Chapter 52.40
TELECOMMUNICATIONS
Sections:
52.40.020 Business license for carriers and providers.
52.40.030 Telecommunications license.
52.40.040 Telecommunications franchise.
52.40.060 Fees and compensation.
52.40.070 Conditions of grant.
52.40.080 Construction standards.
52.40.010 General.
A. This chapter may be known and cited as the “Telecommunications Regulatory Ordinance for the City of Coronado.”
B. Purpose and Intent. The purpose and intent of this chapter is to set forth the City policy regarding telecommunications providers and services, to establish clear guidelines, standards, and time frames for the exercise of local authority, to promote competition in telecommunications, to minimize unnecessary local regulation, to permit and manage reasonable access to the public right-of-way, to assure that the City’s current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking such access and causing such costs, to secure fair and reasonable compensation to the City for permitting private use of the public ways, and to assure that the City can continue to fairly and responsibly protect the public health, safety, and welfare.
C. Applicable Laws. This chapter shall be construed in accordance with the applicable Federal and State laws governing telecommunications carriers, telecommunications services, telecommunications systems, and telecommunications facilities.
D. Scope. This chapter shall apply within the geographical limits of the City including any areas subsequently annexed by the City.
E. Severability. If any word, phrase, sentence, part, section, subsection, or other portion of this chapter, or any application thereof to any person or circumstance, is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect.
F. Definitions. For purposes of this chapter, and where not otherwise inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. Where not defined herein, terms shall be as defined in the Act and the Cable Act. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word “shall” is mandatory and not merely directory.
“Act” means the Telecommunications Act of 1996, as amended from time to time.
“Affiliated person” or “affiliates” means each person who falls into one or more of the following categories: (1) each person having, directly or indirectly, a controlling interest in a telecommunications carrier; (2) each person in which a telecommunications carrier has, directly or indirectly, a controlling interest; (3) each officer, director, general partner, limited partner holding an interest of five percent or more, joint venture, or joint venture partner in a telecommunications system in the City; and (4) each person, directly or indirectly, controlling, controlled by, or under common control with a telecommunications carrier; provided, that “affiliated person” excludes the City, any limited partner holding an interest of less than five percent in a telecommunications carrier, or any creditor of a telecommunications carrier, solely by virtue of its status as a creditor, and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with a telecommunications carrier.
“Amplifier” shall mean an electronic device which increases or magnifies an electronic signal within the telecommunications system.
“Applicant” means a person submitting an application or proposal to the City for a license or franchise to provide telecommunications services or operate a telecommunications system under the terms and conditions set forth in this chapter and any required State or Federal regulations.
“Application” or “proposal” are synonymous for the purposes of this chapter. An “application” or “proposal” means the process by which the applicant submits a request for an initial request, not inclusive of a renewal proposal, and indicates a desire to be granted a telecommunications license or franchise (where required) for all, or a part, of the City. An application or proposal includes all written documentation, and verbal statements and representations, in whatever form or forum made by an applicant to the City concerning the construction, rendering of services, maintenance, or any other matter pertaining to the proposed telecommunications system.
“Assignment” or “transfer” means any assignment, transfer, sale or other transaction of a franchised or licensed telecommunications system, or its corporate or partnership parent, which has the effect of changing the operational, managerial, or financial control of the telecommunications system or the telecommunications carrier.
“Cable Act” means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection Act of 1992, all of which are amendments to the Communications Act of 1934, and any other subsequent amendments.
“Cable operator” means any person or group of persons who:
1. Provides cable service over a cable system and directly or through one or more affiliates owns a controlling interest in such cable system; or
2. Otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
“Cable service” means:
1. The one-way transmission to subscribers of video programming, or other programming service; and
2. Subscriber interaction, if any, or other programming which is required for the selection or use of such video programming service.
“Cable system” or “cable television system” means a facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service as defined in the Cable Act and which is provided to multiple subscribers within the City. However, such terms do not include the following:
1. A facility that serves only to retransmit the television signals of one or more broadcast stations; or
2. A facility that serves subscribers without using any public right-of-way; or
3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system (other than for purposes of Section 621(c) of the Cable Act, codified at 47 USC 541) to the extent such facility is used in the transmission of video, voice, or data programming or services directly to subscribers; or
4. Any facilities of any electric utility used solely for operating its electric utility.
“CEQA” shall mean the California Environmental Quality Act, Section 21000 et seq., of the Public Resources Code of the State of California.
“City” means the City of Coronado, California.
“City Council” means the City Council of the City of Coronado, California.
“City Engineer” means the City of Coronado Director of the Engineering and Project Development Department or his designee.
“City Manager” means the chief administrative officer of the City.
“City property” means and includes all real property owned by the City, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which are not subject to right-of-way licensing and franchising as provided in this title.
“Communication plan” shall mean the public communication plan described in CMC 52.40.070(GG).
“Construction plan” shall mean the construction plan describing the telecommunications system and telecommunications facilities, areas to be served, and an estimated time schedule for such construction.
“Consultant” shall mean the entity hired by the telecommunications carrier under the supervision of the City to inspect construction and to locate utilities.
“Control” or “controlling interest” means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments, or negative control, as the case may be, of the telecommunications system or the telecommunications carrier. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person or group of persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of 20 percent or more of any person (which person or group of persons is referred to as “controlling person”), or being a party to a management contract.
“County” means the County of San Diego, California.
“CPUC” means the California Public Utilities Commission.
“Easement” means and shall include any public easement or other compatible use created by dedication, or by other means, to the City for public utility purposes or any other purpose whatsoever including cable service or any telecommunications service. Easement shall include a private easement used or usable for the provision of cable service or any other telecommunications service.
“Encroachment permit” means the written authority for a private party to construct, operate and maintain privately owned facilities or structures in the public right-of-way, or on other public property.
“Engineering Department” means the City of Coronado Engineering and Project Development Department.
“Excess capacity” means the volume or capacity in any existing or future duct, conduit, manhole, handhole, or other utility facility within the public way that is or will be available for use for additional telecommunications facilities.
“FCC” or “Commission” means the Federal Communications Commission and/or such other Federal regulatory agency as now or in the future may have jurisdiction to oversee telecommunications carriers.
“Fiber cable” or “fiber optic cable” means very thin and pliable cylinders, or strands of glass or plastic, or any future functional equivalent, used to carry wide bands of multiple frequencies.
“Franchise” means an authorization or subsequent renewal granted by the City in order for a person to construct, operate, and/or maintain a telecommunications system which provides telecommunications services in all or part of the City.
“Franchise agreement” means the separate contract by which the City grants a telecommunications carrier the right to operate a telecommunications system within all, or a part, of the City.
“Franchise expiration” or “franchise agreement expiration” means the date of expiration or the end of the term of a franchise agreement.
“Franchise fee” means a fee or charge that the City requires as payment for the privilege of using the streets, public rights-of-way, and easements of the City in order to construct, maintain and operate a telecommunications system and provide telecommunications services to residents of the City.
“Franchised telecommunications carrier” means a person that is awarded a franchise by the City to construct or operate a telecommunications system within all or part of the City.
“Franchising Authority” means the City Council for the City of Coronado, California.
“Functional equivalent” or “functionally equivalent” with respect to a specifically named or referenced piece of telecommunications equipment means another piece of telecommunications equipment that has either:
1. The same or substantially similar characteristics, qualities, operational capabilities, design functions as the original, specifically named or referenced piece of telecommunications equipment; or
2. Operates in substantially the same form and fashion as the original specifically named or referenced piece of telecommunications equipment; or
3. Operates in a technologically superior manner to the original, specifically named or referenced piece of telecommunications equipment.
“Grantee” means any person who has been granted a telecommunications license or franchise pursuant to this title.
“Gross annual revenue” or “gross annual receipts” or “gross receipts” means all revenue, as determined in accordance with generally accepted accounting principles, which is received, directly or indirectly, by a telecommunications carrier and by each affiliated person from or in connection with the distribution of any telecommunications service, and any other service which may, under now or then applicable Federal or State law, be included in the definition for the purpose of calculating and collecting the maximum allowable franchise fee for operation of the telecommunications system, directly or indirectly, from or in connection with the distribution of any telecommunications service. It is intended that all revenue collected by the telecommunications carrier, and by each affiliated person, from the provision of telecommunications service over the telecommunications system, whether or not authorized by the franchise, be included in this definition. “Gross annual revenue” also specifically includes: (1) the fair market value of any nonmonetary (i.e., barter) transactions between telecommunications carrier and any person, other than an affiliated person, but not less than the customary prices paid in connection with equivalent transactions; (2) the fair market value of any nonmonetary (i.e., barter) transaction between telecommunications carrier and any affiliated persons, but not less than the customary prices paid in connection with equivalent transactions conducted with persons who are not affiliated persons; and (3) any revenue received, as reasonably determined from time to time by the City, through any means which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the franchise granted. Gross annual revenue also includes any bad debts recovered. Gross annual revenue also includes all advertising revenue which is received directly or indirectly by telecommunications carrier, any affiliated person, or any other person from or in connection with the distribution of any telecommunications service over the system or the provision of any telecommunications service-related activity in connection with the system. “Gross annual revenue” does not include: (1) the revenue of any person to the extent that said revenue is also included in the gross annual revenue of the telecommunications carrier; (2) taxes imposed by law on subscribers which the telecommunications carrier is obligated to collect; and (3) amounts which must be excluded pursuant to applicable law.
“License” means an authorization to construct a telecommunications system in the City which does not provide telecommunications services to residents of the City.
“License fee” means an annual fee or charge that the City requires as payment for the privilege of using streets, public rights-of-way, and easements to constrict, maintain and operate a telecommunications system which does not provide telecommunications services to residents of the City.
“Mayor” means the Mayor for the City of Coronado, California.
“Municipal Code” shall mean the Coronado Municipal Code.
“Nodes” shall mean the cabinet and equipment, including power supply, fans, gas generators, batteries and optical to electrical converters, located in the neighborhoods, which serve homes, businesses, and institutions, and which is the point where fiber facilities and coaxial facilities are connected.
“Ordinance” means the regulatory ordinance codified in this chapter for the City of Coronado, California.
“Other ways” means the highways, streets, alleys, utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.
“Overhead facilities” means utility poles, utility facilities, and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
“Pedestal” shall mean an aboveground enclosure which houses active and/or passive equipment relating to the telecommunications system.
“Person” means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies, and individuals, and includes their lessors, trustees, and receivers.
“Personal wireless service facilities” means facilities for the provision of personal wireless services.
“Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.
“Power supply” shall mean an electronic device designed to provide electrical power to all or a portion of the telecommunications system.
“Private communications network” or “PCN” or “private communications system” means any ancillary or aligned component of a telecommunications system consisting of communications lines, cables, equipment or facilities which are used to provide telecommunications service that in any manner uses or occupies the streets, easements, public ways, or rights-of-way within the City (as annexed). However, “private communications network” does not include any part of a State or FCC licensed local exchange telephone company or any part of a Federal, State, County or local government owned telecommunications system.
“Project overview” shall mean the assessment described in CMC 52.40.080(G) to be performed by the telecommunications carrier for use by the City in its review of the construction of the telecommunications system and the telecommunications facilities.
“Proposed abandonment of telecommunications service” or “proposed withdrawal of telecommunications service” or “proposed cessation of telecommunications service” means the actual or imminent, or expected (either voluntary or involuntary) disruption, discontinuance, desertion or removal of a telecommunications carrier’s operation and provision of telecommunications service from all, or part, of the City for a projected period exceeding four months in duration.
“Public, educational, and government (PEG)” access to local cable television is provided to communities who want it by virtue of the 1984 Cable Act via channels set aside for these purposes. Public access is an important principle which needs to apply to all telecommunications and information systems and services used by the public, which are paid for in part by public funds and taxes or franchise fees.
“Public property” means and includes all real property owned by the City, other than streets, public rights-of-way, sidewalks and easements, and all property held in a proprietary capacity by the City, which are not subject to right-of-way licensing and franchising as provided in this chapter.
“Public way” means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City’s right, title, interest, or authority to grant a license or franchise to occupy and use such streets and easements for telecommunications facilities.
“PUC” means the California Public Utilities Commission.
“Pull box” shall mean a flush mounted or aboveground housing which encloses one or more conduit openings.
“Revocation” or “termination” or “nonrenewal” means an official act by the Franchising Authority that removes, repeals or rescinds previously approved authorization for a licensed or franchised telecommunications carrier to operate a telecommunication system within the City.
“State” means the State of California.
“Street” means the surface of, and the space above and below, a public street (or any path or thoroughfare designated for vehicular and/or pedestrian traffic), or other easement now or hereafter held by the City (including any street, as defined, which is acquired by eminent domain) for the purpose of public travel.
“Subscriber” means a person lawfully receiving or using a telecommunications service delivered by a telecommunications carrier over a telecommunications system.
“Surplus space” or “surplus capacity” means that portion of the usable space on a utility pole or other telecommunications facilities which has the necessary clearance from other users, as required by the orders and regulations of the California Public Utilities Commission (PUC) to allow its use by a telecommunications carrier.
“Tap” means an electronic pathway, by way of wire, coaxial, fiber, or otherwise between that portion of the telecommunications system located in the public rights-of-way and the subscriber’s residential, commercial, or industrial structure.
“Telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as set and received.
“Telecommunications carrier” means any owner, by way of fee ownership or lease, of any telecommunications system or telecommunications facilities, direct or indirect provider of telecommunication services whether the telecommunication service is offered by the owner of the telecommunications system, an affiliate, or a related entity, by way of ownership, lease, control, or operation of a telecommunications system. A person shall be deemed a telecommunications carrier, even if it does not directly provide telecommunications services, if it rents or leases a telecommunications system and/or telecommunications facilities to another person which provides telecommunications services.
“Telecommunications equipment” means equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades) which are not located, in whole or in part, in, above, or below streets, public rights-of-way or other public property.
“Telecommunications facilities” shall mean any equipment located, in whole or in part, in, above, or below streets, public rights-of-way, or other public property used by the telecommunications carrier in its telecommunications system including, without limitation, conduits, cables, cabinets, nodes, structures, headend equipment, receive only earthstations, down link equipment and antennas, electronics, fiber cable, coaxial cable, drops and switching equipment whether part of a stand-alone system or in conjunction with or as part of a cable system.
“Telecommunications provider” means and includes every person who provides telecommunications service over telecommunications facilities without any ownership or management control of the facilities.
“Telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
“Telecommunications system” means an operating system which is located, in whole or in part, on, in, above, or below streets, public rights-of-way, or other public property in the City of Coronado which is designed and utilized, in whole or in part, by a telecommunications carrier to provide telecommunications services. A telecommunications system may be built in conjunction with, or be part of, a cable system.
“Telephone company” means every person within the scope of Public Utilities Code Section 7901 who has constructed or may construct telegraph or telephone lines.
“Traffic control plan” shall mean the traffic control plan described in CMC 52.40.080(F).
“Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
“Usable space” means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the regulations and orders of the California Public Utilities Commission.
“USC” means United States Code.
“User charge” means a charge used in place of a franchise fee that the City requires as payment for the privilege of using public property to construct, maintain and/or operate a telecommunications system or telecommunications facilities.
“Utility easement” means any easement owned by the City or acquired, established, dedicated, or devoted for public utility purposes not inconsistent with telecommunications facilities.
“Utility facilities” means the plant equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant, and equipment located under, on, or above the surface of the ground within the public ways of the City and used or to be used for the purpose of providing utility or telecommunications services.
“Wired” is a term used to describe communications over wires. The three major types of wired communications are copper wire (telephones), coaxial cable (cable TV), and fiber optics (transmission using light).
“Wireless” is a term used to describe communications without wires, such as local cellular phones, microwave transmissions, and satellite networks.
G. Administration – Declaration of Powers and Authority.
1. The City Manager is designated the officer of the City that is responsible for the continuing administration of this chapter and matters related to telecommunications service.
2. Unless prohibited by Federal, State or local law, the City Manager may further delegate his powers and authority to a duly authorized representative with respect to administering this chapter or an applicable franchise.
H. Applicability of This Chapter to a Telecommunications Carrier.
1. With respect to all provisions contained within this chapter, these provisions shall be applicable to a telecommunications carrier unless such telecommunications carrier is either hereunder exempted from this chapter (or any applicable provision), granted relief from any applicable provision of this chapter, or exempted under applicable Federal or State law.
2. Subsection (H)(1) of this section is not intended to repeal, and does not have the effect of repealing, any current franchise agreement that presently exists between the City and a franchised telecommunications carrier.
3. The provisions of this chapter shall have no effect on an existing franchise agreement until the expiration of such existing agreement or until one of the following occurs:
a. Prior to the franchise agreement expiration date, the City and the affected franchised telecommunications carrier either execute an amended franchise agreement in which both parties agree to be bound by the term of this chapter (except as specifically granted relief, exemption, clarification, or comparable policy status); or
b. Prior to the franchise agreement expiration date, the City and the affected franchised telecommunications carrier execute a franchise renewal agreement; or
c. Both parties agree to a specific date for expiration of said existing franchise which is prior to the present franchise expiration date.
I. Exemption from This Chapter for Certain Telecommunications Carriers.
1. Telecommunications carriers who are exempted from complying with the provisions of this chapter (“exempt carriers”) are as follows:
a. A telecommunications carrier that is exempted from this chapter as a result of Federal or State law;
b. A telecommunications carrier that is exempted from this chapter as a result of an applicable FCC or PUC ruling;
c. A telecommunications carrier that is exempted from this chapter as a result of an applicable final judicial ruling from which no subsequent appeal can be taken;
d. A telecommunications carrier which is also a cable operator and/or owns or controls all or part of a cable system which is utilized in, or is part of, the telecommunications system if, and only if, the telecommunications carrier, directly or through an affiliate, pays a franchise fee on all revenues generated to the telecommunications carrier from its cable service and noncable service activities and operations relating to the cable system, including, but not limited to, lease or rental fees paid to the cable operator, or any related entity, by any person for use of the cable system, or a portion thereof, or telecommunications facilities which are common to the cable system and a telecommunications system. If franchise fees are not paid on noncable services pursuant to its cable franchise, a separate franchise pursuant hereto is hereby required.
2. It is expressly understood that exempt carriers remain exempted only as long as they meet one or more of the criteria of this particular section.
3. An exempt carrier is exempt only from this chapter. Consequently, such exempt carriers shall abide by, and comply with, any other applicable local, State or Federal laws and regulations, including any applicable Federal, or State consumer protection, or customer service laws and regulations.
J. Telecommunications Carriers Seeking Relief from This Chapter.
1. Any telecommunications carrier governed by this chapter may file a written petition, at any time, with the City Council seeking relief from one or more provisions of this chapter. A telecommunications carrier may specifically request the exemption from or delay in implementation of one or more provisions of this chapter. Also, the telecommunications carrier may request that a specific provision of this chapter apply to such telecommunications carrier for a specified length of time or duration. The petition shall set forth the relief requested and the basis thereof with such supporting information and material as may be applicable and as requested by the City.
2. In order to receive any relief from one or more of the provisions of this chapter, a telecommunications carrier must demonstrate and prove to the City Council’s reasonable satisfaction that at least one of the following facts exist:
a. That compliance with a particular provision and/or requirement would be commercially impracticable and creates a substantial or unreasonable financial burden; or
b. That the telecommunications carrier has its own construction, maintenance, operation or customer service policies, which the City Council deems comparable to, or which exceed, any provision and/or requirement from which the telecommunications carrier seeks relief; or
c. That the health, safety and welfare interests of the City otherwise warrant the granting of such relief.
3. As an alternative to seeking an exemption, or requesting relief, a telecommunications carrier may petition for clarification concerning the precise intent and effect that one or more provisions or sections of this chapter has on the petitioning telecommunications carrier.
4. In those instances in which a telecommunications carrier submits a petition for relief or clarification in accordance with this section, the City may charge the petitioning telecommunications carrier with the actual and reasonable costs for processing such a petition including costs incurred by outside consultants who are retained by the City to review a petition.
K. Failure of the City to Enforce This Chapter. A telecommunications carrier shall not be excused from complying with any of the requirements of this chapter, or any subsequently adopted amendments to this chapter, by any failure of the City on any one or more occasions to seek, or insist upon, compliance with such requirements or provisions.
L. Telecommunications Carriers or Its Assignees Subject to Present and Future Ordinances and/or Resolutions.
1. Any telecommunications carrier, its assignee, or transferee shall be subject to, and expected to comply with, all applicable ordinances and/or resolutions now or hereafter adopted and in effect within the City, including this chapter, to the extent that said telecommunications carrier has not received an exemption or relief from said ordinance(s) and/or resolution(s).
2. Any telecommunications carrier, its assignee, or transferee shall be subject to all Federal and State laws and with all rules and regulations issued by all applicable regulatory agencies now or hereafter in existence.
3. Any telecommunications carrier, its assignee, or transferee shall be subject to all enactments which constitute lawful exercises of the City’s police power.
M. Resolution of Inconsistencies with Federal or State Rules, Regulations or Laws. In any case of an actual inconsistency between any provision or section of this chapter and any provision or section of a Federal or State rule, regulation, or law, the Federal or State rule, regulation or law shall supersede the effect of this chapter unless such Federal or State rule, regulation or law does not preempt, supersede, or make invalid the inconsistency.
N. Resolution of Conflicts between This Chapter and a Subsequent Franchise Agreement or License.
1. Where there is a conflict between this chapter and a subsequently granted franchise agreement or license, this chapter shall control and prevail, unless administratively or judicially determined invalid, unenforceable, or unconstitutional, or unless the provisions of subsection (N)(2) of this section apply to the telecommunications carrier and its franchise agreement or license.
2. Where a telecommunications carrier receives an exemption, relief, or clarification from one or more provisions or section of this chapter, or has one or more of its policies deemed comparable to a provision contained in this chapter, the franchise agreement or license shall specifically note such exemption, relief, clarification or comparable policy. As a result, to the extent that such an exemption, relief, clarification or comparable policy is inconsistent with a provision contained in this chapter, then the specifically noted exemption, relief, clarification or comparable policy language contained in the franchise agreement or license shall control.
O. Force Majeure. Notwithstanding the other provisions of this chapter, a telecommunications carrier shall not be held in violation or material breach, default, or noncompliance of this chapter or a franchise agreement, nor suffer any enforcement or penalty relating thereto (including where applicable, termination, cancellation or revocation of a franchise or franchise agreement or license), where such violation, breach, default or noncompliance occurred or was caused by the force of an earthquake, flood, tidal wave, hurricane, or similar act of nature, or other event that is beyond a telecommunications carrier’s ability to reasonably anticipate and control.
P. Notices.
1. Both the City and each telecommunications carrier shall provide the other with the name and address of the contact designated to receive notices, filings, reports, records, documents and other correspondence. All notices shall be delivered to each party’s contact by certified mail, return receipt requested, personal service with a signed receipt of delivery, overnight with receipt verification, or facsimile. All other filings, reports, records, documents and other correspondence may be delivered by any legally permissible means including, but not limited to, facsimile transmission, personal service, overnight mail, or package delivery. The delivery of all notices, reports, records and other correspondence shall be deemed to have occurred at the time of receipt unless otherwise designated by State law.
2. If the telecommunications carrier is required to maintain a franchise, then the designation of such contact person for notice purposes may be contained within a franchise agreement or license.
Q. Telecommunications License. Except as otherwise provided therein, any telecommunications carrier desiring to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over, or across any public way of the City for the purpose of providing telecommunications service to persons and areas outside the City shall first obtain a license granting the use of such public ways from the City pursuant to CMC 52.40.030.
R. Telecommunications Franchise. Except as otherwise provided herein, any telecommunications carrier desiring to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over, or across any public way of the City, and to also provide telecommunications service to persons or areas in the City, shall first obtain a franchise granting the use of such public ways from the City pursuant to CMC 52.40.040.
S. Cable Television Franchise. Except as otherwise provided herein, any telecommunications carrier desiring to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over, or across any public way of the City for the purpose of providing cable service to persons in the City shall first obtain a cable franchise from the City as provided in Chapter 20.90 CMC.
T. Application to Existing Franchise Ordinance and Agreements. This chapter shall have no effect on any existing franchise ordinance or franchise agreement until:
1. The expiration of said franchise ordinance or agreement.
2. An amendment to an unexpired franchise ordinance or franchise agreement, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
U. Enforcement and Penalties. Enforcement and penalties shall be as defined in Chapter 86.54 CMC (Administration and Enforcement).
V. Other Remedies. Nothing in this chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this chapter.
W. Agreement May Supersede This Chapter upon Four-Fifths Vote. The terms and conditions of this chapter shall govern any license or franchise issued pursuant thereto; provided, that in the event of a conflict between the provisions of this chapter and any express provision of an agreement, the provisions of this chapter shall prevail unless the agreement expressly states within its express terms that the express terms of the agreement shall supersede the terms and conditions of this chapter and said agreement was approved by no less than four-fifths vote of the City Council.
52.40.020 Business license for carriers and providers.
All telecommunications carriers and providers that offer or provide any telecommunications service for a fee directly to the public, either within the City, outside the corporate limits from telecommunications facilities located within the City, or whose facilities traverse through the City, shall obtain a City business license pursuant to Chapter 12.16 CMC.
52.40.030 Telecommunications license.
A. Telecommunications License. A telecommunications license shall be required of any telecommunications carrier desiring to occupy specific public ways of the City for the purpose of providing telecommunications services to persons or areas outside the City.
B. License Application. Any person that desires a telecommunications license pursuant to this section shall file an application with the City Engineer which shall include the following information:
1. The identity of the license applicant, including all affiliates of the applicant.
2. A detailed description of the telecommunications services that are or will be offered or provided by licensee over its telecommunications facilities.
3. A description of the transmission medium that will be used by the licensee to offer or provide such telecommunications services.
4. Preliminary engineering plans, specifications and a network map of the facilities to be located within the City, all in sufficient detail to identify:
a. The location and route requested for applicant’s proposed telecommunications facilities.
b. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route.
c. The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers.
d. The specific trees, structures, improvements, facilities, and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.
5. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route.
6. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:
a. The excess capacity currently available in such ducts or conduits before installation of applicant’s telecommunications facilities.
b. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities.
7. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:
a. The location proposed for the new ducts or conduits.
b. The excess capacity that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities.
c. Location of any new aboveground service cabinets.
8. A preliminary construction schedule and completion date.
9. A preliminary traffic control plan in accordance with the Work Area Traffic Control Handbook (WATCH Manual).
10. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the facilities.
11. Information in sufficient detail to establish the applicant’s technical qualifications, experience, and expertise regarding the telecommunications facilities and services described in the application.
12. Information to establish that the applicant has obtained all other governmental approvals, permits, and certificates to construct and operate the facilities and to offer or provide the telecommunications services.
13. An engineering plan showing the engineering design of the applicant’s telecommunications system within the entire County.
a. Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such services are subject to cable franchising.
b. An accurate map showing the location of any existing telecommunications system(s) in the City that applicant intends to use or lease.
c. A description of the telecommunications services or telecommunications facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions.
d. A description of applicant’s access and line extension policies.
e. The area or areas of the City the applicant desires to serve and, if applicable, a schedule for build-out to the entire franchise area.
14. All fees, deposits or charges required pursuant to CMC 52.40.060.
15. Such other and further information as may be required by the City.
C. Determination by the City. Within 120 days after receiving a complete application under subsection B of this section, the City shall issue a written determination granting or denying the application in whole or in part, applying the following standards:
1. The financial and technical ability of the applicant.
2. The applicant’s compliance with statutory and regulatory legal requirements.
3. The capacity of the public ways to accommodate the applicant’s proposed facilities.
4. The capacity of the public ways to accommodate additional utility and telecommunications facilities if the license is granted.
5. The amount of damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the license is granted.
6. The public interest in minimizing the cost and disruption of construction within the public ways.
7. The types of services that applicant will provide to the community and region.
8. The effect, if any, on public health, safety, and welfare if the license is granted.
9. The availability of alternate routes and/or locations for the proposed facilities.
10. Applicable Federal and State telecommunications laws, regulations, and policies.
11. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.
D. Agreement. No license granted hereunder shall be effective until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the license to occupy and use public ways of the City will be granted.
E. Nonexclusive Grant. No license granted under this chapter shall confer any exclusive right, privilege, license, or franchise to occupy or use the public ways of the City for delivery of telecommunications services or any other purposes.
F. Rights Granted. No license granted under this chapter shall convey any right, title, or interest in the public ways, but shall be deemed a license only to use and occupy the public ways for the limited purposes and term stated in the license; further, no license shall be construed as any warranty of title.
G. Term of Grant. Unless otherwise specified in a license agreement, a telecommunications license granted hereunder shall be in effect for a term of five years.
H. License Route. A telecommunications license granted under this chapter shall be limited to a grant of specific public ways and defined portions thereof.
I. Location of Facilities. Unless otherwise specified in a license agreement, all facilities shall be constructed, installed and located in accordance with the following terms and conditions:
1. Telecommunications facilities shall be installed within an existing underground duct or conduit whenever sufficient excess capacity exists within such utility facility.
2. A licensee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if sufficient surplus space is available.
3. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way, a licensee with permission to occupy the same public way must also locate its telecommunications facilities underground.
4. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way, a grantee that currently occupies the same public way shall relocate its facilities underground within a reasonable period of time, which shall not be later than the end of the grant term. Absent extraordinary circumstances or undue hardship as determined by the City Engineer, such relocation shall be made concurrently to minimize the disruption of the public ways.
5. Whenever new telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future telecommunications carriers or facilities, the grantee shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future telecommunications carriers.
6. Wireless telecommunication facilities to be installed on public property are subject to review by the Design Review Commission in accordance with Chapter 70.12 CMC.
J. Undergrounding and Mitigation of Visual Impacts.
1. Underground Facilities. In those areas of the City where utility service or communications facilities are presently located underground, telecommunications carrier agrees to place its telecommunications facilities underground. This requirement shall include telecommunications carrier’s performance of all necessary construction and backfilling of main line and service construction and furnishing any imported backfill material required, restoration of landscaping to its condition prior to construction and restoration of street and sidewalk pavement to then applicable City standards. Telecommunications carrier agrees to obtain and maintain photographs of the condition, prior to and after construction, of private and public property affected by underground construction.
2. Coordination with Other Utilities. Previously installed aerial cable shall be undergrounded in concert with utilities pursuant to the general ordinances of the City and applicable State law or on a voluntary basis by all utilities. This coordinated undergrounding shall be performed on a cost-sharing basis by telecommunications carrier and the public utilities involved.
3. Aboveground amplifiers, power supplies and pedestals shall be set back at least one foot from the sidewalk edge in order to avoid any hazard to the public and to minimize the possibility of damage to the amplifiers, power supplies and pedestals. Telecommunications carrier shall take necessary steps, at its expense, to reduce the visual impact of all aboveground equipment, such as installing landscaping and barriers as approved by the City. Telecommunications carrier shall be responsible for maintaining all aboveground components in good condition, free of graffiti and other markings, undamaged and concealed from the public and property owner’s view as long as the components remain. Telecommunications carrier assumes all responsibility for damage or injury resulting from placement or maintenance of any aboveground component.
4. Location of Pedestals.
a. Private Property Location. Telecommunications carrier shall locate its equipment underground within otherwise underground areas and within lawful utility easements. Telecommunications carrier shall resolve all conflicts with other utilities and private property owners prior to final design and construction.
b. Public Rights-of-Way Location. Telecommunications carrier shall locate its equipment within lawful utility easements at a location(s) to be prior approved by the City. If no utility easements exist, then telecommunications carrier shall negotiate with the City to establish one.
5. Private Land and Public Rights-of-Way.
a. Permits Required. Prior to the installation of equipment on private property, streets, public right-of-way or other public property, telecommunications carrier shall obtain necessary permits and approvals as specified herein.
b. Inspection. Telecommunications carrier shall not provide complete installation of any equipment without obtaining approval of all necessary inspections as determined by the City.
6. Design/Dimension of Above and Belowground-Mounted Equipment.
a. Belowground-mounted equipment: The equipment cover of a pull box shall be flush with the adjacent surface grade of the land.
b. Aboveground-mounted equipment: Equipment shall be mounted on concrete footings, or other mounting system approved by the City Engineer or Building Official. The footings must be adequate to assure that the equipment will remain in its original vertical alignment over time.
c. Miscellaneous:
i. All above and belowground-mounted equipment shall have the provider’s name and emergency telephone number permanently affixed or molded into the cover/door.
ii. All underground conduit/cable shall be installed to provide for continuous and sealed runs between pull boxes so as to preclude the ingress into the conduit/cable system of liquids and/or other foreign materials.
iii. The minimum depth of conduit/cable shall be 18 inches below grade.
iv. All installations shall comply with relevant provisions of the Uniform Electrical Code and the rules, regulations, standards and orders of the PUC.
7. Location and Setbacks of Equipment.
a. All aboveground equipment shall be located outside the sight distance triangle or line of sight.
b. All above and belowground equipment shall be located within a utility easement or public right-of-way as close to the side and front property lines as possible and positioned to ensure that the location of the equipment does not cause a safety hazard.
c. In instances where existing buildings or structures are set back from the streets and public right-of-way, all equipment shall be located adjacent to, or as close as possible to, fences/walls or garages.
d. As a goal, in instances where existing landscaping, paved areas, irrigation systems or other major obstacles exist, equipment should be located so as to minimize damage to the existing improvements.
e. No equipment shall be permitted in any location where it may create a safety hazard as determined by the City.
f. No equipment shall be located on the sidewalk or in driveways.
g. Where possible, equipment shall be placed so that normal maintenance does not interfere with traffic.
8. Security of Equipment. All equipment shall have some type of mechanism to secure the lid/door to the main body of the storage container to deter theft and vandalism.
9. Maintenance of Equipment.
a. All equipment installed prior to the adoption of the ordinance codified in this chapter shall be brought into conformance with all sections of this agreement at the time of replacement of the original equipment. The only exception is when equipment is replaced due to circumstances beyond the control of telecommunications carrier.
b. Telecommunications carrier shall repair any above or belowground-mounted equipment within five days of the initial report. Telecommunications carrier shall immediately respond to any report of a condition which may be construed as creating a hazard to the public. Any such hazardous condition must be rendered safe by the telecommunications carrier prior to the end of the work day in which the report was received.
10. Deviation Procedure for Nonconforming Situations.
a. In instances where telecommunications carrier cannot conform to any of the regulations of this chapter, telecommunications carrier may apply for a deviation.
b. A request for a deviation shall be submitted and approved prior to the submittal of any electrical, encroachment or miscellaneous permit for installation of any equipment.
c. The deviation will be reviewed and a determination made by the City Manager.
d. A deviation request shall be submitted by letter form to the City Manager and contain the following:
i. An exhibit showing the proposed location and type of equipment to be installed.
ii. The names and telephone numbers of any property owner, tenant or homeowners’ association that may be affected by the deviation request.
iii. Documentation that any property owner, tenant, or homeowners’ association that may be affected by the deviation request has been contacted and informed about the deviation request.
iv. A detailed explanation and justification for the proposed deviation request and references to the appropriate section(s) of this chapter from which relief is being requested.
e. A deviation shall be reviewed and a determination made based on the following findings:
i. That the proposed request is in the best interest of the public health, safety and welfare.
ii. That the proposed request cannot conform to the regulations of this chapter due to extenuating circumstances beyond the control of telecommunications carrier, such as but not limited to: (A) existing location of utilities from another utility provider; or (B) existing conditions which prohibit installation (e.g., walls/fences or existing structures).
iii. That the proposed request does not cause the accumulation of equipment in close proximity.
f. The decision of the City Manager may be appealed to the City Council pursuant to subsection T of this section.
g. The timeframe to process and approve or disapprove a deviation request will be 30 working days.
11. Installation Measures. Telecommunications facilities shall be installed in accordance with the standard practice for the installation of telecommunications facilities by telecommunications carrier so as to minimize interference with the proper use of the streets and public right-of-way and with the rights and reasonable convenience of property owners whose property adjoins any affected street and public right-of-way. Overhead drops shall be in accordance with normal practices to minimize visual clutter and interference with the use of private property by residents. Telecommunications carrier shall use only chalk-based paint of appropriate USA color to mark streets to avoid long-term visual impacts.
K. Facility Agreements. No franchise or license shall relieve the telecommunications carrier of any obligations involved in obtaining pole or conduit space from any department of City, any utility company, or from others maintaining utilities in City’s streets.
L. Erection of Poles Prohibited. The telecommunications carrier shall not erect any pole on or along any street or public way. If additional poles in an existing aerial route are required, the telecommunications carrier shall negotiate with the public utility for their installation. Any such installation shall require the advance written approval of the City.
M. Encroachment Permits. All licensees are required to obtain encroachment permits for telecommunications facilities as required in CMC 52.40.080; provided, however, that nothing in this section shall prohibit the City and a licensee from agreeing to alternative plan review, permit and construction procedures in a license agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
N. Compensation to City. Each license granted under this chapter is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the property rights granted to the licensee; provided, nothing in this section shall prohibit the City and a licensee from agreeing to the compensation to be paid.
O. Service to City Users. A licensee may be permitted to offer or provide telecommunications services to persons or areas within the City upon submitting an application for approval pursuant to CMC 52.40.040.
P. Amendment of Grant.
1. A new license application and grant shall be required of any telecommunications carrier that desires to extend, expand or locate its telecommunications facilities in public ways of the City which are not included in a license previously granted under this chapter.
2. If ordered by the City to locate or relocate its telecommunications system in streets and public rights-of-way not included in a previously granted license, the City shall grant a license amendment to facilitate the location or relocation without further application.
Q. Renewal Applications. A grantee that desires to renew its license under this chapter shall, not more than 180 days nor less than 90 days before expiration of the current license, file an application with the City for renewal of its license which shall include the following information:
1. The information required pursuant to subsection B of this section.
2. Any information required pursuant to the license agreement between the City and the grantee.
R. Renewal Determination. Within 90 days after receiving a complete application under subsection P of this section, the City Engineer shall issue a written determination granting or denying the renewal application in whole or in part, applying the standards set forth in subsection C of this section.
S. Obligation to Cure as a Condition of Renewal. No license shall be renewed until any ongoing violations or defaults in the licensee’s performance of the license agreement, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City.
T. Appeals. An applicant may appeal the denial of a license or a condition imposed in a license to the City Council. Such appeal shall be filed in writing with the City Clerk by 5:00 p.m. on the tenth business day following the date of mailing of the City’s written decision that is being appealed. The appeal shall be accompanied by a fee as established from time to time by resolution of the City Council. The City Council shall schedule a hearing on the appeal within 30 days of the filing of the appeal. The City Council’s decision on the appeal shall be final.
52.40.040 Telecommunications franchise.
A. Telecommunications Franchise. A telecommunications franchise shall be required of any telecommunications carrier desiring to occupy public ways of the City and to provide telecommunications services to any person or area in the City.
B. Franchise Applications. Any person desiring a telecommunications franchise pursuant to this chapter shall file an application with City Engineer which shall include items set forth in CMC 52.40.030(B).
C. Determination by the City. Within 120 days after receiving a complete application under subsection B of this section, the City shall issue a written determination granting or denying the application in whole or in part in accordance with the standards set forth in CMC 52.40.030(B).
D. Agreement. No franchise shall be granted hereunder unless the applicant and the City have executed a written franchise agreement setting forth the particular terms and provisions under which the franchise will occupy and use public ways of the City will be granted.
E. Nonexclusive Grant. No franchise granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the City for delivery of telecommunications services or any other purposes.
F. Term of Grant. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of 10 years.
G. Rights Granted. No franchise granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no franchise shall be construed as any warranty of title.
H. Franchise Territory. A telecommunications franchise granted under this chapter shall be limited to the specific geographic area of the City to be served by the franchise grantee, and the specific public ways necessary to serve such areas.
I. Location of Facilities. Unless otherwise specified in a franchise agreement, all facilities shall be constructed, installed and located in accordance with the terms set forth in CMC 52.40.030(I).
J. Encroachment Permits. All franchisees are required to obtain encroachment permits for telecommunications facilities as required in CMC 52.40.080; provided, however, that nothing in this chapter shall prohibit the City and a franchisee from agreeing to alternative plan review, permit and construction procedures in a franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
K. Compensation to City. Each franchise granted under this section is subject to the City’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the property rights granted to the franchisee; provided, nothing in this section shall prohibit the City and a franchisee from agreeing to the compensation to be paid.
L. Nondiscrimination. A franchisee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for grantee’s services; provided, however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers.
M. Service to the City. A franchisee shall make its telecommunications services available to the City at its most favorable rate for similarly situated users, unless otherwise provided in a license or franchise agreement.
N. Amendment of Grant.
1. A new franchise application and grant shall be required of any telecommunications carrier that desires to extend its franchise territory or to locate its telecommunications facilities in public ways of the City which are not included in a franchise previously granted under this chapter.
2. If ordered by the City to locate or relocate its facilities in streets and public rights-of-way not included in a previously granted franchise, the City shall grant a franchise amendment without further application.
O. Renewal Applications. A grantee that desires to renew its franchise under this chapter shall, not more than 240 days nor less than 120 days before expiration of the current franchise, file an application with the City for renewal of its franchise which shall include the following information:
1. The information required pursuant to CMC 52.40.030(B).
2. Any information required pursuant to the franchise agreement between the City and the grantee.
P. Renewal Determination. Within 90 days after receiving a complete application under subsection N of this section, the City Engineer shall issue a written determination granting or denying the renewal application in whole or in part, applying the standards set forth in CMC 52.40.030(C).
Q. Obligation to Cure as a Condition of Renewal. No franchise shall be renewed until any ongoing violations or defaults in the grantee’s performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City.
R. Appeals. An applicant may appeal the denial of a franchise or a condition imposed in a franchise to the City Council. Such appeal shall be filed in writing with the City Clerk by 5:00 p.m. on the tenth business day following the date of mailing of the City’s written decision that is being appealed. The appeal shall be accompanied by a fee as established from time to time by resolution of the City Council. The City Council shall schedule a hearing on the appeal within 30 days of the filing of the appeal. The City Council’s decision on the appeal shall be final.
52.40.050 Cable franchise.
Community antenna television (CATV) franchise shall be in accordance with Chapter 20.90 CMC.
52.40.060 Fees and compensation.
A. Purpose. It is the purpose of this section to provide for the payment and recovery of all direct and indirect, current and ongoing costs and expenses of the City related to the enforcement and administration of this chapter.
1. A telecommunications carrier shall obtain, at its own expense, all permits and licenses required by local law, rule, regulation or ordinance, and maintain the same, in full force and effect, for as long as required by the City.
2. As a condition of obtaining all necessary permits and licenses, the telecommunications carrier shall pay all applicable fees and, in addition, all of the City’s direct labor and supervisory costs, including customary and reasonable overhead (the “labor payment”). The City Council, may, from time to time by resolution, establish the amount of said fees. To the extent not inconsistent with applicable law, the fees shall be sufficient to reimburse the City for its costs, including the costs of staff, independent consultants, and related overhead, to review the proposed project, processing permits, plan check, inspecting the project including the costs of an outside inspector and, where applicable, the costs of an outside soils engineer or compaction testing expert, and the costs of any required testing to ensure that the construction adheres to standards of this chapter, any franchise agreement, any license, any permit, and any other requirement of the City.
3. Both telecommunications carrier and City may hire contractors, at telecommunications carrier’s sole expense, to carry out any work under this agreement. Telecommunications carrier shall make payment within 10 days of billing from the City. Telecommunications carrier shall be responsible for any damage caused by the construction including, but not limited to, damage to the public right-of-way, private property, streets, existing utilities, curbs, gutters and sidewalks. Telecommunications carrier shall pay the City any costs incurred as a result of such damages including repairs made by the City except for costs incurred as a result of the City’s negligence or its employees’ and agents’ negligence. Telecommunications carrier shall complete restoration of, or repairs to, any damage caused by the construction within 10 days from the date of written notice from the City.
4. In lieu of the inspection portion of the labor payment or permit fees described in subsection (A)(2) of this section, at the City’s sole option, the City may require telecommunications carrier, at telecommunications carrier’s sole expense, to hire a consultant (“consultant”), who is acceptable to and under the supervision of the City, to inspect the installation of the telecommunications facilities on behalf of the City, or provide other services as mutually agreed to by the parties.
B. Application and Review. Any applicant for a license or franchise pursuant to CMC 52.40.030 and 52.40.040 shall pay a nonrefundable application and review fee of $1,000.
C. Construction Inspection Fee. In addition to other costs and fees, all license or franchise grantees shall pay a construction inspection fee in accordance with the schedule established from time to time by resolution of the City Council and available in the Engineering and Project Development Department.
D. Other City Costs. All license or franchise grantees shall, within 30 days after written demand therefor, reimburse the City for all direct and indirect costs and expenses incurred by the City in connection with any modification, amendment, renewal or transfer of the license or franchise or any license or franchise agreement.
E. Roadway Degradation Mitigation Fee. All license or franchise grantees shall pay a roadway degradation mitigation fee in accordance with the schedule established from time to time by resolution of the City Council and available in the Engineering and Project Development Department.
F. Annual Franchise Fees. Unless otherwise agreed in a franchise grant agreement, each franchise grantee shall pay an annual fee to the City equal to five percent of gross annual revenue from operations in or through Coronado.
G. Annual License Fees. Unless otherwise agreed in a license grant agreement, each license grantee shall pay an annual fee to the City at a rate determined from time to time by resolution of the City Council.
H. Payment of Franchise Fees or License Fees.
1. A telecommunications carrier shall file with the City, within 45 days after the expiration of each of its fiscal quarters, a detailed revenue report clearly showing the franchise fee or license fee due for the preceding quarter together with the bases of the calculations thereof. Such statement shall be certified by a certified public accountant or officer of a telecommunications carrier attesting to the accuracy, completeness and veracity of the revenue figures. Such statement shall be in the form and format determined by the City and shall include revenue from whatever source, directly or indirectly derived from, or allowed, or caused to be derived from or applicable to the operation of the telecommunications system, or the provision of any service by or using the telecommunications system. Revenue will be reported by service category, type and level showing computations and using incremental billing rates for all sources, levels, tiers, clusters, types of service and other revenue sources by kind and type.
2. The telecommunications carrier shall pay quarterly 25 percent of the franchise or license fee. Payment of this quarterly portion of the franchise fee shall be rendered to the City at the time the revenue report is filed.
3. In the event that payment is not made by the due date then such telecommunications carrier may be declared in default of the franchise or license, and should the amount owed remain unpaid for an additional 60 days, then the franchise or license may be revoked, terminated or canceled as noted elsewhere in this chapter.
4. In the event a payment is not received on or before the due date herein provided, carrier shall pay to the City a late charge on the unpaid rent or portion thereof at the rate of 10 percent per month or portion thereof. Should there be an extenuating circumstance for not making the payment on or before the due date, upon written request, the City may, in its sole discretion, waive the late charge on the unpaid rent.
5. The City reserves the right to audit a franchised telecommunications carrier’s books, if the City deems it necessary. If such audit discovers an underpayment of franchise fees or license fee in an amount greater than one percent of the total franchise fee, then the affected telecommunications carrier shall reimburse the City for the cost of such audit.
6. If an audit, or other research, discovers that franchise fee or license fee have been either underpaid or not paid for a period exceeding six months from the original due date, then the City may seek full recovery of the underpaid or nonpaid fees, plus interest, not to exceed 10 percent in the case of underpaid fees and 15 percent in the case of unpaid fees per year or the maximum allowable under State law.
7. All annual reports due and pertaining to the payment of franchise fees or license fees will be certified by an officer of the telecommunications carrier, and will be provided in the form, format and detail applicable to quarterly reports under subsection (H)(1) of this section. Such telecommunications carrier shall maintain records used in the preparation of said reports, to be produced in their originality and totality upon request or demand by the City.
8. No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this chapter, or for any other performance or obligation of a telecommunications carrier hereunder.
9. Payments of compensation made by a telecommunications carrier to the City shall be considered in addition to, and exclusive of, any and all authorized taxes, permit fees, business license fees, other fees, other levies or assessments presently in effect, or subsequently adopted.
10. Nothing in this section shall be construed to limit the authority of the City to impose a fee or other assessment of any kind, on any person (other than a franchised or licensed telecommunications carrier) with respect to telecommunications service by such person over a telecommunications system for which charges are assessed to subscribers but not received by a franchised or licensed telecommunications carrier. For purposes of illustration only, this subsection shall include the situation(s) where a premium service directly bills a subscriber, or the franchised or licensed telecommunications carrier acts as collection agent for a premium service billing directly to a subscriber, or where a person leases a channel for commercial use and sells advertising or goods on that channel, and receives the money directly or through a third party.
I. Cable Fees. Cable television franchisees shall be subject to the franchise fees, payments and costs provided in Chapter 20.90 CMC.
J. Regulatory Fees and Compensation Not a Tax. The regulatory fees and costs provided for in this chapter, and any compensation charged and paid for the public ways provided for in this section, are separate from, and additional to, any and all Federal, State, and local taxes as may be levied, imposed or due from a telecommunications carrier or provider, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services.
52.40.070 Conditions of grant.
A. Extent of Grant of Franchise or License.
1. Upon an award of a franchise or license, a telecommunications carrier may construct, erect, install, maintain, operate, repair, replace, remove or restore a telecommunications system within the geographical limits set forth in the franchise agreement or license.
2. The telecommunications system may be located in, upon, along, across, over and under the streets, public rights-of-way, easements, and public property of the City.
3. A telecommunications carrier shall be responsible for obtaining any required easements or licenses for private property (including privately owned utility or street light poles).
4. A telecommunications carrier, through a separate pole or utility easement agreement with an affected utility, may locate the telecommunications system on, or within, the property of such utility company upon receipt of a franchise or license.
B. Term of Franchise. The term of an initial or renewal franchise shall be as specified therein and shall not exceed 10 years from the date that a franchise is approved by the City Council and executed by both the City and the affected telecommunications carrier.
C. Location of Facilities. All facilities shall be constructed, installed and located in accordance with the terms and conditions set forth in CMC 52.40.030(I) and (J), unless otherwise specified in a license or franchise agreement.
D. Reservation of Street Rights. Nothing in a franchise or license shall prevent the City from constructing, repairing, or altering any public work. All such work shall be done, insofar as practicable, in such manner as not to unnecessarily obstruct, injure or prevent the free use and operation of any property of the telecommunications carrier. However, if any property of the telecommunications carrier shall interfere with the construction, maintenance, or repair of any public improvement, that property shall be removed or replaced in such manner as directed by City so that the same shall not interfere with the public work, and such removal or replacement shall be at the expense of the telecommunications carrier.
E. Use of Public Property. From and after the effective date of the ordinance codified in this chapter, it shall be unlawful for any person to construct, install, or maintain in any street, public right-of-way, public place within City’s territory, or upon any easement owned or controlled by a public utility, or within any other public property of City, or within any privately owned area within City’s jurisdiction which is not yet, but is designated as, a proposed public place on a tentative subdivision map approved by City, any equipment, telecommunications facilities, or system for distributing signals or services through a telecommunications system unless a franchise or license has first been obtained hereunder and is in full force and effect.
F. Compliance with USA. All license or franchise grantees shall, before commencing any construction in the public ways, comply with all regulations of the Underground Service Alert (USA).
G. Encroachment Permits. All license or franchise grantees are required to obtain encroachment permits for telecommunications facilities as required in CMC 52.40.080.
H. Interference with the Public Ways. No license or franchise grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee, temporarily or permanently, as determined by the City Engineer at no cost to the City.
I. Damage to Property. No license or franchise grantee nor any person acting on a grantee’s behalf shall take any action or permit any action to be done which may impair or damage any City property, public ways of the City, other ways or other property located in, on or adjacent thereto.
J. Notice of Work. Unless otherwise provided in a license or franchise agreement, no license or franchise grantee, nor any person acting on the grantee’s behalf, shall commence any nonemergency work in or about the public ways of the City or other ways without 10 working days’ advance notice to the City.
K. Emergency Repair Capability. It shall be the telecommunications carrier’s responsibility to assure that its qualified repair personnel are available at all reasonable times and that they are supplied with keys, equipment location instructions, and technical information necessary to begin repairs upon notification of the need to maintain or restore continuous service to the telecommunications system.
L. Repair and Emergency Work. In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the City as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.
M. Maintenance of Facilities. Each license or franchise grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable Federal, State and local requirements.
N. Technical and Performance Standards. It shall be the responsibility of any telecommunications carrier to comply with the most current FCC, PUC, Federal, and State technical standards.
O. Reservation of Right to Inspect Construction, Documents Related to Construction, and Tests Related to Performance, Technical Integrity and Quality of Signal, Preventive Maintenance and Safety. In order to verify that a telecommunications carrier has constructed and maintained the telecommunications system in the manner required by this chapter, and conducted the various performance, technical integrity, preventive maintenance and safety tests required by Federal, State and local laws, the City reserves the right to inspect, at the expense of the telecommunications carrier, all facets of a telecommunications carrier’s construction, as well as to inspect documents related to construction, and inspect test results related to performance, technical integrity, preventive maintenance and safety.
P. Relocation or Removal of Facilities. Within 30 days following written notice from the City a license or franchise grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunication facilities within the public ways whenever the City shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
1. The construction, repair, maintenance or installation of any City or other public improvement in or upon the public ways.
2. The operations of the City or other governmental entity in or upon the public ways.
Q. Removal of Unauthorized Facilities. Within 30 days following written notice from the City, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways of the City shall, at its own expense, remove such facilities or appurtenances from the public ways of the City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:
1. Upon expiration or termination of a grantee’s telecommunications license or franchise.
2. Upon abandonment of a facility within the public ways of the City.
3. If the system or facility was constructed or installed without the prior grant of a telecommunications license or franchise.
4. If the system or facility was constructed or installed without the prior issuance of a required encroachment permit.
5. If the system or facility was constructed or installed at a location not permitted by the grantee’s telecommunications license or franchise.
R. Emergency Removal or Relocation of Facilities. The City retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency.
S. Damage to Grantee’s Facilities. Unless directly and proximately caused by the willful, intentional or malicious acts by the City, the City shall not be liable for any damage to or loss of any telecommunications facility within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling or work of any kind in the public ways by or on behalf of the City.
T. Vacation or Abandonment. In the event any street, alley, public highway, or portion thereof used by the telecommunications carrier shall be vacated by the City, or the use thereof discontinued by the telecommunications carrier, upon reasonable notice the telecommunications carrier shall forthwith remove its facilities therefrom unless specifically permitted to continue the same. On the removal thereof, the telecommunications carrier shall restore, repair or reconstruct the area where such removal has occurred, to such condition as may be required by the City, but not in excess of the original condition. In the event of any failure, neglect or refusal of the telecommunications carrier, after 30 days’ notice by the City, to do such work, City may cause it to be done, and the telecommunications carrier shall, within 30 days of billing, pay to City the actual costs incurred.
U. Abandonment in Place. City may, upon written application by the telecommunications carrier, approve the abandonment of any property in place by the telecommunications carrier under such terms and conditions as City may approve. Upon City approved abandonment of any property in place, the telecommunications carrier shall cause to be executed, acknowledged, and delivered to City such instruments as City shall prescribe and approve transferring and conveying the ownership of such property to City.
V. Restoration of Public Ways, Other Ways and City Property.
1. When a license or franchise grantee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to as good a conditions as existed before the work was undertaken, unless otherwise directed by the City. Any damages not repaired or restored by the grantee, or any person acting on its behalf, will be assessed to the grantee.
2. If weather or other conditions do not permit the complete restoration required by this section, the grantee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the grantee’s sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
3. A grantee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property.
W. Facilities Maps. Each license or franchise grantee shall provide the City with an accurate map or maps certifying the location of all telecommunications facilities within the public ways. Each grantee shall provide updated maps annually. Maps shall be in format acceptable to the City.
X. Retention and Submission of Reports and Records.
1. A telecommunications carrier shall maintain and retain such records and reports reasonably necessary for the City to determine compliance with the obligations imposed on it by this chapter.
2. Upon request, a telecommunications carrier shall submit to the City a list of files, reports, records, data or other information that the telecommunications carrier periodically, customarily, and/or regularly files with the FCC, or another Federal or State agency. For any other filing that a telecommunications carrier files with another Federal or State agency (and that has a direct impact on the operation of the telecommunications system), then the telecommunications carrier shall notify the City of such filing within 60 days of said filing. Said notice shall inform the City of the nature and scope of the filing, as well as the recipient (name, address, department, division, and phone number) of the filing. For any matter related to the administration and enforcement of a franchise or license, the City may specifically request that it be provided with any, or all listed reports, records, data, or other information that were filed with the FCC, the Securities and Exchange Commission, or another Federal or State agency.
Y. Inspection and Review of Books, Records and Other Data.
1. A telecommunications carrier shall keep complete and accurate books of accounts, and records of the business and operations under, and in connection with, the telecommunications system.
2. The City shall have the right to review (either by mail or at the telecommunications carrier’s local office) all records needed for the administration and enforcement of this chapter and/or franchise agreement or license upon receipt of seven days’ written request. Such review shall occur within the telecommunications carrier’s regular office hours unless a different time is otherwise mutually agreed upon or administratively or judicially ordered.
3. The City shall have the right to hire, at its own expense, an independent certified public accountant, or other business or financial expert, to review the books and records of a telecommunications carrier. If after a financial audit it is determined that the telecommunications carrier has underpaid amounts owed to the City by an amount exceeding one percent of what was actually paid, then the City may require the telecommunications carrier to reimburse the City for the actual cost of the audit.
4. A false entry into the books and/or records of a telecommunications carrier, made by a telecommunications carrier, of a material fact shall constitute a material violation of this chapter.
5. A telecommunications carrier shall provide to the City upon its request complete and accurate books and records of the key aspects of the telecommunications system’s operation for at least the preceding three years in such a manner that all matters pertaining to the City can be easily produced and/or verified at the request of the City. Also, the telecommunications carrier shall provide upon request any other applicable records and information that may be required by any other Federal or State agency having jurisdiction over one or more classes of telecommunications carrier.
Z. Availability of Technical Data.
1. All technical data shall be available for City’s inspection during normal business hours and upon reasonable notice. In the event of system failure or other operating emergency, the technical data will be made available at any time, so long as the provision of said data does not unreasonably interfere with the telecommunications carrier’s operations.
2. Technical data includes, but is not limited to, all information pertaining to the carrier’s operation of the telecommunications equipment and provision of telecommunications services in the City of Coronado. It includes proprietary information to the extent that the information is used in the telecommunications operation in the City. It excludes personnel data and financial data unrelated to the operations within the City. The City shall not release any proprietary information without the written consent of the carrier.
AA. Leased Capacity. A license or franchise grantee shall have the right, without prior City approval, to offer or provide capacity or bandwidth to its customers; provided:
1. Grantee shall furnish the City with a copy of any such lease or agreement.
2. The customer or lessee has complied, to the extent applicable, with the requirements of this chapter.
BB. Liability Insurance.
1. Except as provided in or as supplemented by any franchise agreement or license, a telecommunications carrier shall secure and maintain public liability, property damage insurance, and umbrella coverage in at least the following amounts:
a. Public liability: $2,000,000 per person/per occurrence;
b. Property damage: $2,000,000 per any one claim;
c. Umbrella liability: $5,000,000.
2. The public and personal liability and property damage insurance policy shall specifically include the City, its employees, agents, and members of the City Council as additional insureds.
3. The public and personal liability and property damage insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State and which has one of the three highest or best ratings from the Alfred M. Best Company.
4. The public liability and property damage insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least 30 days’ written notice in advance of the cancellation of the policy.
5. Renewal or replacement policies or certificates shall be delivered to the City at least 15 days before the expiration of the insurance which such policies are to renew or be replaced.
6. Before a telecommunications system provides telecommunications service to subscribers, the telecommunications carrier shall deliver the policies or certificates representing the insurance to the City as required herein.
7. Worker’s compensation within statutory limits and employer’s liability insurance with limits of not less than $1,000,000.
8. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the telecommunications license or franchise. The policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Engineer of such intent to cancel or not to renew. Within 60 days after receipt by the City of said notice, the grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this section.
9. Grantee shall provide the City with evidence of insurance for each of the coverage’s described above at least 10 days prior to construction and/or occupancy of any site subject to this chapter.
CC. General Indemnification. Except as provided in or as supplemented by any franchise agreement or license, and to the maximum extent permitted by applicable law, a telecommunications carrier shall at all times defend, indemnify, protect and save harmless and exempt the City, members of the City Council and the City’s officers, employees, agents, servants, attorneys and representatives from and against any and all penalty, damages, charges, losses and expenses, including reasonable attorneys’ fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or as a result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the location, construction, operation, performance, maintenance, repair or removal, replacement, or restoration of its telecommunications system within the City based upon any act or omission of a telecommunications carrier, its agents or employees, contractors, subcontractors, independent contractors, or representatives, or in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this title or by a grant agreement made or entered into pursuant to this title. With respect to the penalties, damages or charges referenced herein, reasonable attorneys’ fees, consultants’ fees, and expert witness fees are included as those costs which shall be recovered by the City.
DD. Security.
1. Within 30 days after the effective date of any franchise or license, the telecommunications carrier shall deposit into a bank account established by the telecommunications carrier for the benefit of City, and shall maintain on deposit through the term of any franchise or license, a sum specified in the franchise agreement or license as security for the faithful performance by the telecommunications carrier of all of the provisions of the franchise agreement or license, this chapter, and with all orders, permits and directions of the City or any designated representative of the City having jurisdiction over the telecommunications carrier’s acts or defaults under the franchise or license or this chapter, and as security for the payment by the telecommunications carrier of all claims, fees, liens, or taxes due the City which arise by reason of the construction, operation or maintenance of the telecommunications system pursuant to any franchise agreement or license or this chapter, and to satisfy any actual or liquidated damages arising out of a franchise or license breach.
2. Except as otherwise provided in any franchise or license, if the telecommunications carrier fails, after 20 days’ written notice, to pay to the City any fees that are due and unpaid, or fails to repay within such 20 days any damages, costs or expenses which the City is compelled to pay by reason of any act or default of the telecommunications carrier in connection with its franchise or license, or if the telecommunications carrier fails to comply with any provision of the franchise or license or this chapter and the City determines that such failure was without just cause and, if the City reasonably determines it can be remedied by a withdrawal from the security fund or is nevertheless subject to liquidated damages, then, in any such event, the City may immediately withdraw the amount thereof from the security fund, with interest and any liquidated damages. Upon such withdrawal, the City shall notify the telecommunications carrier of the amount and the date of withdrawal.
3. Within 30 days after notice to the telecommunications carrier that any amount has been withdrawn by City from the security fund, the telecommunications carrier shall deposit a sum of money sufficient to restore such security fund to the original amount.
4. The telecommunications carrier shall be entitled to the return of the security fund, or portion thereof, with interest, that remains on deposit at the expiration or termination of the franchise or license once all amounts due to the City have been paid.
5. The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, and no action, proceeding, or exercise of a right with respect to such security fund shall affect any other right the City may have.
EE. Construction and Completion Bond.
1. Performance Bond. Prior to the issuance of any permit for construction, the grantee shall provide the City with a financial deposit guaranteeing the completion of the work in accordance with the requirements of the permit. Such faithful performance bond shall be a cash deposit, or as alternatives, a surety bond, letter of credit or deposit agreement approved as to form by the City Attorney. A surety bond may be for the specific project or an annual and continuing bond filed with the City and covering the cost of several projects. The grantee may use an annual and continuing bond for more than one permit, providing the aggregate bonded amount of the permits outstanding does not exceed the total amount of the bond.
a. The amount of the performance bond shall be 100 percent of the estimated cost of the work to be performed as approved by the City Engineer.
b. In the event the permittee fails to complete the work covered by the permit, the City Engineer may cause the work to be done and the faithful performance bond described herein shall be used to pay the costs involved. Any portion of a deposit made to the City to cover the cost of such work which is not used to complete the project shall be returned to the grantee.
2. Payment Bond. Prior to the issuance of any permit, the grantee shall provide the City with a financial deposit to satisfy claims of material suppliers and of mechanics and laborers employed by the grantee on the project. Such payment bond shall be a cash deposit, or as alternatives, a surety bond, letter of credit or deposit agreement approved as to form by the City Attorney. A surety bond may be for the specific project or an annual and continuing bond filed with the City and covering the cost of several projects. The grantee may use an annual and continuing bond for more than one permit, providing the aggregate bonded amount of the permits outstanding does not exceed the total amount of the bond.
a. The amount of the payment bond shall be 50 percent of the estimated cost of the work to be performed as approved by the City Engineer.
b. In the event the grantee fails to pay any material supplier or mechanic or laborer employed by the grantee on the project, the City shall, after having received proper and legal notice of such nonpayment, use the payment bond described herein to make such payments as are required by law.
3. Letter of Credit.
a. At the option of the City, the telecommunications carrier may be required, in lieu of creating a security fund and/or posting a faithful performance bond, to post an irrevocable letter of credit, issued by a bank approved by the City, in the amount specified in the franchise agreement or license. Said letter of credit shall incorporate wording approved by the City enabling it to draw from time to time such funds as the City may determine to be necessary to satisfy any material defaults of the telecommunications carrier or to make any payments due City under or in connection with this chapter or the franchise agreement or license, upon 10 days’ written notice to the issuer of the letter of credit. Said letter of credit shall further provide for 60 days’ written notice by certified mail from its issuer to City of any pending expiration or cancellation, and said notice shall without further cause constitute reason for the City to draw the full sum to be held in its own accounts until such letter of credit is re-established in a form satisfactory to City.
b. If City requires such a letter of credit, the telecommunications carrier shall pay all fees or other charges required to keep it in force and shall, within 30 days of any draw by City, restore its face value to the original amount.
c. All provisions herein applicable to faithful performance bonds or security funds shall also apply to letters of credit.
FF. Coordination of Construction Activities. In order to establish minimum uniform standards for all users of streets, public rights-of-way, and public property, any telecommunications carrier shall adhere to the following minimal construction schedule and construction-related requirements:
1. By February 1st of each year, grantees shall provide the City with a schedule of their proposed construction activities in, around, or that may affect the public ways.
2. Each grantee shall meet with the City, other grantees and users of the public ways annually or as determined by the City to schedule and coordinate construction in the public ways. To the extent permitted by codes and regulations, grantees shall use joint poles, conduits, trenches, crossings, etc., to minimize disruption to the public ways.
3. All construction locations, activities and schedules shall be coordinated, as ordered by the City Engineer, to minimize public inconvenience, disruption or damages.
4. The grantee shall belong to the Underground Service Alert (USA) and provide field mark-outs of facilities as required and adhere to the following construction standards:
a. Construct, install, maintain and repair the telecommunications system in accordance with this chapter, all Building Codes, the National Electrical Code as adopted by the City, San Diego Regional Standards (Coronado Annotations), Standard Specifications for Public Works Construction, and all construction standards imposed by the FCC, the PUC, and any other governmental agency;
b. Use the streets and public rights-of-way as set forth in this chapter and any franchise agreement or license;
c. Remove telecommunications facilities as set forth in this chapter and any franchise agreement or license;
d. Adopt and implement construction standards as set forth in this chapter and any franchise agreement or license;
e. Pay all permit fees and inspection fees as set forth herein, in any franchise agreement or license, and in any other ordinance or resolution of the City;
f. Maintain all permits as otherwise required; and
g. Adhere to all standards and guidelines contained in the “San Diego Regional Standard Drawings and Specifications” which shall be adopted and amended from time to time by resolution of the City Council.
GG. Public Communication Plans.
1. Telecommunications carrier agrees to develop a public communication plan (“communication plan”) within 60 days prior to the commencement of construction and submit it to the City for the City’s review. The City shall approve or disapprove the communication plan within 10 business days of its receipt. The communication plan shall include the following:
a. A written notification of property owners adjacent to nodes and amplifiers not less than 45 days prior to the installation indicating the proposed location, a photograph of all aboveground pedestals and other visible equipment from which their size must be apparent, and a detailed description of the equipment included within the node including: the electronic components, natural gas generator, electrical fans, and the anticipated noise levels during winter and summer months and emergency backup operations. Telecommunications carrier will provide its nontoll telephone number and a telephone number of the City which may be called if the property owner is concerned about the installation.
b. A mailing to all residents in a construction area 30 days in advance of construction activity.
c. The hanging of door hangers on all residences seven days prior to immediate construction activity.
d. A second written notice to the adjacent property owner(s) not less than 15 days prior to installation of such node, amplifiers and taps which shall have the same information as set forth in subsection (GG)(1)(a) of this section as well as the actual date of the installation of such node, amplifiers and taps.
2. Telecommunications carrier must provide the homeowner with a written notice of their rights to refuse to have telecommunications carrier trench or dig up their yard without their written consent. At the bottom of the form it should have a statement that reads:
I am the owner of record of the property located at (blank to be filled in by property owner) in the City of Coronado.
o By signing this card, I authorize ________________ to trench in my yard to install telecommunication wiring and attach a box to the side of my house.
o By not signing this card, I refuse to allow ______________ to trench in my yard.
The homeowner may select a choice by placing an “x” in the appropriate box. If the homeowner does not sign the card, the telecommunications carrier is not authorized to trench on that individual’s private property.
3. Telecommunications carrier shall furnish the City with the specific proposed locations of any nodes, amplifiers and taps at least 60 days in advance of the installation of the nodes, amplifiers or taps. Telecommunications carrier agrees to participate in any public hearings or meetings scheduled by the City and will be prepared to answer questions concerning proposed construction of the telecommunications facilities or the telecommunications system. Telecommunications carrier shall have available at such meetings visual aids as appropriate such as slides, maps and diagrams. The proposed node, amplifier or tap locations in the City must be approved by the City prior to construction of the underground cable plant. Depending upon health and safety issues, and input from residents, the City, at its sole discretion, may require proposed node, amplifiers and taps sites be relocated by telecommunications carrier.
4. Telephone Contact. During construction, telecommunications carrier shall provide the City a 24-hour telephone contact number, and staff it during regular business hours, to enable the City to report any concerns regarding construction of the facilities. After business hours such calls will be routed to an on-call supervisor. In the event that the City reports any concerns to telecommunications carrier, telecommunications carrier shall respond in a timely manner. Telecommunications carrier shall correct within two business days any adverse impact to the City’s use or operations or the use or operations of a third party caused by telecommunications carrier construction activities in the streets and public right-of-way at no cost to the City.
HH. Assignment, Transfer, or Sale of Grant.
1. Control or controlling interest of a telecommunications system, license or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein.
2. Any assignment or transfer, or any change in control, without the City’s prior written consent shall constitute a default which will cause a franchise or license to terminate.
3. No grant shall be assigned or transferred in any manner within 12 months after the initial grant of the license or franchise, unless otherwise provided in a license or franchise agreement.
4. Absent extraordinary and unforeseeable circumstances, no grant, system or integral part of a system shall be assigned or transferred before construction of the telecommunications system has been completed.
5. At least 120 days before a proposed assignment or change in control of the franchise or license is scheduled to become effective, the telecommunications carrier shall request in writing the City’s consent. The telecommunications carrier shall submit to the City (concurrently with the submission of its written request):
a. Complete information setting forth the nature, terms and conditions of the proposed assignment, transfer or sale;
b. Any other information or documentation required by the State or Federal government;
c. The information referenced in this chapter;
d. Unedited and unreduced copies of the sale or transfer documents with all schedules and exhibits thereto;
e. Information regarding the financial ability and stability of the proposed assignee with respect to being able to perform all obligations of the existing franchise or license.
6. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this title.
7. Unless otherwise provided in a license or franchise agreement, the grantee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering a request to transfer or assign a telecommunications license or franchise.
8. The City shall not unreasonably withhold its consent to such an assignment or change in control. However, in evaluating the request for assignment, transfer, sale, or change in control, the City may, in its sole discretion and among other things, undertake a technical inspection and audit of the telecommunications system to determine whether the telecommunications system complies with all applicable technical and safety codes, and with this chapter, the franchise, or license.
9. If the City determines (as a result of the technical inspection and audit) that the telecommunications system does not comply with Federal, State, or local standards, then the telecommunications carrier shall be provided with an opportunity to correct or cure the noncompliance. In the alternative and in the discretion of the City Council, the City may work with both the current and proposed telecommunications carrier to cure the noncompliance.
10. Before an assignment or change in control is approved by the City, the proposed assignee, transferee, or buyer shall execute an affidavit acknowledging that it has read, understood, and will abide by both this chapter and the applicable franchise or license.
11. In the event of any approved assignment or change in control, the assignee or transferee shall assume all obligations and liabilities of the former telecommunications carrier relating to the franchise or license unless specifically relieved by the City at the time the assignment or change in control is approved.
12. Reimbursement of Processing and Review Costs. The telecommunications carrier shall reimburse City for City’s reasonable processing and review expenses in connection with a transfer of the franchise or license or a change in control of the franchise or license, including, without limitation, costs of administrative review, financial, legal, and technical evaluation of the proposed transferee, costs of consultants (including technical and legal experts), notice and publication costs, and document preparation expenses. City may send the telecommunications carrier an itemized description of all such charges, and the telecommunications carrier shall pay such amount within 20 days after the receipt of such description.
13. Violation. If the telecommunications carrier violates any provision of this subsection, the franchise or license shall automatically terminate.
II. Possessory Interest. By accepting any franchise or license granted pursuant to this chapter, telecommunications carrier acknowledges that notice is and was hereby given to telecommunications carrier pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property taxes levied upon such interest. Telecommunications carrier shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against its right to possession, occupancy or use of any public property pursuant to any right of possession, occupancy or use created by any franchise or license.
JJ. Cost Sharing. Concurrent with telecommunications carrier’s installation of underground construction infrastructure on a given job, the City may elect to place its own conduit or cable in the trenches of the telecommunications carrier for the City’s own use at City’s sole expense. In order for the City to determine whether to have conduit placed in telecommunications carrier’s trench, telecommunications carrier must provide the City maps showing the location for all trenching. These maps are to be provided to the City 60 days in advance of any trenching activities. Telecommunications carrier shall impose no fee or charge upon City for placement of said conduit and/or cable in open trenches.
KK. Transactions Affecting Control of Grant. Any transactions which singularly or collectively result in a change of 10 percent or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications license or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of grantee’s telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to subsection HH of this section. Transactions between affiliated entities are not exempt from City approval.
LL. Enforcement Mechanism.
1. Notice and Hearing for Franchise Default. Unless otherwise provided in this chapter or in the franchise agreement or license, prior to formal consideration by City of termination, revocation, or forfeiture of the telecommunications carrier’s franchise or license, or any other penalty or administrative remedy available to the City, including liquidated damages, attributable to the telecommunications carrier’s failure, willful, negligent, or otherwise, to adhere to the terms and conditions of the franchise agreement or license or this chapter, City shall make written demand on the telecommunications carrier to correct the alleged default. City and telecommunications carrier shall expeditiously meet to discuss the alleged default, at which time the telecommunications carrier shall indicate, in writing, the amount of time necessary to resolve the alleged problem. Giving due consideration to the telecommunications carrier’s request, City shall, in writing, state the amount of time City will allow the telecommunications carrier to resolve the problem. During this time period, but in no event less than 10 days before the final date for correction, the telecommunications carrier may request additional time to correct the problem, and City shall grant said request if City determines, in the exercise of its discretion, that such time is necessary due to delays beyond the telecommunications carrier’s control. If the default continues for a period of 10 days following the deadline for corrections, plus any extension thereof, a hearing shall be scheduled by City on such franchise termination, revocation, forfeiture, or any other penalty or administrative remedy.
The City Manager shall provide written notice of such hearing, including the grounds for the proposed action, to the telecommunications carrier no less than 30 days before the hearing on the matter. In addition, the City Manager, as part of said written notification, shall state the procedures to be followed by the City to determine whether cause for termination, revocation, forfeiture, or other penalty exists. At a minimum, said procedures shall afford the telecommunications carrier adequate notice and a fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to question witnesses, and to obtain a transcript of the proceeding at the telecommunications carrier’s expense. Within 10 days after the receipt of said notice, the telecommunications carrier shall file any written objections to said procedures. The Administrative Officer shall notify the telecommunications carrier of any modification to the procedures and provide another 10-day objection period. Any objections not raised within said 10-day periods shall be deemed waived. At the hearing, City shall hear the telecommunications carrier, and any person interested in the matter, and shall determine, at that or subsequent meetings, an appropriate course of action for enforcement or termination of the telecommunications carrier’s franchise or license.
2. Revocation. Consistent with applicable law, and in addition to any rights set out elsewhere in this chapter, the City reserves the right to revoke a franchise or license, in the event that:
a. The telecommunications carrier willfully or negligently violates any material provision of its franchise or license.
b. The telecommunications carrier’s construction schedule, as set forth in this franchise or license, is materially delayed.
3. Forfeiture. Upon failure of the telecommunications carrier to comply with any material term of its franchise or license, the City declares a forfeiture. The telecommunications carrier may be required to remove its structures or property from the City’s streets and to restore those streets to their prior condition within a reasonable period of time. Upon failure to do so, the City may perform the work and collect all costs, including direct and indirect costs, from the telecommunications carrier. At City’s discretion, the cost thereof may be placed as a lien upon all plant, property, or other assets of the telecommunications carrier.
MM. Revocation or Termination of Grant. A license or franchise granted by the City to use or occupy public ways of the City may be revoked for the following reasons:
1. Construction or operation in the City or in the public ways of the City without a license or franchise grant of authorization.
2. Construction or operation at an unauthorized location.
3. Unauthorized substantial transfer of control of the grantee.
4. Unauthorized assignment of a license or franchise.
5. Unauthorized sale, assignment or transfer of grantee’s franchise or license assets, or a substantial interest therein.
6. Misrepresentation by or on behalf of a grantee in any application to the City.
7. Abandonment of telecommunications facilities in the public ways.
8. Failure to relocate or remove facilities as required in this chapter.
9. Failure to pay taxes, compensation, fees or costs when and as due the City.
10. Insolvency or bankruptcy of the grantee.
11. Violation of any material provision of this chapter.
12. Violation of the material terms of a license or franchise agreement.
NN. Notice and Duty to Cure. In the event that the City believes that grounds exist for revocation of a license or franchise, it shall issue the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding 30 days to furnish evidence:
1. That corrective action has been, or is being actively and expeditiously pursued to remedy the violation or noncompliance.
2. That rebuts the alleged violation or noncompliance.
3. That it would be in the public interest to impose some penalty or sanction less than revocation.
OO. Duty to Remove Telecommunications Facilities from Streets, Public Rights-of-Way, Easements and Public Property.
1. Whenever the following occurs:
a. A telecommunications carrier ceases to operate all, or part of the telecommunications system for a continuous period of six months;
b. A telecommunications carrier ceases and fails to complete construction of the telecommunications system outlined in the franchise agreement or license;
c. The City elects not to renew any franchise or license pursuant to the provisions set forth in this chapter; or
d. The telecommunications carrier’s franchise or license is revoked pursuant to the provisions set forth in this chapter; unless the City or another telecommunications carrier uses such telecommunications system in accordance with any temporary continuity of service provisions, the affected telecommunications carrier shall at its expense promptly remove its telecommunications system from the streets, public rights-of-way, and public property located within the City unless otherwise directed by the City.
2. If not removed voluntarily by a telecommunications carrier, then the City may notify such telecommunications carrier that should removal of the property not be accomplished within 270 days, or substantial progress towards removal not be made within 210 days, the City may direct its officials or representatives to remove such telecommunications system property at that telecommunications carrier’s expense. The faithful performance bond, letter of credit, or security fund required as set forth in this chapter shall be available to pay for such work.
3. If officials or representatives of the City remove a telecommunications system, and such telecommunications carrier does not claim the property within 120 days of its removal, then the City may take whatever steps are available under State law to declare the property surplus, and sell it, with the proceeds of such sale (if permitted by State law) going to the City.
4. When such telecommunications carrier removes its telecommunications system from the streets, public rights-of-way and public property located within the City, the telecommunications carrier shall at its own expense, and in a manner approved by the City, replace and restore such public property to a condition comparable to that which existed before the work causing the disturbance was done.
5. Removal of Deactivated Equipment. Telecommunications carriers shall maintain the deactivated telecommunications facilities at no cost the City until removed by the telecommunications carrier. The telecommunications carrier shall provide a written list to the City of all deactivated telecommunications facilities located within the City at quarterly intervals. The telecommunications carrier shall remove or disable nonuseful telecommunications facilities in accordance with its normal practice. However, aboveground level telecommunications facilities which are no longer used or useful shall be removed within the period specified by the City and may not be left in the public right-of-way without the permission of the City. The telecommunications carrier shall provide the City a list of the specific telecommunications facilities to be removed and their locations. The telecommunications carrier shall remove all these telecommunications facilities within 90 days after an underground system is activated.
PP. Hearing. In the event that a grantee fails to provide evidence reasonably satisfactory to the City Manager as provided in subsection NN of this section, the Manager shall refer the apparent violation or noncompliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.
QQ. Standards for Revocation or Lesser Sanctions. If persuaded that the grantee has violated or failed to comply with any provision of this title, or of a franchise or license agreement, the City Council shall determine whether to revoke the license or franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:
1. Whether the misconduct was egregious.
2. Whether substantial harm resulted.
3. Whether the violation was intentional.
4. Whether there is a history of prior violations of the same or other requirements.
5. Whether there is a history of overall compliance.
6. Whether the violation was voluntarily disclosed, admitted or cured.
52.40.080 Construction standards.
A. General. No person shall commence or continue with the construction, installation, maintenance or operation of telecommunications facilities within the City except as provided in this section.
B. Construction Codes.
1. Telecommunications facilities shall be constructed, installed, operated and maintained in accordance with all applicable Federal, State and local codes, rules and regulations including but not limited to the Uniform Building Code, the National Electrical Code, the Standard Specifications for Public Works Construction and the San Diego Regional Standard Drawings (Coronado’s Annotations).
2. All construction, installation, maintenance and repair shall treat the aesthetics of the property as a priority, shall not substantially affect the appearance or the integrity of the structure, and shall not be installed on the bias across the property or side of a residence or other structure without the property owner’s permission.
3. All underground drops shall follow (to the greatest extent possible) property lines, and cross property only at right angles unless otherwise permitted by the property owner, or required due to the physical characteristics of the subsurface, or required under applicable law. The City may, either by way of a generally applicable resolution or through the imposition of routing conditions in any franchise agreement or license or permit, determine the routing or placement of cable, conduit, nodes, pedestals, power supplies, vaults, and other equipment relating to the telecommunications system.
4. No encroachment permit shall be issued for the construction or installation of telecommunications facilities within the City unless the telecommunications carrier has filed a business license application with the City pursuant to CMC 52.40.020.
5. No permit shall be issued for the construction or installation of telecommunications facilities in the public way unless the telecommunications carrier has applied for and received a license or franchise agreement pursuant to CMC 52.40.030 or 52.40.040.
6. The telecommunications carrier shall strictly adhere to all building and zoning codes currently or hereafter in force and shall obtain all necessary permits. The telecommunications carrier shall arrange its lines, cables, and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said property by any person. In the event of such interference, the City may require the removal of the telecommunications carrier’s lines, cables, and appurtenances from the property in question. The telecommunications carrier shall give at least 48 hours’ advance notice to all property owners and to the City prior to installing any aboveground or underground structures upon easements located on private property.
C. Application for Encroachment Permit. Applications for encroachment permits to construct telecommunications facilities shall be submitted upon forms to be provided by the City and shall be accompanied by scaled drawings, plans, and specifications of sufficient detail to clearly define construction standards, location and route of the proposed facilities.
D. Engineer’s Certification. All encroachment permit applications shall be accompanied by the certification of a registered professional engineer in the State of California that the drawings, plans and specifications submitted with the application comply with all applicable technical codes, rules and regulations.
E. Construction Plan. Within 90 days prior to commencement of construction, and from time to time thereafter, telecommunications carrier shall file with the City Manager or other designated employees of the City a general construction plan describing in detail the telecommunications system and telecommunications facilities, areas to be served, and an estimated time schedule for such construction (“construction plan”). Telecommunications carrier may modify or change its construction plan at any time in its sole discretion, provided telecommunications carrier provides written notice to the City within five business days subsequent to any modification. Any modifications to construction plans must be reviewed and approved by the City before modifications can be implemented by telecommunications carrier.
1. Notice to the City. The City shall have 30 days following receipt of the construction plan, or changes thereto, to approve or disapprove the construction plan.
2. Notice to Other Providers. Telecommunications carrier shall provide the City with general engineering base maps identifying existing underground and aerial utility routes, streets, parcels, poles, and construction needs including points of connections for existing residences, potential trench routes, and potential locations for nodes, amplifiers, and taps at least one month in advance of any underground construction, unless otherwise agreed to, which may be reviewed in advance by any interested party for the purpose of reducing the impact on the City’s infrastructure and for the public convenience.
3. Telecommunications carrier, with the City’s assistance, shall develop a special construction schedule and submit it to the City at least 20 days prior to the start of work. Prior to the underground construction of any of the telecommunications facilities, unless otherwise agreed to, telecommunications carrier shall furnish detailed plans of the proposed construction and changes thereto to the City. The proposed node sites in the City must be approved by the City prior to construction of the underground plant. Depending on health and safety issues, and input from residents, the City, at its sole discretion, may require proposed Node sites to be relocated by telecommunications carrier. In the installation of the telecommunications facilities, telecommunications carrier shall comply with the City’s standard construction requirements relating to telephone facilities and other comparable utility installations.
F. Traffic Control Plan. All encroachment permit applications which involve work on, in, under, across or along any public ways shall be accompanied by a traffic control plan demonstrating the protective measures and devices that will be employed, consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. The traffic control plan shall be approved in writing by the City Engineer prior to the commencement of any construction and shall follow the Work Area Traffic Control Handbook. Telecommunications carrier shall furnish detailed traffic control plans (the “traffic control plan”), which shall include site-specific hours of construction, to the City Engineer no later than seven days prior to the commencement of any construction activities which may incommode traffic. The City Engineer shall provide (if any) comments within two business days of receipt. No construction-related activities may be conducted in the public right-of-way without a City approved traffic control plan.
G. Construction Schedule.
1. The telecommunications carrier shall complete system construction and offer telecommunications service and any other service authorized by the franchise agreement or license no later than the date specified in the franchise agreement or license.
2. The permittee shall submit a written construction schedule to the City Engineer 10 working days before commencing any work in or about the public ways. The schedule shall identify anticipated: start date, finish date, working hours and key construction milestones.
3. Project Overview. No later than 10 days after the filing of any permit application, telecommunications carrier shall file with the City Manager or other designated employee of the City a project overview which shall contain an assessment of the operation of any nodes, including without limitation a noise study prepared by a licensed engineer approved by the City documenting noise generated from any nodes.
The City’s Community Development Department will prepare an initial study to determine the appropriate level of environmental review. Telecommunications carrier will submit the final engineering plans to the City for review and approval prior to the issuance of a permit. The Community Development Department and Engineering Department will review and approve the locations for all telecommunications facilities to be located in the streets and public rights-of-way. These facilities include any nodes, pedestals, pull boxes, amplifiers, power supplies, and taps.
4. Telephone Contact. During construction, telecommunications carrier shall provide the City a telephone contact number, and staff it during regular business hours, to enable the City to report any concerns regarding construction of the facilities. After business hours such calls will be routed to an on-call supervisor. In the event that the City reports any concerns to telecommunications carrier, telecommunications carrier shall respond in a timely manner. Telecommunications carrier shall correct within two business days any adverse impact to the City’s use or operations or the use or operations of a third party caused by telecommunications carrier construction activities in the streets and public right-of-way at no cost to the City.
5. Daily Notice. Every working day during construction, telecommunications carrier shall notify the designated City staff member of the location of that next day’s construction activities. The number of concurrent construction locations may be limited by the City.
6. Maps and Plans. Telecommunications carrier shall maintain accurate maps and improvement plans of the telecommunications system and telecommunications facilities, in a manner consistent with telecommunications industry standards and which can be integrated into the City’s Geographic Information System (GIS). Telecommunications carrier shall furnish to the City two complete sets of as-built construction drawings and a copy of the drawings in AUTOCAD usable format within 60 days of completion of the construction of the facilities. Maps and improvement drawings shall be furnished to the City and other parties interested in performing work within the streets and public right-of-way, upon request, at no cost to the City. Telecommunications carrier shall pothole its telecommunications facilities, at its expense, within 15 days of receipt of a written request from the City for City projects which the City has itself or by contract designed and engineered, which directly conflicts with the facilities, unless telecommunications carrier can certify the exact location and depth of the telecommunications facilities at the location where potholing is requested.
7. Construction Status Reports. During construction, telecommunications carrier shall submit to the City periodic progress reports describing in detail the status of construction in relation to the construction plan submitted under this Agreement. The first report shall be submitted within 30 days of commencement of construction and shall be updated each 30 days thereafter.
H. Compliance with Permit. All construction practices and activities shall be in accordance with the permit and approved final plans and specification for the facilities. The City Engineer or his representatives shall be provided access to the work and such further information as he or she may require to ensure compliance with such requirements.
I. Display of Permit. The permittee shall maintain a copy of the encroachment permit and approved plans at the construction site, which shall be displayed and made available for inspection by the City Engineer or his representatives at all times when construction is work is occurring.
J. Construction of Good Quality. During any phase of construction, installation, maintenance and repair of the telecommunications system, the telecommunications carrier shall use materials of good and durable quality and all such work shall be performed in a safe, thorough, and reliable manner.
K. Conditions of Use of Streets and Public Rights-of-Way.
1. All wires, conduits, cable (coaxial, fiber or functional equivalent), and other property and facilities of a telecommunications carrier shall be so located, constructed, installed and maintained so as not to endanger or unnecessarily interfere with usual and customary use, traffic and travel upon the streets, public right-of-way, easements and public property of the City pursuant to a routing plan to be approved by the City Manager or his/her designee.
2. In the event a telecommunications carrier’s system creates a hazardous or unsafe condition or an unreasonable interference with property, such telecommunications carrier shall voluntarily, or upon the request of the City, remove or modify that part of the telecommunications system to eliminate such condition from the subject property.
3. A telecommunications carrier shall not place equipment where it will interfere with existing and future City uses of the streets, public right-of-way, or public property, with the rights of private property owners, with gas, electric, or telephone fixtures, with water hydrants or mains, with wastewater stations, with any traffic control system, or any other service or facility that benefits the City’s or its residents’ health, safety or welfare.
4. A telecommunications carrier, at its own expense, shall protect streets and public rights-of-way, easements, and support or temporarily disconnect or relocate at its sole cost in the same street or other street or public right-of-way, any property of such telecommunications carrier when necessitated by reason of:
a. Traffic conditions;
b. Public safety;
c. Temporary or permanent street closing;
d. Street construction or resurfacing;
e. A change or establishment of street grade;
f. Installation of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines, and any traffic control system; or
g. Any improvement, construction or repair or any improvement related to the City’s or its residents’ health, safety or welfare.
5. It shall be the responsibility of a telecommunications carrier to locate and mark or otherwise visibly indicate and alert others to the location of its underground cable before employees, agents, or independent contractors of any entity perform work in the marked-off area. The telecommunications carrier shall participate in and adhere to the practices of Underground Services Alert (USA) and provide at least 48 hours’ prior notice to USA prior to any excavation.
6. A telecommunications carrier shall, on the request of any person holding a building moving permit, temporarily remove, raise or lower the cable wires to allow the moving of the building. The expense of temporary removal shall be paid by the person requesting it, and such telecommunications carrier may require payment in advance.
L. Noncomplying Work. Upon order of the City Engineer, all work which does not comply with the encroachment permit, the approved plans and specifications for the work, or the requirements of this title as determined by the City Engineer shall be removed and the area restored to the pre-existing conditions at no cost to the City.
M. Survey of Underground Facilities. If the encroachment permit specifies the location of facilities by depth, line grade, proximity to other facilities or other standard, the permittee shall cause the location of such facilities to be verified by a registered California land surveyor. The permittee shall relocate any facilities which are not located in compliance with permit requirements.
N. Undergrounding and Mitigation of Visual Impacts – Design/Dimension of Above- and Belowground-Mounted Equipment.
1. Belowground-mounted equipment:
a. The equipment cover of a pull box shall be flush with the adjacent surface grade of the land.
2. Aboveground-mounted equipment:
a. Equipment shall be mounted on concrete footings, or other mounting system approved by the City Engineer or Building Official. The footings must be adequate to assure that the equipment will remain in its original vertical alignment over time.
3. Miscellaneous:
a. All above and belowground-mounted equipment shall have the provider’s name and emergency telephone number permanently affixed or molded into the cover/door.
b. All underground conduit/cable shall be installed to provide for continuous and sealed runs between pull boxes so as to preclude the ingress into the conduit/cable system of liquids and/or other foreign materials.
c. The minimum depth of conduit/cable shall be 18 inches below grade.
d. All installations shall comply with relevant provisions of the Uniform Electrical Code and the rules, regulations, standards and orders of the PUC.
O. Construction Default.
1. Upon the failure, refusal or neglect of the telecommunications carrier to cause any construction, repair, or the terms of any building permit, or other necessary work to comply with the terms of the franchise agreement or license, thereby creating an adverse impact upon public safety, City may (but shall not be required to) cause such work to be completed in whole or in part, and upon so doing shall submit to the telecommunications carrier an itemized statement of costs. The telecommunications carrier shall be given reasonable advance notice of City’s intent to exercise this power, and 15 days to cure the default. The telecommunications carrier shall, within 30 days of billing, pay to City the actual costs incurred.
2. Stop Work Notice. Whenever construction is being performed in a manner contrary to the provisions of this agreement, the City Engineer, or an inspection official representing the City, may order the work stopped by notice in writing served on any person engaged in, or causing, the construction. Any work stopped shall not resume until authorized in writing by the City Engineer.
P. Completion of Construction. The permittee shall promptly complete all construction activities to minimize disruption of the City ways and other public and private property. All construction work authorized by a permit shall be completed within 120 calendar days of the date of issuance unless specifically approved in writing by the City Engineer.
Q. As-Built Drawings. Within 60 days after completion of construction, the permittee shall furnish the City with one complete set of “as-built” plans, drawn to scale and certified to the City as accurately depicting the locations of all telecommunications facilities constructed pursuant to the encroachment permit.
R. System Technical Data. The telecommunications carrier shall provide City with a computer disk or other data storage device requested by City, in a format approved by City, which details and documents all of the telecommunications carrier’s equipment and facilities and their geographic location in the City. Such computer disk or other device shall be updated annually and whenever there have been significant changes in the location of the telecommunications carrier’s equipment and telecommunications facilities. In addition, the telecommunications carrier shall maintain in its local office a complete and up-to-date set of as-built system maps and drawings upon completion of construction or reconstruction, equipment specification and maintenance publications, and signal level diagrams for each active piece of electronic equipment in the system. As-built drawings shall show all lines and installed equipment, and tap values and spigots. The scale of maps and drawings shall be sufficient to show the required details in easily readable form and size. Technical data at the local office shall also include approved pole applications, details and documentation of satellite and microwave equipment, mobile radio units, heavy construction vehicles and equipment, and video and audio equipment normally used in the operation of the system. If City requires use of technical data in its own offices, it may make copies of any items at City’s expense.
S. Restoration of Improvements. Upon completion of any construction work, the permittee shall promptly repair any and all public and private property improvements, fixtures, structures and facilities damaged during the course of construction. Restoration shall be to the preconstruction condition as determined by the City Engineer.
T. Construction Surety. Prior to issuance of an encroachment permit, the permittee shall provide a performance bond, as described in CMC 52.40.070(EE).