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HomeMy WebLinkAboutO-12928City of Miami Legislation Ordinance: 12928 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 07-00865 Final Action Date: 6/28/2007 AN EMERGENCY ORDINANCE OF THE MIAMI CITY COMMISSION, AMENDING CHAPTER 11"CABLE TELEVISION", AND CHAPTER 54 "STREETS AND SIDEWALKS" ARTICLE I ENTITLED "IN GENERAL" AND ARTICLE III ENTITILED "USE OF PUBLIC RIGHTS -OF -WAY BY COMMUNICATIONS SYSTEMS" OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, IN CONNECTION WITH THE FLORIDA CONSUMER CHOICE ACT OF 2007; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE. WHEREAS, in order to promote the public health, safety, and general welfare, the City of Miami has a substantial and significant public interest in maintaining and protecting its public -rights of way and requiring that individuals and entities seeking permits to conduct any type of excavation in those public rights -of -way do so in a safe, expeditious, and professional manner and that existing and future permit holders comply in a non-discriminatory manner; and WHEREAS, the Florida Legislature has passed and the Governor has signed the Consumer Choice Act of 2007 (the "Act") as attached and incorporated hereby regarding, inter alia, access by cable and video services to the public rights -of -way and the permitting processes of local governments regarding existing permit holders and future permit holders engaged in various communications systems and devices and other systems excavating, constructing, using, restoring, obstructing, and maintaining systems within the public rights -of -way; and WHEREAS, the Act becomes effective July 1, 2007, and provides that certain existing provisions of local government ordinances may still be honored if those provisions are in effect as of June 30, 2007; and NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are adopted by reference and incorporated as if fully set forth in this Section. Section 2. Chapter 11 of the Code of the City of Miami, Florida, as amended, entitled "Cable Television" is further amended to add a new Section 11-35 in the following particulars: "CHAPTER 11 CABLE TELEVISION Section. 11-35. Florida Consumer Choice Act of 2007. City of Miami Page 1 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017 File Number: 07-00865 Enactment Number: 12928 This Chapter 11 of the City Code shall be construed in accordance with the Florida Consumer Choice Act of 2007 ("the Act") so that the City shall retain all rights and obligations permitted by the Act to be retained by the City as of June 30, 2007, and so that the obligations and rights of all persons which have previously obtained permits and previously entered into agreements with the City and all persons which shall obtain permits in the future and enter into agreements with the City in the future for work to be performed or conducted within and any related maintenance and restoration of the City's public right of way as defined in Chapter 54-1 of the Code of the City of Miami, as amended, and for any other continuing obligation to the City as permitted by Law, shall be construed as in force as of June 30, 2007, and so as to comply with the nondiscriminatory mandate of the Act . Section 3. Section 54-1 of Article I of Chapter 54 of the Code of the City of Miami, Florida, as amended, entitled "In General" is further amended in the following particulars:{1} "CHAPTER 54 STREETS AND SIDEWALKS ARTICLE I. IN GENERAL Sec. 54-1. Definitions. The following words, terms and phrases, when used herein, shall have the meanings ascribed to them in this Code, except where the context clearly indicates a different meaning: "Assembly" means any organized: (i) company of persons that is collected together in one place, or (ii) demonstration or rally of persons that does not meet the definition of "parade" set forth herein. The term "assembly" does not include: (1) A special event as defined in this section. (2) Still photography, motion picture photography, or electronic (television) photography for commercial purposes, on any public roadway, sidewalk, street, park, causeway, beach, lagoon, or on any city -owned property or facility in the city for which a commercial photographic permit is required under section 41-26 of this Code. "Assembly permit" means a permit as required by sections 54-6.2 or 38-74 of this Code. "Law means all duly enacted and applicable federal, state, county and city laws, ordinances, codes, rules, regulations and orders." "Parade" means any organized moving: (i) March, (ii) Ceremony, (iii) Show, (iv) Exhibition, City of Miami Page 2 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017 File Number: 07-00865 Enactment Number: 12928 (v) Pageant, (vi) Footrace, (vii) Bicycle race, (viii) Motorcade, (ix) Procession of any kind, or (x) Similar display. A "parade" does not include: (1) Funeral processions. (2) Students going to and from school classes or participating in educational activities, provided this conduct is under the immediate direction and supervision of the proper school authorities. (3) Any governmental agency acting within the scope of its functions. (4) A "special event" as defined herein; (5) A motor vehicle or motor vehicles operating in compliance with all applicable traffic laws, ordinances and regulations; and (6) A pedestrian or pedestrians merely crossing a street, or traversing a sidewalk, while obeying all applicable traffic and pedestrian laws, ordinances and regulations, and which crossing or traversing does not obstruct other pedestrian traffic on a sidewalk. "Parade permit" means a permit as required by sections 54-6 or 38-74 of this Code. "Person" or "person" means any individual, corporation, partnership, limited liability company, association, joint venture, for -profit organization, contractor, subcontractor, affiliate, agent, representative, governmental institution, not -for -profit organization, or other legal entity of any kind, any lawful trustee, successor, assignee, transferee, heir, or personal representative thereof, but shall not mean the city. "Public right-of-way" as used in this article shall be defined as provided in section 54 261 of this chapter mean any dedicated or undedicated public street, highway, sidewalk, parkway or alley, public ways, public space(s) and other public places within the city. "Special event" means an outdoor public celebration or gathering which involves: (1) Either: a. The use of public parks; b. Public rights -of -way; or c. Privately -owned property. (2) When it is reasonably expected that more than 300 people will gather for seven or fewer contiguous days; (3) Which includes entertainment, dancing, music, dramatic productions, art exhibitions, parades or the sale of merchandise, food or alcohol, or any combination of the foregoing; (4) Which requires the erection of stages, utility poles, booths, tents, or other temporary structures, or the use of parked vehicles or of permanent structures; and (5) Which of necessity requires for its successful execution the provision and coordination of municipal services to a degree significantly over and above that which the city routinely provides under ordinary everyday circumstances. "Special event permit" means a permit as required by sections 54-6.3 or 38-74 of this Code. "Street or streets" means the surface, the air space above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier court lane, path, alley, way, drive, circle, easement, or any other public right-of-way or public place, including public utility easements dedicated for compatible uses, or any other property in which the city holds any kinds of property interest or over which the city exercises any type of lawful control, and any temporary or permanent fixtures or improvements located thereon, as may be ordinarily City of Miami Page 3 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017 File Number: 07-00865 Enactment Number: 12928 necessary and pertinent to a permit for construction in or excavation of or use of the public right-of-way; but shall not include city -owned buildings or city private property. *1f Section 4. Section 54-3 of Article I of Chapter 54 of the Code of the City of Miami, Florida, as amended, entitled "In General" is further amended in the following particulars:{1} "CHAPTER 54 STREETS AND SIDEWALKS * * * * * ARTICLE I. IN GENERAL Sec. 54-3. Permit required for work that obstructs or closes a street, or sidewalk or impedes traffic; fees, waiver of fees. (a) Scope. No person shall perform or conduct work in the public right-of-way, such as digging, drilling, repaving, etc., which obstructs, closes, or causes to be obstructed or closed, any street, sidewalk, or any other part of the public right-of-way in this city, or which impedes the general movement of vehicular or pedestrian traffic, without first having obtained a permit approved by the police department, the public works department, and the fire -rescue department. After approval by the departments of police, public works, and fire -rescue, the city manager, or designee, shall issue a permit. No person shall apply for a permit to perform or conduct work in the public right-of-way without disclosing in writing on the permit application form the person(s) on whose behalf such work in the public right-of-way is being performed or conducted. If such work is being performed by one or more person(s) on behalf of any other person(s) for using, constructing in, excavation of, maintenance of, owning and/or operating any type or manner of system, equipment, or device within the public rights -of -way, then both/all persons must complete and file together a joint application and all persons must comply with all application and permitting requirements of the city. Failure of any person(s) to fully disclose his/her/its interest/participation/representation in the permit application and/or to complete the required joint application and/or to fulfill all city requirements for issuance of the permit shall result in an immediate revocation by the city of any permit previously granted resulting in such permit becoming null and void, or (b) issuance by the city of a written notice that such permit will not be granted, as the case may be, due to violation of this provision by the person(s) who applied for such permit. The city shall have the right to take all legal measures and seek all available remedies to enforce this disclosure provision. (b) Conditions. Such permit shall set forth minimal reasonable conditions,as permitted by Law, necessary for the protection of property and personal safety, the restoration of the public right-of-way to a condition satisfactory to the city, and any on -going maintenance or reparations for un-repaired conditions or damages that may be required of the person(s) under the circumstances and extent of the work to be performed or conducted by such person(s) under such permit. Any violation of the City of Miami Page 4 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017 File Number: 07-00865 Enactment Number: 12928 conditions set forth and/or any violations under applicable Law shall render such permit null and void. Such permit shall cover the length of time necessary and reasonable according to the type of activity involved. Additionally, any continuing use of the public right of way by any such person(s) shall require all such persons on the permit application also to enter into a continuing maintenance and restoration agreement with the city and to provide such continuing insurance and such continuing payment bond, performance bond, and/or letter of credit in sufficient amount(s) relating to such continuing maintenance and potential restoration. (c) Indemnity, hold harmless and insurance; payment bond, performance bond, and/or letter of credit. It shall be a condition precedent to the issuance of any such permit that the applicant shall assume all civil liability for applicant's acts of omission or commission and shall, further, hold the city harmless for any injuries or damages arising or resulting from the permitted work including any injuries or damages resulting from alleged negligent acts or omissions on the part of the city. The applicant shall insure that adequate safety precautions are in effect at all times during the term of the permit. Prior to the issuance of any such permit, the non -governmental applicant(s) shall submit to the city a certificate binder or policy of liability insurance for each non -governmental applicant (including each non -governmental applicant in a joint application and joint continuing maintenance and restoration agreement) in an amount not less than One Million Dollars ($1,000,000.00) per person, Two Million Dollars ($2,000,000.00) aggregate per incident, and any endorsements thereto, which shall include the city as an additional insured and which shall provide that said permit and any related maintenance and restoration agreement and related payment bond, performance bond, and/or letter of credit shall remain in full force and effect during the entire term of the permit and any related continuing maintenance and restoration agreement. Additionally, all such permits and any related maintenance and restoration agreement(s) for non -governmental applicant(s) (including each applicant in a joint permit and joint continuing maintenance and restoration agreement) shall be subject to annual review by the city's Risk Management Department and Public Works Department and shall be required to update as necessary to protect the city any and all types and amounts of such insurance coverage(s), payment bond(s), performance bond(s), and /or letter of credit(s). Additionally, prior to the issuance of any such permit, the governmental applicant(s) (including each governmental applicant in a joint application and joint continuing maintenance and restoration agreement) shall submit to the city a certificate binder or policy of liability insurance for each governmental applicant (including each governmental applicant in a joint application and joint continuing maintenance and restoration agreement) in an amount not less than One Hundred Thousand Dollars $100,000.00) per person, and Two Hundred Thousand Dollars ($200,000.00) aggregate per incident, or the amounts specified as a limit of liability set forth in F.S. § 768.28, and any amendments endorsements thereto, whichever is greater, which shall include the city as an additional insured, and which shall provide that it will remain in full force and effect during the full term of the permit and any related continuing maintenance and restoration agreement. It shall be a further condition precedent to the issuance of any such permit for work to be performed in the public right of way that the person(s) applying for such permit shall provide to the City's Department of Risk Management and Department of Public Works a payment bond, performance bond and/or letter of credit in such amount(s) and such form(s) acceptable to the Director of Risk Management and the Director of Public Works to ensure that such work is conducted and performed in a satisfactory, safe and professional manner, that such public right of way is restored and/or maintained as required by the circumstances and extent of the work under such permit and any related continuing maintenance and restoration agreement, and that the permit holder(s) is/are jointly and severably responsible, at each permit holder's expense, for any damages resulting from work performed or conducted under the permit and for any damages regarding restoring the public right-of-way to its original condition City of Miami Page 5 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017 File Number: 07-00865 Enactment Number: 12928 before installation of facilities and for any damages regarding continuing maintenance of the public right-of-way. (d) Fees. (1) A fee of $100.00 shall accompany each permit application to the police department, to be retained by the city regardless of action taken in the grant or denial of the permit. (2) Waiver of fees. The fees described in subsection (d)(1) hereinabove may be waived or reduced by the city commission if the commission determines that such a waiver or reduction is in the city's best interest. (e) Public gatherings. This section shall not prevent any person or persons from assembling on the streets or sidewalks, or in any park, or on private property, for the purpose of making any speech, engaging in spontaneous expression, or conveying any message to the public or government without holding a permit pursuant to this section. In addition, this section shall not apply either to an "assembly," to a "parade" or to a "special event", as they are defined in section 54-1. Section 5. Section 54-296 of Article III of Chapter 54 of the Code of the City of Miami, Florida, as amended, entitled "Use of Public Rights -of -Way by Communication Systems" is further amended in the following particulars:{1} "CHAPTER 54 STREETS AND SIDEWALKS * ARTICLE III. USE OF PUBLIC RIGHTS -OF -WAY BY COMMUNICATION SYSTEMS Sec. 54-296. Statement of purpose. The city commission hereby finds and declares that it is necessary and reasonable for this article: (1) To regulate the erection, construction, reconstruction installation, operation, maintenance, dismantling, testing, repair and use of a all communications systems in, upon, along, across, above, over, under or in any manner connected with the streets, public ways, public rights -of -way, public buildings or other public places within the corporate limits of the city, as now or in the future may exist; (2) To provide the city with compensation, as permitted by Law, for occupation and use of the city's streets, public ways, public rights -of -way, public buildings or other public places for a private communications system; (3) To provide the city with compensation, as permitted by Law, for acquisition and maintenance of city's streets, public ways, public rights -of -way, public buildings or other public places when used for commercial purposes; and (4) To provide the city with compensation, as permitted by Law, for the cost of regulation imposed by this article on all communications systems; and (5) To construe as permitted by Law as of June 30,2007, all of (x) the continuing rights and obligations of the city, and (y) the continuing rights and obligations of present persons holding permits City of Miami Page 6 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017 File Number: 07-00865 Enactment Number: 12928 and agreements with the city, and (z) the future rights and obligations of future persons obtaining permits from and entering into agreements with the city, and so as to comply with the nondiscriminatory mandate of the Florida Consumer Choice Act of 2007. *11 Section 6. Article III of Chapter 54 of the Code of the City of Miami, Florida, as amended, entitled "Use of Public Rights -of -Way by Communication Systems" is further amended to add a new Section 54-311 in the following particulars:{1} "CHAPTER 54 STREETS AND SIDEWALKS * * * ARTICLE III. USE OF PUBLIC RIGHTS -OF -WAY BY COMMUNICATION SYSTEMS Sec. 54-311 Florida Consumer Choice Act of 2007. This Chapter 54 of the City Code shall be construed in accordance with the Florida Consumer Choice Act of 2007 ("the Act") so that the City shall retain all rights and obligations permitted by the Act to be retained by the City as of June 30, 2007, and so that the obligations and rights of all persons which have previously obtained permits and previously entered into agreements with the City and all persons which shall obtain permits in the future and enter into agreements with the City in the future for work to be performed or conducted within and any related maintenance and restoration of the City's public right of way as defined in Chapter 54-1 of the Code of the City of Miami, as amended, and for any other continuing obligation to the City as permitted by Law, shall be construed as in force as of June 30, 2007, and so as to comply with the nondiscriminatory mandate of the Act . *II Section 7. All Ordinances or parts of Ordinances that are inconsistent or in conflict with the provisions of this Ordinance are repealed. Section 8. If any section, part of a section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 9. This Ordinance is declared to be an emergency measure on the grounds of urgent public need for the preservation of peace, health, safety, and property of the City of Miami, and upon the further grounds of the necessity to generally carry on the functions and duties of municipal affairs. Section 10. The requirements of reading this Ordinance on two separate days is dispensed with an affirmative vote of not less than four -fifths (4/5ths) of the members of the Commission. City of Miami Page 7 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017 File Number: 07-00865 Enactment Number: 12928 Section 11. This Ordinance shall become effective immediately upon its adoption and signature of the Mayor.{2} Footnotes: {1} Words/and or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. {2} If the Mayor does not sign this Ordinance, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 8 of 8 File Id: 07-00865 (Version: 21 Printed On: 4/4/2017