City of Firebaugh, CA
Fresno County
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Table of Contents
Table of Contents
[Ord. #318]
The City Engineer has established standard plans, specifications and drawings for the construction of curbs, gutters, sidewalks and other off-site improvement, and other forms of construction.
All builders, developers, contractors, are required to comply with the Standard Plans and Specifications, and various procedures and costs as per outlined within the Standard Plans and Specifications should be followed.
[Ord. #318. S1]
The standard plans and specifications heretofore prepared by the City Engineer, a copy of which is on file with the City Clerk, are adopted as the official standard plans and specifications for the City.
[Ord. #318, S2]
All contractors, developers, and builders shall comply with the requirements of the standard plans and specifications. Whenever any builder, developer or contractor proposes a modification or variance from the standard plans and specifications which, in the expert opinion of the City Engineer, will not detract from the purposes of the standard plans and specifications, the engineer may authorize such variation, or deviation from said plans and specifications. No such variation or deviation may be permitted unless specifically authorized by the engineer in writing. Where it is shown to the City Council by a clear and convincing preponderance of the evidence that special circumstances exist which make the application of the requirements and procedures in the standard plans and specifications to a particular piece of property impractical, unjust, or unnecessary, the City Council may, by a roll call vote on a motion recorded in the minutes, authorize a deviation from the standard plans and specifications.
[Ord. #318, S3]
Whenever any subdivider, developer, builder, contractor, or engineer submits a proposal to the City Engineer or to the planning commission or council which deviates substantially from the standard plans and specifications, the fact of the deviation shall be set forth specifically in the documents submitted, or by letter accompanying the document. The approval of any tentative or final subdivision map, or plans or specifications submitted therewith, or plans, specifications or other documents submitted to the City, which deviates from the standard plans and specifications shall not authorize a deviation detracting from the standard plans and specifications, unless such deviation is specifically authorized in writing.
[Ord. #318, S4]
Whenever the City Engineer determines, in his expert judgment, that a minor change in the standard plans and specifications ought to be made, he is authorized hereby to make such change, reporting the same to the City Council. Whenever any change of material importance is to be made in the standard plans and specifications, the change shall become effective upon its authorization by the City Council by resolution.
[1]
Editor's Note: Prior ordinance history includes portions of Ordinance Nos. 358, 85-4, 98-5 and 00-12.
[Ord. #04-01, S2]
As used in this section:
a. 
BULK REFUSE – shall mean construction rubbish too large to be reasonably placed in a solid waste container (including but not limited to lumber, pipes, masonry, concrete and cement), tree stumps, abandoned vehicles or parts thereof, and like items.
b. 
COLLECTOR – shall mean the officer or employees of the City, or in the event the City has contracted as hereinafter provided to have the garbage, green waste, recyclable material and/or rubbish collection and disposal handled through contract, an agent or employee, or the agents or employees, of the person or agency or organization with whom the City shall have contracted, who collect, transport through the streets, alleys or public ways of the City and dispose of refuse, garbage, green waste, recyclable materials and/or rubbish produced within the City.
c. 
COMMERCIAL CONTAINER – shall mean a container provided by a commercial, office, industrial or government customer, or by the collector to such customer, usually three cubic yards, more or less, in capacity, designed for the deposit of solid waste, placed by the customer or collector at commercial, office, industrial or government premises for the collection of commercial or industrial solid waste and charged at commercial rates. Commercial containers do not include construction rubbish containers placed at residential premises. All commercial containers shall have operating lids that shall be maintained by the customer or the collector, whoever is the provider, in good working order to provide an effective seal at the top of the container, as required by paragraph a of subsection 13-2.7.
d. 
COMMERCIAL, OFFICE INDUSTRIAL OR GOVERNMENT PREMISES – shall mean all premises in the City, other than residential premises, where commercial or industrial solid waste is generated or accumulated.
e. 
COMMERCIAL OR INDUSTRIAL SOLID WASTE – shall mean all types of solid waste generated or accumulated at commercial, office, industrial or government premises and placed in commercial containers for accumulation and collection. Commercial or industrial solid waste does not include residential solid waste or recyclable material.
f. 
CONSTRUCTION RUBBISH – shall mean brick, stone, mortar, drywall, concrete, asphalt, asphaltic/concrete paving materials, demolished or discarded building materials, rubble or other combustible or noncombustible debris incident to construction, repair, rehabilitation or demolition of buildings, public highways, streets, bridges, parking lots, roadways, alleys, water lines, sewer lines, natural gas lines, electrical power lines, other utility facilities or other public infrastructure.
g. 
CONTAINER – shall mean residential, commercial, industrial and government bins and cans approved by resolution of the council for the accumulation and collection of refuse, garbage, rubbish, recyclable materials, green waste or other solid waste within the City. All containers shall have operating lids that shall be maintained in good working order to provide an effective seal at the top of the container, as required under paragraph a of subsection 13-2.7.
h. 
DUMP GROUNDS, CITY DUMP, AND DUMP – shall mean any property the City shall designate at any time to be used for the disposal of any or all refuse, garbage, rubbish or other waste material that may accumulate within the City, and may include any property under the control of a person, agency or organization other than the City or under the joint control of the City and some other person, agency or organization.
i. 
DANGEROUS MATERIALS – shall mean any materials, either combustible or noncombustible, which are poisonous, including insecticides, herbicides, fungicides, or any substance with any active agent that is injurious to plant, animal or human life.
j. 
GARBAGE – shall mean organic refuse of animal, fish, fruit or vegetable origin, including but not limited to household, commercial and industrial food waste, or such organic refuse which may attract or propagate flies, vermin or vectors, or create offensive odors.
k. 
GREEN WASTE – shall mean leaves, grass, clippings, weeds, tree trimmings, untreated wood waste, shrubbery cuttings, dead plants and similar organic material which may be effectively composted. Green waste does not include plant material that is classified as food material.
l. 
HAZARDOUS WASTE – shall mean any waste materials or mixture of wastes defined as a "hazardous substance" or "hazardous waste" under the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 3251 et seq.), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. § 6901 et seq.) and all future amendments to either; defined as "hazardous waste" under California Public Resources Code § 40141; or defined as hazardous waste by agencies of the State, including but not limited to the California Integrated Waste Management Board and the Department of Health Services. Where there is a conflict in the definitions employed by two or more agencies having jurisdiction over hazardous or solid waste, the term hazardous waste shall be construed to have the broader, more encompassing definition.
m. 
RECYCLABLE MATERIAL – shall mean solid waste material such as newspapers, printed matter, paper products, aluminum cans, other cans, glass, beverage containers, bottles, plastic containers and material (polyethylene teraphthelate and high density polyethylene plastic), pasteboard, corrugated cardboard and other items that through a process of collecting, sorting, cleansing, treating and reconstituting is returned to the economic mainstream in the form of raw material for new, reused, remanufactured, reprocessed or reconstituted products which meet the quality standards necessary to be used in the market place and consistent with the requirements of the California Integrated Waste Management Act.
n. 
RECYCLING SERVICE – shall mean the program by which the City, itself or by agreement with designated collector, collects recyclable materials from residential, commercial, office, industrial and government customers of the refuse, garbage and rubbish collection services subject to this section. Under the recycling service, recyclable materials shall be placed in special containers, blue in color and approved by resolution of the council, and such containers shall be placed at curbside for collection by the City's authorized collector. The collection of recyclable materials shall be by a schedule that may be separate and different from the schedule for collection of refuse, garbage, green waste and rubbish. The recycling service program shall comply with the requirements of the California Integrated Waste Management Board, shall be approved by resolution of the council, and shall be set forth in the City's contract with the designated recycling collector, if any.
o. 
RUBBISH – shall mean combustible materials, including, but not limited to, boxes, barrels, wood, tree branches, yard trimmings, wood furniture and bedding, and noncombustible materials including, but not limited to, metals, tin cans, metal furniture, dirt, glass, crockery and minerals, and shall include construction rubbish; provided that rubbish shall not include green waste, recyclable materials or bulk refuse as hereinabove defined.
p. 
SOLID WASTE – shall mean garbage, green waste, recyclable material, rubbish, bulk refuse and all other "solid waste" as defined under California Public Resources Code § 40191, as amended from time to time.
[Ord. #04-01, S2]
The City, in order to more effectively promote and protect public health and safety, reduce the dangers and hazards of fires and conflagrations, control vermin and vectors, limit sources of noise, and promote economies and efficiencies in delivery of municipal services in the City, reserves to itself the sole and exclusive right to collect, transport and dispose of all garbage, green waste, recyclable materials, rubbish produced, found and accumulated within the City, or to designate one or more persons to collect all or part of such matter.
[Ord. #04-01, S2]
The City may by resolution award and give the right to haul and transport all garbage, green waste, recyclable materials, rubbish and/or other solid waste produced or accumulated in the City over and upon the public streets and alleys in the City, to such person or persons as in the judgment of the council seems best and upon such terms as the council may determine, including the payment of any franchise fee for the privilege.
[Ord. #04-01, S2]
It shall be mandatory for every occupied property within the City to receive garbage, green waste, recycling and rubbish collection service from the City or its designated collector.
[Ord. #04-01, S2]
No person shall haul or transport over and upon the public streets and alleys in the City any garbage, green waste, recyclable materials, rubbish or other solid waste (other than garbage, waste material, green waste, recyclable material, rubbish or other solid waste from the property owned or occupied by such person), without first having been awarded and given the right by the City to engage in the business of removing and disposing of garbage, green waste, recyclable materials, rubbish and/or other solid waste within the City, and having obtained all permits required by the City, state or federal governments.
[Ord. #04-01, S2]
Each person or firm that provides recycling service or otherwise collects or removes recyclable materials within the City shall file an annual report with the director of public works, during the month of February of each year, listing the types and total weights of all recyclable materials collected during the previous calendar year.
[Ord. #04-01, S2]
a. 
General. The occupant, tenant or lessee of any house, dwelling, flat, apartment building, mobile home, motel, hotel, restaurant, or any other place of business or residence within the City where solid waste is produced or accumulated shall obtain and keep, in the manner as hereinafter provided, one or more separate watertight metallic or rubber or plastic containers for receiving and holding all the solid waste, including separate garbage and rubbish, green waste and recyclable material containers, which accumulates on the premises between the times of successive collections. Containers for recyclable materials shall be blue in color. Containers for green waste shall be green in color. Containers for garbage, rubbish and all other solid waste shall be brown or black in color. Such containers shall have suitable handles, shall be maintained in well-kept, clean and sanitary condition, and shall be equipped with a tight-fitting cover which shall be kept in place and completely closed to prevent spillage of contents and attraction or propagation of vermin or vectors. Containers used by a residential, commercial, office, industrial or government customer, or by a multiple-family premises, shall be of a type and size approved by the director of public works for that type of customer.
The City, in its sole discretion, may itself provide to the solid waste customer any of the containers required by this subsection 13-2.7. Alternatively, the City, in its sole discretion, may cause its collector to provide any of the containers required by this subsection. If the City does not so elect, each solid waste customer shall be responsible for providing containers complying with this subsection 13-2.7.
b. 
Garbage and Rubbish. All garbage and rubbish accumulated at single-family residences, except as provided in paragraph e of this subsection 13-2.7, shall be placed in a container meeting the requirements of paragraph a. Garbage and rubbish containers for commercial, office, industrial or government establishments, or for multiple-family premises, shall also be in accordance with the above provisions, unless containers of a different type and size have been approved or required by the director of public works.
c. 
Green Waste Collection. Notwithstanding any other provisions of this section, every solid waste collection customer in the City shall participate in the program established by the City for separating green waste from garbage and recyclable material prior to pickup of solid waste. The City's green waste program shall be established by resolution of the council and shall be included as part of any City contract with a designated green waste collector. Each customer shall separate all green waste from garbage and recyclable material prior to pickup of solid waste, shall obtain and use a separate suitable container, meeting the requirements of paragraph a of this subsection and green in color, and, except as provided in paragraph e of this subsection, shall place all green waste only in such container for collection. Such container shall be placed by the customer in a location determined by the City and shall be made available for collection by the City or its collector at the designated green waste collection day and time.
d. 
Collection of Recyclable Material. Notwithstanding any other provisions of this section, every solid waste collection customer in the City shall participate in the program established by the City for separating recyclable material from garbage, rubbish and green waste prior to pickup of solid waste. The City's recycling service program shall be established by resolution of the council and shall be included as part of any City contract with a designated recycling service collector. Each customer shall separate all recyclable material from garbage, rubbish or green waste prior to collection, shall obtain and use a separate suitable container, meeting the requirements of paragraph a of this subsection and blue in color, and shall place all recyclable materials only in such container for collection. Such container shall be placed by the customer in a location determined by the City and shall be made available for collection by the City or its collector at the designated recyclable material collection day and time.
e. 
Exceptions. The following articles of solid waste will be collected from single-family residences even though not in containers; provided, that the same are packaged or tied as indicated below, and such package or bundle does not exceed 70 pounds in weight:
1. 
Magazines and newspapers will be collected only when securely tied in bundles or in boxes.
2. 
Cardboard will be collected only when securely tied in bundles, and boxes made of cardboard shall be flattened prior to being tied.
3. 
All green waste consisting of tree, shrub or bush trimmings which have been cut and tied and bundled, such bundles not to exceed four feet in length or 12 inches in diameter.
[Ord. #04-01, S2]
a. 
All garbage and rubbish, green waste and recyclable material containers for all single-family residential lots, whether or not adjacent to a public alley, shall be placed within the curbline in the front yard of such lot no sooner than noon of the day preceding the scheduled day of collection, and no later than prior to the scheduled time of collection on the scheduled day of collection. The empty containers shall be removed from within the front yard curbline no later than 12 hours following the actual collection. At all other times garbage and rubbish, green waste and recyclable material containers for single-family residential lots shall be stored at a location on the lot no closer than the front yard setback line as required under Chapter 25, Zoning. Any garbage and rubbish, green waste or recyclable material container stored in the front yard area or side yard area of such lot shall be screened from view of the street and adjacent lots.
b. 
All garbage and rubbish, green waste and recyclable material containers for commercial, industrial, office or government establishments and multiple family units shall be stored at a location approved in writing by the director of public works.
c. 
The collector shall not be required to collect any garbage, rubbish, green waste or recyclable material which has not been placed in an approved container and located for collection in accordance with paragraphs a or b of this subsection.
d. 
Until garbage, rubbish, green waste or recyclable material is collected, the owner, occupant or other person in charge of day-to-day operation of each residential, commercial, industrial, office or government premises or establishment shall be responsible for the immediate cleanup of any garbage, rubbish, green waste or recyclable material that is spilled, leaked, emptied, discarded or disposed of into the environment or which otherwise is located outside the appropriate container. This responsibility applies as follows:
1. 
The owner, occupant or other person in charge of the day-to-day operation of the premises or establishment shall undertake cleanup immediately at the time (or as soon thereafter as practicable) when a spill, leak, emptying, discard or disposal has occurred due to any circumstances, whether by human or animal interference with a container, wind or other natural forces, or remaining following collection or removal by the collector.
2. 
Any person removing, collecting or transporting garbage, rubbish, green waste or recyclable material shall clean up immediately at the time (or as soon thereafter as practicable) any spill, leak, emptying, discard or disposal occurs during the removal, collection or transport.
3. 
Any and all costs and expenses incurred by the City or on the City's behalf in investigating and cleaning a spill or release of garbage, rubbish, green waste or recyclable material not timely cleaned up by the owner, occupant, collector, transporter or other responsible person may be assessed against such responsible person. Such costs and expenses shall include without limitation all administrative expenses, legal fees and costs incurred by the City in investigating and cleaning the spill or release.
e. 
No person other than the owner, occupant or other person in charge of the day-to-day operation of the premises or establishment, or employees of the City or its collector, shall interfere in any manner with any container or the contents thereof, or move any container or remove the contents thereof from the location where the container is placed.
[Ord. #04-01, S2; Ord. #08-05, S1; Ord. #12-01, S1]
a. 
The collection rates for collection service shall be established from time to time by the City Council by resolution. The collection rates shall include a surcharge to residential customers for each garbage and rubbish container (other than containers for multiple family premises serving more than one family) placed for collection in excess of 90 gallons or three 30 gallon containers of garbage and rubbish per week.
b. 
The schedule of collection days, collection times and number of collections shall be established from time to time by the City Council by resolution. The City Council may establish different schedules for collection of garbage and rubbish, green waste and recyclable material.
c. 
Beginning on the last business day of May, 2009, if the charges for garbage, rubbish, green waste, and recyclable materials are not paid when due, a penalty of 10% of the amount of the delinquent charge shall be added and collected so long as said charge is paid within 30 days after the due date. Thereafter, a late charge of 1 1/2% per month shall be added to the delinquent charges until paid. Any partial payment of charges will be first credited to pay any accrued penalties and late charges. A customer who is disconnected for nonpayment shall be charged a reconnection charge as established and set forth from time to time by resolution of the City Council. The collection rates established by the City Council for garbage, rubbish, green waste, and recyclables shall be collected by the City on the same utility bill for which water and sewer charges are charged by the City. It is the responsibility of the customer to pay charges for garbage, rubbish, green waste, and recyclables at the same time as payment is made for water and sewer charges and partial payments will not be accepted. The procedure for utility shut-offs as described in subsection 15-1.6 through 15-1.8 of the Firebaugh Municipal Code shall be triggered by nonpayment or partial payment of the rates established by the City Council for garbage, rubbish, green waste, or recyclable material.
[Ord. #04-01, S2]
No person shall bury any garbage, rubbish, green waste, recyclable material or other solid waste within the City; except, that (1) on issuance of a written permit from the director of public works, a person may bury approved construction rubbish or other rubbish for the purpose of grading of any property within the City; and (2) it shall not be unlawful for a person to bury green waste if the green waste either has been ground up for the purpose of composting or is such a type or texture that grinding up or chipping is not necessary in order to compost and/or mulch the green waste back into the soil.
[Ord. #04-01, S2]
No garbage, rubbish, green waste, recyclable material or other solid waste shall be burned within the City limits of the City.
[Ord. #04-01, S2]
Any person with rubbish which falls within the definition of bulk refuse, as defined in paragraph a of subsection 13-2.1, shall make prior arrangements with the collector for the collection of such bulk refuse and shall pay the piece rate for such collection as established by the collector, or shall obtain prior approval of the director of public works for other arrangements for the removal of bulk refuse; except that a person may remove bulk refuse from property owned or occupied by such person without prior approval of the director of public works.
[Ord. #04-01, S2]
Except as may be approved in writing by the director of public works for a commercial, industrial, office or government establishment or a multiple family unit under paragraph b of subsection 13-2.8, no garbage, rubbish, green waste, recyclable material, bulk refuse or other solid waste, whether or not in a receptacle or container, and no other articles of personal property, shall be stored or placed in public alleys of the City.
[Ord. #04-01, S2]
a. 
It shall be unlawful for any person to throw, deposit, store, or cause to be thrown, deposited or stored, any solid waste matter or any other article of personal property in or upon any vacant lot, street, alley, gutter, highway, park or other public place, or to keep any garbage, rubbish, green waste, recyclable material or other solid waste matter, other than in the manner provided in this section.
b. 
It shall be unlawful for any person to uncover or leave a container of garbage, rubbish, green waste or recyclable material uncovered or not completely closed in compliance with paragraph a of subsection 13-2.7.
c. 
It shall be unlawful for any person other than a duly authorized collector of the City to collect, transport, burn, bury or dispose of any garbage, rubbish, green waste or recyclable material which has been placed for collection.
d. 
It shall be unlawful for any person owning or occupying any building, lot, or premises in the City to allow or permit any solid waste of any kind to collect and remain upon any such lot or premises except as expressly authorized by this section. This paragraph d shall not be construed to limit the use of a lot, parcel or other property for construction, repair, rehabilitation or demolition of buildings or structures; provided that, as a condition of issuance of a building or demolition permit, every owner, contractor or builder engaged in such construction, repair, rehabilitation or demolition shall provide and maintain one or more 100-gallon containers and a sufficient number of recyclable material containers at, or near, the building or structure for the disposal of any garbage, construction rubbish or other rubbish, recyclable material or other solid waste produced by the construction, repair, rehabilitation or demolition work or by the employees or workmen engaged in such work. Such containers shall be furnished at the expense of the contractor, builder or owner of the lot, parcel or property.
e. 
It shall be unlawful for any person to place, deposit or keep in any garbage and rubbish, green waste or recyclable material container designated for municipal collection any of the following: dead animals; wearing apparel, bedding, or other refuse from any premises where any highly infectious or contagious disease has prevailed; explosive substances; radioactive materials; drugs; poisons; or any other dangerous materials or hazardous waste. The owner or occupant of any premises or establishment where any such items are located shall immediately notify the county health officer and shall dispose of such items in accordance with his or her direction.
f. 
It shall be unlawful for any person other than a duly authorized collector of the City to pick up, collect, take, appropriate or remove any garbage, rubbish, green waste or recyclable material from any container after it has been placed in the designated location for collection. The owner or other occupant of the premises or establishment owns all garbage, rubbish, green waste and recyclable material until possession thereof is taken by the City's authorized collector, at which time ownership shall pass to the City.
g. 
It shall be unlawful for any person to fail to separate green waste from garbage, rubbish, recyclable material or other solid waste prior to collection, or to place any garbage, rubbish, recyclable material or other solid waste (except green waste) in the designated green waste container at the time of collection. If any person does not wish to participate in the City's green waste recycling program, that person shall provide for the recycling of his, her or its own green waste in compliance with this section, and shall not, in any event, discard into the City's solid waste stream green waste that is not in a separate colored green waste container meeting the requirements of paragraphs a and c of subsection 13-2.7.
h. 
It shall be unlawful for any person to fail to separate recyclable material from garbage, rubbish, green waste or other solid waste prior to collection, or to place any garbage, rubbish, green waste or other solid waste (except recyclable material) in the designated recyclable material container at the time of collection. If any person does not wish to participate in the City's recycling program, that person shall provide for the recycling of his, her or its recyclable material in compliance with this section, and shall not, in any event, discard into the City's solid waste stream recyclable material that is not in a separate colored recyclable container meeting the requirements of paragraphs a and d of subsection 13-2.7.
i. 
It shall be unlawful for any person to deposit garbage, rubbish, green waste, recyclable material, bulk refuse, dangerous materials, hazardous waste or other solid waste of any nature in the container of any other person, or to set out garbage, rubbish, green waste, recyclable material, bulk refuse, dangerous materials, hazardous waste or other solid waste for collection on or at another person's premises, establishment or property. It shall be unlawful for any customer of the City's solid waste collection service to permit or consent to another person depositing garbage, rubbish, green waste, recyclable material, bulk refuse, dangerous materials, hazardous waste or other solid waste of any nature in the customer's container, or to another person setting out garbage, rubbish, green waste, recyclable material, bulk refuse, dangerous materials, hazardous waste or other solid waste for collection at the customer's premises, establishment or property.
[Ord. #04-01, S2]
The director of public works, upon a receipt of a written request, may issue a permit authorizing the owner of property or his, her or its authorized agent to place building materials, construction rubbish and bulk refuse from any work of improvement temporarily on public property, subject to such limitations and conditions as the director of public works shall so describe in the permit issued. In no event shall such permit be valid for a period in excess of 60 days.
[Ord. #04-01, S2]
The director of public works may make such rules and regulations as are not inconsistent with the provisions of this section as may be necessary or desirable to aid in the administration or enforcement of the provisions of this section.
[Ord. #04-01, S2]
a. 
Any person who does any act declared to be unlawful under the provisions of this section or otherwise violates any provision of this section shall be guilty of a misdemeanor. Such person shall be guilty of a separate offense for each and every day or portion of a day during which any violation of any provision of this section is committed, continued or permitted by such person, and shall be punished accordingly.
b. 
As an alternative to criminal enforcement, the City has independent authority to civilly abate, as a public nuisance, any violation of this section pursuant to Code of Civil Procedure § 731 or chapter 16.5 of this code. Upon entry of a second or subsequent civil or criminal judgment against a person within a two-year period, finding that such person is responsible for a public nuisance under this section, the court may order that person to pay treble the costs of abatement pursuant to Government Code § 38773.7.
c. 
Without limitation on paragraphs a or b, any person who violates any provision of this section may be issued an administrative citation and penalty as provided in subsection 1-5.5 of this code.
[Ord. #04-01, S2]
No person shall encroach upon any public right-of-way of the City of Firebaugh unless and until such person first obtains and maintains in force and effect a valid encroachment permit issued by the City pursuant to subsection 13-2.19. For purposes of this section, the term "right-of-way" shall mean streets, sidewalks, alleys, easements or other interest in real property dedicated to the public use.
[Ord. #04-01, S2]
a. 
Upon written application therefor, the City manager, for temporary encroachments, or the City Engineer, for all other encroachments upon City sidewalks, rights-of-way or City property, or the director of public works, in the absence of the City Engineer and manager, may issue an encroachment permit only when the following conditions have been met:
1. 
The record owners of the real property benefited by or using the encroachment area have executed and recorded a covenant acceptable in form to the City attorney, indemnifying the City for all liabilities resulting from the use or occupation of the encroachment area;
2. 
An application for the encroachment permit has been completed on a form designated by the City that describes the purpose for the encroachment and the work to be done therein;
3. 
Applicable fees as established by resolution of the City Council, relating to the issuance of the encroachment permit, or associated costs, have been paid;
4. 
The City manager, director of public works or City Engineer determines that the issuance of the encroachment permit will meet a legitimate purpose of the applicant, and that such purpose cannot be feasibly accomplished by any means other than through the issuance of an encroachment permit; and
5. 
The City manager, director of public works or City Engineer determines that the issuance of an encroachment permit will not be detrimental to the public health, safety or welfare.
b. 
The applicant shall comply with all additional terms, conditions, and/or restrictions incorporated within the permit and/or covenant which the City manager, director of public works or City Engineer may impose.
c. 
The City may revoke an encroachment permit upon determining that the applicant has failed to comply with one or more of the terms, conditions or restrictions incorporated in the permit or covenant and, upon revocation, shall order the removal of any and all structures or improvements from the encroachment area.
d. 
The decision of the City manager, director of public works or City Engineer, as the case may be, with regard to the issuance of the encroachment permit or the imposition of any term, condition, or restriction imposed therein, may be appealed to the council, in writing, within 15 days after notice of that decision to the applicant.
[Ord. #93-2, S1]
Whenever an entity is required, as a condition of development, to bear the cost of acquisition of necessary rights-of-way or easements for street construction or facilities incidental thereto, or if an entity is required to construct standard frontage improvements or facilities incidental thereto beyond the limits of its development, which for purposes of this section shall mean the centerline of the adjacent street and property boundary lines generally perpendicular to the street centerline, then the City shall, as a condition of and prior to the development or subdivision of the property from which the right-of-way acquisition occurred or from the adjacent property on which the frontage improvements were installed, or from property which would have future responsibility for the construction, require the developer of such adjacent property which received benefit by virtue of the improvements having been previously constructed to pay to the City an amount determined by the director of public works, based on the project accounting, as representing the cost of street right-of-way acquisition and any construction. A notice of potential lien to secure such payment shall be recorded in a form substantially as set forth in subsection 13-3.2. Such payment shall be made prior to approval by the City of any development entitlement or building permit for such adjacent property. The City shall then make reimbursement to the entity who bore the initial cost of such right-of-way acquisition or improvements, or both, provided, however, that any right to reimbursement under this section shall expire 20 years after City acceptance of such rights-of-way and improvements.
[Ord. # 93-2, S1]
The notice of potential lien referred to in subsection 13-3.1 shall be in substantially the following form:
RECORDED REQUESTED BY:
CITY OF FIREBAUGH
When Recorded Mail To:
City of Firebaugh
1575 Eleventh Street
Firebaugh, CA 93622
SPACE ABOVE THIS LINE FOR RECORDER
CITY OF FIREBAUGH
DEPARTMENT OF PUBLIC WORKS
NOTICE OF POTENTIAL LIEN
In accordance with section 13-3 of the Firebaugh Municipal Code, as constituted on the date of this notice, the City of Firebaugh shall, prior to development or further development of the following described real property ("subject property") and as a condition of such development, require the developer of the subject property to pay to the City the sum of $ _____, which represents the estimated cost of right-of-way to be acquired for street construction in connection with [here name the development of the entity who bore the initial cost of such right-of-way acquisition or improvements], which sum is proposed to be paid to [here name the entity who bore the initial cost of such right-of-way acquisition or improvements].
In addition to said sum, the City of Firebaugh shall also, prior to development or further development of the subject property, collect all estimated fees, charges, and improvement costs which may have been paid by others, which can be assessed to the developer of the subject property to the extent allowed by the Firebaugh Municipal Code. The actual amounts to be assessed shall be determined by the Director of Public Works, City of Firebaugh, at such time described below.
The potential lien which is the subject of this notice shall not attach until and unless a development entitlement is sought from the City of Firebaugh, including but not limited to a subdivision map, parcel map, rezone, or special permit, and must be paid prior to issuance of a building permit.
The property affected by this notice is commonly known as [give common description], Assessor's Parcel Number(s) _____;
and more particularly described as follows: [here give legal description of the subject property].
ATTEST:
By
City Clerk
CITY OF FIREBAUGH
A Municipal Corporation
By
Director of Public Works
APPROVED AS TO FORM
By
City Attorney
[Added 1-23-2016 by Ord. No. 16-07]
The purpose and intent of this section is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the City's public right-of-way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary 1) for the preservation of the public right-of-way in the City for the maximum benefit and use of the public; 2) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the City consistent with the goals, objectives and policies of the General Plan; and 3) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules and regulations.
As used in this section, the following terms shall have the meanings indicated:
ACCESSORY EQUIPMENT
Any equipment associated with the installation of a wireless telecommunications facility, including but not limited to cabling, generators, fans, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers.
ANTENNA
That part of a wireless telecommunications facility designed to radiate or receive radio frequency signals.
CELLULAR
An analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites.
CODE
The Firebaugh Municipal Code.
COLLOCATION
The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes.
COW
A cell on wheels, which is a wireless telecommunications facility temporarily rolled in or temporarily installed.
DIRECTOR
The director of public works, or his or her designee.
FACILITY(IES)
Wireless telecommunications facilities.
GROUND-MOUNTED
Mounted to a telecommunications tower.
LOCATED WITHIN THE PUBLIC RIGHT-OF-WAY
Includes any facility which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way.
MODIFICATION
A change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, changes in size, shape, color, visual design, or exterior material. "Modification" does not include repair, replacement or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation.
MONOPOLE
A structure composed of a pole or tower used to support antennas or related equipment. A monopole also includes a monopine, monopalm and similar monopoles camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g., water tower).
MOUNTED
Attached or supported.
POLE
A single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code.
PUBLIC RIGHT-OF-WAY
Any public highway, public street or alley, public place in the City of Firebaugh, either owned by the City or dedicated to the public for the purposes of travel. The term includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for travel purposes.
SENSITIVE USES
Any residential use, public or private school, day care, playground, and retirement facility.
TELECOMMUNICATIONS TOWER
A freestanding mast, pole, monopole, guyed tower, lattice tower, freestanding tower or other structure designed and primarily used to support wireless telecommunications facility antennas.
UTILITY POLE
Any pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission.
WIRELESS TELECOMMUNICATIONS FACILITY, FACILITY OR FACILITIES
Any facility that transmits and/or receives electromagnetic waves. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. The term "wireless telecommunications facility" does not apply to the following:
a. 
Emergency medical care provider-owned and operated telecommunications facilities.
b. 
Mobile services providing public information coverage of news events of a temporary nature.
c. 
Any wireless telecommunications facilities exempted from this Code by federal law or state law.
WIRELESS TELECOMMUNICATIONS SERVICES
The provision of services using a wireless telecommunications facility or a wireless telecommunications collocation facility, and shall include, but not limited to, the following services: personal wireless services as defined in the federal Telecommunications Act of 1996 at 47 U.S.C. § 332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or data radio telecommunications.
a. 
This chapter applies to the siting, construction or modification of any and all wireless telecommunications facilities proposed to be located in the public right-of-way as follows:
1. 
All facilities for which applications were not approved prior to January 23, 2017, shall be subject to and comply with all provisions of this division.
2. 
All facilities for which applications were approved by the City prior to January 23, 2017, shall not be required to obtain a new or amended permit until such time as a provision of this code so requires. Any wireless telecommunication facility that was lawfully constructed prior to January 23, 2017, that does not comply with the standards, regulations and/or requirements of this division, shall be deemed a nonconforming use and shall also be subject to the provisions of § 13-4.21.
3. 
All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (§ 13-4.11), cessation of use and abandonment (§ 13-4.13), removal and restoration (§ 13-4.14) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (§ 13-4.12); provided, however, that in the event a condition of approval conflicts with a provision of this division, the condition of approval shall control until the permit is amended or revoked.
b. 
This chapter does not apply to the following:
1. 
Amateur radio facilities;
2. 
Over-the-air reception devices ("OTARD") antennas;
3. 
Facilities owned and operated by the City for its use;
4. 
Any entity legally entitled to an exemption pursuant to state or federal law or governing franchise agreement.
a. 
Wireless telecommunications facilities permit. All new wireless facilities or collocations or modifications to existing wireless facilities shall require an encroachment permit subject to director approval, consistent with § 13-2.19 (Encroachment Permits) as well as the standards in this section.
b. 
Other permits required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required prior permits or other approvals from other City departments, or state or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required prior permits or other approvals from other City departments, state or federal agencies.
c. 
Eligible applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to state or federal law, or who have entered into a franchise agreement with the City permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a wireless telecommunications facility or a wireless telecommunications collocation facility in the public right-of-way.
d. 
Speculative equipment prohibited. The City finds that the practice of pre-approving wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public's best interest. The City shall not approve any equipment or other improvements in connection with a wireless telecommunications facility permit when the applicant does not actually and presently intend to install such equipment or construct such improvements.
a. 
Application.
1. 
Each applicant requesting approval of the installation or modification of a wireless telecommunications facility in the public right-of-way shall fully and completely submit to the City a written application on a form prepared by the director.
2. 
No applicant seeking to install wireless antennas shall seek an encroachment permit for fiber or coaxial cable only. Applicants shall simultaneously request fiber installation or other cable installation when seeking to install antennas in the right-of-way.
b. 
Application contents. The director shall develop an application form and make it available to applicants upon request. The supplemental application form for a new wireless telecommunications facility installation in the public right-of-way shall require the following information, in addition to all other information determined necessary by the director:
1. 
The name, address and telephone number of the applicant, owner and the operator of the proposed facility.
2. 
If the applicant is an agent, the applicant shall provide a duly executed letter of authorization from the owner of the proposed facility. If the owner will not directly provide wireless telecommunications services, the applicant shall provide a duly executed letter of authorization from the person(s) or entity(ies) that will provide those services.
3. 
If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner's property.
4. 
A full written description of the proposed facility and its purpose.
5. 
Detailed plans of the proposed facility and related report documenting the following:
(a) 
Height, diameter and design of the facility, including technical engineering specifications, economic and other pertinent factors governing selection of the proposed design, together with evidence that demonstrates that the proposed facility has been designed to the minimum height and diameter required from a technological standpoint for the proposed site. A layout plan, section and elevation of the structure shall be included.
(b) 
A photograph and model name and number of each piece of equipment included.
(c) 
Power output and operating frequency for the proposed antenna.
(d) 
Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated.
(e) 
Sufficient evidence of the structural integrity of the pole or other supporting structure as required by the City.
6. 
A justification study which includes the rationale for selecting the proposed site; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option.
7. 
Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, pole diameter, antennas, accessory equipment, access or utility easements, landscaped areas, existing utilities, adjacent land uses, and showing compliance with § 13-4.7.
8. 
Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening.
9. 
An accurate visual impact analysis showing the maximum silhouette, color and finish palette and proposed screening for the facility, including scaled photo simulations from at least three different angles.
10. 
Completion of the radio frequency (RF) emissions exposure guidelines checklist contained in Appendix A to the Federal Communications Commission's (FCC) "Local Government Official's Guide to Transmitting Antenna RF Emission Safety" to determine whether the facility will be "categorically excluded," as that term is used by the FCC.
11. 
For a facility that is not categorically excluded under the FCC regulations for RF emissions, the applicant shall submit an RF exposure compliance report prepared and certified by an RF engineer acceptable to the City that certifies that the proposed facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts effective radio power "ERP") for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site.
12. 
A traffic control plan when the proposed installation is on any street in a nonresidential zone. The City shall have the discretion to require a traffic control plan when the applicant seeks to use large equipment (e.g., crane).
13. 
Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN.
14. 
An application fee, and a deposit for a consultant's review as set forth in Subsection e of this section in an amount set by resolution by the City Council and in accordance with California Government Code Section 50030.
15. 
Any other information and/or studies determined necessary by the director may be required.
c. 
Application contents - modification of existing facility. The content of the application form for a modification to an existing facility shall be determined by the director, and shall include but not be limited to the requirements listed in § 13-4.5b unless prohibited by state or federal law.
d. 
Effect of state or federal law change. In the event a subsequent state or federal law prohibits the collection of any information required by § 13-4.5b, the director is authorized to omit, modify or add to that request from the City's application form with the written approval of the City Attorney, which approval shall be a public record.
e. 
Independent expert. The director is authorized to retain on behalf of the City an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following:
1. 
Compliance with applicable radio frequency emission standards;
2. 
Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so;
3. 
The accuracy and completeness of submissions;
4. 
Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis;
5. 
The applicability of analysis techniques and methodologies;
6. 
The validity of conclusions reached or claims made by applicant;
7. 
The viability of alternative sites and alternative designs; and
8. 
Any other specific technical issues identified by the consultant or designated by the City.
9. 
The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the City for the consultants cost.
a. 
Pre-submittal conference. Prior to application submittal, the City strongly encourages all applicants to schedule and attend a pre-submittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and application materials. The pre-submittal conference is intended to identify potential concerns and streamline the formal application review process after submittal. Public Works Department staff will endeavor to provide applicants with an appointment within approximately five business days after receipt of a written request.
b. 
Notice; decisions. All applications shall be reviewed consistent with the standards contained in § 13-4.7.
1. 
Notice of shot clock expiration. The City acknowledges there are federal and state shot clocks which may be applicable to a proposed wireless telecommunications facility. That is, federal and state law provide time periods in which the City must approve or deny a proposed wireless telecommunications facility. As such, the applicant is required to provide the City written notice of the expiration of any shot clock, which the applicant shall ensure is received by the City (e.g., overnight mail) no later than 20 days prior to the expiration.
2. 
Written decision required. All final decisions made pursuant to this section shall be in writing and based on substantial evidence in the written administrative record. The written decision shall include the reasons for the decision.
c. 
Appeals. Any aggrieved person or entity may appeal a decision by the director as provided in accordance with the provisions in Municipal Code § 13-2.19d.
a. 
Design and development standards. All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following:
1. 
General guidelines.
(a) 
The applicant shall employ screening, undergrounding and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually screened as possible, to prevent the facility from dominating the surrounding area and to minimize aesthetic impacts from surrounding properties all in a manner that achieves compatibility with the community.
(b) 
Screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility's visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality.
2. 
Traffic safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety.
3. 
Blending methods. All facilities shall have subdued colors and nonreflective materials that blend with the materials and colors of the surrounding area and structures.
4. 
Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible.
5. 
Poles.
(a) 
Only pole-mounted antennas (as described in the following subsections) shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole.
(b) 
Utility poles. The maximum height of any antenna shall not exceed 48 inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than 24 feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as may be revised or superseded.
(c) 
Light poles. The maximum height of any antenna shall not exceed four feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be no less than 16 1/2 feet above any drivable road surface.
(d) 
Replacement poles. If an applicant proposes to replace a pole in order to accommodate a proposed facility, the pole shall be designed to resemble the appearance and dimensions of existing poles near the proposed location, including size, height, color, materials and style to the maximum extent feasible.
(e) 
Pole-mounted equipment, exclusive of antennas, shall not exceed six cubic feet in dimension.
(f) 
An exception shall be required to place a new pole in the public right-of-way. If an exception is granted for placement of new poles in the right-of-way:
(1) 
Such new poles shall be designed to resemble existing poles in the right- of-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced.
(2) 
Such new poles that are not replacement poles shall be located at least 90 feet from any existing pole to the extent feasible.
(3) 
A new pole justification analysis shall be submitted to demonstrate why existing infrastructure cannot be utilized and demonstrating the new pole is the least intrusive means possible including a demonstration that the new pole is designed to be the minimum functional height and width required to support the proposed facility.
(g) 
All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible. For all wooden poles wherein interior installation is infeasible, conduit and cables attached to the exterior of poles shall be mounted flush thereto and painted to match the pole.
6. 
Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible.
7. 
Wind loads. Each facility shall be properly engineered to withstand wind loads as required by this Code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility.
8. 
Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, incommode the public's use of the right-of-way, or cause safety hazards to pedestrians and motorists, and in compliance with sight visibility triangle requirements in Chapter 25 of the Municipal Code, so as not to obstruct visibility at intersections.
9. 
Public facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility.
10. 
Screening. All ground-mounted facility, pole-mounted equipment, or walls, fences, landscaping or other screening methods shall be installed at least 18 inches from the curb and gutter flow line.
11. 
Accessory equipment. Not including the electric meter, all accessory equipment shall be located underground, except as provided below:
(a) 
When above the ground is the only feasible location for a particular type of accessory equipment and will be ground-mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five feet and a total footprint of 15 square feet, and shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Required electrical meter cabinets shall be screened and/or camouflaged.
(b) 
In locations where homes are only along one side of a street, aboveground accessory equipment shall not be installed directly in front of a residence. Such aboveground accessory equipment shall be installed along the side of the street with no homes.
12. 
Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the City.
13. 
Noise.
(a) 
Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 p.m. and 7:00 a.m.
(b) 
At no time shall equipment noise from any facility exceed an exterior noise level of 55 dBA three feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within 500 feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed 45 dBA.
14. 
Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The director may require the provision of warning signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device.
15. 
Modification. Consistent with current state and federal laws and if permissible under the same, at the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities.
16. 
The installation and construction approved by a wireless telecommunications facility encroachment permit shall begin within one year after its approval or it will expire without further action by the City.
b. 
Conditions of approval. In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any modification of these conditions or additional conditions of approval deemed necessary by the director:
1. 
The permittee shall submit an as-built drawing within 90 days after installation of the facility.
2. 
The permittee shall submit and maintain current at all times basic contact and site information to the City. The permittee shall notify the City of any changes to the information submitted within 30 days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following:
(a) 
Identity, including the name, address and twenty-four-hour local or toll-free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility.
3. 
The permittee shall notify the City in writing at least 90 days prior to any transfer or assignment of the permit. The written notice required in this section must include: 1) the transferee's legal name; 2) the transferee's full contact information, including a primary contact person, mailing address, telephone number and email address; and 3) a statement signed by the transferee that the transferee shall accept all permit terms and conditions. The director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all its conditions of approval, if any. Such materials or documentation may include, but shall not be limited to: federal, state and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as-built drawings; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission. Noncompliance with the permit and all its conditions of approval, if any, or failure to submit the materials required by the director shall be a cause for the City to revoke the applicable permits pursuant to and following the procedure set out in § 13-4.16.
4. 
At all times, all required notices and/or signs shall be posted on the site as required by the Federal Communications Commission, California Public Utilities Commission, any applicable licenses or laws, and as approved by the City.
5. 
The permittee shall pay for and provide a performance bond or other form of security approved by the City Attorney's office, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee's obligations under these conditions of approval and this Code. The security instrument coverage shall include, but not be limited to, removal of the facility. (The amount of the security instrument shall be calculated by the applicant in its submittal documents in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said security instrument.
6. 
If a nearby property owner registers a noise complaint, the City shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have 10 business days to file a written response regarding the complaint which shall include any applicable remedial measures. If the City determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the City may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines soundproofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose conditions on the project to achieve said objective.
7. 
The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the director for the purpose of: a) protecting the public health, safety, and welfare; b) preventing interference with pedestrian and vehicular traffic; and/or c) preventing damage to the public right-of-way or any adjacent property. The City may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the underlying permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the City by the permittee.
8. 
The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by § 13.4-7b5.
9. 
The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property. No structure, improvement or property owned by the City shall be moved to accommodate a wireless telecommunications facility unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the City's structure, improvement or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right-of-way, the permittee shall provide the City with documentation establishing to the City's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement or property within the public right-of-way to be affected by applicant's facilities.
10. 
The permittee shall assume full liability for damage or injury caused to any property or person by the facility.
11. 
The permittee shall repair, at its sole cost and expense, any damage including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to City streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the City Engineer. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the City Engineer shall cause such repair to be completed at permittee's sole cost and expense.
12. 
No facility shall be permitted to be installed in the drip line of any tree in the right-of-way.
13. 
Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of $2,000,000 for each occurrence and $4,000,000 in the aggregate, that fully protects the City from claims and suits for bodily injury and property damage. The insurance must name the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best's Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with 30 days' prior written notice to the City, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the City, and any insurance or self-insurance maintained by the City and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers shall be excess of permittee's insurance and shall not contribute with it. The policies of insurance required by this permit shall include provisions for waiver of subrogation. In accepting the benefits of this permit, permittee hereby waives all rights of subrogation against the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. The insurance must afford coverage for the permittee's and the wireless provider's use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the City's Risk Manager. Before issuance of any building permit for the facility, the permittee shall furnish the City Risk Manager certificates of insurance and endorsements, in the form satisfactory to the City Attorney or the Risk Manager, evidencing the coverage required by the City.
14. 
Permittee shall defend, indemnify, protect and hold harmless City, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the City, and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers to attack, set aside, void or annul, an approval of the City, planning commission or City Council concerning this permit and the project. Such indemnification shall include damages of any type, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys' fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The City shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit City from participating in a defense of any claim, action or proceeding. The City shall have the option of coordinating the defense, including, but not limited to, choosing counsel after consulting with permittee and at permittee's expense.
15. 
Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney's fees, interest and expert witness fees), or damages claimed by third parties against the City for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the wireless telecommunications facility, or to any work done by or use of the public right-of-way by the permittee, owner or operator of the wireless telecommunications facility, or their agents, excepting only liability arising out of the sole negligence or willful misconduct of the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers.
16. 
Should the utility company servicing the facility with electrical service that does not require the use of an aboveground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within 90 days of such service being offered and reasonably restore the area to its prior condition. An extension may be granted if circumstances arise outside of the control of the permittee.
17. 
Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to City, if and when made necessary by i) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by City or any other public agency, ii) any abandonment of any street, sidewalk or other public facility, iii) any change of grade, alignment or width of any street, sidewalk or other public facility, or iv) a determination by the director that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public's use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within 90 days of notification by City unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a modified permit pursuant to the Code including applicable notice and hearing procedures. The permittee shall be entitled, on permittee's election, to either a pro rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Code allow. In the event the facility is not modified, removed, or relocated within said period of time, the City may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances including those of immediate or imminent threat to the public's health and safety, the City may modify, remove, or relocate wireless telecommunications facilities without prior notice to the permittee provided the permittee is notified within a reasonable period thereafter.
18. 
The permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the wireless telecommunications facility permit within 30 days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the City within said thirty-day period.
a. 
In addition to the standards contained in § 13-2.19 (Encroachment Permits), no permit shall be granted for a wireless telecommunications facility unless all of the following findings are made by the director.
b. 
The proposed facility has been designed and located in compliance with all applicable provisions of this chapter.
c. 
If applicable, the applicant has demonstrated its inability to locate on existing infrastructure.
d. 
The applicant has provided sufficient evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise agreement with the City permitting them to use the public right-of-way.
e. 
The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible and supported by factual evidence and a meaningful comparative analysis to show that all alternative locations and designs identified in the application review process were technically infeasible or not available.
No permit or approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the City for any purpose whatsoever. Further, no approval shall be construed as any warranty of title.
A COW shall be permitted for the duration of an emergency declared by the City or at the discretion of the director.
All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards.
a. 
Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within 48 hours:
1. 
After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or
2. 
After the permittee, owner, operator or any designated maintenance agent receives notification from the City.
b. 
Each permittee of a wireless telecommunications facility shall provide the director with the name, address and twenty-four-hour local or toll-free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ("contact information"). Contact information shall be updated within seven days of any change.
c. 
All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of:
1. 
General dirt and grease;
2. 
Chipped, faded, peeling, and cracked paint;
3. 
Rust and corrosion;
4. 
Cracks, dents, and discoloration;
5. 
Missing, discolored or damaged artificial foliage or other camouflage;
6. 
Graffiti, bills, stickers, advertisements, litter and debris;
7. 
Broken and misshapen structural parts; and
8. 
Any damage from any cause.
d. 
All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the director.
e. 
The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation.
f. 
Each facility shall be operated and maintained to comply with all conditions of approval. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the same and the standards set forth in this chapter.
No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location.
a. 
A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for 90 or more consecutive days unless the permittee has obtained prior written approval from the director which shall not be unreasonably denied. If there are two or more users of a single facility, then this provision shall not become effective until all users cease using the facility.
b. 
The operator of a facility shall notify the City in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within 10 days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the director of any discontinuation of operations of 30 days or more.
c. 
Failure to inform the director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for:
1. 
Litigation;
2. 
Revocation or modification of the permit;
3. 
Acting on any bond or other assurance required by this article or conditions of approval of the permit;
4. 
Removal of the facilities by the City in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or
5. 
Any other remedies permitted under this Code.
a. 
Upon abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the City. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the City. The facility shall be removed from the property, at no cost or expense to the City.
b. 
Failure of the permittee, owner or operator to promptly remove its facility and restore the property within 90 days after abandonment of the facility shall be a violation of this Code. Upon a showing of good cause, an extension may be granted by the director where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for:
1. 
Prosecution;
2. 
Acting on any security instrument required by this chapter or conditions of approval of permit;
3. 
Removal of the facilities by the City in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or
4. 
Any other remedies permitted under this Code.
c. 
Summary removal. In the event the director or City Engineer determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-of-way, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, "exigent circumstances"), the director or City Engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five business days of removal and all property removed shall be preserved for the owner's pickup as feasible. If the owner cannot be identified following reasonable effort, or if the owner fails to pick up the property within 60 days, the facility shall be treated as abandoned property.
d. 
Removal of facilities by City. In the event the City removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the City for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the City may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this Code. Unless otherwise provided herein, the City has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the City destroys any such facility not timely removed by the permittee, owner or operator after notice, or removed by the City due to exigent circumstances.
Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this Code. In the event of a conflict between any provision of this division and other sections of this Code, this chapter shall control.
a. 
In the event it is determined by the City Attorney that state or federal law prohibits permitting requirements for certain wireless telecommunications facilities, such requirement shall be deemed severable and all remaining regulations shall remain in full force and effect. Such a determination by the City Attorney shall be in writing with citations to legal authority and shall be a public record. Any conditions of approval set forth in this provision or deemed necessary by the director shall be imposed and administered as reasonable time, place and manner rules.
b. 
All installations permitted pursuant to this chapter shall comply with all federal and state laws including but not limited to the Americans with Disabilities Act.[1]
[1]
Editor's Note: See 42 U.S.C.A. § 12101 et seq.
a. 
Nonconforming wireless telecommunications facilities are those facilities that do not conform to this chapter.
b. 
Nonconforming wireless telecommunications facilities shall, within 10 years from the date such facility becomes nonconforming, be brought into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change, the owner shall comply with all applicable provisions of this Code at such time, to the extent the City can require such compliance under federal and state law.
c. 
An aggrieved person may file an appeal to the City Council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten-year amortization period is not reasonable as applied to a particular property, the City Council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property.