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HomeMy WebLinkAboutLegislationCity of Miami Legislation Ordinance City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 08-01394 Final Action Date: AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 55 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED "SUBDIVISION REGULATIONS," MORE PARTICULARLY BY AMENDING SECTION 55-14 ENTITLED "ENCROACHMENTS ON OR IN RIGHTS -OF -WAY, PUBLIC EASEMENTS, PRIVATE EASEMENTS OR EMERGENCY ACCESS EASEMENTS; EXCEPTIONS," TO UPDATE THE REFERENCE TO THE FLORIDA BUILDING CODE; TO PERMIT AN ENCROACHMENT OF A PEDESTRIAN AND/OR VEHICULAR UNDERPASS, SUBJECT TO CITY COMMISSION APPROVAL BY RESOLUTION, BELOW THE RIGHT-OF-WAY, PUBLIC EASEMENT OR EMERGENCY ACCESS EASEMENT AREA; TO REQUIRE THE APPLICANT TO IDENTIFY THE PUBLIC INTEREST BENEFIT RELATED TO THE GRANTING OF PERMISSION BY THE CITY COMMISSION FOR THE ENCROACHMENT OF A PEDESTRIAN AND/OR VEHICULAR OVERPASS ABOVE OR UNDERPASS BELOW SAID RIGHT-OF-WAY, PUBLIC EASEMENT OR EMERGENCY ACCESS EASEMENT AREA; TO REQUIRE A COVENANT TO RUN WITH THE LAND AS A CONDITION FOR GRANTING OF PERMISSION FOR SAID ENCROACHMENT; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the former South Florida Building Code has been replaced with the state-wide building code entitled Florida Building Code; and WHEREAS, the Florida Building Code authorizes local government having jurisdiction to allow and regulate the encroachment of enclosed space above and below the right-of-way; and WHEREAS, the Code of the City of Miami, Florida, as amended ("City Code"), permits an encroachment of a pedestrian and/or vehicular overpass, subject to City Commission approval by resolution, above the right-of-way, public easement or emergency access easement area; and WHEREAS, to ensure the proper regulation of an encroachment below the said right-of-way, public easement or emergency access easement area, it is necessary to include a pedestrian and/or vehicular underpass in the items that may be considered by the City Commission; and WHEREAS, in order for the City Commission to evaluate the request to permit an encroachment of a pedestrian and/or vehicular overpass above or underpass below the said right-of-way, public easement or emergency access easement area, the applicant is required to identify the public interest benefit related to the granting of permission by the City Commission for said encroachment; and WHEREAS, the Miami City Commission, after careful consideration of this matter, deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to amend the City Code to update the regulations for the installation of pedestrian and/or vehicular City of Miami Page 1 of 4 Printed On: 11/25/2008 File Number. 08-01394 overpasses or underpasses; 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 55/Section 55-14 of the City Code, as amended, entitled "Subdivision Regulations/Encroachments on or in rights -of -way, public easements, private easements or emergency access easements; exceptions," is amended in the following particulars: {1} "CHAPTER 55 SUBDIVISION REGULATIONS Sec. 55-14. Encroachments on or in rights -of -way, public easements, private easements or emergency access easements; exceptions. (a) No building or any other type of structure shall be permitted on or in any right-of-way, public easement or emergency access easement, except required or approved utility installations, or as may be permitted under the South Florida Building Code or chapter 54 of the Code of the city; however, 121 tThe city commission by resolution may permit an encroachment which does not unduly restrict use of the right-of-way, public easement or emergency access easement area where such encroachment is a necessary essential element in the construction of an otherwise authorized pedestrian and/or vehicular overpass above or underpass below said right-of-way, public easement or emergency access easement aread. For purposes of this chapter, the abutting private property owner shall mean the owner and applicant requesting permission for an encroachment under this section. The city commission shall consider the request by an Applicant or abutting property owner for the granting of permission for the encroachment of a pedestrian and/or vehicular overpass or underpass with respect to the following: (1) Is it in the public interest to grant the request and what is the general public benefit by the granting of permission for the encroachment of a pedestrian and/or vehicular overpass above the right-of-way or underpass below the right-of-way? (2) Would there be any adverse effect on the ability of the general public to use the rights -of -way, public easement or emergency access easement area including public service vehicles such as trash and garbage trucks, police, fire and/or other emergency vehicles? (c) Upon consideration, acceptance, or other action as to the public interest findings, the city commission may approve, approve with conditions, or deny the request for encroachment of a pedestrian and/or vehicular overpass above or underpass below the right-of-way, public easement or emergencyaccess easement area subject to the recording of a covenant to run with the land executed by the abutting private property owner, with the payment by said owner, of the requisite fees for City of Miami .Page 2 of 4 Printed On: 11/25/2008 File Number. 08-01394 preparation, review and recordation of said covenant. All covenants shall be in a form acceptable to the city attorney. The provisions of the covenant shall include but are not limited to the following: (1) Maintenance of the overpass or underpass by the abutting private property owner in accordance with the Florida Building Code and the Charter and Code of the city. (2) Restoration or removal of the encroachment by the abutting_private property owner within 30 days of written notification by the director of the department of public works to properly maintain, restore, or remove the overpass or underpass, as applicable. (3) In the event of failure of the abutting private property owner to restore, maintain or remove the overpass or underpass, when notified, the city may contract for the restoration or removal of the overpass or underpass, and place a special assessment lien against the abutting private property owner's abutting private property for the cost of the restoration or removal. These unpaid costs and expenses incurred by the City or its agents shall constitute, and are hereby imposed as, special assessment liens against the abutting private real propertyof the owner , and until fully paid and discharged, or barred by law, shall remain liens equal in rank and dignity with the lien of city and county ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved. Such fees shall become delinquent if not fully paid within 60 days after the due date. Total outstanding balance for delinquent fees and related charges shall bear an interest charge of one percent per month, on any and all of the outstanding balance of such fees due, and if not fully paid with all accrued interest by the due date will continue to accrue interest at the rate of one percent per month. Unpaid and delinquent fees, together with accrued interest, shall remain and constitute special assessment liens against the private property owner's abutting real property involved which is deriving a benefit under this Chapter. Such special assessment liens for the repair, maintenance, removal or restoration costs and interest and costs may be enforced by any of the methods provided in F.S. Ch. 85, or in the alternative, foreclosure proceedings may be instituted and prosecuted under the provisions of F.S. Ch. 173, or the collection and enforcement of payment thereof may be accomplished by any other method authorized by law. The owner shall pay all costs of collection, including reasonable attorney fees, court costs, and abstracting and related lien expenses imposed by virtue of this chapter. (4) Provision of an insurance policy, in an amount determined by the city's risk manager, naming the city as an additional insured for public liability and property damage. This insurance shall be in effect as long as the encroachment exists in the right-of-way, public easement or emergency access easement. If the abutting private property owner fails to continue to provide the insurance overage` the city shall have the right to secure a similar insurance policy in its name and place a special assessment lien against the abutting private property owner's abutting private property as set forth above in Sec. 55-14(c)(3), for the total cost of the premium. (5) The abutting private property owner shall hold harmless and indemnify the city, its officials and employees from any claims for damage to property and injury to persons of any nature whatsoever arising out of the use, construction, maintenance and/or removal of the overpass or underpass and from and against any claims which may arise out of the granting of permission for the encroachment or any activity performed, or not performed, as applicable, under the terms of the covenant. The hold harmless/indemnity shall survive any cancellation or discharge of the covenant for the limitations period for claims applicable under Florida laws. t The city manager or his designee may permit an encroachment into a private easement, where City of Miami Page 3 of 4 Printed On: 11/25/2008 File Number. 08-01394 said encroachment is not a safety hazard, subject to receipt by the city of written consent of the holder(s) of the private easement(s), written releases from all benefited specified individuals or public or private entities, or a certification that no such benefited individuals or public or private entities exist within the easement; recommendations of approval from the departments of police, public works, fire -rescue, general services administration, planning, building and zoning; and an executed hold harmless and indemnification agreement for the benefit of the city in a form acceptable to the city attorney, with the herein exceptions being subject to compliance with all other requirements of law. * Section 3. If any section, part of section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 4. This Ordinance shall become effective immediately upon its adoption and signature of the Mayor. {2} APPROVED AS TO FORM AND CORRECTNESS: JULIE O. BRU CITY ATTORNEY 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 4 of 4 Printed On: 11/25/2008