form prescribed by the City and shall be accompanied by such a fee in an amount that is established by administrative costs to process such application. Said fee and application form shall be effective upon approval by the City Commission and is attached to this article as Exhibit A. § 129-26. - Term and limited right to renewal. Reserved. including-a-Fe vat-tiee ise, shall be issued for a term tenger than seven-years, B. A licensee shall have a right to renew provided that the licensee is authorized by the controlling the licensee has complied with all material provisions of the license. A material breach shall not be danger tote public or other users of the public rights of way or significantly impairs the City's ability to manage the public rights of way for the safety, health and welfare of the general public or other users of the public rights of way. Modifications to the license including new terms, provisions, or conditions as allowed by the prevailing law at the time of renewal may also be required by the City upon renewal. A license may be renewed for additional successive periods not to exceed seven years. § 129-27. - License fees. Reserved. See Article IV, Fees and Taxes, of this chapter. § 129-28. - Audits; inspection of records. Reserved. All amounts paid under this article shall be subject to audit and recomputation by the City. Upon reasonable notice, the licensee shall make available to the City once per year, during normal business hours and at the licensee's local office, the books, records and accounts and other documentation of the licensee (hereinafter collectively referred to as the "reports") that are necessary to determine the accuracy of the calculations upon which the license fee payment is 5 City of Sunny Isles Beach CROW Ordinance 10-17-18 based. The licensee shall maintain its records in such a manner as to clearly distinguish between revenues and/or linear foot calculations derived from operations in the City of Sunny Isles Beach. The City may waive this requirement with any particular licensee if an agreement is reached that other methods will be utilized such as audit sampling techniques which can clearly isolate revenues and/or linear foot calculations to which the City is entitled. In the event the reports arc not made the City's representative resulting from said representative's travel to the location where the reports are maintained. The City shall maintain all books, records, accounts and other documentation of licensee in strictest confidence to the extent allowed under the Public Records Act and other applicable Florida laws. § 129-29. - Annual-reports. Reserved. Within three months of the close of its fiscal year, the licensee shall file an annu .. Director that includes the following information: A. A report that details the data used to calculate the license fees which shall be of sufficient scope to allow independent ascertainment of the licensee's compliance with the license fee requirements of this article. The underlying data in such reports shall be prepared in accordance with generally accepted accounting principles (GAAP). B. The full legal name of the licensee as of that date. • effective date of this article. § 129-30. - License application procedure; information required. Reserved. A. To obtain a license under this article a person shall apply to the Director. To be acceptable for , . . . . . . . .•- „ . . ie. . . ted and be accompanied by-the application filing fee where required. B. Each application for an initial license shall set forth the following: (1) The name, address and telephone number of the applicant. (2) A statement of the corporate or other business organization of the applicant, and the • .uring the application process and the name, busine,s-adElfessand - - - telephone number of the primary contact person during the term of the license. (3) Identification of the applicant's fiscal year calendar. (1) A description of the general nature and size of the proposed telecommunications system's plant and equipment that licensee intends to have occupy the public rights of way, includin_ a list with descriptions of the appurtenances such as manholes, pedestals, handholes, controlled environmental vaults, etc. • • telecommunications services. (6) A copy of any administrative or legal decision in which the licensee was determined to of Florida. C. Within 30 calendar days after the awarding of the license, the licensee shall file with the Director its written acceptance of the license, together with the insurance policy and bonding documents required by this article, and its agreement to be bound by and to comply with all requirements pursuant to the provisions of this article and the license. 6 City of Sunny Isles Beach CROW Ordinance 10-17-18 § 129-31. - Application fee. Reserved. prescribed by the Director and shall be accompanied by a fee in such amount as shall be established by administrative order of the City Manager. The fee shall not exceed the reasonable amount to cover the administrative cost to process such application. Said fee shall be effective upon approval § 129-32. - Issuance of license. Reserved. fee; provided, however, the Director shall have the authority to deny a license if the applicant fails to meet the application requirements or the proposed use of the public rights of way presents a danger to the general public and other users of the public rights of way. § 129-33. - Transfers. Reserved. of the City, which shall net be Wife . . ..' - . . . •.- - • -• _ a license without such consent shall be null and void. Consent shall be deemed granted within 90 certificate from the Federal Communications Commission and/or Florida Public Service assign the license without City consent to an affiliate or entity which is controlled by or under common control with licensee, provided that such assignee_agrees in waiting to be bound by the terms and conditions of this article and the license. - § 129-34. - Use of county pudic rights of way; construction requirements; alteration of system access by City. Reserved. Subject to all applicable provisions of the City, county and state, the licensee may perform all necessary work to construct, occupy and maintain its telecommunications system. The licensee must comply at all times with all policies, procedures and directives of the Public Works Department, and the Zoning, Planning and Building Department. Prior to the installation, placement or removal of any conduits, cables or pole lines, facilities, or the start of any other type of construction on the City's public rights of way, the licensee shall, pursuant to the requirements of Public Works Department, and the Zoning, Planning and Building Department. The issuance of a permit by the City shall not be construed by the licensee as a warranty that the placement by the licensee of its conduits, cables or pole lines, facilities, or the start of construction, is in compliance with any applicable rules, regulations or laws. All construction and maintenance of the licensee's facilities within City public rights of way incident to licensee's provision of service shall, regardless of who performs installation and/or construction, be and remain the responsibility of the licensee. § 129-35. - Right to use easement and streets not warranted. Reserved. It is understood that there may be from time to time within the City various public rights of way which the City does not have the unqualified right to authorize licensee to use; therefore, in granting this license, the City does not warrant or represent as to any particular easement, right of way, or portion of a right of way or easement, that it has the right to authorize the licensee to install or 7 City of Sunny Isles Beach CROW Ordinance 10-17-18 § 129-36. - Other agreements, permits and easements. Reserved. Nothing in this article or license shall be construed to require the City to assume any responsibility for the securing of any right of way, easements, or othcr rights, which may be required by the licensee for the installation of its telecommunications system, nor shall the City be responsible for securing any permits or agreements with other persons or utilities. § 129-37. -No property rights conveyed. Reserved. Nothing in this article or in the license shall grant to the license holder any right of property in City owned property or public rights of way, nor shall the City be compelled to maintain any of its property or public rights of way any longer than, or in any other fashion than in the City's judgment, its own business or needs may require. § 129-38. - Location or relocation of facilities. Reserved. A. Unless controlling law provides otherwise, the licensee's system shall be installed underground facilities are installed above ground, the licensee may install its facilities underground or above ground, at its discretion. B. Licensee shall not place any fixtures or equipment where the same will interfere with any licensee shall locate its lines and equipment in such a manner as not to interfere unnecessarily with the usual travel on streets; with the installation or operation of gas, electric, CATV, telephone, water, drainage, or sewer line equipment, or with the rights of owners of property which abuts any public right of way. their systeifts= - . . _ •- . . . •- :t of way-area-where existing power or telephone facilities are hereafter so relocated. Any such relocation shall be at the licensee's expense, and such facilities. D. The licensee shall have the authority to trim trees upon or overhanging streets, alleys, sidewalks contact with the wires and cables of the licensee, in a manner approved by and acceptable to the City. When the City determines such trimming is necessary to protect the health safety and welfare of the public, such trimming may be done by it or under its supervision and direction at the expense of the licensee, if prior notification has been given to the licensee and licensee thereafter failed to E. Licensee shall promptly and at the licensee's own expense protect, support, temporarily disconnect, remove, modify or relocate any part of their system when required by the City by reason of traffic conditions, public safety, road construction, change of street grade, installation of sewers, drains, water pipes, power lines, signal devices, tracks, any other type of City improvement project, or to accommodate the abandonment of any street. Such work shall be completed no later than 30 days after receiving notice from the City or such longer period as may be agreed to by the City. In the event such contingency occurs, and the licensee fails to remove or modify its system, the City may, upon notice to licensee, make the necessary removals and charge the licensee for the cost. Nothing in this section shall be construed to waive any rights the licensee may have under state or federal law to be reimbursed for relocation expenses. 8 City of Sunny Isles Beach CROW Ordinance 10-17-18 F. Each licensee shall, on the request of any person holding a building moving permit issued by the City, temporarily remove, raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, given not less than seven days' advance notice to arrange for such temporary wire changes, or such longer period as may be necessary, but in no event gr-ater than 20 days. G. When placed underground, all service lines, drops, or laterals that connect the end user customer to the licensee's distribution system shall be buried as follows: on easements and public rights of way at the depth as established by the Public Works Manual or Regulations; and on private property at a sufficient depth so that no portion of the line is exposed. The Director may impose a specific depth requirement for such lines on private property. H. Except for relocation expenses when authorized by state or federal law, the license holder shall relocate its property, lines and cable from such public property or public rights of way in the event the City determines that a necessity exists for such removal or relocation. § 129-39. - Work in public rights of way and easements. Reserved. A. A licensee must obtain any required permits before performing any work that disturbs or impacts emergency work is completed. Licensee must restore the public rights of way to their former condition in a manner approved by the City. If such restoration is not satisfactorily performed within a r-asonable time, the City, after prior notice to the licensee, may cause the repairs to be fails to perform such repairs. B. All personnel-utilized by the licensee in the construetie:-ef-the licesee's system shall possess telephone number. C. The licensee shall join and maintain a continuous membership in a utility notification one call system and use its services prior to construction. D. Only licensed, certified or registered contractors duly authorized to perform such work in the City may be utilized for construction. E. In connection with the permitting process, licensee shall furnish the Director of Public Works and the City Manager with construction plans and maps showing the routing of construction at least /15 days before beginning new construction that involves an alteration to the surface or subsurface of the public right of way unless a permit is granted sooner. A licensee may not begin construction permit is issued. § 129-40. - Safety. Reserved. A. Licensee's work performance, equipment, and job sites shall be in compliance with all applicable - - - - --- . - • • • barricades, flags, lights, flares or other devices as are required by the Manual on Uniform Traffic Control Devices (FDOT) and/or any requirements of the Public Works Department to protect all members of the public having occasion to use the portion of the streets involved or adjacent larePe4y. 9 City of Sunny Isles Beach CROW Ordinance 10-17-18 B. The licensee shall at all times employ due care and shall install, maintain and use commonly accepted methods and devices for preventing failures and accidents which arc likely to cause •. ... ,- •-•. .• . -- public. All of licensee's structures and all lines, equipment and connection in, over, under and upon the public rights of way of the City wherever situated or good order and repair. C. In the case of conflict or interference between facilities of different licensees, the licensee whose facilities were first permitted shall have priority over competing licensee use of the public rights of way. The resolution of any conflict or interference shall be made in a manner, which is consistent with the nondiscrimination provisions of the Federal Telecommunications Act of 1996. § 129-41. -City's right to inspect. Reserved. its installation, construction, and maintenance to insure compliance with the terms of this license and other pertinent provisions of the law. § 129-42. - Unauthorized work. Reserved. Any conduits, cables or pole lines installed or placed without first having obtained the permits hereinbefore provided for shall be removed within 10 days following written notice by the City. Failure to comply following written notice may result in the removal of the conduits, cables or poles by order of the Public Works Department and the cost of removal shall be borne and paid by the licensee. When permits are required, all work done without permits will cease until all permits are pulled and fees paid. § 129-43. - ' . . • . .. - . Reserved. - The licensee shall not-in-any-Ayr. . . , .. sewer,--wateuman; pipe or any other facilities belonging to the City without the consent of the City; and the licensee shall be liable to the City for the cost of any repairs made necessary by any such displacement, damage or destruction and shall pay such costs upon demand. § 129-44. - Electrical standards; as built plans. Reserved. A. All facilities shall be constructed and maintained in accordance with the National Electrical Code and the National Electrical Safety Code in force at the time of the effective date of this article and as amended. B. The licensee shall produce and provide a complete set of "as built" plans including, but not limited to, horizontal and typical vertical profiles within 60 days after construction of any portion of the system, to the City Manager with copies to the Public Works Department. § 129-45. - Emergency. Reserved. In an emergency that affects the public safety, as determined by the City, when the licensee or its representative is immediately unavailable or unable to provide the necessary immediate repairs to any portion of the public rights of way that is damaged due to any faults or settled or sunken areas that may develop in any area over, around or adjacent to same, the City, when apprised of such an licensee. 129-46. - Service to City. Reserved. 10 City of Sunny Isles Beach CROW Ordinance 10-17-18 If controlling law changes to require the licensee, or to authorize the City to require the licensee, to provide telecommunications services or facilities to schools, hospitals, government or other public § 129-47. - Insurance. Reserved. A. The licensee shall provide, pay for and maintain, throughout the term of its license, and with companies satisfactory to-the City, the types of insurance described herein. All insurance shall be licensee shall be approved by the City Manager. All liability policies shall provide that the City is an additional insured as to the operations under this license and shall provide the severability of interest provision. The required coverages must be evidenced by properly executed certificates of insurance licensee. Thirty days' advance written notice by registered or certified mail must be given to the City of any cancellation, intent not to renew or reduction in the policy coverages, which notice shall be sent by registered mail to the Administrative Services Department. Companies issuing the insurance policies shall have no recourse against the City for payment of any premiums B. The limits of coverage of insurance required shall be not less than the following: employer's liability insurance with limits of not less than $500,000. This coverage must be evidence by a certificate of insurance that requires at least 30 days' advance written notice of cancellation, nonrenewal or material change to the City Manager. (2) Comprehensive general liability bodily injury and property damage $.1,000,000 combined single limit -ach occurrence. (3) Automobile-iabi1ity=—bed-il-y njury and property damage $1,000,0 -si+gle limit each accident covering all owned, nonowned, and hired vehicles. C. Upon 30 days' notice, the insurance coverage and policy requirements may be changed and expesufe-a,,d l; itom D. These insurance requirements may be met by evidence of participation of a bona fide captive insurance or self insurance program that is established and regulated by a governmental entity. - - E. The City may, at its option, increase or decrease policy limits set forth above, upon 60 days' written notice to the licensee. Within 60 days from receipt of notice to incr ase its policy limits, the § 129-48. - Faithful performance and payment bond. Reserved. The licensee shall within 30 days of the effective date of a license granted under this article, furnish to the Administrative Services Department a performance bond or an irrevocable letter of credit bond shall be maintained by the licensee throughout the term of the license. licensees' system installed in the City's streets, and for one year after the license expires or is terminated. The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire without 30 days' prior written notice first being given to the Director and the Risk Manager. The performance bond or letter of credit shall be used to guarantee the compliance with 11 City of Sunny Isles Beach CROW Ordinance 10-17-18 article. The licensee shall maintain a copy of the bond on file with the City along with written c 'idence of the required premiums. 129-49. - Indemnification. Reserved. A. The licensee shall indemnify and hold the City and its officers, directors, agents, servants, witness fees, court costs and the reasonable value of any services rendered by any officer or employee of the City, and any orders, judgments or decrees which may be entered which arise or are alleged to have arisen out of, in connection with or attributable to, the licensee's maintenance, occupation, placement, repair, relocation or removal by the licensee of any portion of the The licensee shall undertake at its own expense the defense of any action which may be brought against the City for damages, injunctive relief or for any other cause of action arising or alleged to have arisen out of, in connection with or attributable to, the foregoing and, in the event any final judgment therein should be rendered against the City resulting from the foregoing, the licensee shall promptly pay the final judgment, together with all costs relating thereto; the licensee being allowed, such suit or action upon the filing of such supersedes bond to the extent required to prevent levy or judgment against the City during such appeal or appeals. B. Nothing in this section shall prohibit the City from participating in the defense of any litigation upon a court order awarding such costs. C. The City Manager shall give prompt, written notice to the licensee of any claim for which the City seeks ind:--.-• . ' . --- ieensee-shall-haw the right to investigate, defend and cempfe:ise these claims subject to prior City approval. Failure of the City to provide written notice shall not waive the requirement of Subsection A hereinabove. § 129-50. - Construction bond. Reserved. A. Prior to the commencement of any construction or other significant work in the public rights of way, licensee shall furnish a construction bond in favor of the City in an amount equal to the • proposed cost of the work. No work shall commence until a construction bond is furnished to the City. The construction bond shall not be released until the rights of way have been restored and B. The construction bond shall serve as security for: (1) The faithful performance by the licensee or permittee of all terms, conditions and (2) Any expenditure, damage or loss incurred by the City occasioned by the licensee's or permittee's violation of this article, or its failure to comply with all rules, regulations, orders, permits and other directives of the City issued pursuant to this article. (3)Payment of all compensation due to the City, including permit fees. (4) The payment of premiums for the liability insurance required pursuant to this article. (5) The payment of any other amounts which become due to the City pursuant to this article (6) The submission to the City of accurate record drawings showing at a minimum correct horizontal and vertical locations of new facilities placed in the rights of way in a format approved 12 City of Sunny Isles Beach CROW Ordinance 10-17-18 by the Public Works Department. Record drawings shall be certified by a professional engineer or land surveyor registered by the State of Florida, except for such engineers or surveyors who may be empt from registration by Florida statutes. C. Maintenance of bond. (1) The construction bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled or renewed by the surety nor the intention to cancel or not to renew be stated by the surety until 90 calendar days after• canceled or renewed by the surety until at least 90 calendar days' written notice to the City of surety's intention to cancel or not renew this bond." (2) The construction bond shall be maintained until said construction work is completed and for a period not to exceed one year thereafter. Licensee shall notify the City in writing when it believes the construction has been completed. D. The City may waive the provisions of this section only as follows: (1) Licensee supplies other acceptable financial guarantees or demonstrates financial responsibility satisfactory to the Finance Director and the City Attorney. (2) Licensee provides a written guarantee that none of the provisions of this section, nor the by or limit the liability of the licensee under this article.or any telecommunications license or permit issued in accordance herewith or for damages either to the full amount of such bond or otherwise. § 129-51. : Termination,Reserved. The City may declare a forfeiture and termination of, and revoke and cancel all rights granted under, this license if a federal/state authority suspends, denies, or revokes a telecommunications rim-ef way presents a danger to-the-general-public under:, . - - - ..• ' •_ Or the licensee has abandoned its system. Prior to such termination by the City resulting from a City with a written notice setting forth all matters pertinent to such violation, and describing the action of the City with respect thereto. The licensee shall have 60 days after service of such notice within which to cure the violation, or within which to present a plan, satisfactory to the City, to the public rights of way of the City safe, and shall thereupon be deemed to have abandoned same in its entirety; and the same shall thereupon become the sole property of the City without payment to the licensee. If the City agrees to abandonment, the licensee shall incur, from that time forward, no future obligations with respect to the telecommunications system. § 129-52. - Continuation of police powers. Reserved. enacts based upon its existing powers or additional powers given it in the future. § 129 53. Consumer protection. Reserved. The City may oversee compliance with all applicable consumer protection laws and regulations, including the enforcement of Chapter 8A, Business Regulations, of the Code of Miami Dade 13 City of Sunny Isles Beach CROW Ordinance 10-17-18 consumers in the City. City reserves the right to enact additional consumer protection provisions to the extent authorized by state and federal law. § 129-54. - Failure to enforce license. Reserved. _ The licensee shall not be excused from complying with any of the terms and conditions of this article by any failure of the City, upon any one or more occasions, to require the licensee's performance or compliance with any one or more of such terms or conditions. § 129-55. - Future rules, regulations and procedures. Reserved. The Director reserves the right to promulgate rules, regulations, and procedures to implem - - intention of this article. § 129-56. - Authority of Director. Reserved. A. The Director shall have the responsibility for overseeing the day to day administration of this article and authorizations granted hereunder. The Director, or any member of the Director's staff so designated by the Director, may administer oaths, certify to official acts, issue subpoenas, and compel the attendance of witnesses and the production of papers, account books, contracts, discharge of the duties of his office. The Director shall be empowered to take all administrative actions on behalf of the City, including adopting forms for application and reporting and other administrative procedures as are necessary. B. The Director shall have the authority to initiate legal actions in the name of the City through the City Attorney, seeking declaratory judgment, injunctive, equitable, and legal relief to enforce the provisions of this article. C. It is understood that there may be from time-to-til. nin the-City var-ieus easements and streets which the City Director does not have the unqualified right to authorized licensee to use. Therefore, way or portion of the right of way or easement that it has the right to authorize the licensee to install or maintain portions of its system therein and in -ach case the burden and responsibility for City shall not be required to assume any responsibility for securing any right of way easement or systems, nor shall the City be responsible for securing any permits or agreements with other persons or utility. § 129-57. - Director's settlement authority. Reserved. The Director is hereby authorized to resolve by settlement any notice of violation or lawsuit initiated by the Director. In deciding to settle a dispute over an alleged violation, the City shall consider: A. The probability of success in proving the violation; C. The licensee's past history concerning similar violations; D. Mitigating factors; and E. The licensee's success in resolving the dispute with affected customers. § 129-58. - Appeals;judicial review. Reserved. 14 City of Sunny Isles Beach CROW Ordinance 10-17-18 notice of appeal with the Director within 15 days after the date of the action, decision or determination complained of The written notice of appeal shall set forth the nature and date of the action, decision or determination to be reviewed and a brief summary of the grounds for the appeal. Upon such filing, an administrative hearing shall be scheduled and heard by a Special Master Special Master shall set the matter for hearing on the -arliest practicable regularly scheduled hearing date or as soon as possible, but no sooner than 10 days after the request has been filed and notice may include, but not be limited to, the applicable provisions of§ 14 7 of Chapter 14, Code Enforcement, of the Code of the City of Sunny Isles Beach. The Special Master shall hear and - • - - - - - Code Enforcement, and may affirm, modify or reverse the action, decision or determination appealed from. The decision of the Special Master shall constitute final administrative review and no rehearing shall be permitted. Nothing herein shall be construed to prevent or prohibit the Director from instituting any civil action or proceeding authorized by this article at any time. 9 [] -- - _ - - a final order of the Special Master by filing a notice of appeal in the Circuit Court in and for Miami Dade County, Florida, in accordance with procedures and within the time provided by the Florida Rules of Appellate Procedure for review of administrative action. The words "action," "decision" and "determination" as used herein shall not include the filing or institution of any action, conference or proceeding by the Director in any court otherwise. C. Any regulated person. making the appeal shall be required to pay the Director a fee, to be established by administrative order of the City Manager, to defray the costs of preparing the record id-fes.,hall be effective upon :. - . - -rnmissioh, § 129-59. - Penalties for offenses. Reserved. In addition to any other judicial or administrative remedies or penalties provided by law, rule, regulation or ordinance, any person who violates - - - - . - _ . - . _ desist order of the Director, any notice to correct a violation or any assurance of voluntary compliance pursuant to § 8A 82.1 of the County Code and this article with respect to matters regulated under this article or any other lawful order of the Director or any condition, limitation, or restriction of a telecommunications license issued by the Director, shall be subject to the judicial imposition and recovery of a civil penalty in an amount of not more than $10,000 per offense. Each day during any portion of which such violation occurs or continues to occur constitutes a separate offense. Such monies recovered by the Director shall be deposited in a separate City fund to be used exclusively for enforcement of this article. For purposes of this article, all references to Chapter 8A in § 8A 82.1 of the County Code shall mean this article. § 129-60. - Enforcement procedure; remedies. Reserved. any other judicial or administrative remedies provided by law, rule, regulation, ordinance, or this article, the Director shall have the following judicial remedies available to enforce the provisions of this article: 15 City of Sunny Isles Beach CROW Ordinance 10-17-18 (1) The Director may institute a civil action in a court of competent jurisdiction to seek temporary or permanent declaratory or injunctive relief to enforce compliance with or prohibit the violation of any of the provisions of this article. (2) The Director may institute a civil action in a court of competent jurisdiction to impose and recover a civil penalty in an amount of not more than $10,000 for -ach violation of any or continues to occur constitutes a separate violation. The right of trial by jury shall be available in any court to determine both liability for and the amount of the civil penalties to be imposed and recovered hereunder. (3) The Director may institute a civil action in a court of competent jurisdiction to seek restitution and other equitable relief to recover any sums and costs expended by the Director of the provisions of this article. B. Upon the rendition of a judgment or decree by any of the courts of this state against any person of an appeal in which the Director prevails, the appellate court, shall adjudge or decree against said attorney prosecuting the suit in which the recovery is had. Where so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case. This provision shall apply to all civil actions, legal or equitable, filed after the effective date of this article by the Director. C. All the judicial and administrative remedies in this article are independent and cumulative. § 129 61. Prior franchise agreements. Reserved. This article shall not apply to any previous telecommunications franchise agreements or ordinances except to the extent the-previsions of this a-r icle de not conflict with the prior nehise ordinance. To the extent of any conflict the existing ordinance applies until the term of the franchise expires. SECTION 3. Chapter 129 Amended. The City Commission hereby amends Chapter 129, Article III, Sections 129-62 — 129-81 of the Code of Ordinances, City of Sunny Isles Beach, Florida, as follows2: ARTICLE III—COMMUNICATIONS RIGHTS-OF-WAY Sec. 129-62.- Title. This article chapter shall be known and may be cited as the "City of Sunny Isles Beach Communications Rights-of-Way Ordinance." Sec. 129-63. In-tent-and Purpose. It is the intent of the City to promote the public health, safety and general welfare by providing for the placement of maintenance o . •. . ' • - - .. . • rights of way within the City; adopting and administering reasonable rules and regulations not inconsistent with state and federal law, including § 337.401, Florida Statutes (2000), as it may be amended, the City's home rule authority, and in accordance with the provisions of 2 Words strict ough are intended to be deleted; words underlined are intended to be added. 16 City of Sunny Isles Beach CROW Ordinance 10-17-18 ••_ reasonable rules and regulations necessary to manage the placement or maintenance of communications facilities in the public rights of way by all communications services providers; and minimizing disruption to the public rights of way. In regulating its public state laws. The purpose of this chapter is: (1) To establish a competitively neutral policy for the use of public rights-of-way for communications facilities: (2) To protect the City's investment in the public rights-of-way by providing for the payment of nondiscriminatory fees for the use of the rights-of-way by communications companies. (3) To regulate the placement and maintenance of structures and facilities in the public rights-of-way pursuant to F.S. § 337.401; and (4) To adopt and to administer reasonable rules and regulations not inconsistent with state and federal law, including the United States and Florida Constitutions, F.S. § 337.401. as it may be amended, the City's home-rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996. the Spectrum Act. FCC regulations. and other federal and state law; to establish reasonable rules and regulations necessary to manage the placement and maintenance of communications facilities in the public rights-of-way by all communications services providers after the effective date of this section; and to minimize disruption to the public rights-of-way. To the extent provisions of this Ordinance conflict with final, effective orders or regulations issued by the FCC. the City reserves the right not to apply such inconsistent provisions in this Ordinance. (5) Applicability. a. This Ordinance shall apply to all facilities for communications services placed or maintained in the City public rights-of-way pursuant to Section 337.401. F.S.. including but not limited to any person holding a certificate of franchise authority pursuant to Section 610.103. Florida Statutes. communications services providers. pass-through providers. and wireless providers. Persons seeking to place or maintain communications facilities on private property or other property to which the City. any municipality. Miami-Dade County, or any governmental entity has a fee simple or leasehold interest in real property. not within and exclusive of the public rights-of- way, located within the jurisdictional boundaries of the City shall comply with the applicable provisions of the City Code, Chapter 129, Article II. Telecommunications Facilities. to the extent it applies. unless such property is addressed expressly in this Ordinance. This Ordinance is not applicable to communication facilities outside the public rights-of-way. Pursuant to this Ordinance. a person may be authorized to place or to maintain small wireless facilities. micro wireless facilities, or utility poles for collocation of small wireless facilities in the City's public rights-of-way. Wireless support structures. telecommunications towers and other wireless facilities. including but not limited to an antenna that is not part of a small wireless facility or 17 City of Sunny Isles Beach CROW Ordinance 10-17-18 micro wireless facility, shall not be allowed to be placed or maintained in the public rights-of-way. to the extent not inconsistent with applicable law. This Ordinance applies to the placement of conduit, fiber or cable for the purpose of providing backhaul or communications service. Consistent with Section 337.401. Florida Statutes, this Ordinance applies to a cable or video service provider that has been issued and holds a certificate of franchise authority from the Florida Department of State pursuant to Chapter 610, Florida Statutes that places or maintains a cable system or wireline facilities in the City's public rights-of-way. This Ordinance shall not apply to wireless or communications facilities owned by the City. and shall not apply to communications or wireless facilities owned by a person, including an electric cooperative. to the extent such facilities are utilized on an internal. non-commercial basis by said person. This Ordinance does not apply to the placement of electric utility poles for an electric distribution system located within the City public rights- of-way pursuant to a valid franchise agreement with the City. However. collocation of small wireless facilities on such utility poles and any other utility poles placed or maintained by a City franchised utility in the public rights-of-way will be governed by the applicable provisions of this Ordinance. Ordinances approving a franchise agreement with an electric utility shall remain in full force and effect. notwithstanding any provision of this Ordinance. b. This Ordinance implements inter alia. the Advanced Wireless Infrastructure Deployment Act, Section 337.401(7), F.S. ("Wireless Act"). By adopting this Ordinance. the City does not waive any rights with respect to the Wireless Act including any rights that may exist under federal law, the Florida Constitution and d the U.S. Constitution. In the event the Wireless Act, Section 337.401(7), F.S., is repealed, amended, or overturned by a court of competent jurisdiction, or preempted by applicable federal law or regulation. in whole or in part. provisions of this Ordinance may no longer apply. in which case pending and future applications for small wireless facilities or utility poles intended to support the collocation of small wireless facilities in the public rights-of-way. will be governed by applicable law. In addition, permits issued pursuant to this Ordinance may be suspended or revoked, and facilities installed pursuant to this Ordinance or the Wireless Act may be required to be removed at the facility owner's expense, to the extent consistent with applicable law. It is the City's intent not to create any vested rights in placing and maintaining facilities addressed in the Wireless Act in the public rights-of-way as a result of this Ordinance or any permit issued pursuant to this Ordinance. to the extent not inconsistent with applicable law. c. To the extent any provision of this Ordinance conflicts with the Code of Ordinances. this Ordinance shall control. d. This Ordinance shall be applicable to all communications facilities placed in the public rights-of-way on or after the effective date of this Ordinance, all pending applications for permits subject to this Ordinance. and shall apply to all existing communications facilities placed in the public rights-of-way prior to the effective date of this Ordinance, to the full extent permitted by state and federal law. A person with existing communications facilities in the public rights-of-way shall comply with 18 City of Sunny Isles Beach CROW Ordinance 10-17-18 this Ordinance by the earlier of the following: ninety (90) days from the effective date of this Ordinance or prior to the issuance of a permit pursuant to this Ordinance. This provision shall not require removal or modification of communications facilities placed or maintained in the public rights-of-way pursuant to a previously issued permit prior to the effective date of this Ordinance with the exception, to the extent not inconsistent with applicable law, of compliance with objective or stealth design standards that may require concealment such as a wrap or landscaping, unless such facilities are abandoned or otherwise required to be altered or removed. e. Reservation of rights. The City reserves the right to amend this Ordinance as it shall find necessary in the lawful exercise of its police powers. (6) Authority to implement Ordinance. The City Manager or designee is authorized to adopt, to modify. and to repeal rules and regulations to carry out the intent and purposes of this Ordinance. Sec. 129-64. - Definitions. the meanings given. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined shall be construed to mean the common and ordinary.meaning. ABANDONMENT The--per-manen es atiowef-all uses of a comm 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. CITY The City of Sunny Isles, Florida. COMMUNICATIONS FACILITY or FACILITY/SYSTEM Any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennas, converters, splice boxes, cabinets, handholes, manholes, maintained or to be placed or maintained in the public rights of way of the City and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer communications services. COMMUNICATION •SERVICES The same meaning as that term is defined in § 202.11(3) of the Florida Statutes (2000). Notwithstanding the foregoing, "cable service", as defined in § 202.11(2), Florida Statutes (2000), as it may be amended, is not included in the definition of "communications services," and cable service providers may be subject to other ordinances of the City. '° 19 City of Sunny Isles Beach CROW Ordinance 10-17-18 COMMUNICATIONS SERVICES PROVIDER Any person providing communications services through the placement or maintenance of a communications facility in public rights of way. "Communications services provider" shall also include any person providing through the placement of maintenance of a communications facility in the public rights of way. FCC The Federal Communications Commission. IN PUBLIC RIGHTS OF WAY or IN THE PUBLIC RIGHTS OF WAY In, on, over, under or across the public rights of way. ORDINANCE This article. PERSON Includes any individual, children, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and shall include the City to the extent the City acts as a communications services provider. PLACE or MAINTAIN; PLACEMENT or MAINTENANCE; PLACING or MAINTAINING To erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A communications services provider that owns or exercises physical 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-mainta-i-r:inge the communications facilities through wh-ieh-suet: service is provided. The transmission and receipt of radio frequency signals through the airspace of the public rights of way does not constitute "placing or maintaining" facilities in the public rights of way. PUBLIC RIGHTS OF WAY A public right of way, public utility easement, highway, and may lawfully grant access to pursuant to applicable law, and includes the surface, the air private property. "Public rights of way" shall not include any r-al 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 REGISTRANT A communications services provider that has registered with the City in accordance with the provisions of this article. REGISTRATION or REGISTER The process described in this article whereby a communications services provider provides certain information to the City. As used in this chapter: the following terms, phrases. words and 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 20 City of Sunny Isles Beach CROW Ordinance 10-17-18 number include the plural number. The words "shall" and "will" are mandatory. and "may" is permissive. Words not otherwise defined in this Ordinance or in any permit that may be granted pursuant to this Ordinance shall be given the meaning set forth in the Communications Act of 1934. 47 U.S.C. §151 et seq., as amended or the Spectrum Act. 47 U.S.C. §1455(a) (collectively the "Communications Act"). and if not defined in the Communications Act. as defined by Florida Statutes: and, if not defined by Florida Statutes, as defined in the City Code, and if not defined in the City Code. shall be construed to mean the cornmon and ordinary meaning. Abandonment or Abandoned shall mean the cessation of all uses of a communications facility for a period of one hundred eighty (180) or more consecutive days provided this term shall not include the cessation of all use of a communications facility within a physical structure where the physical structure continues to be used for some purpose or use accessory to the communications facility. By way of example, cessation of all use of a cable within a conduit, where the conduit continues to be used for some purpose or use accessory to the communications facility. shall not be Abandonment of a communications facility. A wireless infrastructure provider's failure to have a wireless service provider provide service through a small wireless facility collocated on a utility pole within nine (9) months after the application is approved in accordance with Section 337.401(7)(j). F.S.. shall constitute abandonment. The terms Abandonment or Abandoned are not intended to include a dropped line from a potential or existing customer in the event the communications services provider reasonably anticipates future use of the dropped line. Abut shall mean. when used in conjunction with a lot or parcel of land or public right-of- way. means a lot or parcel of land or public right-of-way that shares all or a part of a common lot line or boundary line with another lot or parcel of land or public right-of-way. Adjacent Properties or Properties Adjacent shall mean (i) those lots or parcels of land that abut another lot or parcel of land or public right-of-way that is contiguous to a communications facility site or proposed site and (ii) the lots or parcels of land or public right-of-way that would be contiguous to lots or parcels or public rights-of-way but for an intervening local or collector roadway. Antenna shall mean communications equipment that transmits or receives electromagnetic radio frequency signals used in providing wireless services. Applicable Codes shall mean uniform building, fire. electrical. plumbing. or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address threats of destruction of property or injury to persons. including, but not limited expressly to the Florida Building Code. National Electrical Code, National Electrical Safety Code. 2010 Florida Department of Transportation Utility Accommodation Manual. the Florida Department of Transportation Manual on Traffic Control and Safe Practices. the State of Florida Manual of Uniform Minimum Standards for Design Construction and Maintenance for Streets and Highways. the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce. Bureau of Standards of the United States, as may be amended, and City codes or ordinances adopted to implement Section 337.401, Florida Statutes. including but not limited to this Ordinance. The term includes objective design standards adopted by this Ordinance that may require a new utility pole that replaces an existing utility pole to be of substantially similar design. material, and color or that may require 21 City of Sunny Isles Beach CROW Ordinance 10-17-18 reasonable spacing requirements concerning the location of ground-mounted equipment. The term includes objective design standards adopted by this Ordinance that may require a small wireless facility to meet reasonable location context, color, stealth, and concealment requirements: however, such design standards may be waived by the City upon a showing that the design standards are not reasonably compatible for the particular location of a small wireless facility or that the design standards impose an excessive expense. Applicant shall mean a registrant who submits an application for a permit to locate a communications facility or utility pole within the public rights-of-way or an application pursuant to this Ordinance. Application shall mean a request submitted by an applicant to the City for a permit to collocate small wireless facilities or for any relief pursuant to this Ordinance. As-Built Plans shall mean a set of final and complete drawings in a format as specified by the City submitted upon completion of a project, signed and sealed by professional surveyor or mapper as defined in Section 472.005. F.S., that reflect all changes made during the construction process. and show the exact dimensions, geometry and location of all elements of the work completed under the permit. Authority shall mean the City to the extent it has jurisdiction and control of the rights-of-way of any public road. The term does not include the Department of Transportation rights-of-way under the jurisdiction and control of the department. which are excluded from this Section. Authority or City Utility Pole shall mean utility pole owned by the City in thepublic rights- of-way. The term does not include a utility pole owned by a municipal electric utility, a utility pole used to support municipally owned or operated electric distribution facilities. or a utility pole located in the rights-of-way within: (a) A retirement community that: (i) Is deed restricted as housing for older persons as defined in Section 760.29(4)(b). Florida Statutes. (ii) Has more than 5.000 residents: and (iii) Has underground utilities for electric transmission or distribution. City shall mean the City of Sunny Isles Beach. Florida. a municipal corporation of the State of Florida. in its present form or in any later reorganized. consolidated. or enlarged form. City Manager shall mean the City of Sunny Isles Beach, Florida. City Manager or his/her designee. Clear Zone shall mean the roadside border area. starting at the edge of the traveled way. available for safe use by errant vehicles. This area may consist of a shoulder. recoverable slope. non-recoverable slope. clear runout area. or combination thereof. The width of the clear zone is dependent upon the traffic volumes and speeds. and on the roadside geometry. Collocation or Collocate shall mean to install, mount. maintain, modify. operate. or replace 22 City of Sunny Isles Beach CROW Ordinance 10-17-18 one or more wireless facilities on. under. within, or adjacent to a wireless support structure or utility pole. The term does not include the installation of a new utility pole or wireless support structure in the public rights-of-way. Communications facilities or facility or system shall mean the permanent or temporary plant. equipment. and property. including but not limited to cables. wires, conduits. ducts, fiber optics. poles, antennae. converters. splice boxes. cabinets, hand holes. manholes. vaults. drains, surface location markers. appurtenances, wireless facilities. wireless support structure. wireline backhaul facilities. small wireless facilities. micro wireless facility, and other equipment or pathway used to transmit, receive. distribute. provide or offer communications services. A utility pole intended for collocation of a small wireless facility shall be considered a facility for purposes of this Ordinance. Communications Services shall mean the transmission. conveyance, or routing of voice. data,'audio, video. or any other information or signals, including cable service and video service as defined in F.S. §§610.103(1) and (11), 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 of hereafter devised, including wireless services, regardless of the protocol used for such transmission or conveyance. Communications Services Provider shall mean any person making available or providing communications services through the placement or maintenance of a communications facility in public rights-of-way, or a wireless infrastructure provider. A certificateholder as defined in Section 610.103(4). F.S. is a communications services provider pursuant to this Ordinance. Communications Services Tax shall mean local communications services tax authorized to be levied and collected by counties and municipalities upon communication service providers for - communications services, pursuant to Section 202.19, F.S. as amended. Consolidated Permit Application shall mean a single permit application that would otherwise require individual permit applications for the collocation of between two (2) and thirty (30) small wireless facilities to existing structures within the public rights-of-way. FCC shall mean the Federal Communications Commission. Florida Building Code shall mean the Florida Building Code promulgated under Chapter 553, Florida Statutes and includes the applicable amendments thereto as both may be amended from time to time. Florida Greenbook shall mean the latest edition of the Florida Department of Transportation Manual of Uniform Minimum Standards for Design, Construction and Maintenance of Streets and Highways. Force Majeure Event shall mean a cause or event not within a person's control that shall include. without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage. strikes and restraints imposed by order of a governmental agency or court. Causes or events within a person's control. and thus not constituting a force majeure event for purposes of this Ordinance. shall include. 23 City of Sunny Isles Beach CROW Ordinance 10-17-18 without limitation, the financial inability to perform or comply, economic hardship, and misfeasance. malfeasance or nonfeasance by any of person's directors. officers, employees, contractors or agents. Graffiti shall mean any inscriptions, word, figure, paintin or other defacement that is written, marked. etched, scratched, sprayed. drawn, painted or engraved on or otherwise affixed to any communications facility whether or not authorized by the registrant of the communications facility. A wrap shall not be considered graffiti. Historic Property shall mean any prehistoric or historic district, site. building. object or other real or personal property. of historical. architectural or archaeological value. These properties or resources may include. but are not limited to, monuments. memorials. Indian habitations. ceremonial sites. abandoned settlements, engineering works. treasure troves. artifacts, or other objects with intrinsic historical or archaeological value, or any part thereof. relating to the history. government. or culture of the City. Homeowners'Association shall mean an incorporated association whose members consist of owners of single family homes or condominium units that manage or control property owned by the association. In Public Rights-Of-Way or In The Public Rights-Of-Way shall mean in. on, over, under or across the public rights-of-way. Licensed Engineer means a Florida Registered Professional Engineer. or a person who is exempt from such registration requirements as provided in F.S. § 471.003. Lot shall mean a designated parcel of land established by plat. subdivision. or as otherwise permitted by law. to be used. developed, or built upon as a unit. Micro Wireless Facility shall mean a small wireless facility having dimensions no larger than 24 inches in length. 15 inches in width. and 12 inches in height and an exterior antenna. if any. no longer than 11 inches. Ordinance or Chapter shall mean this Ordinance or Chapter of the City Code. Parcel shall mean any piece of real property that has a single parcel identification number assigned to it by the Miami-Dade County Property Appraiser. Pass-through Provider shall mean any person who places or maintains a communications facility in the public rights-of-way and who does not remit taxes imposed by the City pursuant to Chapter 202. F.S.. as amended. A pass-through provider can also be a wireless infrastructure provider as defined herein. and/or an owner of a communications facility pursuant to this ordinance. Permit shall mean the public right-of-way permit that must be obtained before a person may construct in the public right-of-way and shall include, but not be limited to, right-of-way engineering and construction permits issued by the City. 24 City of Sunny Isles Beach CROW Ordinance 10-17-18 Person shall include any individual, children, firm. association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation. organization or legal entity of any kind, successor. assignee_, transferee, personal representative. and all other groups or combinations. but shall not include the City. Place or Maintain or Placement or Maintenance or Placing or Maintaining shall mean to erect. construct. install, maintain, place. repair. extend. expand. remove, occupy. locate or relocate. A communications services provider that owns or exercises physical control over communications facilities in public rights-of-way, such as the physical control to maintain and repair, is placing or maintaining the facilities. To the extent required by applicable law, a party 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 is not placing or maintaining facilities in the public rights-of-way. PSC shall mean the Florida Public Service Commission. Public right-of-way . or right-of-way shall mean a public right-of-way. public utility easement. highway. street. bridge. tunnel. waterway. dock. wharf. court. lane, path. or alley owned by the City or for which the City is the authority that has jurisdiction and control and may lawfully grant access to such property pursuant to applicable laws and includes the surface. the air space over the surface and the area below the surface of all public roads. streets, highways. alleys. boulevards. bridges. tunnels. public utility easements, and all public grounds. Public rights-of-way shall not include private property. Public rights-of-way shall not include any real or personal City property except as described above, and shall not include City parks. buildings, fixtures, poles. conduits. facilities-or other structures or improvements. regardless of whether they are situated in the public rights-of-way. Registrant or Facility Owner shall mean a communications services provider or other person that has registered with the City in accordance with the terms of this article. Registration and Register shall mean the process described in this ordinance whereby a communications services provider provides certain information to the City. Shroud shall mean a covering or enclosure of equipment associated with a small wireless facility. other than the antenna. collocated on an existing structure or wireless support structure. Signage shall mean any display of characters, ornamentation, letters or other display such as, but not limited to. a symbol. logo. picture. or other device used to attract attention, or to identify. or as an advertisement, announcement, or to indicate directions. including the structure or frame used in the display. The term Signage shall not include identification of the owner and contact information of the facility or utility pole, or identification of wires, cables. etc. necessary to aid in safety or hazard work or maintenance or repair work of the communications facility.?? Small Wireless Facility shall mean a wireless facility that meets the following qualifications: (a) Each antenna associated with the facility is located inside an enclosure of no more 25 City of Sunny Isles Beach CROW Ordinance 10-17-18 than 6 cubic feet in volume or. in the case of antennas that have exposed elements. each antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet in volume; and (b) All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters. concealment elements, telecommunications demarcation boxes. ground-based enclosures. grounding equipment. power transfer switches. cutoff switches, vertical cable runs for the connection of power and other services. and utility poles or other support structures. Stealth Design shall mean a method of camouflaging any wireless support structure. tower. antenna or other communications facility. including, but not limited to. supporting electrical or mechanical equipment, or utility pole which is designed to enhance compatibility with the surrounding neighborhood and be as visually unobtrusive as possible. Surrounding Neighborhood shall mean the area within a five hundred (500) foot radius of a communications facility site or proposed communications facility site. Utility shall mean any person or entity that is an electric. gas. water. steam or other public utility. as defined in Florida law and who owns or operates appurtenant facilities or equipment that is situated within the public rights-of-way for transmission of such utility's goods, commodities or services. Utility Pole shall mean a pole or similar structure that is used in whole or in part to provide communications services or for electric distribution, lighting. traffic control. signage, or a similar function. The term includes the vertical support structure for traffic lights but does not include a horizontal structure to which signal lights or other traffic control devices are attached and does not include a pole or similar structure 15 feet in height or less unless an authority grants a waiver for such pole. Wireless Facility shall mean equipment at a fixed location which enables wireless communications between user equipment and a communications network, including radio transceivers. antennas. wires. coaxial or fiber-optic cable or other cables. regular and backup power supplies. and comparable equipment, regardless of technological configuration, and equipment associated with wireless communications. The term includes small wireless facilities. The term does not include: (a) The structure or improvements on, under. within. or adjacent to the structure on which the equipment is collocated; (b) Wireline backhaul facilities: or (c) Coaxial or fiber-optic cable that is between wireless structures or utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna. Wireless Infrastructure Provider shall mean a person who has been certificated to provide telecommunications service in the state and who builds or installs wireless communication transmission equipment. wireless facilities. or wireless support structures but is not a wireless 26 City of Sunny Isles Beach CROW Ordinance 10-17-18 services provider. Wireless Provider shall mean a wireless infrastructure provider or a wireless services provider. Wireless Services shall mean any services provided using licensed or unlicensed spectrum. whether at a fixed location or mobile, using wireless facilities. Wireless Services Provider shall mean a person who provides wireless services. Wireless Support Structure shall mean a freestanding structure. such as a monopole. a guyed or self-supporting tower, or another existing or proposed structure designed to support or capable of supporting wireless facilities. The term does not include a utility pole. Wrap shall mean an aesthetic covering depicting artistic or scenic imagery. Imagery in a wrap may not contain any advertising. Sec. 129-65. Registration for Placing Or Maintaining Communications Facilities in Public Rights- Of-Way. A. A communications services provider that desires to place or maintain a communications facility in public rights of way in the City shall first register with the City in accordance with this article. Subject to the terms and conditions prescribed in this article, a registrant may place or maintain a communications facility in public rights of way if, and to the extent, such placement and mainter once complies with the City's ordinances, codes and fettgations. B. A registration shall not convey any title or property interest, equitable or legal, to the registrant in the public rights of way. A registration shall be revocable at will governs only the right to place or maintain communications facilities in public rights of way. A registrant may place and maintain communications facilities if, and to the extent the registrant is in full compliance with City ordinances, codes of-regulations. Registration does not excuse a communications services provider from obtaining appropriate permits, authorized access or pole attachment agreements before locating its facilities in the public rights of way. Registration does not excuse a communications services provider from complying with all applicable City ordinances, codes or regulations, including this article. C. Each communications services provider that desires to place or maintain a communications facility in public rights of way in the City shall file a single registration with the City, which shall include the following information: (1)Name of the applicant; in connection with the registration, and the person to contact in case of an emergenc 27 City of Sunny Isles Beach CROW Ordinance 10-17-18 (3) For registrations submitted prior to October 1, 2001, the applicant shall state whether it provides local service or toll service or both; (1) Evidence of the insurance coverage required under this article, which shall include proof of insurance or self insuring status adequate to defend and cover claims, and acknowledgement that registrant has received and reviewed a copy of this article, which acknowledgement shall not be deemed an agreement; (5) The number of the applicant's certificate of authorization or license to provide communications services issued by the Florida Public Service Commission, the Federal Communications Commission, or other federal or state authority, if any; and (6) A copy of the applicant's current certificate of registration as a communications services provider issued by the Florida Department of Revenue. D. The City Manager or his designee shall review the information submitted by the applicant. Such review shall be by the designated City official or his or her designee. If the applicant submits information in accordance with Subsection C above, the registration shall be effective upon the receipt of written notice from for the noneffectiveness, in writing. The City shall so reply to an applicant within 30 days after receipt of registration information from the applicant. will no longer-$ac-- . •-.•- .•- . mmunica*ions facilities-in -Iie-Fights of way within the City and will no longer need to obtain permits to perform work in public rights of way. A registrant may not cancel a registration if the registrant continues to place or maintain any communications facilities in public rights of wa - - - - priority for the placement or maintenance of a communications facility in public rights of way within the City. Registrations are expressly subject to any future City ordinances, as well as any state or federal laws that may be enacted. G. A registrant shall renew its registration with the City by April 1 of even numbered registrant that initially registers during the even numbered year when renewal would be due or the odd numbered year immediately preceding such even numbered year shall not be required to renew until the next even numbered year. pursuant to Subsection C, except, as of October 1, 2001, Subsection C(3), a registrant shall provide updated information to the City. If no information in the then existing registration has changed, the renewal may state that no information has changed. Failure to renew a registration may result in the City suspending a 28 City of Sunny Isles Beach CROW Ordinance 10-17-18 certificate of compliance issued on the basis of the registration until the communications services provider has complied with the registration requirements of this article. H. In accordance with applicable City ordinances, codes or regulations, a separate permit may be required for work to be performed and shall be required each time that a communications facility is placed or maintained in public rights of way. An effective certificate of compliance shall be a condition precedent to obtaining such permits. (1) A certificate of compliance will be issued by the City Manager or his designee when the following conditions have been met: (a) The communications services provider provides proof of valid registration under this section; (b) The communications services provider demonstrates that it has provided the certificate of insurance and, to the extent such requirements are applicable, complied with the requirements set forth in Article II, Telecommunications Rights of Way, of this chapter. (c) The communications services provider demonstrates that it has provided the appropriate bond in accordance with Article II, Telecommunications Rights of Way, of this chapter. (d) The City Manager believes that the communications service provider is in full compliance with all the City ordinance, codes and regulations. A registrant that places or maintains communications facilities in the public fights of way shall be required to pay compensation to the City-as reqs -y applicable federal and state laws and ordinances of the City. J. Registration with the City is required of all communications services dealers, as that term is defined in Section 202.11, Florida Statutes. As provided in Section 202.17(1), Florida Statutes, registration with the Florida Dep •• • ' - . does not constitute compliance with the City's registration requirement. Florida Department of Revenue certificate of registration as a communications services provider revoked, as provided in Section 202.17(7), Florida Statutes, said provider shall notify the City immediately within 60 days of said revocation. (a) All persons seeking to place or maintain a communications facility. including but not limited to a cable system, fiber. backhaul facility, or utility pole for collocation of a small wireless facility in the public. rights-of-way in the City pursuant to this Ordinance shall first register with the City in accordance with this Ordinance before being eligible to receive a permit. Subject to the terms and conditions prescribed in this Ordinance and approval of a permit if necessary, a registrant may place or maintain a communications facility in public rights-of-way. A communications services provider, pass-through provider, or wireless infrastructure provider with an existing communications facility in the public rights-of-way of the City as of the 29 City of Sunny Isles Beach CROW Ordinance 10-17-18 effective date of this Ordinance shall comply with the terms of this Ordinance, including, but not limited to obtaining an effective registration. or be in violation thereof, by the earlier of the following: ninety (90) days from theeffective date of this Ordinance or prior to the issuance of a permit by the City pursuant to this Ordinance. This provision shall not require removal or modification of communications facilities placed or maintained in the public rights-of-way pursuant to a previously issued permit prior to the effective date of this Ordinance unless such facilities are abandoned or otherwise required to be altered or removed. The City reserves the right to establish by resolution a fee to accompany a registration to the extent not inconsistent with applicable law. (b) Requirements for an effective registration. A person that desires to place or maintain a communications facility. backhaul facilities and a wireless infrastructure provider that seeks to apply to install a utility pole for collocation of a small wireless facility in the public rights-of-way in the City shall file four complete originals in a format designated by the City that shall include the following information: (1) Name of the registrant: (2) Name. address and telephone number of the registrant's primary contact person in connection with the registration and name, address. telephone number and email addresses of the registrant's primary contact person in the event of an emergency or issue involving its facilities. which shall be monitored 24 hours per day. 7 days per week. (3) The type of communications services that the registrant provides or intends to provide within the City (if more than one. state all that apply), or. if none. indicate that the registrant is a communications facility provider, wireless infrastructure provider, or pass-through provider, as the case may be, and whether the registrant currently remits or intends to remit Communications Service Tax for distribution to the City. as authorized in Ch. 202, F.S.: (4) Evidence of the insurance coverage required under this Ordinance: (5) Acknowledgment that registrant has received and reviewed a copy of this Ordinance: (6) A copy of the registrant's certificate of authorization, public convenience and necessity. or other similar certification or licenses issued by the Florida Public Service Commission. the Florida Department of State. the FCC. or other federal authority. A copy of federal or state certification authorizing the registrant to provide communications services, if any: (7) Documentation demonstrating that if the registrant is an individual, that the registrant is a resident of Florida, or if the registrant is a corporation that the registrant is organized under the laws of Florida or licensed to do business within Florida. or. as applicable, a statement that the registrant is not a 30 City of Sunny Isles Beach CROW Ordinance 10-17-18 resident or organized or licensed to do business within Florida; and (8) A permanent performance bond as described herein to guarantee compliance in accordance with this Ordinance. Insurance. (1) 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 in Best's Insurance Guide of A or better, or having a rating acceptable to the City. All liability policies shall provide that the City is an additional insured in the endorsement. Thirty-days advance written notice by registered or certified mail must be given to the City of any cancellation, intent not to renew. or reduction in the policy coverages. As evidence of compliance with the insurance required herein, the registrant shall furnish the City with a fully completed satisfactory Certificate of Insurance evidencing all coverage required. Also. the registrant shall provide a copy of the actual additional insured endorsement as issued on the Commercial General Liability policy. signed by an authorized representative of the insurer(s) verifying inclusion of the City of Sunny Isles Beach and its members, officials, officers and employees as additional insureds in the Commercial General Liability coverage. Such documents shall be filed and maintained with the City annually. In addition to the certificate of insurance. the registrant shall provide a copy of the insurance policy. if requested by the City. (2) The limits of coverage of insurance required shall be not less than the following: i. Worker's compensation and employer's liability. Insurance employer's liability: Such insurance shall be no more restrictive than that provided by the Standard Workers' Compensation Policy. as filed for use in Florida by the National Commission on Compensation Insurance, without restrictive endorsements. The minimum amount of coverage (inclusive of any amount provided by an umbrella or excess policy) shall be: Part One: "Statutory" Part Two: $1,000.000 (Each Accident) $1,000.000 (Disease-Policy Limit) $1,000,000 (Disease-Each Employee) The Workers' Compensation Policy must be endorsed to waive the insurer's right to subrogate against the City and the City's board members. officials. officers. agents and employees in the manner which would result from the attachment of the NCCI Waiver Of Our Right to Recover From Others Endorsement (Advisory Form WC 00 31 City of Sunny Isles Beach CROW Ordinance 10-17-18 03 13) with City and the City's board members. officials, officers. agents and employees scheduled thereon. ii. Comprehensive general liability. Such insurance shall be no more restrictive than that provided by the most recent version of standard Commercial General Liability Form (ISO Form CG 00 01) as filed for use in the State of Florida without any restrictive endorsements, other than those required by ISO or the State of Florida. Said coverage shall not exclude contractual liability. products/completed operations, independent or contractors. The City of Sunny Isles Beach. and its members, officials, officers and employees shall be included as "Additional Insureds" on a form no more restrictive than the latest edition of ISO Form CG 20 10 (Additional Insured — Owners. Lessees, or Contractors — Scheduled Person or Organization Endorsement). The minimum limits (inclusive of amounts provided by an umbrella or excess policy) shall be: General Aggregate $3,000,000 Products/Completed Operations Aggregate $3,000,000 Personal and Advertising Injury $3,000,000 Each Occurrence $3,000,000 The insurance provided by Registrant shall apply on a primary basis. Any insurance, or self-insurance, maintained by the City of Sunny Isles Beach shall be excess of and shall not contribute with. the insurance provided by Registrant. iii. Automobile liability. Such insurance shall be no more restrictive than that provided by Section II (Liability Coverage) of the most recent version of standard Business Auto Policy (ISO Form CA 00 01) without any restrictive endorsements. including coverage for liability contractually assumed. The policy shall cover all owned, non-owned. and hired autos used in connection with the performance of the work. The minimum limits (inclusive of any amounts provided by an umbrella or excess policy) shall be: Each Occurrence Bodily, Injury and Property Damage Liability Combined $3.000.000 iv. Umbrella or excess liability. Registrant may satisfy the minimum limits required above for either commercial general liability, business auto liability and employer's liability coverage under umbrella or excess liability. The umbrella or excess liability shall have an a2uegate limit not less than the highest "each occurrence" limit for commercial general liability, business auto liability or employer's liability. The City shall be specifically endorsed as an "additional insured" on the umbrella or excess liability. unless the certificate of 32 City of Sunny Isles Beach CROW Ordinance 10-17-18 insurance states the umbrella or excess liability provides coverage on a "follow-form" basis. v. Self-insurance. Registrant may satisfy the insurance requirements and conditions of this division under a self-insurance plan and/or retention if acceptable to the City in its sole discretion based on the City's evaluation of the registrant's ability to comply with the City Code. Registrant agrees to notify the City, and/or indicate on the certificate(s) of insurance when self-insurance is relied upon or when a self-insured retention meets or exceeds $100.000. The City reserves the right, but not the obligation. to request and review a copy of the registrant's most recent annual report or audited financial statement. which the registrant agrees to furnish for the purpose of determining the registrant's financial capacity to self-insure. (3) Right to review. City. by and through its risk manager. reserves the right to review, reject or accept any required policies of insurance or self-insurance. including limits, coverages, or endorsements herein from time to time throughout the life of this division. City reserves the right, but not the obligation, to review and reject any insurer or self-insurer providing coverage because of its poor financial condition or failure to operate legally. (4) This Ordinance shall not be construed to affect in any way the City's rights, privileges and immunities as set forth in F.S. 768.28. Insurance under this division shall run continuously with the presence of the registrant's facilities in the public rights-of-way, and any termination or lapse of such insurance shall be a violation of this Ordinance. Notwithstanding the foregoing. the City may. in its sole discretion, require increased or decreased levels of insurance. (d) Permanent Performance Bond to Guarantee Compliance. For an effective registration. a registrant shall file with the City. for City approval, a permanent performance bond in the amount of twenty-five thousand dollars ($25.000). in the form of a cash deposit or irrevocable letter of credit. Any cash deposit shall be held in a City account and used only for the purposes contained in this Ordinance. The letter of credit shall be issued by a financial institution so that it may be presented within Miami-Dade County and shall be in a form and issued by a financial institution acceptable to the City Attorney. The permanent performance bond shall be conditioned on the full and faithful performance by the registrant of all requirements. duties and obligations imposed upon the registrant by the provisions of this Ordinance. including but not limited to requirements to restore the public rights- of-way and guarantee such restoration. remove any abandoned communications facilities, pay appropriate compensation to the City, and pay for any damage to City or other facilities in the public rights-of-way. The permanent performance bond is not a fee or tax for access to the public rights-of-way. Should the City draw upon the permanent performance bond. the City shall promptly notify the registrant. and the registrant shall promptly restore the cash deposit and/or letter of credit. as may be 33 City of Sunny Isles Beach CROW Ordinance 10-17-18 necessary, to the full amount. In the event a registrant fails to perform its duties and obligations imposed upon the registrant by the provisions of this Ordinance, subject to provisions for notice in this Ordinance. there shall be recoverable from the permanent performance bond, any damages or loss suffered by the City as a result, including the full amount of any compensation. indemnification or cost of removal or abandonment of any property of the registrant. plus a reasonable allowance for attorneys' fees. The cash deposit and instruments of the permanent performance bond shall be furnished as frequently as necessary to provide a continuing guarantee of the registrant's full and faithful performance at all times. A registrant may request that the City return the permanent performance bond or approve the cancellation of the permanent performance bond upon the expiration of a registrant's obligations pursuant to the City Code but in no event while a registrant maintains obligations with respect to facilities in the public rights-of-way. If the City determines that a cash deposit should be returned, it shall return the cash deposit to the registrant without interest. () Review of Registration. The City shall review the information submitted by the registration applicant. If the applicant submits information in accordance with this subsection the City shall notify the applicant of the effectiveness of registration in writing. If the City determines that the information has not been submitted in accordance with this subsection. the City shall notify the applicant in writing of the non-effectiveness of registration. and reasons for the non-effectiveness. The City shall undertake commercially efforts to notify a proposed registrant within 30 days after receipt of registration information . A notice of non-effectiveness of a registration shall not preclude a person from reapplying. (f) Regulations Applicable to Registrations. (1) A registration shall not convey any title. equitable or legal. in the public rights-of-way. Within 30 days of any change in the information required to be submitted by a registrant. a registrant shall provide updated information to the City. (2) Registration shall be nonexclusive. Registration shall not establish any right or priority to place or maintain a communications facility in any particular area in public rights-of-way within the City. Registrations are expressly subject to any future amendment to or replacement of this Ordinance, and further subject to any additional City ordinances, as well as any applicable state or federal laws. (3) Unregistered use of public rights of way. To the extent that a person with communications facilities in the public rights-of-way. is not registered as required herein. said person shall register with the City pursuant to this Ordinance within ninety (90) days from the effective date of this Ordinance. No new permits shall be issued to unregistered persons with communications facilities within the public rights-of-way. (4) Registration renewal. A registrant shall renew its registration with the City 34 City of Sunny Isles Beach CROW Ordinance 10-17-18 by April 1 of even-numbered years in accordance with the registration requirements in this Section. as may be amended. except that a registrant that initially registers during the even-numbered year when renewal would be due, or the odd-numbered year immediately preceding such even-numbered year. shall not be required to renew until the next even-numbered year. If no information in the then-existing registration has changed. the renewal may state that no information has changed. Failure to renew a registration may result in the City restricting the issuance of additional permits. (5) Indemnification. A registrant shall. at its sole cost and expense. indemnify, hold harmless and defend the City. its officials, boards. members, agents and employees. against any and all claims. suits. causes of action, proceedings. judgments for damages or equitable relief. and costs and expenses incurred by the City arising out of the placement or maintenance of its communications system or facilities in public rights-of-way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this Ordinance. This provision includes. but is not limited to. the City's reasonable attorneys' fees incurred in defending against any such claim. suit or proceedings. City agrees to notify the registrant, in writing, within a reasonable time of City receiving notice of any issue it determines may require indemnification. Nothing in this Ordinance 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 Ordinance shall be construed or interpreted: as denying to either party any remedy or defense available to such party under the laws of the state of Florida; ii. as consent by the City to be sued; or iii. as a waiver of sovereign immunity beyond the waiver provided in F.S. §768.28, as it may be amended. (6) A registrant may cancel a registration upon written notice to the City that the registrant will no longer place or maintain any communications facilities in public rights-of-way. No liens shall apply to public rights-of-way or City property as a result of the placement or maintenance of a registrant's facilities in the public rights-of-way or on a City utility pole. In the event any liens are filed on the City property or public rights-of-way, the registrant shall discharge such lien at its expense within ten (10) days of receiving notice. or the City may discharge such lien. and charge such costs plus reasonable attorney's fees to registrant. (7) A registrant shall pay or reimburse the City. as applicable. for any personal property or other taxes or assessments that may be imposed on the registrant's facilities placed or maintained in the public rights-of-way or on a City utility pole as a result of a registrant's collocation. 35 City of Sunny Isles Beach CROW Ordinance 10-17-18 (8) Reports and records. (a) Upon reasonable request. a registrant shall provide the following_ documents to the City as received or filed: i. Any pleadings, petitions, notices, and public documents, which may directly impact the obligations under this Ordinance and which are reasonably necessary for the City to protect its interests under this Ordinance. ii. Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy. (b) The City shall keep any documentation, books and records of the registrant confidential to the extent required under Florida Statutes. (9) Termination of Registration. The City may terminate a registration if: Lai A federal or state authority suspends, denies, or revokes a registrant's certification or license required to provide communications services: (b) 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: ( The registrant abandons its facilities in the public rights-of-way: or (d) The registrant commits substantial and material violations of any of the provisions of applicable codes including but not limited to this Ordinance. (10) Notice of intent to terminate. Prior to termination, the City shall notify the registrant with a written notice setting forth all matters pertinent to the proposed termination action. including the reason therefore. The registrant shall have thirty (30) days after receipt of such notice within which to address or to eliminate the reasons or within which to present a plan, satisfactory to the City. to accomplish the same and to take such steps as are necessary to render every portion of the facilities remaining in the public rights-of-way safe. If the plan is rejected by the City. the City shall provide written notice of such rejection within fifteen (15) days of receipt of the plan to the registrant and shall make a final determination as to termination of the registration and the terms and conditions relative thereto. (11) Post termination action. In the event of termination, following any appeal period, the former registrant shall: (a) in accordance with the provisions of this Ordinance and as may otherwise be provided under state law, notify the City of the assumption or anticipated assumption by another registrant of ownership of the registrant's communications facilities in the public rights-of- way: or (b) provide the City with an acceptable plan for removal or 36 City of Sunny Isles Beach CROW Ordinance 10-17-18 disposition of its communications facilities in the public rights-of-way and restore the public rights-of-way to its condition immediately prior to the removal. If a registrant fails to comply with this subsection. the communications facilities are deemed to be abandoned and the City may exercise any remedies or rights it has at law or in equity as well as the City's • remedies pursuant to this Ordinance. The obligations of the registrant hereunder shall survive the termination of a registration. A registrant that has its registration terminated by the City under this Ordinance may reapply for registration one (1) year after the termination date of the prior registration. unless otherwise permitted to reapply at the sole discretion of the City. (12) In the event of termination of a registration. this Ordinance 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 communications facilities holds a valid certification or license with the governing federal or state agency, if required. for the provision of such service, and is registered with the City, if required. (13) If a registrant transfers. sells or assigns its registration or its facilities in the public rights-of-way. incident to a transfer, sale or assignment of the registrant's assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this Ordinance. Written notice of any such transfer. sale or assignment shall be provided to the City within 20 days after the effective closing date of the transfer. sale or assignment. If the transferee. buyer or assignee is a current registrant, and is in compliance with the provisions of this Ordinance. then the transferee. buyer or assignee is not required tore-register. If the transferee. buyer or assignee is not a current registrant. or has an effective registration that is not in compliance with this Ordinance as it may have been amended, then the transferee, buyer or assignee shall register as provided in this Ordinance within 60 days of the transfer. sale or assignment. If permit applications are pending in the registrant's name, the transferee, buyer or assignee shall notify the appropriate City officials that the transferee, buyer or assignee is the new applicant. (14) City makes no warranties or representations regarding the fitness, suitability or availability of public rights-of-way for the registrant's communications facilities. Any performance of work or costs incurred by registrant or provision of services shall be at registrant's sole risk. Nothing in this Ordinance shall affect the City's authority to add, vacate or abandon public rights-of-way, and the City makes no warranties or representations regarding the availability of any added, vacated or abandoned public rights-of-way for communications facilities. (15) In the event registrant desires to use its existing facilities or to construct new facilities for the purpose of providing any other services other than the provision of communications service. or for providing any other use to 37 City of Sunny Isles Beach CROW Ordinance 10-17-18 existing or potential consumers, a registrant shall seek such additional and separate authorization from the City for such activities as may be required by applicable law. Sec. 129-66. Transfer, sale or assignment of assets in public rights of way; transfer of statewide cable franchise certificate..Requirement of a Permit. A. If a registrant transfers, sells or assigns its assets located in public rights of way incident to a transfer, sale or assignment of the registrant's assets, the transferee, the transferee, buyer or assignee is a current registrant, then the transferee, buyer or assignee is not required to reregister. If the transferee, buyer or assignee is not a current registrant, then the transferee, buyer or assignee must register and receive notice of the effectiveness of its registration as provided by this article. B. If permit applications are pending in the registrant's name, the transferee, buyer or assignee shall notify the City Manager or his designee that the transferee, buyer or assignee is the new applicant. The City shall not issue permits until the registration of the transferee, buyer or assignee becomes effective. C. A registered communications services provider that possesses a current and valid Florida state issued certificate of franchise authority to provide cable or video services as issued by the Florida Department of State shall provide the City with written notice of any transfer of 'tee think days as authorized by Section 610.111(d), Florida Statutes. (a) In accordance with applicable law, City ordinances, codes and regulations, including this Ordinance. a right-of-way use permit issued by the City shall be required for any person to place or to maintain a communications facility in the public rights-of-way unless otherwise exempt pursuant to this Ordinance. An effective registration shall be a condition of obtaining a permit. A permit may be obtained by or on behalf of a registrant if all permitting requirements are met. The City may grant to any person who is a resident of Florida. or to any corporation which is organized under the laws of Florida or licensed to do business within Florida.. the use of a right-of-way for the communications facility in accordance with such rules or regulations as the City may adopt. No communications facility shall be installed, located. or relocated unless authorized by a written permit issued by the City. 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 or may impose lesser requirements. (b) Limited Exceptions to Permit Requirement. (1) A registrant shall be allowed to perform emergency maintenance within the public rights-of-way without first obtaining a permit or providing a 38 City of Sunny Isles Beach CROW Ordinance 10-17-18 performance bond. The term "emergency" shall mean a condition that affects the public's health. safety or welfare. which includes an unplanned out-of- _ service condition of a pre-existing service. Registrant shall provide prompt notice to the City of the placement or maintenance of a communications facility in public rights-of-way in the event of an emergency and, within ten (10) days of completing the emergency maintenance. apply for a permit if such activity required a permit. (2) A registrant shall be allowed to perform routine maintenance within the public rights-of-way if such proposed routine maintenance does not involve excavation, construction, or disruption of transportation in the public rights- of-way. In the case of routine maintenance, a registrant shall provide reasonable advance written notice to the City identifying the areas where such maintenance will occur, scope of maintenance. date(s) and duration of work to be performed. If routine maintenance requires the closure of the public rights-of-way, a permit shall be required. (3) A permit shall not be required for replacement of existing wireless facilities with wireless facilities that are substantially similar or of the same or smaller size. Any maintenance or replacement that involves a City Utility Pole or City utility shall not be performed without providing reasonable prior notice. at least 72 hours, to the City. (4) A registrant shall be allowed to place or to maintain a service drop within the public rights-of-way without first obtaining a permit if such proposed work does not involve excavation, construction, or the temporary closure of the public rights-of-way. (5) A registrant shall not be required to obtain a permit for the installation. placement. maintenance. or replacement of micro wireless facilities that are suspended on cable strung between existing utility poles in the public rights- of-way. in compliance with applicable codes by or for a communications services provider authorized to occupy the public rights-of-way and who is remitting Communications Services Tax under Chapter 202. Florida Statutes. Prior to placing a micro wireless facility in the public rights-of-way pursuant to this subsection, at least thirty (30) days prior to commencing said work. the registrant shall submit a certification or manufacturer's specifications with the micro wireless facility's dimensions to the City for review. A registrant's submission to demonstrate a micro wireless facility's dimensions may apply to all identical micro wireless facilities sought to be placed in the public rights-of-way by such registrant.. and the registrant is not required to submit a new certification or manufacturer's specifications unless the registrant seeks to place a micro wireless facility by a different manufacturer or with different dimensions in the public rights-of-way. If the micro wireless facility's dimensions exceed the dimensions to constitute a micro wireless facility, the registrant shall not be authorized to place such facility in the public rights-of- way. 39 City of Sunny Isles Beach CROW Ordinance 10-17-18 cc) The City Manager may cause an immediate stop work order where any permitted or unpermitted construction or other work in the public rights-of-way poses a serious threat to the health, safety or welfare of the public until such serious threat has been abated. Failure to comply with such order may subject a registrant, and its agents. employees, and contractors as applicable, to appropriate enforcement remedies as set forth in this Ordinance and applicable law. Sec. 129-67. —Placement or maintenance of a communications facility in public rights of way. Permit Application Requirements and Review Procedures. 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 Article II, Telecommunications Rights of Way, of this chapter. Pre-application meeting. To minimize issues related to a permit application, prior to applying for a permit. a registrant shall conduct a pre-submittal meeting with the City to discuss the registrant's plans and network goals for placing or maintaining facilities in the public rights-of-way unless prohibited by applicable law based on the proposed facilities. The City shall undertake efforts to accommodate a registrant's request for a pre-submittal meeting within ten (10) business days of a request. At a registrant's request, the City. in its sole discretion. may waive the requirement of a pre-submittal meeting for good cause based on the scope of the proposed permit and registrant's compliance with this Ordinance. In no event shall a pre-submittal meeting be waived for a consolidated permit to the extent not inconsistent with applicable law. Laj Application requirements for all communications facilities in the public rights-of- way. As part of any permit application to place or maintain any facility pursuant to this Ordinance in the public rights-of-way. a registrant or a registrant's agent or contractor shall provide four originals of a permit application in the designated format with the City that sets forth information required on the City's application form. including. at a minimum. the following: (1) If the applicant for the permit is not the registrant, a statement of authority by the registrant for the applicant to act on behalf of the registrant. In addition. if the applicant is a contractor. the contractor's license or registration and insurance information confirming authority to perform construction in the City and whether the contractor has any open permits with the City. and if so. the permit identification number or information. (2) Confirmation that the applicant engaged in a pre-submission meeting or such meeting was waived by the City or otherwise not required and that the applicant has an effective registration . (3) Engineering plan. An engineering plan signed and sealed by a licensed engineer. that includes the following: 40 City of Sunny Isles Beach CROW Ordinance 10-17-18 (a) Except for applications to collocate small wireless facilities on existing utility poles in the public rights-of-way, an American Land Title Association (ALTA) survey or other survey that may be specified in the City's application form demonstrating that the proposed location of the facility or utility pole is within the public rights-of-way, unless waived by the City in its sole discretion, pursuant to information confirming the proposed facility is located with the public rights-of-way: (b) The type of proposed facility. location of the proposed facility, and the dimensions, height, footprint, stealth design, and concealment features of the proposed facility: (c) The Global Positioning System (GPS) coordinates of the proposed facility. The GPS coordinates shall be based on the reading from a handheld mobile GPS unit set to Datum NAD 83 or WGS84. GPS coordinates based on Google Earth or similar application may be used where areas of shading occur due to overhead canopy. GPS Coordinates shall be provided in decimal degrees at a six (6) decimal point precision; (d) Whether the proposed facility is proposed within a location subject to restrictions pursuant to this Ordinance; (e) Distances between the proposed facility and the edge of nearby pavement, sidewalks. driveways. ramps, the nearest residential properties, nearby drainage systems, trees. ground-mounted equipment, nearby structures in the public rights-of-way, underground utilities and other above-grade and below-grade structures and utilities located within the public rights-of-way: (f) For new communications facilities, a sketch showing pavement. sidewalks, driveways, ramps. trees. below-grade utilities, and other above-grade and below-grade structures and facilities within the public rights-of-way located within a fifty (50) foot radius; (g) Sufficient specificity demonstrating compliance with applicable codes. including the Florida Building Code. most current edition. specifically including but not limited to terms of compliance with the High Velocity Zone Criteria specified therein, the 2010 Florida Department of Transportation Utility Accommodation Manual, as applicable: National Electrical Code, the National Electrical Safety Code and the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce, Bureau of Standards of the United States. as may be amended: (h) The routes of all new transmission and distribution lines to be placed or maintained in the public rights-of-way in connection with the proposed facility (such lines may be subject to separate permit requirements) or any connection or tie-in to any existing lines in the public right-of-way, as may be applicable based on the proposed installation: (i) Certification that the proposed facility will not materially interfere 41 City of Sunny Isles Beach CROW Ordinance 10-17-18 with the safe operation of traffic control equipment: (j) Certification that the proposed facility will not interfere with sight lines or clear zones for transportation, pedestrians, or public safety purposes or result in the public rights-of-way being inconsistent with the Florida Greenbook; (k) Certification that the proposed facility will not materially interfere with compliance with the Americans with Disabilities Act similar federal or state standards regarding pedestrian access or movement: and (1) Other engineering information that may be requested by the City. (4) Trees or landscaping proposed to be removed or impacted upon the placement or maintenance of the proposed facility. (5) Photographic or video documentation of the pre-construction condition of the public rights-of-way in the area to be affected by the installation of the proposed facility. (6) Description of installation or construction and timetable. A description of the method by which the facility will be installed and/or modified (i.e. anticipated construction methods or techniques) and timetable for construction. (7) Temporary sidewalk closure plan. The applicant shall provide a temporary sidewalk closure plan. if appropriate, to accommodate placement or maintenance of the facility. (8) Temporary maintenance of traffic (MOT) plan. The applicant shall provide a temporary traffic lane closure and maintenance of traffic (MOT) plan. if appropriate, to accommodate placement or maintenance of the facility. (9) Restoration plan and estimated cost of restoration of the public rights-of-way. A restoration plan and a good faith estimate of the cost of restoration of the public rights-of-way. Such good faith estimate shall be accepted by the City unless the City determines such estimated costs are not representative of the actual costs of the restoration of the public rights-of-way. Estimates of the cost to restore the public rights-of-way shall include all costs necessary to restore the public rights-of-way to its original condition or better. Such good faith estimate may include. but shall not be limited to. costs to restore the paving, curbs/gutters. sidewalks, multi-purpose trails. and landscaping. All planted or naturally occurring shrubbery or vegetation. including sod. damaged or destroyed during work in the public rights-of-way shall be replaced. Tree or landscaping removal shown on the permit shall not be considered damage or impairment to be restored to the original condition provided the applicant complies with the approved mitigation plan, if any. (10) Indemnification. A statement shall be included with the permit application 42 City of Sunny Isles Beach CROW Ordinance 10-17-18 that by execution of the application and by applying for the permit. the applicant shall be bound to the City with respect to the indemnification provision set forth in this Ordinance. (11) Airport airspace protection. If applicable, the applicant shall confirm compliance with Chapter 333. F.S. and all City codes. State and federal laws and regulations pertaining to airport airspace protections. (12) Attestation. For applications by a wireless infrastructure provider or its contractor for the placement or maintenance of a utility pole in the public rights-of-way for collocation of a small wireless facility. the applicant shall provide an attestation by an officer of the registrant that a small wireless facility will be collocated on the utility pole and will be used by a wireless services provider to provide communication service within nine (9) months after the date the application is approved. (13) Pole attachment agreement. Except for pole attachments regulated pursuant to 47 U.S.C. § 224, if applicable for the proposed facility. the applicant shall provide a copy of a fully executed valid pole attachment agreement between the owner of the utility pole and registrant. In lieu of providing the complete pole attachment agreement between the owner of the utility pole and registrant, the applicant may provide the first page of such agreement and the signature page or a notarized letter of authorization from the owner of the utility pole. providing adequate identifying information, acceptable to the City. and indicating the registrant is authorized to install its facility on the identified utility pole. (14) Information regarding height limitations. For an application for a new utility pole to support the collocation of a small wireless facility. the applicant shall provide information regarding the location and height of the tallest utility pole located in the same public rights-of-way as of July 1. 2017. measured from grade in place within five hundred (500) feet of the proposed location of the utility pole. If there is no utility pole within five hundred (500) feet of the proposed utility pole as of July 1. 2017. the applicant shall so certify. (15) If the permit application includes a backup power supply. information to demonstrate that the backup power supply and proposed fuel storage satisfies the applicable law. (16) In addition to the requirements herein. as part of any permit application to place or maintain a small wireless facility in the public rights-of-way, the applicant shall provide the following: (a) Documentation to the satisfaction of the City from a licensed engineer, that the structure and foundation of the utility pole intended to support the collocation of the small wireless facility can support the additional load of the proposed small wireless facility consistent with 43 City of Sunny Isles Beach CROW Ordinance 10-17-18 the requirements of the Florida Building Code: (b) A description by the applicant to the satisfaction of the City how the proposed small wireless facility complies with the objective design standards set forth in this Ordinance. For a proposed ground-mounted small wireless facility, such information shall include whether the proposed small wireless facility includes a wrap that has been approved by the City or is of an architectural design that is substantially similar to other infrastructure in the area of the public rights-of-way or has been approved by the City. (c) Accurate photo simulations of the proposed small wireless facility and if applicable, as collocated on the utility pole. (17) Consolidated permit application and single application for multiple locations. A registrant may submit a single application to place or to maintain multiple facilities in the public rights-of-way. where it would be more efficient for the registrant and the City to address multiple facilities in one permit application. In addition, an applicant seeking to collocate multiple small wireless facilities may file a consolidated permit application and receive a single permit for the collocation of up to 30 small wireless facilities. The application must include the information required for an application for each of the proposed small wireless facilities. If the application includes multiple small wireless facilities, the City may separately address small wireless facility collocations for which incomplete information has been received or which are denied. (18) To the extent not inconsistent with applicable law. such additional information requested by the City reasonably necessary for the permit application. (19) The City may require that the applicant for a permit perform the inspection of the work authorized by the permit to close out the permit at its costs and provide certification to the City at its costs by a licensed engineer. that such work was performed consistent with the requirements of the permit. (b) Application Review and Procedures for Small Wireless Facilities and Utility Poles for Collocation of Small Wireless Facilities. (1) Time periods within this subsection may be extended for the period of time impacted by a force majeure event or by a declared State of Emergency by the City or Governor of the State that impacts the City ("force majeure extension"). If an applicant opposes a force majeure extension pursuant to this subsection. it shall notify the City within 24 hours of such extension becoming effective or the applicant shall be deemed to have consented to the extension. Unless extended by mutual consent of the applicant and City. within 14 days after receiving an application, the City Manager will notify the applicant by electronic mail as to whether the application is 44 City of Sunny Isles Beach CROW Ordinance 10-17-18 complete. If an application is deemed incomplete, the City will specifically identify the missing information. An application is deemed complete if the City fails to provide notification to the applicant within 14 days. (b) Negotiation Process. (1) Unless extended by mutual consent of the applicant and the City. within 14 days after the date of filing the application, the City may request that the proposed location of a small wireless facility be moved to another location in the right-of-way and placed on an alternative City utility pole or support structure or may place a new utility pole. The City and the applicant may negotiate the alternative location, including any objective design standards and reasonable spacing requirements for ground-based equipment. for 30 days after the date of the request. (2) At the conclusion of the negotiation period, if the alternative location is accepted by the applicant, the applicant must notify the City of such acceptance and the application shall be deemed granted for any new location for which there is agreement and all other locations in the application. (3) If an agreement is not reached, the applicant must notify the City of such nonagreement and the City must grant or deny the original application within 90 days after the date the application was filed unless extended by mutual consent of the applicant and City. Failure of the applicant to so notify the City as required herein shall be deemed to constitute the applicant's rejection of the City's alternative location. A request for an alternative location, an acceptance of an alternative location. or a rejection of an alternative location must be in writing and provided by electronic mail. The City processes all applications on a nondiscriminatory basis. Unless the City and the applicant engage in negotiations as provided above, the City will approve or deny the application and will notify the applicant by electronic mail whether the application is approved or denied within 60 days after the receipt of an application. (d) Extension of time. If the City and the applicant do not engage in negotiations. the applicant and City may mutually agree to extend the 60-day application review period. The City shall grant or deny the application at the end of the extended period. The City may deny a proposed collocation of a small wireless facility in the public rights-of-way if the proposed collocation: 45 City of Sunny Isles Beach CROW Ordinance 10-17-18 (1) Materially interferes with the safe operation of traffic control equipment: (2) Materially interferes with sight lines or clear zones for transportation. pedestrians, or public safety purposes; (3) Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement; (4) Materially fails to comply with the 2010 edition of the Florida Department of Transportation Utility Accommodation Manual; or (5) Fails to comply with applicable codes. (f) Cure Procedure. (1) If the application is denied. the City will specify the basis for the denial. including the specific code provisions on which the denial was based, on the day the City denies the application. (2) The applicant may cure the deficiencies identified by the City and resubmit the application within 30 days after the notice of denial is sent. (3) If an attempt to cure is made by the applicant, the City will approve or deny the revised application within 30 days after receipt of the revised application. If the applicant revises any information in the application other than to address expressly the deficiencies identified by the City. the applicant shall submit a new application. (4) The City's second and subsequent reviews of revised applications will be limited to the deficiencies cited in the denial notice. (g) A permit issued pursuant to an approved application shall remain in effect for one (1) year unless otherwise extended, suspended. or revoked by the City pursuant to this Ordinance. If a small wireless facility or utility pole is installed without a permit pursuant to applicable state or federal law. the applicant shall nevertheless be required to have an effective registration. comply with development standards and provide the performance bond required in this Ordinance prior to performing construction. (h) A permit from the City constitutes authorization to undertake only 46 City of Sunny Isles Beach CROW Ordinance 10-17-18 certain activities in the public rights-of-way in accordance with this Ordinance, 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. (2) Review procedures for applications for all communications facilities other than small wireless facilities and utility poles for collocation of small wireless facilities. The City shall review and process applications for communications facilities other than small wireless facilities and utility poles for collocation of small wireless facilities consistent with applicable law and City procedures. The City may deny an application for a communications facility in the public rights-of-way if such facility does not comply with applicable codes. including this Ordinance. (3) Suspension and revocation of permits. (a) The City may order the suspension of work under a permit and ultimately may suspend or revoke any permit. in the event of a material breach of the terms and conditions of any applicable codes including but not limited to this Ordinance, State and federal laws and regulations. or any condition of the permit. A material breach by the permittee may include, but is not limited to: (1) The violation of any material provision of the permit or applicable codes; (2) An evasion or attempt to evade any material provision of the permit or the perpetration or attempt to perpetrate any fraud or deceit upon the City: (3) Any material misrepresentation of fact in the process of permittee's request for a permit or registration: (4) The failure to maintain the required permanent performance bond or insurance; (5) The failure to properly restore the public rights-of-way: (6) The failure to comply within the specified time with an order issued by the City (7) The failure to register, renew a registration, or provide notice of transfer in accordance with this Ordinance: (8) The failure to relocate or remove facilities pursuant to this Ordinance and Sections 337.402. 337.403 and 337.404. F.S.. as amended: (9) Conducting work in the public rights-of-way without a permit. if required. (b) If the City determines that a registrant has committed a substantial breach of a term or condition of the permit or violation of applicable codes including but not limited to this Ordinance. the City shall make a written demand upon the registrant to remedy such violation. The demand shall state that the continued violation(s) may be cause 47 City of Sunny Isles Beach CROW Ordinance 10-17-18 for suspension or revocation of the permit. Further. the City may place additional or revised permit conditions following a substantial breach. In addition, the City may refuse to issue new permits to a registrant or registrant's contractor that has materially violated any provisions of a permit or applicable codes including but not limited to this Ordinance, until such time as the registrant cures the violation to the satisfaction of the City, including paying any damages; costs or penalties that may have been assessed. Within thirty (30) days of receiving notification of the breach. the permittee shall contact the City and provide a plan. acceptable to the City. The City shall provide additional time as reasonably necessary for a permittee to establish an acceptable plan taking into account the nature and scope of the alleged breach. The permittee's failure to so contact the City. the permittee's failure to submit an acceptable plan. or the permittee's failure to reasonably implement the approved plan, shall be cause for revocation or suspension of the permit. A final determination to suspend or to revoke a permit may be appealed in accordance with the procedures set forth in this Ordinance. Nothing herein shall affect the City's ability to take immediate action or to cause a registrant to take immediate action pursuant to this Ordinance or applicable law to address any condition that threatens the health. safety or welfare of persons or property. (d) If a permit is revoked, the permittee shall reimburse the City for the City's reasonable costs, including restoration costs, administrative costs, and the cost of collection. These costs may also be deducted from the registrant's permanent performance bond or construction bond. as applicable, in the City's discretion. The City may cause an immediate stop work order where the construction poses a serious threat to the health. safety or welfare of the public until such time as such serious threat has been abated. (f) In the event of an emergency, if a registrant fails to do so in a timely manner, the City may perform any work involving a communications facility in the public rights-of-way to prevent a threat to the health, safety or welfare of the public and charge all costs including collection costs to the registrant. Nothing herein shall operate as a waiver of the City's police powers. (4) Requests for waivers. (a) Nothing in this Ordinance shall be construed to prohibit or have the effect of prohibiting the nondiscriminatory and competitively neutral use of public rights-of-way by communications service providers. communications facility providers or pass-through providers. in 48 City of Sunny Isles Beach CROW Ordinance 10-17-18 violation of federal or state law. (b) The City may grant a waiver in those circumstances where a competitively neutral use of the public rights-of-way is impaired by strict application of the requirements of this Ordinance. (c A request for a waiver shall be filed either prior to or contemporaneously with the permit application. The request for waiver shall contain each provision for which a waiver is sought. A request for a waiver shall include the following information: (1) A detailed explanation. with supporting engineering information by a Florida licensed engineer or other data. as to why a waiver from the requirements of this Ordinance is required to allow the applicant to have nondiscriminatory and competitively neutral use of the public rights-of-way, including a detailed explanation addressing the relevant engineering criteria; (2) Nature and characteristics of the surrounding neighborhood: (3) Any special conditions and circumstances affecting the proposed site which prevent compliance with the Ordinance or subsection for which a waiver is being sought; (4) If applicable. topography. tree coverage and foliage in the immediate surrounding area of the proposed facility or within the surrounding neighborhood; (5) Design of the proposed facility with particular reference to achieving compatibility with the surrounding neighborhood and other structures in the public rights-of-way and eliminating adverse visual impacts: (6) If the proposed waiver is compliant with the Americans With Disabilities Act, 42 U.S.C. §12101. et seq.. and applicable codes; (7) Any other information the City may reasonably require to process the request for waiver. (d) The City shall grant or deny a request for a waiver within forty-five (45) days after receiving the request for waiver or time frame under applicable law unless the applicant and City consent to an extension. In granting any waiver. the City may impose conditions to the extent the City determines such conditions are necessary to minimize any adverse effects of the proposed facility on the surrounding 49 City of Sunny Isles Beach CROW Ordinance 10-17-18 neighborhood or to protect the health. safety and welfare of the public. Should a request for waiver, and ultimately a permit. be denied by the City. the denial of the waiver may be appealed with an appeal of the permit denial in accordance with this Ordinance. (5) Appeals. Final, written decisions of a designee of the City Manager, including but not limited to. a decision suspending. revoking. or denying a permit, denying a registration, denying a renewal of a registration. suspending or terminating a registration, denying a waiver. or imposing costs or a fine, are subject to appeal to the City Manager. An appeal must be filed with the City Clerk within thirty (30) days of the date of the final, written decision to be appealed. An applicant shall waive any appeal that is not timely filed as set forth herein. The City Manager shall review the appeal based on the information submitted previously to the City and no new information shall be considered. Subject to a force majeure event. unless waived by the applicant, and a written decision shall be rendered by the City Manager within 30 days of receipt of the appeal. (b) An appeal from a decision of the City Manager may be appealed to the Hearing Officer within 30 days. by filing a written notice of appeal with the City Clerk and providing copies to the City Manager and the City Attorney. Any appeal not timely filed shall be waived. The notice of appeal shall state the decision which is being appealed. the grounds for appeal. a brief summary of the relief which is sought, and shall be accompanied by a nonrefundable fee of $500.00. The Hearing Officer may affirm. modify or reverse the decision of the City Manager. The City Clerk shall notify any party who has filed a written request for such notification of the date when the matter will be presented to the Hearing Officer. Nothing contained herein shall preclude the Hearing Officer from seeking additional information prior to rendering a final decision. The decision of the Hearing Officer shall be by in writing and a copy of the decision shall be forwarded to the City Manager and the appealing party. Within the time prescribed by the appropriate Florida Rules of Appellate Procedure. a party aggrieved by a decision of the Hearing Officer may appeal an adverse decision to the Circuit Court In And For Miami-Dade County. The party making the appeal shall be required to pay to the City Clerk a $500.00 fee to defray the costs of preparing the record on appeal. Sec. 129-68. —Suspension of permits. Performance construction bond. 50 City of Sunny Isles Beach CROW Ordinance 10-17-18 A. Subject to § 129 69 below, the City Manager or his designee may suspend any following reasons: (1) Failure to satisfy permit conditions, including conditions set forth in this article or other applicable City ordinances, codes or regulations governing placement or maintenance of communications facilities in public rights of way, including, without limitation, failure to take reasonable safety precautions to alert the public of work at the work site, or to restore any public rights of way; (2) Misrepresentation or fraud by registrant in a registration or permit application to the City; or (3) Inaccurate information contained in a permit application; or (1) Failure to properly renew or ineffectiveness of registration. (5) Failure to relocate or remove facilities as may be lawfully required by the Gity. 13. The City Manager or his designee shall provide notice and an opportunity to cure circumstances. () Prior to the issuance of any permit in accordance with this Ordinance. or performing any work in the public rights-of-way, either pursuant to a permit or without a permit if authorized by applicable law except in the case of an emergency pursuant to this Ordinance, a registrant shall establish in the City's favor a performance construction bond to secure the restoration of the public rights-of-way, and to ensure the registrant's faithful performance of the construction-or other work in the public rights-of-way. in accordance with applicable sections of the City Code and the permit. The performance construction bond must name the City as obligee and be conditioned upon the full and faithful compliance by the registrant with all requirements. duties, and obligations imposed by the permit and provisions of this Ordinance during and through completion of the placement or maintenance project. The performance construction bond shall be in an amount as determined by the City based on one-hundred ten percent (110%) of the estimated costs of the restoration of the public rights-of-way. No performance construction shall be required if the estimated costs of the restoration of the public rights-of-way is less than one thousand dollars ($1.000) provided the registrant has a fully replenished permanent performance bond on file with the City. For a consolidated permit, the registrant shall provide a performance construction bond based on the amount of the total costs of the restoration of the public rights-of-way for all small wireless facilities to be collocated on utility poles within the public rights-of-way. but in no event shall be less than ten thousand dollars ($10,000). The minimum amount of the performance construction bond for a new or replaced utility pole or ground-mounted small wireless facility up to twenty-eight (28) cubic feet shall be twenty-five thousand dollars ($25,000). The construction bond shall be issued by a surety licensed to operate in Florida having a minimum rating of A-1 in Best's Key Rating Guide. Property/Casualty Edition; shall be subject to the approval of the City Attorney and may be administratively accepted by the City Manager. 51 City of Sunny Isles Beach CROW Ordinance 10-17-18 (b) In the event a registrant subject to such a performance construction bond fails to complete the work in a safe. timely and competent manner in accordance with the provisions of the permit or City Code, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation. indemnification or cost of removal or abandonment of any property of the registrant, or the cost of completing the work, plus a reasonable allowance for attorney's fees, up to the full amount of the bond. The performance bond must be issued as non-cancelable and shall provide the following: "This bond may not be canceled. or allowed to lapse. until 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." The performance bond shall be for a term of not less than one-year after the anticipated date of the later of completion of construction, restoration and City inspection. In the event the term of any performance construction bond expires, or is reasonably expected to expire. prior to one-year after the completion of construction, restoration and City inspection. the registrant shall immediately obtain, pay for. and file with the City a replacement performance bond. No less than one-year after completion of the construction and satisfaction of all obligations in accordance with the bond. the registrant may request that the City remove the requirement to continue the performance construction bond. Notwithstanding, the City may require a new bond for any subsequent work performed in the public rights-of-way. (d) The rights reserved by the City with respect to any performance construction bend established pursuant to this division are in addition to all other rights and remedies the City may have under this Ordinance, or at law or equity. and no action. proceeding or exercise of a right with respect to the performance construction bond will affect any other right the City may have. Sec. 129-69. Appeals. Construction Methods. Final, written decisions of the City Manager or his designee suspending or denying City Clerk within 30 days of the date of the final, written decision to be appealed. Any appeal not timely filed as set forth above shall be waived. The City Commission shall hear the appeal at the next regular Commission Meeting. The hearing shall occur within 30 days of the receipt of the appeal, unless waived by the registrant, and a written decision shall be rendered within 20 days of-the suspension or denial shall be lifted. A registrant shall place and maintain its communications facility in public rights-of- way in a manner that is at a minimum consistent with accepted industry practice and applicable codes. All safety practices required by applicable codes or accepted 52 City of Sunny Isles Beach CROW Ordinance 10-17-18 industry practices and standards shall be used during the placement or maintenance of communications facilities, including but not limited to. Chapter 33 of the Florida Building Code. 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. (b) In connection with excavation in the public rights-of-way,'a registrant shall. where applicable. comply with the Underground Facility Damage Prevention and Safety Act set forth in F.S. Ch. 556. as it may be amended. In the event of any conflicts with existing utilities or utility service laterals. the proposed location of the communications facility will be adjusted. not the utility. ( To the extent not inconsistent with applicable codes. underground cables shall have consistent alignment parallel with the edge of pavement, a thirty-six inch (36") depth of cover for the unpaved portion of roadways. and a thirty inch (30") to thirty-six inch (36") depth of cover in the paved portion of roadways. and shall have a three (3) foot horizontal clearance from other underground utilities and their appurtenances so as to not impede the maintenance or replacement of said utilities. The lowest wire on any poles or micro wireless facility placed in any right-of-way used by vehicle traffic shall not be less than eighteen (18) feet from the ground and whenever telephone and electric power wires cross each other. wires shall cross and be maintained in accordance with the National Electrical Code. the National Electrical Safety Code and the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce. Bureau of Standards of the United States in force at the time of the effective date of this ordinance from which this article derives and as amended. (d) Grounding rods and pull boxes. The grounding rod may not extend above the top of the public right-of-way or sidewalk and must be placed in a pull box, and the ground wire between the pole and ground rod must be inside an underground conduit. All pull boxes shall be vehicle load bearing. comply with applicable codes and the applicable FDOT Standard specification and be listed on the FDOT Approved Products List. A concrete pad shall be installed around all pull boxes not located in the sidewalk. No new or replacement pull boxes shall be located in pedestrian ramps. In the event the registrant's work requires the obstruction of City-owned. metered parking spaces, the registrant shall pay a reasonable fee to the City as prescribed in any existing or subsequently enacted City ordinance, or policy adopted thereto based on the revenues lost by the City due to registrant's obstruction of metered parking spaces. (f) In the event that work to be conducted by the registrant requires streets or traffic lanes to be closed or obstructed. the registrant shall. pursuant to the requirements of the City. obtain all permits from. and pay all fees therefor to. and obtain approval of its maintenance-of-traffic plan from, the City's Public Works Department. In no event shall such obstruction be greater than twenty-four(24) hours. 53 City of Sunny Isles Beach CROW Ordinance 10-17-18 (g) The City may require the use of trenchless technology (i.e.. directional bore, hand _digging or jack and bore method) for the installation of facilities underground in the public rights-of-way. Underground missile boring shall be prohibited unless waived by the City. The registrant shall be solely liable for the displacement, damage or destruction of any property. public rights-of-way. irrigation system, utility. or landscaping as a result of the placement or maintenance of its facility within the public rights-of-way. The City may issue such rules and regulations concerning the method for placement or maintenance of a communications facility in public rights- of-way as may be consistent with this Ordinance and other applicable codes and standards. The provisions of this subsection are not intended to prevent the use of any method of construction not specifically prescribed by this subsection. provided that any such method has been approved by the City. (h) In an effort to minimize adverse impacts and disruption in the public rights-of-way and to other municipal improvements, the City may require a communications services provider to coordinate the placement or maintenance of its facilities with any work. construction, installation in or repairs of the subject public rights-of-way or other facilities therein, that is occurring or is scheduled to occur within a reasonable time from the date(s) requested in the communications services provider's permit application. The City may require a registrant to alter reasonably its placement or maintenance schedule as necessary to minimize disruptions and disturbance in the public rights-of-way. The City may provide a more definite time frame based on specific City construction or maintenance schedules. Within the public rights-of-way, every communications services provider shall make space available in its trench and/or conduit to other communications services providers consistent with the federal requirements of 47 U.S.C. §224. Every communications services provider shall utilize existing conduits. pathways and other facilities whenever possible. and shall not place or maintain any new. different, or additional poles, conduits. pathways or other facilities. whether in the public rights-of-way or on privately-owned property. until written approval is obtained from the City or other appropriate governmental authority. and. where applicable. from the private property owner. Limits on excavation in restored rights-of-way. In the interest of public safety and to avoid continual disruption and degradation to the public rights-of-way. an area of the public rights-of-way that has been subject to excavation that has been restored shall not be subject to re-excavation until at least two years following the completion of such restoration. to the extent not inconsistent with applicable law. unless waived by the City. Registrants seeking to place communications facilities in the public rights- of-way through excavation are strongly encouraged to contact other registrants and communications services providers to coordinate the placement of communications facilities in the public rights-of-way. Trees. A registrant shall not prune. remove or materially damage trees during placement or maintenance of small wireless facilities, micro wireless facility, or utility poles in the public rights-of-way unless approved by the City. Tree removal or 54 City of Sunny Isles Beach CROW Ordinance 10-17-18 pruning is not permitted within the public rights-of-way to increase signal strength or to provide a line-of-sight for wireless facilities. Landscaping may only be damaged or removed during placement or maintenance of communications facilities pursuant to a permit issued by the City. The City may require that any landscaping or trees so removed shall be replaced or mitigated in accordance with the approved restoration plan. Any such trimming or removal shall be at registrant's sole expense. and registrant shall remove all trimmings from City's right-of-way and shall not leave trimmings or debris on any public or private property. (k) Restoration of public rights-of-way. A registrant shall, at its own expense, restore the public rights-of-way to at least its original condition before such work in public rights-of-way was initiated. subject to the City's satisfaction upon inspection. Registrant shall warrant its restoration for a period of 12 months after completion of such restoration. If the registrant fails to make such restoration within 30 calendar days after completion of construction, or such other time as may be required by the City, the City may, after written notice to the registrant, perform such restoration using City employees, agents or contractors. and charge all costs of the restoration to the registrant in accordance with F.S. §337.402. as it may be amended, and require reimbursement within 30 days after the submission of the invoice by the City to the registrant. f 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 facilities. fiber. 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-cf-way occupied by the registrant. The registrant shall not in any way displace. damage or destroy any sewer. water main, pipe or any other facilities belonging to the City. or to any third party who placed such facilities therein by express authority of the City. without the consent of the City. and the registrant shall be liable to the City or to the third party owner. as the case may be, for the cost of any repairs made necessary by any such displacement. damage or destruction and shall pay such costs upon demand. A registrant shall immediately notify the City of any damage to City utilities. City fiber or other City facilities as a result of a registrant's construction in the public rights-of- way. The registrant shall repair such damage at its expense within the time frame required by the City given the nature of the damage and impact on City services. In its discretion. the City may repair or arrange for the repair of such damage and charge such expense to the registrant. (m) Any communications facilities heretofore or hereafter placed upon. under. over, or along any public rights-of-way that is found by the City to be unreasonably interfering in any way with the convenient, safe or continuous use or the maintenance. improvement. extension or expansion of such public rights-of-way shall, upon thirty (30) days' written notice to the registrant or its agent, be removed or relocated by such registrant at its own expense except as explicitly provided under F.S. §337.403. The City may waive or extend the time within which a registrant shall remove or relocate a communications facility for good cause shown. 55 City of Sunny Isles Beach CROW Ordinance 10-17-18 (n) Removal or relocation at the direction of the City of a registrant's communications facility in public rights-of-way shall be governed by the provisions of F.S. §§337.403 and 337.404. as they may be amended. Subject to F.S. §337.403. whenever an order of the City requires such removal or change in the location of any communications facility from the public rights-of-way, and the facility owner fails to remove or charge the same at its own expense to conform to the order within the time stated in the notice. the City may proceed to cause the communications facility to be removed. The expense thereby incurred except as provided in F.S. §337.403O(a)—(c), shall be paid out of any money available therefor. and such expense shall be charged against the registrant of the communications facility and levied, collected and paid to the City. (o) Subject to F.S. §337.403, whenever it shall be necessary for the City to remove or relocate any communications facility, the registrant of the communications facility shall be given notice of such removal or relocation and an order requiring the payment of the costs thereof, and shall be given reasonable time, which shall not be less than twenty (20) nor more than thirty (30) days in which to appear before the City Commission to contest the reasonableness of the order. Should the registrant not appear, the determination of the cost to the registrant shall be final, in accordance with F.S. §337.404. (p) A final order of the City shall constitute a lien on any property of the registrant and may be enforced by filing an authenticated copy of the order in the office of the clerk of the circuit court of the county wherein the registrant's property is located and/or by drawing upon the registrant's permanent performance bond. (q) The City retains the right and privilege to cut or move any communications facilities located within the public rights-of-way of the City, as the City may determine to be necessary. appropriate or useful in response to any public health or safety emergency. If circumstances permit. the City shall attempt to notify the registrant of the communications facility, if known, prior to cutting or removing a communications facility and shall notify the registrant of the communications facility, if known, after cutting or removing a facility. The City shall have the right to make such inspections of facilities placed or maintained in public rights-of-way as it finds necessary to ensure compliance with this Ordinance. The City shall have access without charge to any manholes or handholes at any time. of a communications services provider in which the City has facilities. provided the City has given such provider reasonable prior notice so that such provider can have trained personnel present when the City accesses such manholes. Notwithstanding the foregoing. the City. in the proper exercise of its municipal police powers and duties with respect to the public rights-of-way. shall have access to all manholes and handholes without charge of such provider. In the event the City determines that a violation exists with respect to registrant's placement or maintenance of facilities in the public rights-of-way that is not considered to be an emergency or danger to the public health. safety or welfare. the City will provide 56 City of Sunny Isles Beach CROW Ordinance 10-17-18 registrant no less than three days written notice setting forth the violation and requesting correction. ( Following the completion of construction to place a new or replace an existing communications facility in the public rights-of-way, the registrant shall promptly provide revised plans and "as-builts" including, but not limited to, horizontal and vertical profiles. within thirty (30) days after completion of any installation or construction. The plans shall be in a digitized format, showing the two-dimensional location of the facilities, based on the City's geographical database or other format acceptable to the City. The registrant shall provide such plans at no cost to the City. The City shall maintain the confidentiality of such plans and any other information provided in accordance with F.S. §202.195. as it may be amended. (t) To the extent not inconsistent with applicable law, a registrant shall allow City facilities to be collocated within City's public rights-of-way through the use of a joint trench during registrant's construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between registrant and City and may be subjected to other City rights-of-way requirements. 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. (u) A registrant shall. on 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. If the City requests a temporary raising or lowering of a facility for a public purpose. the City shall not be charged for the temporary raising or lowering of the facility. subject to applicable law. (v) Neither this Ordinance nor a permit issued by the City authorizes a person to collocate or attach wireless facilities, including any antenna. micro wireless facility, or small wireless facility.. on a privately owned utility.pole. a utility pole owned by an electric cooperative or a municipal electric utility, a privately owned wireless support structure. or other private property without the consent of the property owner. (w) Abandonment. Upon determination by a registrant or communications services provider that one or more of its communications facilities in the public rights-of-way is to be abandoned. the provider shall notify the City no later than ninety (90) days from such determination. or no later than thirty (30) days following such abandonment. whichever is sooner. The City may independently establish that a communications facility has been abandoned. In reaching such determination, the City may request documentation and/or affidavits from the communications services provider or registrant regarding the active use of the facility. If the provider or 57 City of Sunny Isles Beach CROW Ordinance 10-17-18 registrant fails to provide the requested documentation within thirty (30) days, a rebuttable presumption shall exist that the provider or registrant has abandoned the communications facility. Any small wireless facility, micro wireless facility, utility pole for collocation of a small wireless facility, or other communications facility installed within the public rights-of-way that is abandoned shall be removed by the registrant or communications services provider at its expense within thirty (30) days of receipt of notice from the City. Failure to remove an abandoned facility within the thirty (30) days' period shall be deemed to be the registrant's or communications provider's consent for the City to remove the facility at the registrant's or provider's expense or for the City to allow another person to remove the facility at the registrant's or provider's expense. The communications services provider or registrant shall be responsible for all damage to the public rights-of-way and any facilities or utilities damaged as a result of such removal, and shall restore the public rights-of-way as required in this subjection. (x) If there are two (2) or more users of a single facility, then this provision shall not become effective until all users cease using the facility. Notwithstanding the foregoing. if the facility is attached to an existing structure that has an independent function such as a light pole, intersection signal, pedestrian signal. utility pole or the like, said abandonment of the facility requires removal of the facility only and does not require the removal of the existing structure. Sec. 129-70. — Conditional use of public rights of way.Development And Objective Design Standards. -- - _ rant 4ire . ' - • •- erte-eenstruct new facilities for the purpose of providing other utility or nonutility services to existing or provision of communications services or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from City for such activities as may be required by applicable law. - • B. To the extent that a registrant leases or otherwise uses the facilities of a person that is duly registered or otherwise authorized to place or maintain facilities in the public rights of way of the City, registrant shall make no claim, nor assert any right which will impede the lawful exercise of the City's rights, including requiring the removal of such facilities from the public rights of way of the City, regardless of the effect on registrant's ability to place or maintain its own communications facilities in public rights of way of the City. Terms and conditions for collocation on City utility poles. (1) The City shall not enter into an exclusive arrangement with any person for the right to attach equipment to City utility poles. The City reserves the right to enter into agreements for collocation on City utility poles in its discretion. A person shall not use City-owned fiber. conduit. or other City property without an agreement approved by the City. 58 City of Sunny Isles Beach CROW Ordinance 10-17-18 (2) Reservation of space on City utility poles. The City may reserve space on City_utility poles for future public safety uses. However, a reservation of f space may not preclude collocation of a small wireless facility. If replacement of the City utility pole is necessary to accommodate the collocation of the small wireless facility and the future public safety use. the pole replacement is subject to make-ready provisions and the replaced pole shall accommodate the future public safety use. The replaced pole shall continue to be owned by the City. l3) The rate to collocate a small wireless facility on a City utility pole shall be one-hundred fifty dollars ($150) per pole annually, or the highest rate authorized by applicable law. This amount shall not be deducted from any fees or taxes that may be due to the City. The fee shall be paid upon the City's issuance of a permit to collocate a small wireless facility on a City utility pole and annually thereafter. (4) Agreements between the City and wireless providers that were in effect on July 1. 2017, and that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on City utility poles, remain in effect, subject to applicable termination provisions. The wireless provider may accept the rates, fees, and terms established under this Ordinance for small wireless facilities and utility poles that are the subject of an application submitted after the rates, fees, and terms become effective. (5) For a City utility pole that supports an aerial facility used to provide communications services or electric service, the parties shall comply with the process for make-ready work under 47 U.S.C. §224 and implementing regulations. The good faith estimate of the City for any make-ready work necessary to enable the pole to support the requested collocation must include pole replacement if necessary. (6) For a City utility pole that does not support an aerial facility used to provide communications services or electric service, the City shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation, including necessary pole replacement, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, must be completed within 60 days after written acceptance of the good faith estimate by the applicant. Alternatively, the City may require the applicant seeking to collocate a small wireless facility to provide a make-ready estimate at the applicant's expense for the work necessary to support the small wireless facility, including pole replacement. and perform the make-ready work. If pole replacement is required. the scope of the make-ready estimate is limited to the design, fabrication, and installation of a utility pole that is substantially similar in color and composition. The City may not condition or restrict the manner in 59 City of Sunny Isles Beach CROW Ordinance 10-17-18 which the applicant obtains, develops, or provides the estimate or conducts the make-ready work subject to usual construction restoration standards for work in the right-of-way. The replaced or altered utility pole shall remain the property of the City. (7) The City may not require more make-ready work than is required to meet applicable codes or industry standards. Fees for make-ready work may not include costs related to preexisting damage or prior noncompliance. Fees for make-ready work. including any pole replacement, may not exceed actual costs or the amount charged to communications services providers other than wireless services providers for similar work and may not include any consultant fee or expense. c8) A collocation of a small wireless facility on a City utility pole shall comply with all applicable codes, and shall not compromise the City utility pole's finish. functionality, or structural integrity particularly with respect to vulnerability to high velocity wind conditions. (9) A collocation of a small wireless facility on a City utility pole shall not affect the City's ability to remove or to replace the pole in its sole discretion. Within thirty (30) days after receiving notification that the City intends to remove or to replace the utility pole, the registrant shall remove its collocated small wireless facility at its cost. If the registrant fails to do so, the City may remove the facility and charge all costs. including collection costs to the registrant. (b) Location context and public safety regulations. A proposed communications facility shall comply with the following location context requirements unless waived by the City. In conjunction with granting such waiver. the City may require conditions on the permit approving such facility. (1) A registrant shall comply with all applicable provisions of state law and City ordinances, applicable codes and regulations, quasi judicially approved conditions for approvals. settlement agreements, applicable contracts. applicable court orders, and applicable provisions of federal statutes. FCC regulations and PSC regulations with respect to locations for placing or maintaining a communications facility in the public rights-of-way. Wireless facilities shall be considered to be structures under the Florida Building Code. Building Risk Category IV. Structures. Chapter 16 Section 1620 — 1621. High Velocity Hurricane Zone Area. (2) All communications facilities shall be placed and maintained so as not to interfere with, create any safety hazard. or create a visual obstruction to the traveling public's the use of the public rights-of-way, or the use of bicycle lanes or multipurpose trails. To avoid such visual obstructions, no utility poles for collocation of small wireless facilities or ground mounted small wireless facilities shall be located within traffic circles. 60 City of Sunny Isles Beach CROW Ordinance 10-17-18 (3) For public safety purposes. aboveground communications facilities, including but not limited to. small wireless facilities, micro wireless facilities and utility poles for collocation of small wireless facilities. shall not be placed or maintained on multipurpose trails. (4) Communications facilities shall be placed between the property line and the curb line of a street and shall not be located within a clear zone. swale. and/or rain garden. (5) All communications facilities shall be placed and maintained so as not to cause unreasonable interference with the rights, access and safety of property owners who abut any of the public rights-of-way. (6) A registrant shall not place or maintain' its communications facilities to interfere. displace. damage or destroy any facilities, including but not limited to. sewers, gas or water mains, storm drains. pipes. cables or conduits of the City or any other person's facilities lawfully occupying the public rights-of- way of the City. (7) The City may prohibit or limit the placement of new or additional communications facilities within the public rights-of-way if there is insufficient space to accommodate all of the requests to place and maintain facilities and utilities in the proposed location of the public rights-of-way. or to accommodate City plans for public improvements. capital improvements projects or projects the City determines are in the public interest. (8) Facilities to be installed underground. All facilities shall be subject to the City's non-discriminatory undergroundina requirements that prohibit above- ground utilities and structures in the public rights-of-way. (9) The City has commenced and funded a substantial project to underground all overhead utilities in several areas of the City. The purpose of this project is to protect public safety from power outages and downed power lines during hurricanes and severe storms. To protect the City's financial investment in this project and not compromise public safety. all new communications facilities shall be placed underground in such areas. to the extent that new utilities other than fire hydrants are required to be located underground. including new electric and communications utilities. In addition. to the extent required by applicable PSC rules and regulations. applicable codes. restrictive covenants, quasi judicially approved conditions of a development. planned unit development, community development district. or court order. a registrant shall install its facilities underground unless waived by the City. Additionally, a registrant shall endeavor to place all new facilities underground unless prevented from doing so by existing technology or by the physical characteristics of the installation location. 61 City of Sunny Isles Beach CROW Ordinance 10-17-18 A registrant shall not place or maintain new utility poles for the collocation of small wireless facilities or small wireless facilities in a location in the public rights-of-way where electric and communications utilities are required to be installed underground, unless waived by the City. .121 Proposed new wireline fiber or coaxial backhaul facilities shall be installed underground consistent with applicable codes, unless waived by the City. c� Conversion of overhead utilities to underground. No utility poles for the collocation of small wireless facilities. micro wireless facilities. ground-mounted small wireless facilities, or small wireless facilities collocated on utility poles shall be placed in a location in the public rights-of-way where the City has determined that existing above- ground electric and communications utilities should be removed and relocated underground, unless waived by the City. The presence of small wireless facilities or micro wireless facilities shall not be a basis not to comply with the City's requirements to convert above ground utilities to underground. To comply with the City's undergroundina requirements. a registrant shall remove its small wireless facilities, micro wireless facilities, and utility poles for collocation of small wireless facilities at its expense within 60 days of being notified by the City that such facilities must be removed. The City shall have the right to remove such facilities at the registrant's expense if the registrant fails to do so. (10) Communications facilities, including but not limited to small wireless facilities and utility poles for the collocation of small wireless facilities shall not be placed in a location which violates rules and regulations set by Occupational Safety and Health Administration or applicable codes. By way of example and not limitation. a small wireless facility or utility pole intended to support the collocation of a small wireless facility may not be placed within a twenty (20) foot radius of an electric transmission line. (11) No communications facilities. including but not limited to small wireless facilities or utility poles for the collocation of small wireless facilities shall be placed or maintained in any location that is subject to or that would interfere with the City's drainage plan or that would interfere with the City's stormwater management facilities. or flood plain management areas. (12) Prohibition against placement within a location subject to homeowners' association restrictions. Small wireless facilities shall not be placed in a location subject to covenants, restrictions, articles of incorporation, or bylaws of a homeowners' association unless specifically authorized by the homeowners' association. For purposes of this subsection. a location in a public right-of-way that abuts parcels within a homeowners' association 62 City of Sunny Isles Beach CROW Ordinance 10-17-18 on both sides of its width shall be considered a location subject to covenants. restrictions, articles of incorporation, or bylaws of such homeowners' association. This subsection shall not apply to limit the installation, placement. maintenance. or replacement of micro wireless facilities on any existing and duly authorized aerial communications facility. (13) Placement in relation to adjacent uses of property and building facades thereon. Where parking and/or loading spaces are not permitted between a building facade and the corresponding property line (i.e. front facade and front property line, side street facade and side street property line) by design standard, or such spaces do not exist in those locations on existing properties. new communication facilities and new utility poles for collocation of small wireless facilities shall be placed in-line with the common. interior side lot lines or within the virtual side setback line and shall not be placed in-line with the front/principal facade of a residence. place of business, or any other principal use building located on property that abuts the public-rights-of-way. (14) A structure granted a permit and installed pursuant to this Ordinance shall comply with Chapter 333. F.S.. and any City Code. state and federal regulations pertaining to airport airspace protections. (15) Historic preservation. This Ordinance does not limit the City's authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under 47 U.S.C. §332(c)(7). the requirements for facility modifications under 47 U.S.C. §1455(a). or the National Historic Preservation Act of 1966. as amended, and the regulations adopted to implement such laws. Communications facilities shall not be permitted to be collocated on or to interfere with historic properties or landmarks that may be within or adjacent to the public rights-of-way unless waived by the City. The City shall not allow small wireless facilities. utility poles for the collocation of small wireless facilities or micro wireless facilities to be located in a manner that would impact negatively historic properties or landmarks unless waived by the City. Historic properties and landmarks may be so designated as being listed in the National Register of Historic Places pursuant to the National Historic Preservation Act of 1966, as amended. a property within a National Register-listed district. or individually listed in a City Register of Historic Places, pursuant to City ordinance in effect on April 1. 2017. Objective design standards. (1) Intent and purpose. Small wireless facilities in the public rights-of-way and utility poles installed or repurposed in the public rights-of-way for collocation of small wireless facilities shall be designed in such a manner to maximize compatibility and to minimize any negative visual impact on the surrounding neighborhood. The objective design standards contained in this Ordinance regulating the location context, color. stealth design. and 63 City of Sunny Isles Beach CROW Ordinance 10-17-18 concealment of the proposed small wireless facility shall apply, unless waived by the City. (2) Applicants shall not place or maintain signage on communications facilities. _ in public rights-of-way, unless otherwise required by federal or State law, _ provided: however, existing structures that lawfully supported signage before being repurposed may continue to-support signage as otherwise perinitted by law. (3) A communications facility. including a small wireless facility, shall not have any type of lighted signal. lights. or illuminations unless required by applicable codes. local codes or regulations. a permit issued by the City. or state and federal laws and regulations. (4) Design standards for Utility Poles. Stealth design for new or replaced utility poles for collocation of small wireless facilities. All proposed new or replaced utility poles for collocation of small wireless facilities shall meet the design standards contained in this subsection unless waived by the City. (a) A replaced or restructured utility pole to accommodate the collocation of a small wireless facility shall be in substantially the same hole as the original utility pole. (b) The replaced or restructured utility pole shall be substantiallysimilar in finish, base and pole design. diameter, material and height as the original pole being replaced. unless the City requires a different design, color or composition to be consistent with applicable City standards for new utility poles. Unless waived by the City. the height for a new utility pole or replaced utility pole installed pursuant to this Ordinance shall not exceed the height of the tallest existing utility pole as of July 1. 2017. in the same right-of-way, measured from grade. in place within 500 feet of the proposed location of the small wireless facility, other than a utility pole for which a waiver had previously been granted. If there is no utility pole within 500 feet in the same public right-of-way as of July 1, 2017. the height shall be limited to 50 feet measured from grade. Height shall include only the height of the utility pole and shall not include any light. antennas. masts or other attachments to the utility pole. (d) Unless waived by the City. a new utility pole shall be designed to be substantially similar in design to other utility poles in the same block or vicinity of the public rights-of-way. Such design aspects to follow include the material, base, pole diameter and style. location and style of attachments. finish, and cap, as applicable. By way of example. if existing utility poles in the same area of the public rights-of-way are 64 City of Sunny Isles Beach CROW Ordinance 10-17-18 light poles, the new utility pole should be designed substantially similar to such light poles and to the extent consistent with location context regulations, equidistant between existing poles. Unless waived by the City. or prohibited by applicable law. any such stealth utility pole for collocation of a small wireless facility shall function in the same manner as the facility it is intended to resemble in compliance with the City Code. at the expense of the registrant. By way of example. if a registrant installs a utility pole for collocation small wireless facility to resemble a nearby light pole, the registrant is encouraged to include a light operated in the same manner as other light poles, at the registrant's expense. Notwithstanding this subsection, if the proposed location of a new utility pole for collocation of a small wireless facility is within a public right-of-way that is within a particular zoning district, planned unit development. community development district, community redevelopment agency, or a homeowners' association that has design standards applicable to utility poles, such proposed utility pole shall substantially comply with such design standards. If there are no existing utility poles in close proximity to a new utility pole, the new utility pole shall be designed to resemble other utility poles in the public rights-of-way. (5) Stealth design for collocation of small wireless facilities. Laj Small wireless facilities of 6 cu. feet or less shall be collocated on or within a utility pole and may not be installed directly on the ground. Wires, cables and equipment to be collocated on a utility pole shall be within the utility pole or if not possible to being installed within the utility pole. may be installed underground. or covered with a shroud. No exposed wires or cables are permitted. Conduit shall not be installed on the exterior side of a utility pole. (b) If the utility pole for the proposed collocation of a small wireless facility is a light pole. a street light fixture substantially similar in design to the existing street light fixture shall be used to camouflage the small wireless facility such as through replacement of the cobra head with a new cobra head containing the small wireless facility. or a side-mounted light may be replaced with a substantially similarly designed side mounted light containing the small wireless facility. Unless consistent with the design of the utility pole, a small wireless facility shall not be collocated on a mast of a utility pole. In no event shall a small wireless facility be collocated on the mast of a utility pole that serves as a traffic signal pole. Any street light fixture installed by the registrant shall be maintained in good working order by the registrant at its cost. 65 City of Sunny Isles Beach CROW Ordinance 10-17-18 c.c.) Slim design shall be used wherein the top mounted antenna does not exceed the diameter of the supporting utility pole at the level of the antenna by more than twelve (12) inches attachment, and side mounted enclosures, if any. do not extend more than twenty-four (24) inches beyond the exterior dimensions of the existing structure. repurposed structure or utility pole at the level of antenna attachment measured from the edge of the pole to the outermost surface of the antenna. (d) Maximum height restrictions. A small wireless facility. including any attached antennas, shall not exceed ten (10) feet above the existing structure. repurposed structure or utility pole upon which the small wireless facility is to be collocated. A small wireless facility in the public rights-of-way shall not be used for the attachment of any communications facilities or fiber other than the equipment included within the small wireless facility. (6) Small wireless facilities not collocated on utilitypoles or existing structures. With respect to location. ground-mounted small wireless facilities up to 28 cu. ft. in dimension shall be located within a ten (10) foot radius of the existing structure or utility pole for the collocated small wireless facility. Ground-mounted small wireless facilities that may be no greater than 28 cu. ft. in dimension shall be located with reasonable spacing of at least three hundred (300) feet from other- ground-mounted small wireless facilities up to 28 cu. feet. Such ground-mounted small wireless facilities shall be installed in a location that is substantially similar to the location used for the installation of other ground-mounted equipment in the public rights- of-way. By way of example. if a around-mounted equipment cabinet associated with a utility pole is installed in the bump out within the public rights-of-way. a ground-mounted small wireless facility shall be installed in a bump out and shall be concealed with substantially similar landscaping in accordance with the City Code and maintained by the registrant at its cost and expense for as long at the facility remains in the public rights-of-way. (b) Small wireless facilities may be installed below grade. or ground- mounted small wireless facility shall be architecturally designed and of the same materials and color finish to be substantially similar to other at-grade infrastructure within 500 feet of the proposed location in the public rights-of-way such as waste receptacles or utility facilities. If the proposed ground-mounted small wireless facility is not substantially similar to other at-grade infrastructure as set forth herein, it is recommended that the proposed small wireless facility be submitted to the City prior to the registrant submitting an application. 66 City of Sunny Isles Beach CROW Ordinance 10-17-18 To the extent not inconsistent with applicable codes, at the City's direction, ground-mounted small wireless facilities shall be enclosed in a wrap the design for which has been approved by the City. The registrant shall maintain the wrap in good condition at its expense. (d) To the extent not inconsistent with applicable codes, at the City's direction the registrant owner of a ground mounted small wireless facility in the public rights-of-way shall conceal the facility with landscaping and plantings, subject to the City's approval and be maintained by the registrant at its sole cost and expense consistent with the City Code for so long as the small wireless facility remains in the public rights-of-wy. The City Manager is authorized to create a manual showing figures of acceptable and unacceptable designs for facilities to be placed or maintained in the public rights-of-way. (7) Development standards for communications facilities other than small wireless facilities and utility poles. Dimensional limits. No communications facility other than small wireless facilities located aboveground. excluding utility poles. having exterior dimensions greater than four feet high, by four and one-half feet long, by two and one-half feet wide, or having a total volume exceeding 45 cubic feet. shall be granted a permit for construction or installation nor shall be constructed on City public rights-of-way unless: (1) The communication service provider can properly demonstrate in its permit application for placement of communication facilities in the public rights-of-way that strict compliance with the dimensional limits in this subsection will prevent the communications service provider from installing, constructing. maintaining, or providing its communications network: and (2) The communication service provider demonstrates in its permit application that the proposed communications facilities it desires to construct which exceeds the dimensional limits set forth above in this subsection are necessary to provide adequate capacity to meet the requirements of the applicant at a specific location. or that said limits are otherwise technologically infeasible at the location, and that the proposed equipment the service provider desires to utilize is of the minimum size available to meet the requirements of the a_pplicant's communications network: and 67 City of Sunny Isles Beach CROW Ordinance 10-17-18 (3) The communications service provider demonstrates in its permit application that the proposed communications facilities are located and composed in a manner to minimize adverse impacts to abutting properties and the surrounding T _ neighborhood and does not create a hazard by impairment of visibility to motorists or pedestrians: and (4) The proposed communications facility does not otherwise create a hazard to the public health. safety and welfare (b) Notice to residential areas. Whenever a communications service provider subject to this subsection submits a permit application to locate communications equipment which exceeds the dimensional limits in this subsection within residentially-zoned districts in the City, the applicant shall provide notice by posting for at least 14 days. an 18" x 24" sign. satisfactory to the City. at the proposed location advising residents that they may review the permit application at the City and provide their comments to the City. Sec. 129-71. - Involuntary termination of registration. Fees and Taxes for Access to Public Rights- of-Way. A. The City may terminate a registration if: (1) A federal or state authority suspends, denies, or revokes a registrant's eerti-ication or license to providea fens-sevices; (2) The registrant's placement or maintenance of a communications facility in the public rights of way presents an extraordinary danger to the general public or other users of the public rights of way and the registrant fails to remedy the danger promptly after receipt of written notice; or (3) The registrant ceases to use all of its communications facilities in public rights of way and has not complied with § 129 78 of this article. B. Prior to termination, the registrant shall be notified by the City Manager with a written notice setting forth all matters pertinent to the : ... . --- . including which of Subsection A(1) through (3) above is applicable as the reason therefor, and describing the proposed action of the City with respect thereto. The registrant shall have 30 days after receipt of such notice within which to cure or within which to present a plan to cure, satisfactory to the City Manager or designee. If the plan is rejected, the City Manager or his designee shall provide w =. - - • of such rejection to the registrant. The City shall make a final decision as to termination of the registration. assumption or anticipated assumption by another registrant of ownership of the 68 City of Sunny Isles Beach CROW Ordinance 10-17-18 registrant's cemmunications facilities in public rights of way; or provide the City rights of way. If a registrant fails to comply with this Subsection C, the City may exercise any remedies or rights it has at law or in equity, including but not limited to ownership or physical control of the facilities or requiring the registrant within 90 days of the termination, or such longer period as may be agreed to by the registrant, to remove some or all of the facilities from the public rights of way and restore the public rights of way to its original condition before the removal. D. In any event, a terminated registrant shall take such steps as are necessary to render safe every portion of the communications facilities remaining in the public rights of way of the City. E. In the event of termination of a registration, this section does not authorize the City to cause the removal of communications facilities used to provide another service for which the registrant or another person who owns or exercises physical control over the facilities holds a valid certification of license with the governing federal or state agency, if required for provision of such service, and is registered with the City, if required. A registrant that places or maintains communications facilities in the public rights- of-way shall be required to pay fees and taxes as required by applicable law and ordinances of the City, including this Ordinance. (b) Pass-through providers shall pay to the City on an annual basis an amount equal to five hundred dollars ($500.00) per linear mile or portion thereof of communications facilities placed and/or maintained in the public rights-of-way. The amounts charged pursuant to this Ordinance shall be based on the linear miles of public rights-of-way or portion thereof. where communications facilities are placed. not based on a summation of the lengths of individual cables. conduits, strands or fibers. (c) The City shall discontinue charging pass-through provider fees to a person that has ceased being a pass-through provider. Any annual amounts charged shall be reduced for a prorated portion of any 12-month period during which the pass-through provider remits communications services taxes imposed by the City pursuant to Chapter 202, F.S.. as amended. (d) The initial amount of pass-through provider fees shall be paid prior to issuance of a permit based on the facilities authorized to be installed in the public rights-of-way pursuant to the permit. The amount due may be modified based upon the as-builts submitted by the pass-through provider. Subsequent annual payments of pass- through provider fees shall be due and payable on October 1 of each year. Fees not paid within ten (10) days after the due date shall bear interest at the rate of one (1) percent per month from the date due until paid. The acceptance of any payment required hereunder by the City shall not be construed as an acknowledgement that the amount paid is the correct amount due. nor shall such acceptance of payment be 69 City of Sunny Isles Beach CROW Ordinance 10-17-18 construed as a release of any claim which the City may have for additional sums due and payable. All fee payments shall be subject to audit by the City, and assessment or refund if any payment is found to be in error. If such audit results in an assessment by and an additional payment to the City. such additional payment shall be subject to interest at the rate of one (1) percent per month until the date payment is made. If the payments required by this Section are not made within ninety (90) days after the due date. the City may withhold the issuance of permits to the registrant until the amount past due is paid in full, in addition to any other remedies available pursuant to this Ordinance and applicable law. including but not limited to drawing upon a registrant's fund and/or performance bond. (f) To the extent consistent with applicable law, the City shall not charge fees for registrations and permits pursuant to this Ordinance. Sec. 129-72. —Existing communications facilities in public rights of way. Enforcement Remedies. A communications services provider with an existing communications facility in the public rights of way of the City has 60 days from the effective date of this article to comply with the terms of this article, including, but not limited to, registration, or be in violation thereof (a) Nothing in this Ordinance shall affect or limit the remedies the City has available under applicable law. In addition to any other remedies available at law. including but not limited to the City Code, F.S. §166.0415 (municipalities) and Ch. 162. (municipalities and counties), or equity or provided in this subsection, or the City's Code of Ordinances. the City may apply any one or combination of the following remedies in the event a person violates this Ordinance. or applicable law or order related to the public rights-of-way. (b) In addition to the City's ability to terminate a registration pursuant to this Ordinance or to deny. suspend or revoke permits, the failure to comply with the provisions of this Ordinance or other law applicable to occupants of the public rights-of-way may result in imposition of penalties to be paid by the responsible person to the City in an amount of not less than $250.00 per day or part thereof that the violation continues for the first violation, or an amount of not less than $500.00 per day or part thereof for a repeat violation. A registrant's or person's failure to obtain a permit before commencing work. except where a permit is not required pursuant to this Ordinance. may result in imposition of penalties to be paid to the City in an amount of not less than $250.00 per day or part thereof that the violation continues for the first violation, or an amount of not less than $500.00 per day or part thereof for a repeat violation. In addition to or instead of any other remedy. the City may seek legal or equitable relief from any court of competent jurisdiction. 70 City of Sunny Isles Beach CROW Ordinance 10-17-18 (d) Before imposing a fine, the City shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice. the person shall have 30 days either to: i. Cure the violation to the City's satisfaction, and the City shall make good faith reasonable efforts to assist in resolving the violation: or ii. File an appeal with the City to contest the alleged violation pursuant to this Section, which shall govern such appeal. If no appeal is filed and if the violation isnot cured within the 30-day period, the City may collect all fines owed, beginning with the first day of the violation. through any means allowed by law. In determining which remedy or remedies are appropriate, the City or hearing officer shall take into consideration the nature of the violation, the person or persons bearing the impact of the violation, the nature of the remedy required to prevent further violations, and such other matters as the City or hearing officer determines are appropriate to the public interest. (f) Failure of the City to enforce any requirements of this Ordinance shall not constitute a waiver of the City's rights. Nothing herein shall waive the City's code enforcement authority. including but not limited to. establishing liens on a violator's property. (g) In any proceeding before the City where there exists an issue with respect to a registrant's performance of its obligations, the registrant shall be given the opportunity to provide such information concerning its compliance with the terms and conditions of this Ordinance. The City may find a registrant that does not demonstrate compliance with the terms and conditions of this Ordinance in default and apply any one or combination of the remedies otherwise authorized by this Section. (h) Force majeure. In the event a registrant's performance of or compliance with any of the provisions of this Ordinance is prevented by a force majeure 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 cure or correct any such inability to comply expeditiously. Sec. 129-73. —Insurance. Reserved. A registrant shall comply with § 129 17 of Article II, Telecommunications Rights of Way, of this chapter. Sec. 129-74. — Indemnification. Reserved. 71 City of Sunny Isles Beach CROW Ordinance 10-17-18 A registrant shall comply with § 129 49 of Article II, Telecommunications Rights of Way, of this chapter. Sec. 129-75. —Construction bond. Reserved. A registrant shall comply with §§ 129 18 and 129 50 of Article II, Telecommunications Rights of Way, of this chapter. Sec. 129-76. — Security Fund. Reserved. The registrant shall be required to comply with § 129 50 of Article II, Telecommunications Rights of Way, of this chapter. Sec. 129-77. —Enforcement remedies; penalties for offenses. Reserved. 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 . . . . . . - . . . •.-d in Chapter 162, Florida Statutes (2000), or § 166.0415, Florida Statutes (2000). B. In addition to any other remedies available at law, including but not limited to § 166.0115, Florida Statutes, and Chapter 162, Florida Statutes, or equity or as provided in this article, the City may apply any one or combination of the following remedies in the event a registrant violates this article, or applicable local law or order related to the public rights of way: occupants of the public rights of way may result in imposition of penalties te--be paid by the registrant to the City in an amount of not less than $100, pending or part thereof, that the violator continues. (2) In addition to or instead of any other remedy, the City may seek legal or equitable relief from any court of competent jurisdiction. C. Before imposing a fine pursuant to this section, the City Manager or his designee shall give written notice of the violation and its intenti:- $ . . - . '- , which notice shall contain a description of the alleged violation. Following receipt of such notice, the registrant shall have 30 days to either cure the violation to the City's satisfaction and the City shall make good faith reasonable efforts to assist in resolving the violation; or file an appeal with the City to contest the alleged violation. Section 129 69 shall govern such app al. If no app al is filed and if the violation is not cured within the thirty day period, the City may collect all fines owed, beginning with the first day of the violation, through any means allowed by law. D. In determining which remedy is appropriate, the City shall take into consideration the nature of the violation, the person b ring the impact of the violation, the nature 72 City of Sunny Isles Beach CROW Ordinance 10-17-18 as the City determines are appropriate to the public interest. E Failure of the City to enforce any requirements of this article shall not constitute a - -- F. The City may find a registrant that does not demonstrate compliance with the terms and conditions of this article in default and apply any one or combination of the remedies otherwise authorized by this article. G. The City Manager or his designee shall be responsible for administration and gnforcement of this article, and is authorized to give any notice required by law. Sec. 129-78 Abandonment of communications facility. Reserved. A. Upon abandonment of a communications facility owned by a registrant in public rights of way, the registrant shall notify the City within 90 days. B. Notice; removal. (1) The City may direct the registrant by written notice to remove all or any City determines that the abandoned facility's presence interferes with the public health, safety or welfare, which shall include, but shall not be - . "lity: (a) Compromises safety at any time for any public rights of way user or during construction or maintenance in public rights of way; (b) 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 public rights of way reasonably available; (c) Creates a maintenance condition that is disruptive to the public . (d) Creates a burden on the aesthetics of the City. (2) In the event of Subsection B(1)(b), 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. • . . ' . . - - . ,hall be deemed to consent to 73 City of Sunny Isles Beach CROW Ordinance 10-17-18 the alteration or removal of all or any portion of the facility by the City or another person at such third party's cost. D. If the registrant fails to remove all or any portion of an abandoned facility as City under the circumstances, the City may perform such removal and charge the cost of the removal against the registrant. Sec. 129-79. Force majeure. Reserved. A. The City Manager, in the Manager's sole discretion, may relieve a registrant of its obligations under this article during a force majeure event. Sec. 129-80. Reservation of rights and remedies. Reserved. A. The City reserves the right to amend this article as it shall find necessary in the lawful exercise of its police powers. B. This article shall be applicable to all communications facilities placed in the public rights of way on or after the effective date of this article and shall apply to all existing communications facilities in the public rights of way prior to the effective date of this article, to the full extent permitted by state and federal law. C. The adoption of this article is not intended to affect any rights or defenses of the ether--agreements with a communications services-pr-eviffe-r, D. Nothing in this article shall affect the remedies the City or the registrant has available under applicable law. Sec. 129-81. Reports and records. Reserved. A. Each registrant shall, upon 10 business days' written notice, if reasonably City access to all books and record related to the construction, maintenance, or repair of the Facility to the extent the City review of the books and records is necessary to manage its rights of way. B. Any and all nonproprietary or nonconfidential books and records may be copied by the City. To the maximum extent permitted by § 202.195, Florida Statutes, as amended, such books and records shall be kept confidential and exempt from the provisions of § 119.07(1), Florida Statutes. A registrant is responsible for can produce the documents upon request. Books and records must be maintained for a period of five years, except that any record that is a public record must be maintained for the period required by state law. 74 City of Sunny Isles Beach CROW Ordinance 10-17-18 C. For the purposes of this section, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the City at City Hall, except by agreement. D. If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a registrant may request that the inspection take place at that the registrant must make necessary arrangements for copying documents selected by the City after its review; and the registrant must pay all travel and additional copying expenses incurred by the City in inspecting those documents or having those documents inspected by its designee. E. Without limiting the foregoing, a registrant shall provide the City the following within 10 calendar days of their receipt or (in the case of documents created by the registrant) filing: (2) Copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the operator or by any partnership or corporation that owns or controls the operator directly or indirectly. F. In addition, the City may, at its option, and upon rcasonablcti^ n registrant, inspect the facilities in the public rights of way to protect the public health and welfare. SECTION 4. Repeal of Laws in Conflict. All local laws, resolutions, and/or ordinances in conflict with any provision of this ordinance are hereby repealed to the extent of any conflict. SECTION 5. Severability. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of • the ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are declared severable. SECTION 6. Inclusion in Code. It is the intention of the City Commission that the provisions of this Ordinance shall become and be made a part of the City Code, which provisions may be renumbered or re-lettered and the ordinance be changed to "section," "article," or other appropriate word to accomplish such intention. SECTION 7. Effective Date. All of the foregoing amendments to the City Code shall become effective on December 1, 2018. The City shall not respond to proposed registrations or process permit applications for facilities subject to this Ordinance prior to the effective date. PASSED AND ADOPTED on first reading on this day of 56PrEfitka 2018. FEL PASSED AND ADOPTED on second reading on this 1� day of &AWL2018. 75 City of Sunny Isles Beach CROW Ordinance 10-17-18 George "I d" Scholl, Mayor ATTES "i0A11110 . .1114.A.: Mauricio C etancur, qMC, City Clerk APPROVED AS TO FORM AND A ,FFICIENCY .D I • H. •iot, CO Attorney Moved by: C0.1W1.1SA1.61. L1OaJ Seconded by: CVV\W\tctO( t SVECA-A Vote: Mayor Scholl J (Yes) (No) Vice Mayor Goldman 7(Yes) (No) Commissioner Aelion J,(Yes) (No) Commissioner Gatto ✓ (Yes) (No) Commissioner Svechin ,�(Yes) (No) 76 City of Sunny Isles Beach CROW Ordinance 10-17-18 is--:"4,...\ City Commission _00NY City of Sunny Isles Beach� George`Bud"Scholl, Mayor /° F 18070 Collins Avenue, Suite 250 Dana Goldman, Vice Mayor � - Isaac Aelion.Commissioner ( n Sunny Isles Beach, Florida 33160 u _ . �y_*, _ Jeanette Gatto,Commissioner ** .= (305) 947-0606 City Hall Larisa Svechin,Commissioner } _� (305)949-3 113 Fax " _-. P* Christopher J.Russo,Cite'Manager ye 99); o�‘o SSP (305)947-2150 Budding Department cir 40 (305)947-5107 Fax Hans Ottinot,City Attorney ' OF suck " Mauricto Betancur,CMC,City Clerk • MEMORANDUM TO: The Honorable Mayor and City Commission FROM: Hans Ottinot, City Attorney II t ''II DATE: September 20, 2018 RE: Proposed Communications Ordinance to Regulate Communications Facilities in the Public Rights-of-Way. RECOMMENDATION: This Ordinance is presented for your consideration and approval. REASONS: In 2017, the Florida Legislature enacted the Advanced Wireless Infrastructure Deployment Act (the "Act"), codified in Subsection 337.401(7), Florida Statutes. The Act sets forth a process for wireless providers and infrastructure providers to gain access to public rights-of-way for wireless facilities. As a result of the Act, the City Commission adopted a moratorium to prevent the placement of wireless facilities within the City's public rights-of-way until the City is able to adopt regulations consistent with the Act. The moratorium has expired and numerous wireless facilities companies intend to submit applications to place wireless facilities within the City's rights-of-way. To protect the City's substantial financial investment to underground all utility wires throughout the City, the proposed Ordinance creates the Communications Rights-of-Way Ordinance, which implements the Act, and creates requirements for all communications facilities in the public rights- of-way to be underground if such underground facilities are available. In summary, the proposed Ordinance amends two Articles in the existing Chapter 129 of the City Code. Specifically, Chapter 129, Art. III (Communications Rights of Way Ordinance) is revised and Chapter 129, Article II, Sections 129-20 — 129-61(Telecommunications Ordinance) is repealed in its entirety. Moreover, the proposed Ordinance provides requirements for all communications facilities -- fiber, cable, wireless, poles and equipment cabinets -- for access to the City rights-of- way. • Page 1 of 2 The Ordinance includes the following: • Applicable Definitions: Consistent with Florida and federal law. "Utility Pole" for collocation includes light poles, traffic poles, as well as electric utility poles. • Registration Requirements: All owners of facilities must be registered, which requires contact information including for emergencies, authority to provide services, proof of insurance naming City as an additional insured, and a permanent performance bond in the form of cash or letter of credit, in the amount of$25,000 to ensure compliance. Registrants must indemnify the City for damage or claims. • Undergrounding: Requires new fiber to be installed underground. To support the City's undergrounding project, above-ground facilities will not be allowed in areas where the City has determined to underground communications utilities. • Permit Requirements: An effective registration is required to obtain permits and with limited exceptions, all construction requires a City permit. • Permit Application Requirements and Procedures: Includes detailed application contents and a pre-application meeting, because of short timeframes to process and ability to apply for 30 locations in one application. Staff must review applications for completeness within 14 days, and grant or deny applications within 60 days, or applications are deemed granted. City can negotiate locations and design standards, which extends the timeframe 30 days. The City may deny an application if the proposed facility interferes with traffic devices, transportation, pedestrians, or ADA compliance, does not comply with FDOT's utility standards, does not comply with City standards, or does not comply with applicable codes, including this Ordinance. • Construction Requirements and Construction Bond: Includes limits on excavation, removing trees or landscaping, restoration of rights-of-way, and removal of abandoned facilities. • Collocation on City-Owned Poles. Fee is $150/year/pole. • Objective Design Standards: City can waive these restrictions. • Facilities may not be located where they would interfere with abutting property owners, utilities, drainage or where all utilities are underground. • Utility poles cannot be taller than other utility poles in rights-of-way within 500 feet, or if none, than 50 feet, and must be designed to match existing utility poles. • Collocated small wireless facilities (6 cu. ft. or less) must blend into the poles and have no exposed cables or wires. • Ground-mounted small wireless facilities (28 cu. ft. or less) must be stealth—enclosed in a wrap or concealed with landscaping. Page 2 of 2