Chapter 4-36
TELECOMMUNICATION SERVICES
Sections:
4-36.010 Declaration of purpose.
4-36.040 Telecommunications license.
4-36.050 Telecommunications franchise.
4-36.060 Fees and compensation.
4-36.070 Other conditions of use of public right-of-way.
4-36.010 Declaration of purpose.
The purpose and intent of this chapter is to:
A. Establish a local policy concerning telecommunications providers and services in the public right-of-way;
B. Establish clear local guidelines, standards and time frames for the excise of local authority with respect to the regulation of telecommunications services in the public right-of-way;
C. Promote competition in telecommunications;
D. Minimize unnecessary local regulation of telecommunications services;
E. Encourage the provision of advanced and competitive telecommunications services on the widest possible equivalent basis to the businesses, institutions and residents of the city;
F. Permit and manage reasonable access to the public ways of the city for telecommunications purposes on a competitively neutral basis;
G. Conserve the limited physical capacity of the public ways held in public trust by the city;
H. 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;
I. Secure fair and reasonable compensation to the city and the residents of the city for permitting private use of the public ways;
J. Assure that all telecommunications carriers providing facilities or services within the city comply with the ordinances, rules and regulations of the city;
K. Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare;
L. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.
(Prior code § 6-08.005)
4-36.020 Definitions.
For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
“Affiliate” means a person who (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.
“Annual gross revenue” means, unless defined otherwise in a franchise agreement, the total receipts in a year that are derived from the sale or rental of telecommunication services within the city.
“Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. 532, et seq., as now and hereafter amended.
“Cable operator” means a telecommunications carrier providing or offering to provide “cable service” within the city as that term is defined in the Cable Act.
“Cable service” for the purpose of this chapter shall have the same meaning provided by the Cable Act.
“City property” means and includes all real property owned by the city, other than public streets, sidewalks and utility 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.
“Council” means the City Council of the city.
“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 “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.
“Grantee” means a person who has been granted a licensee or franchise pursuant to this chapter.
“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.
“Person” means and includes corporations, companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.
“Public street” means any highway, street, alley, sidewalk or other public right-of-way for public travel under the jurisdiction and control of the city which has been acquired, established, dedicated or devoted to highway purposes not inconsistent with telecommunications facilities.
“Public way” means and includes all public streets, sidewalks and utility easements, now or hereafter owned by the city.
“Public Works Director” means the Public Works Director of the city.
“State” means the state of California.
“Surplus space” means that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the orders and regulations of the California Public Utilities Commission (PUC) to allow its use by a telecommunications carrier or provider for a pole attachment.
“Telecommunications carrier” means and includes every person that proposes to or does own, control, operate or manage plant, equipment or property within the city in the public ways, used or to be used for the purpose of offering telecommunications services.
“Telecommunications facilities” means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services.
“Telecommunications provider” means and includes every person who proposes to or who provides telecommunications services over telecommunications facilities without any ownership or management control of those facilities located in the public ways.
“Telecommunications service” means the proposal to or the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points of wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium, using facilities in the public ways.
“Telegraph or telephone carrier” means every person within the scope of Public Utilities Code Section 7901 who has constructed or may construct telegraph or telephone lines within the public way.
“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 orders and regulations of the PUC.
“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 and used or to be used for the purpose of providing utility or telecommunications services. (Prior code § 6-08.010)
4-36.030 Registration.
Except as otherwise provided herein, all telecommunications carriers and providers engaged in the business of transmitting, supplying or furnishing of telecommunications service for a fee directly to customers in the city or who own, operate, or use telecommunication facilities in the public way shall register with the city pursuant to this section. Telegraph or telephone providers operating in the city as of the effective date of this chapter shall be exempt from registration.
A. Registration Forms. Registration forms to be provided by the City Clerk and completed by the telecommunications provider or carrier, shall include the following:
1. The identity and legal status of the registrant, including any affiliates;
2. The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement;
3. A description of registrant’s existing or proposed telecommunications facilities within the city;
4. A description of the telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the city;
5. Information sufficient to determine whether the registrant is subject to public way licensing or franchising under this chapter;
6. Information sufficient to determine that the applicant has applied for and received any certificate of authority required by the PUC to provide telecommunications services or facilities within the city;
7. Information sufficient to determine that the applicant has applied for and received a construction permit, operating license or other approvals required by the FCC to provide telecommunications services or facilities within the city;
8. Such other information as the City Clerk may reasonably require.
B. Registration Fee. Each application for registration as a telecommunications carrier or provider shall be accompanied by a fee of twenty-five dollars ($25.00).
C. Purpose of Registration. The purpose of registration is to:
1. Provide the city with accurate and current information concerning the telecommunications carriers and providers who offer or provide telecommunications services within the city, or that own or operate telecommunications facilities within the city;
2. Assist the city in enforcement of this chapter;
3. Assist the city in the collection and enforcement of any municipal fees, franchise fees, license fees or charges that may be due the city;
4. Assist the city in monitoring compliance with local, state and federal laws.
(Prior code § 6-08.020)
4-36.040 Telecommunications license.
Except for telegraph or telephone carriers or as otherwise provided herein, any telecommunications carriers who desire to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the city for the sole purpose of providing telecommunications service to persons or areas outside the city shall first obtain a license granting the use of such public ways from the city pursuant to this section.
A. License Application. Any person that desires a telecommunications license pursuant to this section shall file an application with the City Clerk which shall include the following information and shall be accompanied by an application fee, as established by resolution of the City Council:
1. The identity of the license applicant, including all affiliates of the applicant;
2. A 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, sewage drainage and other facilities in the public way along 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 the 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 and that the affected utility has consented to the installation;
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;
8. A preliminary construction schedule and completion date;
9. A preliminary traffic control plan in accordance the Work Area Traffic Control Handbook, latest edition;
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 that 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 and permits to construct and operate the facilities and to offer or provide the telecommunications services;
13. All fees, deposits or charges required pursuant to this section;
14. Such other and further information as may reasonably be required by the Public Works Director.
B. Determination by the Public Works Director. Within one hundred twenty (120) days after receiving a complete application under this section the Public Works Director shall issue a written determination granting or denying the license application in whole or in part, applying the following standards. If the application is denied, the written determination shall include the reasons for denial. The Public Works Director shall consider the following:
1. The financial and technical ability of the applicant;
2. The legal ability of the applicant;
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 damage or disruption, if any, of public or private facilities, improvements, services, 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 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.
C. 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.
D. Nonexclusive Grant. No license granted under this section 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.
E. Rights Granted. No license granted under this section 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 grant. Further, no license shall be construed as any warranty of title.
F. Terms of Grant. Unless otherwise specified in a license agreement, a telecommunications license granted hereunder shall be in effect for a term of five years.
G. License Route. A telecommunications license granted under this section shall be limited to a grant of specific public ways and defined portions thereof.
H. 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 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 surplus space is available.
3. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the city, 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 of the city, 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 hardships 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.
I. Construction Permits. All licensees are required to obtain encroachment permits for telecommunications facilities as required in Section 4-36.070 of this chapter, provided, however, that nothing in this section shall prohibit the city and a licensee from agreeing to alternate plan review, permit and construction procedures in a license agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
J. Compensation to City. Each license 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 licensee.
K. Service to Users. A licensee may be permitted to offer or provide telecommunications services to persons or areas within the city upon submitting an application for a franchise pursuant to Section 4-36.050 of this chapter.
L. Amendment of Grant.
1. A new license application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public ways of the city which are not included in a previously granted under this section.
2. If ordered by the city to locate or relocate its telecommunications facilities in public ways not included in a previously granted license, the city shall grant a license amendment to facilitate the location or relocation without further application.
M. Renewal Applications. A licensee that desires to renew its license under this section shall, not less than ninety (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 and application fees required pursuant to subsection B of this section;
2. Any information required pursuant to the license agreement between the city and the grantee.
N. Renewal Determinations. Within ninety (90) days after receiving a complete application under subsection M of this section, the Public Works Director shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. The Public Works Director shall consider:
1. The financial and technical ability of the applicant;
2. The legal ability of the applicant;
3. The continuing capacity of the public ways to accommodate the applicant’s existing facilities;
4. The applicant’s compliance with the requirements of this section and the license agreement;
5. Applicable federal, state, and local telecommunications laws, rules and policies;
6. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest.
O. 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 section, have been cured, or a plan detailing the corrective action to be taken by the licensee has been approved by the Public Works Director.
P. 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 five 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 thirty (30) days of the filing of the appeal. The City Council’s decision on the appeal shall be final.
(Prior code § 6-08.030)
4-36.050 Telecommunications franchise.
Except for telegraph or telephone carriers or as otherwise provided herein, any telecommunications carriers or providers who desire to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the city, and/or to provide telecommunications service to persons or areas in the city via facilities in the public ways, shall first obtain a franchise granting the use of such public ways from the city pursuant to this section.
A. Franchise Application. Any person who desires a telecommunications franchise pursuant to this section shall file an application with the city which shall include the following information and shall be accompanied by a franchise application fee to be established by resolution of the City Council:
1. The identity of the franchise applicant, including all affiliates of the applicant;
2. A description of the telecommunications services that are or will be offered or provided by the franchise applicant over existing or proposed facilities;
3. A description of the transmission medium that will be used by the franchisee 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 proposed for applicant’s proposed telecommunications facilities,
b. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities to be used or constructed 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, if applicable;
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 and that the owner of the utility has consented to the installation;
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 and 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;
8. A preliminary construction schedule and completion dates;
9. A preliminary traffic control plan in accordance with the Work Area Traffic Control Handbook, latest edition;
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 and permits to construct and operate the facilities and to offer or provide the telecommunications services;
13. 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 is subject to cable franchising;
14. An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease;
15. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions;
16. A description of applicant’s access and line extension policies;
17. 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;
18. All fees, deposits or charges required by this section;
19. Such other and further information as may be requested by the Public Works Director.
B. Determination by Public Works Director. Within one hundred twenty (120) days after receiving a complete application under Section 4-36.040 of this chapter, the Public Works Director shall issue a written determination proposing to grant or deny the application in whole or in part, applying the following standards. If the application is denied, the written determination shall include the reasons for denial. The Public Works Director shall consider:
1. The financial and technical ability of the applicant;
2. The legal ability of the applicant;
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 franchise is granted;
5. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted;
6. The public interest in minimizing the cost and disruption of construction within the public ways;
7. The service that applicant will provide to the community and region;
8. The effect, if any, on public health, safety, welfare and quality of life if the franchise requested is granted. The franchisee shall exert all reasonable efforts to design and locate its facilities in a manner meeting community design standards;
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.
C. Agreement. No franchise shall be granted hereunder unless the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and/or use the public ways will be granted.
D. Nonexclusive Grant. No franchise granted under this section shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways for delivery of telecommunications services or any other purposes.
E. Term of Grant. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of ten years.
F. Rights Granted. No franchise granted under this section 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 purpose and term stated in the grant. Further, no franchise shall be construed as any warranty of title.
G. Franchise Territory. A telecommunications franchise granted under this section 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.
H. Location of Facilities. Unless otherwise specified in a franchise 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 excess capacity exists within such utility facility.
2. A franchisee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available.
3. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the city, a franchisee 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 of the city, 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 hardships as determined by the Public Works Director, 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 carriers.
I. Encroachment Permits. All franchisees are required to obtain encroachment permits for telecommunications facilities to be constructed or installed, as required in Section 4-36.070 of this chapter, provided, however, that nothing in this section 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.
J. Compensation to City. Each franchise granted under this section shall be subject to timely payment of annual compensation for the rights granted to the franchisee; provided, nothing in this section shall prohibit the city and a franchisee from agreeing to an alternative form of compensation to be paid to city.
K. 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 section shall prohibit a franchisee from making any reasonable classifications among differently situated customers.
L. Service to City Facilities. A franchisee shall make its telecommunications services available to city facilities at its most favorable rate for similarly situated users, unless otherwise provided in a license or franchise agreement.
M. Amendment of Grant.
1. A new franchise application and grant shall be required of any telecommunications carrier or provider 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 telecommunications facilities in public ways not included in a previously granted franchise, the city shall grant a franchise amendment without further application.
N. Renewal Application. A grantee that desires to renew its franchise under this section shall, not less than one hundred twenty (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 subsection A of this section;
2. Any information required pursuant to the franchise agreement between city and the grantee.
O. Renewal Determinations. Within one hundred twenty (120) days after receiving a complete application under subsection N of this section, the Public Works Director shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. The Public Works Director shall consider:
1. The financial and technical ability of the applicant;
2. The legal ability of the applicant;
3. The continuing capacity of the public ways to accommodate the applicant’s existing facilities;
4. The applicant’s compliance with the requirements of this title and the franchise agreement;
5. Applicable federal, state and local telecommunications laws, rules and policies;
6. Such other factors as may demonstrate that the continued grant to use the public ways to serve the community interest.
P. 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.
Q. Appeals. An applicant may appeal the denial of a franchise, denial of a renewal, or a condition imposed in a franchise to the City Council. Such appeal shall be filed in writing with the City Clerk by five 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 thirty (30) days of the filing of the appeal. The City Council’s decision on the appeal shall be final.
(Prior code § 6-08.040)
4-36.060 Fees and compensation.
A. Purpose. It is the purpose of this section to provide for the payment and recovery of all direct and indirect costs and expenses of the city related to the enforcement and administration of this chapter.
B. Application and Review Fee.
1. Any applicant for a license or franchise, or for modification, amendment or renewal of a license or franchise pursuant to this chapter shall pay an application and review fee in an amount established by resolution of the Council.
2. The application and review fee shall be deposited with the city as part of the application filed pursuant to this chapter.
3. An applicant whose license or franchise application has been withdrawn, abandoned or denied shall, within sixty (60) days, request a refund, in writing, of its application and review fee. The balance of its deposit under this section shall be refunded, less all ascertainable costs and expenses incurred by the city in connection with the application.
C. Annual Franchise Fees. Unless otherwise agreed in a franchise agreement, each franchise grantee shall pay an annual fee to the city equal to five percent of annual gross revenues as reimbursement for the city’s costs in connection with maintaining and replacing the public ways on behalf of the public and existing or future telecommunications carriers and providers, and/or the city’s costs in connection with reviewing, inspecting and supervising the use and occupancy of the public ways on behalf of the public and existing or future telecommunications carriers and providers.
(Prior code § 6-08.060)
4-36.070 Other conditions of use of public right-of-way.
A. Compliance with City Regulations. All telecommunication providers and carriers shall, before commencing any construction in the public ways, comply with all regulations of city regarding such construction.
B. Encroachment Permits. All telecommunication carriers are required to obtain encroachment permits for the construction, repair or relocation of telecommunications facilities. However, nothing in this section shall prohibit the city and a grantee from agreeing to alternative plan review, permit, and construction procedures in a license or franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices in the public ways.
C. Interference with the Public Ways. No telecommunication carriers 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. Following written notice from the city, all such facilities shall be moved by the grantee, temporarily or permanently, as determined by the Public Works Director.
D. Damage to Property—Landscape Restoration. No telecommunications carrier nor any persons acting on their behalf shall take any action or permit any action to be done which may impair or damage any city property, public ways or other property located in, on or adjacent thereto.
1. All trees, landscaping and grounds removed, damage or disturbed as a result of the construction, installation maintenance, repair or replacement of telecommunications facilities, whether such work is done pursuant to a franchise, license, permit replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.
2. All landscape restoration work within the public ways shall be done in accordance with landscape plans approved by the Public Works Director.
E. Notice of Work. Unless otherwise provided in a license or franchise agreement, no telecommunications carrier, nor any person acting on their behalf, shall commence any nonemergency work in or about the public ways without five working days advance notice to the Public Works Director.
F. Repair and Emergency Work. In the event of an unexpected repair or emergency, a telecommunications carrier may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the Public Works Director as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.
G. Maintenance of Facilities. Each telecommunications carrier shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements.
H. Relocation or Removal of Facilities. Within thirty (30) days following written notice from the city, a telecommunications carrier shall, at its own expense, temporarily or permanently remove, protect in place, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the Public Works Director shall have determined that such removal, relocation, change or alteration is reasonably necessary for:
1. The construction, repair, maintenance 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.
I. Removal of Unauthorized Facilities. Within thirty (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. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:
1. Upon expiration or termination of the grantee’s telecommunications license or franchise;
2. Upon abandonment of a facility within the public ways;
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 construction permit;
5. If the system or facility was constructed or installed at a location not permitted by the grantee’s telecommunications license or franchise.
J. 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.
K. Damage to Telecommunications Facilities. Unless directly and proximately caused by the willful, intentional, malicious acts by the city or city’s gross negligence, 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.
L. Restoration of Public Ways, Other Ways and City Property.
1. When a telecommunications carrier, or any persons acting on their behalf, does any work in or affecting any public 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 condition as existed before the work was undertaken, unless otherwise directed by the city.
2. If weather or other conditions do not permit the complete restoration required by this section, the telecommunications carrier shall temporarily restore the affected ways or property. Such temporary restoration shall be at the telecommunication’s carrier’s sole expense who shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
3. A telecommunications carrier, or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as 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 public ways or city property.
M. Facilities Maps. Each telecommunications carrier shall provide the city with an accurate map or maps certifying the location of all telecommunications facilities within the public ways. Updated maps shall be provided to city annually.
N. Duty to Provide Information. Within ten days of a written request from the Public Works Director, each telecommunications carrier or provider shall furnish the city with information sufficient to demonstrate:
1. That the carrier or provider has compiled with all requirements of this chapter;
2. That all city fees due the city in connection with the telecommunications services and facilities provided by the carrier or provider have been properly collected and paid;
3. All books, records, maps and other documents, maintained by the carrier with respect to is its facilities within the public ways shall be made available for inspection by the city at reasonable times and intervals.
O. Construction Codes—Telecommunications Codes. Telecommunications facilities shall be constructed, installed, operated, and maintained in accordance with all applicable federal, state and local codes, rules and regulations including the National Electrical Safety Code. All encroachment permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. 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 city standards to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic.
P. 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 compiled, to the extent applicable, with the requirements of this chapter.
Q. Grantee Insurance. Unless otherwise provided in a license or franchise agreement, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the city, and its elected and appointed officers, officials, agents and employees as additional insureds.
Each grantee shall maintain, during the life of the license or franchise, a protective liability policy provided by an admitted surety in good standing with the state of California. Each insurer shall have a current AM Best’s rating of no less than A:VII.
The policy shall provide for not less than the following amounts:
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
a. Insurance services office commercial general liability coverage (occurrence form CG 001).
b. Insurance services office form number CA 001 (Ed. 1/87) covering automobile liability, code 1 (any auto).
c. Workers’ compensation insurance as required by the state of California and employer’s liability insurance.
d. As applicable, a course of construction insurance form providing coverage for “all risks” of loss.
2. Minimum Limits of Insurance. Contractor shall maintain limits no less than:
a. General Liability. One million dollars ($1,000,000.00) per occurrence for bodily injury, personal injury, and property damage. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
b. Automobile Liability. One million dollars ($1,000,000.00) per accident for bodily injury and property damage.
c. Employer’s Liability. One million dollars ($1,000,000.00) per accident for bodily injury or disease.
d. As applicable, Course of Construction. Completed value of the project.
3. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the city. At the option of the city, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the city, its officers, officials, employees, and volunteers; or the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
4. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
a. The city, its officers, officials, employees, agents, and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the grantee, products and completed operations of the grantee, premises owned, occupied, or used by the grantee; or automobiles owned, leased, hired, or borrowed by the grantee. The coverage shall contain no special limitations on the scope of protection afforded to the city, its officers, officials, employees, agents, or volunteers.
b. For any claims related to this project, the grantee’s insurance coverage shall be primary insurance as respects the city, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the city, its officers, officials, employees agents, or volunteers shall be excess of the grantee’s insurance and shall not contribute with it.
c. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the city, its officers, officials, employees, agents, or volunteers.
d. The grantee’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to the city.
5. Course of construction policies shall contain the following provisions:
a. City shall be named as loss co-payee;
b. The insurer shall waive all rights of subrogation against city.
6. Acceptability of Insurers. Insurance is to be placed with insurers with a current AM Best’s rating of no less than A:VII.
7. Verification of Coverage. Grantee shall furnish the city with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the city. All endorsements are to be received and approved by the city before work commences. Endorsements shall also be accompanied by a signed original letter from the insurer’s corporate office which verifies the authority of the authorized person to bind the company to the coverage and sign the endorsements. As an alternative to the city’s forms, the grantee’s insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications.
8. Grantee’s Contractor’s Policies. During construction grantee may substitute policies provided by its contractor provided all other requirements stated above are met.
R. Performance and Construction Surety. Before a license or franchise granted pursuant to this title is effective, and as necessary thereafter, the grantee shall provide and deposit such moneys, bonds, letters of credit or other instructions in form and substance acceptable to the city as may be required by this chapter or by an applicable license or franchise agreement.
S. Security Fund. Unless otherwise provided in a license or franchise agreement, each grantee shall establish a permanent security fund with the city by depositing the amount of fifty thousand dollars ($50,000.00) with the city in case, an unconditional letter of credit, or other instrument acceptable to the city, which fund shall be maintained at the sole expense of grantee so long as any of grantee’s telecommunications facilities are located within the public ways of the city.
1. The fund shall serve as security for the full and complete performance of this chapter, including any costs, expense, damages or loss the city pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rule, regulations or permits of the city.
2. Before any sums are withdrawn from the security fund, the city shall give written notice to the grantee:
a. Describing the act, default, or failure to be remedied, or the damages, cost or expenses which the city has incurred by reason of grantee’s act or default;
b. Providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure, if applicable;
c. Providing a reasonable opportunity for grantee to pay any moneys due the city before the city withdraws the amount thereof from the security fund, if applicable;
d. That the grantee will be given an opportunity to review the act, default or failure described in the notice with the City Manager or his or her designee.
3. Each grantee shall replenish the security fund within fourteen (14) days after written notice from the city that there is a deficiency in the amount of the fund.
T. Construction and Completion Bond. Unless otherwise provided in a license or franchise agreement, a performance bond written by a corporate surety admitted in the state of California equal to at least one hundred (100) percent of the estimated cost of constructing grantee’s telecommunications facilities within the public ways shall be deposited before construction is commenced.
1. The construction bond shall remain in force until six months after substantial completion of the work, as determined by the Public Works Director, including restoration of public ways and other property affected by the construction.
2. The construction bond shall guarantee, to the satisfaction of the city:
a. Timely completion of construction;
b. Construction in compliance with applicable plans, permits, technical codes and standards;
c. Proper location of the facilities as specified by the city;
d. Restoration of the public ways and other property affected by the construction;
e. The submission of “drawings of record” after completion of the work as required by this title;
f. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.
U. Coordination of Construction Activities. All grantee’s are required to cooperate with the city and with each other.
1. By February 1st of each year, each grantee, as applicable, shall provide the city with a schedule of their proposed construction activities in, around or that may affect the public ways.
2. Each grantee, as applicable, shall meet with the city, other grantee’s and users of the public ways annually or as determined by the city to schedule and coordinate construction in the public ways.
3. All construction locations, activities and scheduled work shall be coordinated, as ordered by the Public Works Director, to minimize public inconvenience, disruption or damages.
V. Indemnity. Notwithstanding the foregoing insurance requirements, each grantee shall indemnify and save harmless the city of Laguna Hills, from all claims or suits for damages arising from grantee’s construction, maintenance or operation, except where damages are due to city’s sole negligence.
W. Assignments or Transfers of Grant. Ownership or control of fifty-one (51) percent of a telecommunication 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 be based on the successor’s financial ability to perform, and shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed.
1. Grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the city not less than one hundred fifty (150) days prior to the proposed date of transfer:
a. Complete information setting forth the nature, terms and condition of the proposed transfer or assignment;
b. All information required of a telecommunications license or franchise applicant pursuant to this chapter with respect to the proposed transferee or assignee;
c. Any other information reasonably required by the city.
2. 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 chapter.
3. 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.
4. Any transfer or assignment of a telecommunications grant without prior approval of the city under this section or pursuant to a license or franchise agreement shall be void and is cause for revocation of the grant.
X. Revocation or Termination of Grant. A license or franchise granted by the city to use or occupy public ways may be revoked for the following reasons:
1. Construction or operation in the city or in the public ways without an 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. Misrepresentation or failure to disclose material information by or on behalf of a grantee in any application to the city;
6. Abandonment of telecommunications facilities in the public ways;
7. Failure to relocate or remove facilities as required in this chapter;
8. Failure to pay, compensation, fees or costs when and as due the city;
9. Insolvency or bankruptcy of the grantee;
10. Violation of provisions of this chapter;
11. Violation of any material terms of a license or franchise agreement.
Y. Notice and Duty to Cure. In the event that the City Manager believes that grounds exist for revocation of a license or franchise, the Manager shall give 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 thirty (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.
Z. Hearing. In the event that a grantee fails to provide evidence reasonably satisfactory to the City Manager as provided herein, the Manager shall refer the apparent violation or non-compliance to the City Council. The City Council shall direct the City Clerk to provide the grantee with notice of a hearing on the matter, at which time the grantee shall be entitled to be heard.
A.A. Standards for Revocation or Lesser Sanctions. If persuaded that the grantee has violated or failed to comply with material provisions of this chapter, or material terms 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.
(Prior code § 6-08.070)