The ordinance codified in this chapter, sometimes referred to as the ordinance, may be known and cited as the telecommunications regulatory ordinance for the City of Atascadero.
(Ord. 379 § 1, 2001)
This chapter shall be construed in accordance with the applicable Federal and State laws governing telecommunications carriers, telecommunications services, telecommunications systems and telecommunications facilities.
(Ord. 379 § 1, 2001)
This chapter shall apply within the geographical limits of the City.
(Ord. 379 § 1, 2001)
If any word, phrase, sentence, part, section subsection or other portion of this chapter, or any application thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason, then such word, phrase, sentence, part, section, subsection or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect.
(Ord. 379 § 1, 2001)
For purposes of this chapter, and where not otherwise inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations and their derivations shall have the meaning given in this section. Where not defined herein, terms shall be as defined in the act (see below). When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and not merely directory.
means the Telecommunications Act of 1996, as amended from time to time.
means each person who falls into one or more of the following categories: (a) each person having, directly or indirectly, a controlling interest in a telecommunications carrier; (b) each person in which a telecommunications carrier has, directly or indirectly, a controlling interest; (c) each officer, director, general partner, limited partner holding an interest of 5% or more, joint venturer, or joint venture partner in a telecommunications system in the City; and (d) each person, directly or indirectly controlling, controlled by or under common control with a telecommunications carrier; provided that affiliated person excludes the City, any limited partner holding an interest of less than 5% in a telecommunications carrier, or any creditor of a telecommunications carrier, solely by virtue of its status as a creditor, and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by or being under common ownership, common management or common control with a telecommunications carrier.
means a person submitting an application or proposal to the City for a license or franchise to provide telecommunications services or operate a telecommunications system under the terms and conditions set forth in this chapter and any required State or Federal regulations.
are synonymous for the purposes of this chapter. An application or proposal means the process by which the applicant submits a request for an initial authorization, not inclusive of a renewal proposal, and indicates a desire to be granted a telecommunications license or franchise (where required) for all, or a part, of the City. An application or proposal includes all written documentation and verbal statements and representations, in whatever form or forum made by an applicant to the City concerning the construction, rendering of services, maintenance or any other matter pertaining to the proposed telecommunications system.
means any assignment, transfer, sale or other transaction of a franchised or licensed telecommunications system, or its corporate or partnership parent, which has the effect of changing the operational, managerial or financial control of the telecommunications system or the telecommunications carrier.
means the City Council of the City.
means any person or group of persons who:
means a facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service as defined in the Cable Act and which is provided to multiple subscribers within the City. However, such terms do not include the following:
A facility that serves only to retransmit the television signals of one or more broadcast stations; or
A facility that serves subscribers without using any public right-of-way; or
A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system (other than for purposes of Section 62 1(c) of the Cable Act, codified at 47 USC 541) to the extent such facility is used in the transmission of video, voice or data programming or services directly to subscribers; or
Any facilities of any electric utility used solely for operating its electric utility.
means the California Environmental Quality Act, Section 21000 et seq., of the Public Resources Code of the State of California.
means the entity hired by the telecommunications carrier under the supervision of the City to inspect construction and to locate utilities.
means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the telecommunications system, the telecommunications carrier. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person or group of persons acting in concert (other than underwriters during the period in which they are offering securities to the public) of 20% or more of any person (which person or group of persons is referred to as controlling person), or being a party to a management contract.
means the City of Atascadero, California.
means any public easement or other compatible use created by dedication or by other means, to the City for public utility purposes or any other purpose whatsoever.
means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities.
means the Federal Communications Commission and/or such other Federal regulatory agency as now or in the future may have jurisdiction to oversee telecommunications carriers.
means very thin and pliable cylinders, or strands of glass or plastic, or any future functional equivalent, used to carry wide bands of multiple frequencies.
means an authorization or subsequent renewal granted by the City in order for a person to construct, operate and/or maintain a telecommunications system which provides telecommunications services in all or part of the City.
means the separate contract by which the City grants a telecommunications carrier the right to operate a telecommunications system within all, or a part, of the City.
means the date of expiration or the end of the term of a franchise agreement.
means a fee or charge that the City requires as payment for the privilege of using the streets, public rights-of-way and easements of the City in order to construct, maintain and operate a telecommunications system or to provide telecommunications services to residents of the City.
means a person that is awarded a franchise by the City to construct or operate a telecommunications system within all or part of the City.
means the City Council.
with respect to a specifically named or referenced piece of telecommunications equipment means another piece of telecommunications equipment that has either:
The same or substantially similar characteristics qualities, operational capabilities, design functions as the original, specifically named or referenced piece of telecommunications equipment; or
Operates in substantially the same form and fashion as the original specifically named or referenced piece of telecommunications equipment; or
Operates in a technologically superior manner to the original, specifically named or referenced piece of telecommunications equipment.
means a person who has been granted a licensee or franchise pursuant to this chapter.
means an authorization to construct a telecommunications system in the City which does not provide telecommunications services to residents of the City.
means an annual fee or charge that the City requires as payment for the privilege of using streets, public rights-of-way and easements to constrict, maintain and operate a telecommunications system which does not provide telecommunications services to residents of the City.
shall mean the cabinet and equipment, including power supply, fans, gas generators, batteries and optical to electrical converters, located in the neighborhoods, which serve homes, businesses and institutions, and which is the point where fiber facilities and coaxial facilities are connected.
means the regulatory ordinance for the City codified in this chapter.
means the highways, streets, alleys, utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.
means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
shall mean an aboveground enclosure which houses active and/or passive equipment relating to the telecommunications system.
means any individual, corporation, estate, trust, partnership, association of two or more persons having a joint common interest or joint stock company.
shall mean an electronic or gas driven device designed to provide electrical power to all or a portion of the telecommunications system.
means any ancillary or aligned component of a telecommunications system consisting of communications lines, cables, equipment or facilities which are used to provide telecommunications service that in any manner uses or occupies the streets, easements, public ways or rights-of-way within the City (as annexed). However, private communications network does not include any part of a State or FCC licensed local exchange telephone company or any part of a Federal, State, county or local government owned telecommunications system.
means the actual, imminent or expected (either voluntary or involuntary) disruption, discontinuance, desertion or removal of a telecommunications carrier's operation and provision of telecommunications service from all or part of the City for a projected period exceeding four months in duration.
means and includes all real property owned, operated or controlled by the City, other than streets, public rights-of-way, sidewalks and easements, and all property held in a proprietary capacity by the City, which are not subject to right-of-way licensing and franchising as provided in this chapter.
means any public street, public way, public place or rights-of-way, now laid out or dedicated, and the space on, above or below it, and all extensions thereof and additions thereto, owned, operated and/or controlled by the City or subject to an easement owned by the City.
shall mean a flush mounted or aboveground housing which encloses one or more conduit openings.
means the California Public Utilities Commission.
means an official act by the franchising authority that removes, repeals or rescinds previously approved authorization for a licensed or franchised telecommunications carrier to operate a telecommunication system within the City.
means the State of California.
means the surface of, and the space above and below a public street (or any path or thoroughfare designated for vehicular and/or pedestrian traffic), or other easement now or hereafter held by the City (including any street, as defined, which is acquired by eminent domain) for the purpose of public travel.
means a person lawfully receiving or using a telecommunications service delivered by a telecommunications carrier over a telecommunications system.
means that portion of the usable space on a utility pole or other telecommunications facilities which has the necessary clearance from other users, as required by the orders and regulations of the California Public Utilities Commission (PUC) to allow its use by a telecommunications carrier.
means an electronic pathway, by way of wire, coaxial, fiber or otherwise between that portion of the telecommunications system located in the public rights-of-way and the subscriber's residential, commercial or industrial structure.
means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
means (a) any owner, by way of fee ownership, lease or management agreement, of any telecommunications system or telecommunications facilities, or (b) the direct or indirect provider of telecommunication services, whether the telecommunication service is offered by the owner of the telecommunications system, an affiliate or a related entity, by way of ownership, lease, control or operation of a telecommunications system. A person shall be deemed a telecommunications carrier, even if it does not directly provide telecommunications services, if it rents or leases a telecommunications system and/or telecommunications facilities to another person which provides telecommunications services.
means equipment, other than customer premises equipment, used by a carrier to provide telecommunications services, and includes software integral to such equipment (including upgrades) which are not located, in whole or in part, in, above or below streets, public rights-of-way or other public property.
shall mean any equipment located, in whole or in part, in, above or below streets, public rights-of-way, or other public property used by the telecommunications carrier in its telecommunications system including without limitation, conduits, cables, cabinets, nodes, structures, headend equipment, receive-only earthstations, down link equipment and antennas, electronics, fiber cable, coaxial cable, drops and switching equipment whether part of a stand-alone system or in conjunction with or as part of a cable system.
means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
means an operating system which is located, in whole or in part, on, in, above or below streets, public rights-of-way or other public property which is designed and utilized, in whole or in part, to provide telecommunications services. A telecommunications system may be built in conjunction with, or be part of, a cable system.
means every person within the scope of Public Utilities Code Section 7901 who has constructed or may construct telegraph or telephone lines.
means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the PUC.
means the United States Code.
means any easement owned by the City or acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.
means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways and used or to be used for the purpose of providing utility or telecommunications services.
(Ord. 379 § 1, 2001)
(a)
The City Manager is designated the officer of the City that is responsible for the continuing administration of the ordinance codified in this chapter and matters related to telecommunications service.
(b)
Unless prohibited by Federal, State or local law, the City Manager may further delegate his or her powers and authority to a duly authorized representative with respect to administering the ordinance codified in this chapter or an applicable franchise or license.
(Ord. 379 § 1, 2001)
(a)
The provisions of Section 1-10.34 of this chapter shall apply to all telecommunications carriers that use public rights-of-way and property and, with respect to all other provisions contained within this chapter, those provisions shall be applicable to a telecommunications carrier unless such telecommunications carrier, and all of its activities, are hereunder exempted from this chapter.
(Ord. 379 § 1, 2001)
(a)
Telecommunications carriers and users who are exempted from complying with the provisions of Sections 1-10.35-39 of this chapter (exempt carriers) are as follows:
(1)
A telecommunications carrier that is exempted from Sections 1-10.35-39 of this chapter as a result of Federal or State law;
(2)
A telecommunications carrier that is exempted from Sections 1-10.35-39 of this chapter as a result of an applicable FCC or PUC ruling; or
(3)
A telecommunications carrier that is exempted from this chapter as a result of an applicable final judicial ruling from which no subsequent appeal can be taken.
(4)
A telecommunications carrier which is also a cable operator and/or owns or controls all or part of a cable system which is utilized in, or is part of, the telecommunications system if, and only if, the telecommunications carrier, directly or through an affiliate, pays a franchise fee to the City on all revenues generated to the telecommunications carrier from its cable service and noncable service activities and operations relating to the cable system, including, but not limited to, lease or rental fees paid to the cable operator or any related entity, by any person for use of the cable system, or a portion thereof, or telecommunications facilities which are common to the cable system and a telecommunications system. If franchise fees are not paid on noncable services pursuant to its cable franchise, a separate franchise pursuant hereto is hereby required.
(b)
It is expressly understood that exempt carriers remain exempted only as long as they meet one or more of the criteria of this particular section and only as to those activities which are specifically exempt from one or more of the provisions of this chapter.
(c)
An exempt carrier is exempt only from Sections 1-10.35-39 of this chapter and only as to those activities which are specifically exempt from one or more of the provisions of the ordinance codified in this chapter. Consequently, such exempt carriers shall abide by, and comply with, any other applicable local, State or Federal laws and regulations, including any applicable Federal or State consumer protection, or customer service laws and regulations.
(d)
A telecommunications carrier shall file a petition for exemption containing all information reasonably required by the City. The burden of persuasion and proof shall be on the requesting telecommunications carrier.
(Ord. 379 § 1, 2001)
(a)
Any telecommunications carrier governed by the ordinance codified in this chapter may file a written petition, at any time, with the City Council seeking relief from one or more provisions of the ordinance codified in this chapter. A telecommunications carrier may specifically request the exemption from, or delay in implementation of one or more provisions of this chapter. Also, the telecommunications carrier may request that a specific provision of the ordinance codified in this chapter apply to such telecommunications carrier for a specified length of time or duration. The burden of persuasion and proof shall be on the requesting telecommunications carrier. The petition shall set forth the relief requested and the basis thereof with such supporting information and material as may be applicable and as requested by the City.
(b)
In order to receive any relief from one or more of the provisions of this chapter, a telecommunications carrier must demonstrate and prove to the City Council reasonable satisfaction that at least one of the following facts exist:
(1)
That compliance with a particular provision and/or requirement would be commercially impracticable; or
(2)
That the telecommunications carrier has its own construction, maintenance, operation or customer service policies, which the City Council deems comparable to, or which exceed, any provision and/or requirement from which the telecommunications carrier seeks relief; or
(3)
That the health, safety and welfare interests of the City otherwise warrant the granting of such relief.
(c)
As an alternative to seeking an exemption or requesting relief, a telecommunications carrier may petition for clarification concerning the precise intent and effect that one or more provisions or sections of this chapter has on the petitioning telecommunications carrier.
(d)
In those instances in which a telecommunications carrier submits a petition for relief or clarification in accordance with this section, the petitioning telecommunications carrier shall pay the actual and reasonable costs to the City for processing such a petition, including costs incurred by outside consultants who are retained by the City to review a petition. At the time such a petition is filed with the City, the City Manager shall estimate the amount of said costs and the petitioning telecommunications carrier shall deposit the amount of said estimate with the petition.
(Ord. 379 § 1, 2001)
A telecommunications carrier shall not be excused from complying with any of the requirements of this chapter, or any subsequently adopted amendments to this chapter, by any failure of the City on any one or more occasions to seek, or insist upon, compliance with such requirements or provisions.
(Ord. 379 § 1, 2001)
(a)
To the extent not inconsistent with applicable law, any telecommunications carrier, its assignees, or transferees shall be subject to, and expected to comply with, all applicable ordinances and/or resolutions now or hereafter adopted and in effect within the City, including this chapter, to the extent that said telecommunications carrier has not received an exemption or relief from said ordinance(s) and/or resolution(s).
(b)
Any telecommunications carrier, its assignee or transferee shall be subject to all Federal and State laws and with all rules and regulations issued by all applicable regulatory agencies now or hereafter in existence.
(c)
To the extent not inconsistent with applicable law, any telecommunications carrier, its assignee or transferee shall be subject to all enactments which constitute lawful exercises of the City's police power.
(d)
With respect to future ordinances and/or resolutions noted in this section, to the extent not inconsistent with applicable law, nothing contained herein prevents a telecommunications carrier from exercising any and all of its administrative and legal rights in order to challenge the constitutionality, applicability and enforceability of said future ordinances and/or resolutions.
(Ord. 379 § 1, 2001)
In any case of an actual inconsistency between any provision or section of this chapter and any provision or section of a Federal or State rule, regulation or law, the Federal or State rule, regulation or law shall supersede the effect of the ordinance codified in this chapter unless such Federal or State rule, regulation or law does not preempt, supersede or make invalid the inconsistency.
(Ord. 379 § 1, 2001)
Where there is a conflict between this chapter and a subsequently granted franchise agreement or license, this chapter shall control and prevail, unless administratively or judicially determined invalid, unenforceable or unconstitutional.
(Ord. 379 § 1, 2001)
Notwithstanding the other provisions of this chapter, a telecommunications carrier shall not be held in violation or material breach, default or noncompliance of this chapter or a franchise agreement, nor suffer any enforcement or penalty relating thereto (including where applicable, termination, cancellation or revocation of a franchise or franchise agreement or license), where such violation, breach, default or noncompliance occurred or was caused by the force of an earthquake, flood, tidal wave, hurricane or similar act of nature, or other event that is beyond a telecommunications carrier's ability to reasonably anticipate and control.
(Ord. 379 § 1, 2001)
(a)
Both the City and each telecommunications carrier shall provide the other with the name and address of the contact designated to receive notices, filings, reports, records, documents and other correspondence. All notices shall be delivered to each party's contact by certified mail, return receipt requested, personal service with a signed receipt of delivery, overnight with receipt verification, or facsimile. All other filings, reports, records, documents and other correspondence may be delivered by any legally permissible means including, but not limited to, facsimile transmission, personal service, overnight mail or package delivery. The delivery of all notices, reports, records and other correspondence shall be deemed to have occurred at the time of receipt unless otherwise designated by State law.
(b)
If the telecommunications carrier is required to maintain a franchise, then the designation of such contact person for notice purposes may be contained within a franchise agreement or license.
(Ord. 379 § 1, 2001)
Except as provided in or as supplemented by any franchise agreement or license, and to the maximum extent permitted by applicable law, a telecommunications carrier shall at all times defend, indemnify, protect, save harmless and exempt the City, the City Council, its officers, agents, servants, attorneys and employees, from any and all penalty, damage or charges arising out of claims, suits, demands, causes of action or award of damages whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which arise out of, or are caused by, the construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal or restoration of a telecommunications system within the City based upon any act or omission of a telecommunications carrier, its agents or employees, contractors, subcontractors, independent contractors or representatives. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees and expert witness fees are included as those costs which shall be recovered by the City.
(Ord. 379 § 1, 2001)
(a)
Except as provided in or as supplemented by any franchise agreement or license, a telecommunications carrier shall secure and maintain public liability, property damage insurance and umbrella coverage in at least the following amounts:
(b)
The public and personal liability, and property damage insurance policy shall specifically include the City, the City Council, its employees and agents as additional insureds.
(c)
The public and personal liability and property damage insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State and which has one of the three highest or best ratings from the Alfred M. Best Company.
(d)
The public liability and property damage insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least 30 days' written notice in advance of the cancellation of the policy.
(e)
Renewal or replacement policies or certificates shall be delivered to the City at least 15 days before the expiration of the insurance which such policies are to renew or be replaced.
(f)
Before a telecommunications system provides telecommunications service to subscribers, the telecommunications carrier shall deliver the policies or certificates representing the insurance to the City as required herein.
(Ord. 379 § 1, 2001)
(a)
Security Fund.
(1)
Prior to the effective date of the any franchise, license, permit or other authorization, the telecommunications carrier shall deposit into a bank account established by the City, which may be commingled with security deposits from other telecommunications carriers, and shall maintain on deposit through the term of any franchise, license, permit or other authorization, a sum specified in any franchise, license, permit or other authorization as security for the faithful performance by telecommunications carrier of all of the provisions of any franchise, license, permit or other authorization, and compliance with the ordinance codified in this chapter and with all orders, permits and directions of the City, or any designated representative of the City having jurisdiction over a telecommunications carrier's acts or defaults under any franchise, license, permit or other authorization of the ordinance codified in this chapter, and as security for the payment to the City of any claims, fees, liens or taxes due the City which arise by reason of the construction, operation or maintenance of the system pursuant to any franchise, license, permit or other authorization, or the ordinance codified in this chapter, and to satisfy any actual or liquidated damages arising out of a breach.
(2)
Except as otherwise provided in any franchise, license, permit or other authorization, if the telecommunications carrier fails, after 20 days' written notice, to pay to the City any fees that are due and unpaid, or fails to repay within such 20 days, any damages, costs or expenses which the City is compelled to pay by reason of any act or default of the telecommunications carrier in connection with its franchise, license, permit or other authorization; or if telecommunications carrier fails to comply with any provision of any franchise, license, permit or other authorization or the ordinance codified in this chapter, and the City determines that such failure was without just cause and, in a manner consistent with the procedures specified in the ordinance codified in this chapter, the City reasonably determines it can be remedied by a withdrawal from the security fund or is nevertheless subject to liquidated damages, then, in any such event, the City may immediately withdraw the amount thereof from the security fund, with interest and any liquidated damages. Upon such withdrawal, the City shall notify the telecommunications carrier of the amount and the date of withdrawal.
(3)
Within 30 days after notice to telecommunications carrier that any amount has been withdrawn by City from the security fund, the telecommunications carrier shall deposit a sum of money sufficient to restore such security fund to the original amount.
(4)
A telecommunications carrier shall be entitled to the return of the security fund, or portion thereof, with interest, that remains on deposit at the expiration or termination of any franchise, license, permit or other authorization, once all amounts due to the City have been paid.
(5)
The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the City may have.
(b)
Faithful Performance Bond. Prior to issuance of any franchise, license, permit or other authorization, the telecommunications carrier shall furnish proof of the posting of a faithful performance bond in favor of the City, with corporate surety approved by the City in the sum specified in any franchise, license, permit or other authorization and conditioned that the telecommunications carrier shall well and truly observe, fulfill and perform each term and condition of any franchise, license, permit or other authorization; provided, however, that such bond shall not be required after certification by the City of the completion of construction. The corporate surety must be authorized to issue such bonds in the State of California, and the bond must be obtained and secured through an authorized agent in the City of Atascadero. During the course of construction, the amount of the bond may from time to time be reduced, as provided in any franchise, license, permit or other authorization. Written evidence of payment of premiums shall be filed with the City.
(Ord. 379 § 1, 2001)
(a)
A telecommunications carrier shall maintain and retain such records and reports reasonably necessary for the City to determine compliance with the obligations imposed on it by this chapter.
(b)
Upon request, a telecommunications carrier shall submit to the City a list of files, reports, records, data or other information that the telecommunications carrier periodically, customarily, and/or regularly files with the FCC or another Federal or State agency. For any other filing that a telecommunications carrier files with another Federal or State agency (and that has a direct impact on the operation of the telecommunications system), then the telecommunications carrier shall notify the City of such filing within five days of said filing. Said notice shall inform the City of the nature and scope of the filing, as well as the recipient (name, address, department, division and phone number) of the filing. For any matter related to the administration and enforcement of a franchise or license, the City may specifically request that it be provided with any, or all listed reports, records, data or other information that were filed with the FCC, the Securities and Exchange Commission or another Federal or State agency.
(c)
A telecommunication carrier shall provide the following information and reports periodically to the City as more specifically described herein:
(1)
A telecommunication carrier shall furnish the City with the names and addresses of every affiliated person, third party or person other than the applicant that has entered into a customer agreement, telecommunications agreement or any other agreement which authorizes, directly or indirectly, any affiliated person, third party or person other than the applicant to utilize, by way of sale, lease or otherwise, telecommunications equipment, telecommunications facility, or all or a portion of the telecommunications system (the telecommunications agreement) within the City upon the issuance of any license or franchise;
(2)
Upon executing any new telecommunications agreement or any other agreement which allows an affiliated person, third party or person other than the applicant to utilize telecommunications equipment, telecommunications facility or all or a portion of the telecommunications system within the City, for the provision of video services, cable television services or telecommunications services, the telecommunication carrier shall promptly furnish the City with a copy of the executed agreement;
(3)
The telecommunications carrier shall include a provision substantially similar in purpose and effect to the provision specified in subparagraph (4) below (the government approval provision) in all future negotiated telecommunications agreements. If the City determines that an affiliated person, a third party or a person other than the applicant has failed to comply with the governmental approval provision requiring prior approval from the City, the City will provide written notice to the telecommunication carrier and to the affected party. If the affected party fails to come into compliance or reach an agreement with the City within 30 days from the date when the telecommunication carrier receives written notice from the City of the dispute, then the telecommunication carrier will notify the third party that it is in breach of its telecommunications agreement and that it will implement reasonable steps consistent with said telecommunications agreement to terminate the agreement or the portion of the agreement which provides for the provision of services which required governmental approval for which said approval was not obtained;
(4)
The government approval provision shall read in substance as follows:
"...shall obtain all government Franchises, Licenses, permits, approvals or consents necessary for it to provide service within the City of Atascadero ("Approvals") pursuant to this Agreement. Failure to obtain such Approvals, or to maintain them as necessary during the term of this Agreement, shall constitute a material breach of this Agreement."
(5)
Any information, agreements or documents received by the City pursuant to this paragraph shall be maintained as confidential to the extent allowed and consistent with applicable law.
(Ord. 379 § 1, 2001)
(a)
A telecommunications carrier shall keep complete and accurate books of accounts and records of the business and operations under, and in connection with, the telecommunications system.
(b)
The City shall have the right to review (either by mail or at the telecommunications carrier's local office) all records needed for the administration and enforcement of this chapter and/or franchise agreement or license on seven days written request. such review shall occur within the telecommunications carrier's regular office hours unless a different time is otherwise mutually agreed upon or administratively or judicially ordered.
(c)
The City shall have the right to hire, at its own expense, an independent certified public accountant or other business or financial expert to review the books and records of a telecommunications carrier. If after a financial audit it is determined that the telecommunications carrier has underpaid amounts owed to the City by an amount exceeding 2% of what was actually paid, then the City may require the telecommunications carrier to reimburse the City for the actual cost of the audit.
(d)
A false entry into the books and/or records of a telecommunications carrier, made by a telecommunications carrier, of a material fact shall constitute a material violation of this chapter.
(e)
A telecommunications carrier shall provide to the City upon its request complete and accurate books and records of the key aspects of the telecommunications system's operation for at least the preceding three years in such a manner that all matters pertaining to the City can be easily produced and/or verified at the request of the City. Also, the telecommunications carrier shall provide upon request any other applicable records and information that may be required by any other Federal or State agency having jurisdiction over one or more classes of telecommunications carrier.
(Ord. 379 § 1, 2001)
(a)
All wires, conduits, cable (coaxial, fiber or functional equivalent) and other property and facilities of a telecommunications carrier shall be so located, constructed, installed and maintained so as not to endanger or unnecessarily interfere with usual and customary use, traffic and travel upon the streets, public right-of-way, easements and public property of the City as well as adjacent private property pursuant to a routing plan to be approved by the City Manager or designee.
(b)
In the event a telecommunications carrier's system creates a hazardous or unsafe condition or an unreasonable interference with property, such telecommunications carrier shall voluntarily, or upon the request of the City, remove or modify that part of the telecommunications system to eliminate such condition from the subject property.
(c)
A telecommunications carrier shall not place equipment where it will interfere with existing and future City uses of the streets, public right-of-way or public property, with the rights of private property owners, with gas, electric or telephone fixtures, with water hydrants or mains, with wastewater stations, with any traffic control system, or any other service or facility that benefits the City's or its residents' health, safety or welfare.
(d)
A telecommunications carrier, at its own expense, shall protect streets and public rights-of-way, easements and support or temporarily disconnect or relocate at its sole cost in the same street or other street or public right-of-way, any property of such telecommunications carrier when necessitated by reason of:
(1)
Traffic conditions;
(2)
Public safety;
(3)
Temporary or permanent street closing;
(4)
Street construction or resurfacing;
(5)
A change or establishment of street grade;
(6)
Installation of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines, and any traffic control system; or
(7)
Any improvement, Construction or repair or any improvement related to the City's or its residents' health, safety or welfare.
(e)
It shall be the responsibility of a telecommunications carrier to locate and mark or otherwise visibly indicate and alert others to the location of its underground cable before employees, agents, or independent contractors of any entity perform work in the marked-off area. The telecommunications carrier shall participate in and adhere to the practices of underground services alert (USA) and provide at least 48 hours prior notice to USA prior to any excavation.
(Ord. 379 § 1, 2001)
(a)
Whenever the following occurs:
(1)
A telecommunications carrier ceases to operate all, or part of the telecommunications system for a continuous period of six months;
(2)
A telecommunications carrier ceases and fails to complete construction of the telecommunications system outlined in the franchise agreement or license;
(3)
The City elects not to renew any franchise or license pursuant to the provisions set forth in the ordinance codified in this chapter; or
(4)
The telecommunications carrier's franchise or license is revoked pursuant to the provisions set forth in the ordinance codified in this chapter.
Unless the City or another telecommunications carrier uses such telecommunications system in accordance with any temporary continuity of service provisions, the affected telecommunications carrier shall at its expense promptly remove its telecommunications system from the streets, public rights-of-way, and public property located within the City. |
(b)
If not removed voluntarily by a telecommunications carrier, then the City may notify such telecommunications carrier that should removal of the property not be accomplished within 270 days, or substantial progress towards removal not be made within 210 days, the City may direct its officials or representatives to remove such telecommunications system property at that telecommunications carrier's expense, the faithful performance bond, letter of credit or security fund required as set forth in this chapter shall be available to pay for such work.
(c)
If officials or representatives of the City remove a telecommunications system, and such telecommunications carrier does not claim the property within 120 days of its removal, then the City may take whatever steps are available under State law to declare the property surplus, and sell it, with the proceeds of such sale (if permitted by State law) going to the City.
(d)
When such telecommunications carrier removes its telecommunications system from the streets, public rights-of-way and public property located within the City, the telecommunications carrier shall at its own expense, and in a manner approved by the City, replace and restore such public property to a condition comparable to that which existed before the work causing the disturbance was done.
(e)
Removal of deactivated equipment. telecommunications carriers shall maintain the deactivated telecommunications facilities at no cost to the City until removed by the telecommunications carrier. The telecommunications carrier shall provide a written list to the City of all deactivated telecommunications facilities located within the City at quarterly intervals. The telecommunications carrier shall remove or disable nonuseful telecommunications facilities in accordance with its normal practice. However, above-ground level telecommunications facilities which are no longer used or useful shall be removed within the period specified by the City and may not be left in the public right-of-way without the permission of the City. The telecommunications carrier shall provide the City a list of the specific telecommunications facilities to be removed and their locations. The telecommunications carrier shall remove all these telecommunications facilities within 90 days after an underground system is activated.
(Ord. 379 § 1, 2001)
(a)
Methods of construction, installation, maintenance and repair of any telecommunications system shall comply with the most current editions of the zoning codes, building codes, construction codes, plumbing codes, National Electrical Safety Code, the National Electric Code and any applicable Federal or State codes, regulations or requirements.
(b)
All construction, installation, maintenance and repair shall treat the aesthetics of the property as a priority, shall not substantially affect the appearance or the integrity of the structure, and shall not be installed on the bias across the property or side of a residence or other structure without the property owner's permission.
(c)
All underground drops shall follow (to the greatest extent possible) property lines, and cross property only at right angles unless otherwise permitted by the property owner, or required due to the physical characteristics of the subsurface, or required under applicable law. The City may, either by way of a generally applicable resolution or through the imposition of routing conditions in any franchise agreement or license or permit, determine the routing or placement of cable, conduit, nodes, pedestals, power supplies, vaults and other equipment relating to the telecommunications system.
(d)
Construction Hours. All construction shall be accomplished between the hours specified by the City in the approved permit or ordinances or as otherwise agreed to by the parties. Construction shall not interfere with the services of the City or third parties.
(e)
Telecommunications carrier shall install its system, and all portions thereof, completely below ground in those areas where existing utilities are underground. In areas of overhead utilities, or areas where utilities are located both above-ground and below-ground, telecommunications carrier shall place all aboveground active and passive equipment in low profile waterproof pedestals whose design, size, appearance and placement have been prior approved by the City Engineer in writing. Above-ground installations shall only be allowed in situations where the applicant has demonstrated to the reasonable satisfaction of the City Engineer that no below-ground placement is physically or economically possible.
(f)
Telecommunications carrier shall provide the City a central 24 hours a day, seven days a week, telephone contact number to receive complaints from City or its residents regarding right-of-way installations. The telecommunications carrier shall maintain such telephone contact number so long as the telecommunications carrier maintains any telecommunication equipment, telecommunication facilities or telecommunications system, or portion thereof, in, above or under streets, public rights-of-way and easements.
(Ord. 379 § 1, 2001)
(a)
A telecommunications carrier shall obtain, at its own expense, all permits and licenses required by local law, rule, regulation or ordinance, and maintain the same, in full force and effect, for as long as required by the City.
(b)
As a condition of obtaining all necessary permits and licenses, the telecommunications carrier shall pay all applicable permit fees (permit fees) and, in addition, all of the City's direct labor and supervisory costs, including customary and reasonable overhead (the labor and materials payment). The City Council may, from time to time by ordinance, establish the amount of said permit fees. To the extent not inconsistent with applicable law, the permit fees shall be sufficient to reimburse the City for its costs, including the costs of staff, independent consultants, and related overhead, to review the proposed project, processing permits, plan check, inspecting the project including the costs of an outside inspector and, where applicable, the costs of an outside soils engineer or compaction testing expert, and the costs of any required testing to ensure that the construction adheres to standards of this chapter, any franchise agreement, any license, any permit and any other requirement of the City. The labor and materials payment shall be sufficient to reimburse the City for its costs, including the costs of staff, independent consultants and related overhead, direct labor and supervisory costs, including customary and reasonable overhead, to monitor and manage the time, place and manner of the telecommunications carrier's entry, occupation and abandonment of the public right-of-way and shall be paid for the entire time that the telecommunications carrier occupies the public right-of-way. The labor and materials payments shall be paid over the time that the telecommunications carrier occupies the public right-of-way, and the City shall specify the amounts and times of said payments in any encroachment or other permit or license issued to the telecommunications carrier.
(c)
Both the telecommunications carrier and the City may hire contractors, at the telecommunications carrier's sole expense, to carry out any work under this agreement. The telecommunications carrier shall make payment within 10 days of billing from the City. The telecommunications carrier shall be responsible for any damage caused by the construction including, but not limited to, damage to the public right-of-way, private property, streets, existing utilities, curbs, gutters and sidewalks. The telecommunications carrier shall pay the City any costs incurred as a result of such damages including repairs made by the City except for costs incurred as a result of the City's negligence or its employees' and agents' negligence. The telecommunications carrier shall complete restoration of or repairs to any damage caused by the construction within 10 days from the date of written notice from the City.
(d)
In lieu of the inspection portion of the labor payment or permit fees described in Subsection (b) above, at the City's sole option, the City may require the telecommunications carrier at the telecommunications carrier's sole expense, to hire a consultant, who is acceptable to and under the supervision of the City, (consultant), to inspect the installation of the telecommunications facilities on behalf of the City, or provide other services as mutually agreed to by the parties.
(Ord. 379 § 1, 2001)
In order to verify that a telecommunications carrier has constructed and maintained the telecommunications system in the manner required by the ordinance codified in this chapter, and conducted the various performance, technical integrity, preventive maintenance and safety tests required by Federal State and local laws, the City reserves the right to inspect, at the expense of the telecommunications carrier, all facets of a telecommunications carrier's construction, as well as to inspect documents related to construction, and inspect test results related to performance, technical integrity, preventive maintenance and safety.
(Ord. 379 § 1, 2001)
(a)
Upon the failure, refusal or neglect of the telecommunications carrier to cause any construction, repair, or the terms of any building permit, or other necessary work to comply with the terms of the franchise agreement or license, thereby creating an adverse impact upon public safety, the City may (but shall not be required to) cause such work to be completed in whole or in part, and upon so doing shall submit to the telecommunications carrier an itemized statement of costs. The telecommunications carrier shall be given reasonable advance notice of City's intent to exercise this power, and 15 days to cure the default. The telecommunications carrier shall, within 30 days of billing, pay to the City the actual costs incurred.
(b)
Stop Work Notice. Whenever construction is being performed in a manner contrary to the provisions of this agreement, the City Manager, or an inspection official representing the City, may order the work stopped by notice in writing served on any person engaged in or causing the construction. Any work stopped shall not resume until authorized in writing by the City Manager or designated representative.
(Ord. 379 § 1, 2001)
In the event any street, alley, public highway or portion thereof used by the telecommunications carrier shall be vacated by the City, or the use thereof discontinued by the telecommunications carrier, upon reasonable notice the telecommunications carrier shall forthwith remove its facilities therefrom unless specifically permitted to continue the same. On the removal thereof, the telecommunications carrier shall restore, repair or reconstruct the area where such removal has occurred, to such condition as may be required by the City, but not in excess of the original condition. In the event of any failure, neglect or refusal of the telecommunications carrier, after 30 days' notice by the City, to do such work, the City may cause it to be done, and the telecommunications carrier shall, within 30 days of billing, pay to the City the actual costs incurred.
(Ord. 379 § 1, 2001)
The City may, upon written application by the telecommunications carrier, approve the abandonment of any property in place by the telecommunications carrier under such terms and conditions as City may approve. Upon City approved abandonment of any property in place, the telecommunications carrier shall cause to be executed, acknowledged, and delivered to the City such instruments as the City shall prescribe and approve transferring and conveying the ownership of such property to the City.
(Ord. 379 § 1, 2001)
Cables shall be installed underground at the telecommunications carrier's cost where substantially all existing utilities are already underground or will be undergrounded pursuant to the City's adopted under-grounding policy. Previously installed aerial cable shall be installed underground at the telecommunications carrier's pro rata cost in concert with other utilities when and if those other utilities convert from aerial to underground construction.
(Ord. 379 § 1, 2001)
No franchise or license shall relieve the telecommunications carrier of any obligations involved in obtaining pole or conduit space from any department of the City, any utility company, or from others maintaining utilities in the City's streets.
(Ord. 379 § 1, 2001)
The telecommunications carrier shall not erect any pole on or along any street or public way. If additional poles in an existing aerial route are required, the telecommunications carrier shall negotiate with the public utility for their installation. Any such installation shall require the advance written approval of the City.
(Ord. 379 § 1, 2001)
The telecommunications carrier shall provide the City with a computer disk or other data storage device requested by the City, in a format approved by the City, which details and documents all of the telecommunications carrier's equipment and facilities and their geographic location in the City. Such computer disk or other device shall be updated annually and whenever there have been significant changes in the location of the telecommunications carrier's equipment and telecommunications facilities. In addition, the telecommunications carrier shall maintain in its local office a complete and up-to-date set of as-built system maps and drawings upon completion of construction or reconstruction, equipment specification and maintenance publications, and signal level diagrams for each active piece of electronic equipment in the system. As-built drawings shall show all lines and installed equipment, and tap valves and spigots. The scale of maps and drawings shall be sufficient to show the required details in easily readable form and size. Technical data at the local office shall also include approved pole applications, details and documentation of satellite and microwave equipment, mobile radio units, heavy construction vehicles and equipment, and video and audio equipment normally used in the operation of the system. If the City requires use of technical data in its own offices, it may make copies of any items at the City's expense.
(Ord. 379 § 1, 2001)
All technical data shall be available for the City's inspection during normal business hours and upon reasonable notice. In the event of system failure or other operating emergency, the technical data will be made available at any time, so long as the provision of said data does not unreasonably interfere with the telecommunications carrier's operations.
(Ord. 379 § 1, 2001)
From and after the effective date of the ordinance codified in this chapter, it shall be unlawful for any person to construct, install or maintain in any street, public right-of-way, public place within the unincorporated area of the City, or within any other public property of City, or within any privately-owned area within City's jurisdiction which is not yet, but is designated as, a proposed public place on a tentative subdivision map approved by the City, any equipment, telecommunications facilities, or system for distributing signals or services through a telecommunications system unless a franchise or license, or other agreement acceptable to the City has first been obtained hereunder and is in full force and effect.
(Ord. 379 § 1, 2001)
Except as otherwise provided herein and prior to any determination of exemption, all telecommunications carriers engaged or who propose to engage in the business of transmitting, supplying or furnishing of telecommunications service for a fee to customers in the City or who own, operate or use telecommunication facilities, telecommunications equipment and/or a telecommunications system in streets, public rights-of-way or public property, shall register with the City pursuant to this section.
(a)
Registration Forms. Registration forms to be provided by the City and completed by the telecommunications carrier, shall include the following:
(1)
The identity and legal status of the registrant, including any affiliates;
(2)
The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement;
(3)
A description of registrant's existing or proposed telecommunications facilities within the City;
(4)
A description of the telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City as well as a specific time table or schedule for the provision of each telecommunications service;
(5)
Information sufficient to determine whether the registrant is subject to franchising or licensing under the ordinance codified in this chapter;
(6)
Information sufficient to determine that the applicant has applied for and received any certificate of authority required by the PUC to provide telecommunications services or telecommunications facilities within the City. The telecommunications carrier shall state which of the telecommunications services, if any, offered or to be offered within the City are not covered or authorized by said PUC certificate of authority;
(7)
Information sufficient to determine that the applicant has applied for and received a construction permit, operating license or other approvals required by the FCC to provide telecommunications services or telecommunications facilities within the City;
(8)
The identity and address of any and all persons or entities using any portion of, or all, of the telecommunications carrier's telecommunications facilities within the City;
(9)
Such other information as the City Manager may reasonably require.
(b)
Registration Fee. Each telecommunications carrier registering in accordance with this chapter shall pay the actual and reasonable costs to the City for processing such registration, including costs incurred by outside consultants who are retained by the City to review a registration. The City Manager shall estimate the amount of said costs and the registering telecommunications carrier shall deposit the amount of said estimate with the registration.
(c)
The telecommunications carrier shall annually, on January 1 of each year, provide the City with a written notice which shall disclose to the City any changes to the information provided by the telecommunications carrier in the registration form completed by the telecommunications carrier and delivered to the City.
(d)
Purpose of Registration. The purpose of registration is to:
(1)
Provide the City with accurate and current information concerning the telecommunications carriers who offer or provide telecommunications services within the City, or that own or operate a telecommunications system within the City;
(2)
Assist the City in enforcement of this chapter;
(3)
Assist the City in the collection and enforcement of any municipal fees, franchise fees, license fees or charges that may be due the City;
(4)
Assist the City in monitoring compliance with local, State and Federal laws.
(Ord. 379 § 1, 2001)
Any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities, telecommunications equipment and/or a telecommunications system in, under, over or across any street or public rights-of-way of the City for the purpose of providing telecommunications service to persons or areas outside the City shall first obtain a license granting the use of such street or public right-of-way from the City pursuant to this chapter. Any telecommunications carrier obtaining a franchise is not subject to this provision and shall be governed by its franchise.
(a)
License Application. Any person that desires a license pursuant to this section shall file an application with the City which shall include the following information and shall be accompanied by an application fee, as established by resolution of the City Council:
(1)
The identity of the applicant, including all affiliates of the applicant;
(2)
A description of the telecommunications services that are or will be offered or provided by licensee over its telecommunications system;
(3)
A description of the transmission medium that will be used by the licensee to offer or provide such telecommunications services;
(4)
Preliminary engineering plans, specifications and a network map of the facilities to be located within the City, all in sufficient detail to identify:
(i)
The location and route requested for applicant's proposed telecommunications facilities;
(ii)
The location of all overhead and underground public utility, telecommunication, cable, water, sewage drainage and other facilities in the streets and public rights-of-way along proposed route;
(iii)
The locations, if any, for interconnection with the telecommunications system of other telecommunications carriers;
(iv)
The specific trees, structures, improvements, facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate.
(5)
If the applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications system on existing utility poles along the proposed route and that the affected utility has consented to the installation;
(6)
If the applicant is proposing an underground installation in existing ducts or conduits within the streets and public rights-of-way, information in sufficient detail to identify:
(7)
If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the streets and public rights-of-way:
(8)
A preliminary construction schedule and completion date;
(9)
A preliminary traffic control plan in accordance the Work Area Traffic Control Handbook, latest edition;
(10)
Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the telecommunications facilities;
(11)
Information in sufficient detail to establish that the applicant's technical qualifications, experience and expertise regarding the telecommunications system and telecommunications services described in the application;
(12)
Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services;
(13)
All fees, deposits or charges required pursuant to this chapter;
(14)
Any and all convictions or findings by any governmental authority that the applicant has violated any law or ordinance (including environmental laws or ordinances) or license agreement or franchise agreement;
(15)
Such other and further information as may reasonably be required by the City Manager.
(b)
Application Fee. Any person that desires a license pursuant to this section shall file an application with the City which shall include the following information and which shall be accompanied by an application fee which shall be in an amount which will pay the actual and reasonable costs to the City for processing such application, including costs incurred by outside consultants who are retained by the City to review an application. The City Manager shall estimate the amount of said costs and the applicant shall deposit the amount of said estimate with the application.
(c)
Determination by the City Manager. Within 120 days after receiving a complete application under this section the City Manager shall issue a written determination granting or denying the license application in whole or in part, applying the following standards. If the application is denied, the written determination shall include the reasons for denial. The City Manager shall consider the following:
(1)
The financial and technical ability of the applicant;
(2)
The legal ability of the applicant;
(3)
The capacity of the streets and public rights-of-way to accommodate the applicant's proposed telecommunications facilities;
(4)
The capacity of the streets and public rights-of-way to accommodate additional utility and telecommunications facilities if the license is granted;
(5)
The damage or disruption, if any, of public or private facilities, improvements, services, travel or landscaping if the license is granted;
(6)
The public interest in minimizing the cost and disruption of construction within the streets and public rights-of-way;
(7)
The services that applicant will provide to the community and region;
(8)
The effect, if any, on public health, safety and welfare if the license is granted;
(9)
The availability of alternate routes and/or locations for the proposed telecommunications facilities;
(10)
Applicable Federal and State telecommunications laws, regulations and policies;
(11)
Any and all convictions or findings by any governmental authority that the applicant has violated any law or ordinance (including environmental laws or ordinances) or license agreement or franchise agreement;
(12)
Such other factors as may demonstrate that the grant to use the streets and public rights-of-way will serve the community interest.
(d)
Agreement. No license granted under the provisions of this chapter shall be effective until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the license to occupy and use streets and public rights-of-way of the City will be granted.
(e)
Nonexclusive Grant. No license granted under the provisions of this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the streets and public rights-of-way of the City for delivery of telecommunications services or any other purposes.
(f)
Rights Granted. No license granted under the provisions of this chapter shall convey any right, title or interest in the streets and public rights-of-way, but shall be deemed a license only to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no license shall be construed as any warranty of title.
(g)
Terms of Grant. Unless otherwise specified in a license agreement, a license granted hereunder shall be in effect for a term of 10 years.
(h)
Construction Permits. All licensees are required to obtain encroachment permits for telecommunications facilities as required in the ordinance codified in this chapter, provided, however, that nothing in the ordinance codified in this chapter shall prohibit the City and a licensee from agreeing to alternate plan review, permit and construction procedures in a license agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
(i)
License Fee. Each and every licensee shall be subject to and pay, to the extent not prohibited by applicable Federal or State law, a license fee for the use of the property rights granted to the licensee, i.e., the privilege of using streets, public rights-of-way and easements to construct, maintain and operate a telecommunications system or any portion thereof, as a condition and requirement of each and every license. The license fee shall consist of the following components:
(1)
Minimum Compensation Component. Each and every licensee which constructs, maintains and operates a telecommunications system, or any portion thereof, or provides a telecommunications service, which is not exempt in whole from compensation payment requirements pursuant to Federal or State law, shall pay minimum compensation (the minimum compensation requirement) on an annual basis in an amount to be established in the initial license, franchise, permit or other authorizations. The City Council shall from time to time and by resolution establish the minimum compensation requirement and appropriate inflation factor to be utilized in all licenses, franchises, permits and other authorizations. The minimum compensation requirement shall not exceed the fair market value of the property rights granted to the licensee, i.e., the privilege of using streets, public rights-of-way and easements to construct, maintain and operate a telecommunications system or portion thereof, which are not exempt in their entirety from the imposition of a compensation requirement by applicable Federal or State law;
(2)
Additional Compensation. Either at the time of issuance of any license, franchise, permit or other authorization, or any time thereafter, the City shall determine whether or not the minimum compensation requirement equates to or is less than the fair market value of the property rights granted to the licensee, i.e., the privilege of utilizing streets, public rights-of-way, and easements to construct, maintain and operate a telecommunications system or portion thereof, which are not exempt in their entirety from the imposition of a compensation requirement pursuant to Federal or State law. If the City determines that said nonexempt property rights possess a fair market value in excess of the minimum compensation requirement, the City shall engage in negotiations with the licensee, franchisee or holder of the permit or authorization to provide additional compensation to the City, in cash or in-kind services or facilities, which represents in value the difference between the minimum compensation requirement and the fair market value (the additional compensation) (the minimum compensation requirement and the additional compensation shall collectively be referred to as the total compensation). Under no circumstances shall the total compensation exceed the fair market value of the nonexempt property rights granted to the licensee, franchisee or holder of the permit or authorization. To the extent that the City and the applicant agree upon total compensation as part of the issuance of the license, franchise, permit or other authorization, said agreement shall be binding upon the City for the term of the license, franchise, permit or other authorization. However, to the extent that the parties cannot or do not agree upon said total compensation in the franchise, license, permit or other authorization, the City Council may, from time to time but no more frequently than annually, establish by resolution the additional compensation and modify said additional compensation based upon changes in the fair market value of the nonexempt property rights granted or conveyed;
(3)
Acceptance by the applicant of any license, franchise, permit or other authorization shall constitute an acceptance of the minimum compensation requirement unless the applicant can affirmatively demonstrate that all of the activities, both present and future, which will be conducted utilizing the property rights granted to the applicant are completely and totally exempt from all compensation requirements pursuant to applicable Federal or State law. The burden of proof shall be on the applicant. The applicant shall provide all written and oral information, documents and evidence reasonably requested by the City which are necessary or relevant to a determination as to whether all of its activities and uses which use or occupy streets, public rights-of-way and easements are exempt from noncost recovery compensation.
(j)
Appeals. An applicant may appeal the denial of a license or a condition imposed in a license to the City Council. Such appeal shall be filed in writing with the City Clerk by five p.m. on the tenth (10th) business day following the date of mailing of the City's written decision that is being appealed. The appeal shall be accompanied by a fee as established from time to time by resolution of the City Council. The City Council shall schedule a hearing on the appeal within 30 days of the filing of the appeal. The Board's decision on the appeal shall be final.
(Ord. 379 § 1, 2001)
Any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate a telecommunications system in, under, over or across any streets and public rights-of-way of the City, and/or to provide telecommunications service to persons or areas in the City via telecommunications facilities, telecommunications facilities and/or a telecommunications system in the street and public rights-of-way, shall first obtain a franchise granting the use of such streets and public rights-of-way from the City pursuant to this chapter.
(a)
Franchise Application. Any person that desires a franchise pursuant to this section shall file an application with the City which shall include the following information and shall be accompanied by a franchise application fee to be established by resolution of the City Council:
(1)
The identity of the applicant, including all affiliates of the applicant;
(2)
A description of the telecommunications services that are or will be offered or provided by the franchise applicant over existing or proposed telecommunications facilities;
(3)
A description of the transmission medium that will be used by the applicant to offer or provide such telecommunications services;
(4)
Preliminary engineering plans, specifications and a network map of the facilities to be located within the City, all in sufficient detail to identify:
(i)
The location and route proposed for applicant's proposed telecommunications facilities;
(ii)
The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities to be used or constructed in the public way along the proposed route;
(iii)
The locations, if any, for interconnection with the telecommunications systems of other telecommunications carriers;
(iv)
The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate, if applicable;
(v)
An engineering plan showing the engineering design of the applicant's telecommunications system within the entire City.
(5)
If the applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its facilities on existing utility poles along the proposed route and that the owner of the utility has consented to the installation;
(6)
If the applicant is proposing an underground installation in existing ducts or conduits within the street and public rights-of-way, information in sufficient detail to identify:
(7)
If applicant is proposing an underground installation within new ducts or conduits to be constructed within the streets and public rights-of-way:
(8)
A preliminary construction schedule and completion dates;
(9)
A preliminary traffic control plan in accordance with the Work Area Traffic Control Handbook, latest edition;
(10)
Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the telecommunications facilities;
(11)
Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application;
(12)
Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services;
(13)
Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such services is subject to cable franchising;
(14)
An accurate map showing the location of any existing telecommunications system(s) in the City that applicant intends to use or lease;
(15)
A description of the telecommunications services or telecommunications facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions;
(16)
A description of applicant's access and line extension policies;
(17)
The area or areas of the City the applicant desires to serve and if applicable, a schedule for build-out to the entire franchise area;
(18)
All fees, deposits or charges required pursuant to this chapter;
(19)
Any and all convictions or findings by any governmental authority that the applicant has violated any law or ordinance (including environmental laws or ordinances) or license agreement or franchise agreement;
(20)
Such other and further information as may be requested by the City Administrative Officer.
(b)
Franchise Application Fee. Any person that desires a franchise pursuant to this section shall file an application with the City which shall include the following information and which shall be accompanied by an application fee which shall be in an amount which will pay the actual and reasonable costs to the City for processing such application, including costs incurred by outside consultants who are retained by the City to review an application. The City Manager shall estimate the amount of said costs and the applicant shall deposit the amount of said estimate with the application.
(c)
Determination by City Manager. Within 120 days after receiving a complete application under this section, the City Manager shall issue a written determination granting or denying the application in whole or in part, applying the following standards. If the application is denied, the written determination shall include the reasons for denial. The City Manager shall consider:
(1)
The financial and technical ability of the applicant;
(2)
The legal ability of the applicant;
(3)
The capacity of the streets and public rights-of-way to accommodate the applicant's proposed telecommunications facilities;
(4)
The capacity of the streets and public rights-of-way to accommodate additional utility and telecommunications facilities if the franchise is granted;
(5)
The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted;
(6)
The public interest in minimizing the cost and disruption of construction within the streets and public rights-of-way;
(7)
The service that applicant will provide to the community and region;
(8)
The effect, if any, on public health, safety and welfare if the franchise requested is granted;
(9)
The availability of alternate routes and/or locations for the proposed telecommunications facilities;
(10)
Any and all convictions or findings by any governmental authority that the applicant has violated any law or ordinance (including environmental laws or ordinances) or license agreement or franchise agreement;
(11)
Applicable Federal and State telecommunications laws, regulations and policies;
(12)
Such other factors as may demonstrate that the grant to use the streets and public rights-of-way will serve the community interest.
(d)
Agreement. No franchise shall be granted unless the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and/or use the public ways will be granted.
(e)
Nonexclusive Grant. No franchise granted under this section shall confer any exclusive right, privilege, license or franchise to occupy or use the streets and public rights-of-way for delivery of telecommunications services or any other purposes.
(f)
Rights Granted. No franchise granted under this section shall convey any right, title or interest in the streets and public rights-of-way, but shall be deemed a franchise only to use and occupy the streets and public rights-of-way for the limited purpose and term stated in the grant. Further, no franchise shall be construed as any warranty of title.
(g)
Franchise Territory. A franchise granted under this section shall be limited to the specific geographic area of the City to be served by the franchise applicant, and the specific public ways necessary to serve such areas.
(h)
Franchise Fee. Each and every franchisee shall be subject to and pay, to the extent not prohibited by applicable Federal or State law, a franchise fee for the use of the property rights granted to the franchisee, i.e., the privilege of using streets, public rights-of-way, and easements to construct, maintain and operate a telecommunications system or any portion thereof, as a condition and requirement of each and every franchise. The franchise fee shall consist of the following components:
(1)
Minimum Compensation Component. Each and every franchisee which constructs, maintains and operates a telecommunications system, or any portion thereof, or provides a telecommunications service, which is not exempt in whole from compensation payment requirements pursuant to Federal or State law, shall pay minimum compensation (the minimum compensation requirement) on an annual basis in an amount to be established in the initial license, franchise, permit or other authorizations. The City Council shall from time to time and by resolution establish the minimum compensation requirement and appropriate inflation factor to be utilized in all licenses, franchises, permits and other authorizations. The minimum compensation requirement shall not exceed the fair market value of the property rights granted to the franchisee, i.e., the privilege of using streets, public rights-of-way and easements to construct, maintain and operate a telecommunications system or portion thereof, which are not exempt in their entirety from the imposition of a compensation requirement by applicable Federal or State law;
(2)
Additional Compensation. Either at the time of issuance of any license, franchise, permit or other authorization, or any time thereafter, the City shall determine whether or not the minimum compensation requirement equates to or is less than the fair market value of the property rights granted to the licensee, i.e., the privilege of utilizing streets, public rights-of-way and easements to construct, maintain and operate a telecommunications system or portion thereof, which are not exempt in their entirety from the imposition of a compensation requirement pursuant to Federal or State law. If the City determines that said nonexempt property rights possess a fair market value in excess of the minimum compensation requirement, the City shall engage in negotiations with the licensee, franchisee or holder of the permit or authorization to provide additional compensation to the City, in cash or in-kind services or facilities, which represents in value the difference between the minimum compensation requirement and the fair market value (the additional compensation) (the minimum compensation requirement and the additional compensation shall collectively be referred to as the total compensation). Under no circumstances shall the total compensation exceed the fair market value of the nonexempt property rights granted to the licensee, franchisee or holder of the permit or authorization. To the extent that the City and the applicant agree upon total compensation as part of the issuance of the license, franchise, permit or other authorization, said agreement shall be binding upon the City for the term of the license, franchise, permit or other authorization. However, to the extent that the parties cannot or do not agree upon said total compensation in the franchise, license, permit or other authorization, the City Council may, from time to time but no more frequently than annually, establish by resolution the additional compensation and modify said additional compensation based upon changes in the fair market value of the nonexempt property rights granted or conveyed;
(3)
Acceptance by the applicant of any license, franchise, permit or other authorization shall constitute an acceptance of the minimum compensation requirement unless the applicant can affirmatively demonstrate that all of the activities, both present and future, which will be conducted utilizing the property rights granted to the applicant are completely and totally exempt from all compensation requirements pursuant to applicable Federal or State law. The burden of proof shall be on the applicant. The applicant shall provide all written and oral information, documents and evidence reasonably requested by the City which are necessary or relevant to a determination as to whether all of its activities and uses which use or occupy streets, public rights-of-way, and easements are exempt from noncost recovery compensation.
(i)
Appeals. An applicant may appeal the denial of a franchise or a condition imposed in a franchise to the City Council. Such appeal shall be filed in writing with the City by 5:00 p.m. on the tenth (10th) business day following the date of mailing of the City's written decision that is being appealed. The appeal shall be accompanied by a fee as established from time to time by resolution of the City Council. The City Council shall schedule a hearing on the appeal within 30 days of the filing of the appeal. The Board's decision on the appeal shall be final.
(Ord. 379 § 1, 2001)
The term of a license or franchise shall be as specified therein and shall not exceed 10 years from the date that a franchise is approved by the City Council and executed by both the City and the affected telecommunications carrier.
(Ord. 379 § 1, 2001)
(a)
There shall be no assignment of a franchise or license, in whole or in part, or any change in control of the franchised or licensed telecommunications carrier, without the prior express written approval of the City.
(b)
Any assignment or transfer, or any change in control, without the City's prior written consent shall constitute a default which will cause a franchise or license to terminate.
(c)
At least 120 days before a proposed assignment or change in control of the franchise or license is scheduled to become effective, the telecommunications carrier shall request in writing the City's consent. The telecommunications carrier shall submit to the City (concurrently with the submission of its written request): (1) any other information or documentation required by the State or Federal government; (2) the information referenced in this chapter; (3) unedited and unredacted copies of the sale or transfer documents with all schedules and exhibits thereto; and (4) information regarding the financial ability and stability of the proposed assignee with respect to being able to perform all obligations of the existing franchise or license.
(d)
The City shall not unreasonably withhold its consent to such an assignment or change in control. However, in evaluating the request for assignment, transfer, sale, or change in control, the City may, in its sole discretion and among other things, undertake a technical inspection and audit of the telecommunications system to determine whether the telecommunications system complies with all applicable technical and safety codes, and with the ordinance codified in this chapter, the franchise, or license.
(e)
If the City determines (as a result of the technical inspection and audit) that the telecommunications system does not comply with Federal, State, or local standards, then the telecommunications carrier shall be provided with an opportunity to correct or cure the noncompliance. In the alternative and in the discretion of the City Council, the City may work with both the current and proposed telecommunications carrier to cure the noncompliance.
(f)
Before an assignment or change in control is approved by the City, the proposed assignee, transferee or buyer shall execute an affidavit acknowledging that it has read, understood and will abide by both this chapter and the applicable franchise or license.
(g)
In the event of any approved assignment or change in control, the assignee or transferee shall assume all obligations and liabilities of the former telecommunications carrier relating to the franchise or license unless specifically relieved by the City at the time the assignment or change in control is approved.
(h)
Reimbursement of processing and review costs. The telecommunications carrier shall reimburse the City for its reasonable processing and review expenses in connection with a transfer of the franchise or license or a change in control of the franchise or license, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee, costs of consultants (including technical and legal experts), notice and publication costs, and document preparation expenses. The City may send the telecommunications carrier an itemized description of all such charges, and the telecommunications carrier shall pay such amount within 20 days after the receipt of such description.
(i)
Violation. If the telecommunications carrier violates any provision of this paragraph, the franchise or license shall automatically terminate.
(Ord. 379 § 1, 2001)
In addition to all other rights and powers retained by the City, the City shall have the right to revoke any franchise or license granted hereunder and to terminate all rights and privileges of the franchisee or licensee hereunder in the event of a substantial breach of the terms and conditions of said franchise or license, or of any rule or regulation of the City or City Engineer. A substantial breach by a franchisee or licensee shall include, but shall not be limited to, the following:
(a)
Violation of any material provision of this chapter or of any franchise or license granted or renewed or pursuant to this chapter;
(b)
Any attempt by a franchisee or licensee to evade any material provision of the franchise or license or to practice any fraud or deceit or deception upon the City;
(c)
The failure of a franchisee or licensee to obtain permits for, or to begin or complete construction as provided under this chapter and under the franchise or license;
(d)
Material misrepresentation of fact by a franchisee or licensee in the application for or negotiation of the franchise or license;
(e)
Conviction of any director, officer, employee or agent of a franchisee or licensee of the offense of bribery or fraud connected with or resulting from the awarding of the franchise or license;
(f)
Failure of a licensee or franchisee to pay any license fee or franchise fee or other compensation required by this chapter, or required by any franchise or license granted pursuant to this chapter, to the City when due. Failure of a licensee or franchisee to pay said fee shall also require the franchisee or licensee to pay interest on any past-due fee or compensation to the City at the rate of one and one-half percent (1.5%) per month on the unpaid amount.
(Ord. 379 § 1, 2001)
By accepting any franchise, license or permit granted pursuant to this chapter, the telecommunications carrier acknowledges that notice is and was hereby given to the telecommunications carrier pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property may cause certain taxes to be levied upon such interest. The telecommunication carrier shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interest taxes or other taxes levied against its right to possession, occupancy or use of any public property pursuant to any right of possession, occupancy or use created by any franchise or license.
(Ord. 379 § 1, 2001)
(a)
By resolution of the City Council, a fee paid to the City may be established for the support of public, educational, and governmental access ("PEG") facilities and activities within the City. Unless a higher percentage is authorized by applicable State or Federal law, this fee shall be an amount up to 1% of a cable operator's gross annual cable service revenues, as that term is defined in the State Digital Infrastructure and Video Competition Act of 2006 ("DIVCA") or Federal law. This fee is also applicable to any cable operator holding a State video franchise and operating within the City, which shall pay to the City on an amount up to 1% of its gross revenues derived from the provisions of video services within the City. The term "gross revenues" shall be defined as set forth in the Public Utilities Code Section 5860. If a PEG fee is established, the City acknowledges that its existing Cable operator, Charter Communications, requires 90 days' notice to implement the 1% PEG fee.
(b)
Once implemented by the City, the PEG fee established by this section shall be remitted quarterly to the City and must be received not later than 45 days after the end of the preceding calendar quarter. The fee payment shall be accompanied by a summary that describes all sources of the gross revenues upon which the fee is based and explains the basis for the calculation of the fee; which summary and explanation must be verified by the responsible financial officer or employee of the cable operator.
(Ord. 603 § 2, 2016)
(a)
Franchise Fee. A cable operator holding a State video franchise ("State video franchise holder") and operating in the City shall pay to the City a franchise fee that is equal to 5% of the gross revenues of that State video franchise holder. The term "gross revenues" shall be defined as set forth in Public Utilities Code Section 5860. The first remittance of this franchise fee payment to the City shall be made within 45 days after the calendar quarter that ends not less than 180 days after the State video franchise holder commences to provide video service in the City. Thereafter, the franchise fee payments shall be remitted to the City within 45 days after the end of each quarter. All remittances shall be made to the City and shall be accompanied by a summary that describes all sources of the gross revenues upon which the fee is based and explains the basis for the calculation of the fee; which summary and explanation must be verified by the responsible financial officer or employee of the cable operator.
(b)
Audit Authority. Not more than once annually, the City Manager or the City Manager's designee may examine and perform an audit of the business records of a State Video Franchise holder to ensure compliance with all applicable statutes and regulations related to the computation and payment of franchise fees and any PEG fees established pursuant to the authority of Section 1-10.41 of this code.
(c)
Customer Service Penalties under State Video Franchises.
(1)
Any State video franchise holder providing service in the City shall comply with all applicable State and Federal customer service protection standards pertaining to the provision of video service.
(2)
The City shall monitor a State video franchise holder's compliance with State and Federal customer service and protection standards. The City will provide to the State video franchise holder written notice of any material breaches of applicable customer service and protection standards, and will allow the State video franchise holder 30 days from receipt of the notice to remedy the specified material breach. Material breaches not remedied within the 30 day time period will be subject to the following monetary penalties to be imposed by the City in accordance with State law:
(i)
For the first occurrence of a violation, a monetary penalty of $500 shall be imposed for each day the violation remains in effect, not to exceed $1,500 for each violation.
(ii)
For a second violation of the same nature within 12 months, a monetary penalty of $1,000 shall be imposed for each day the violation remains in effect, not to exceed $3,000 for each violation.
(iii)
For a third or further violation of the same nature within 12 months, a monetary penalty of $2500 shall be imposed for each day the violation remains in effect, not to exceed $7500 for each violation.
(3)
A State video franchise holder may appeal a monetary penalty assessed by the City. Such appeal must be filed no later than 60 days after the date of mailing of notification of the penalty or the right of appeal shall be deemed waived. After relevant evidence and testimony is received, and staff reports submitted, the City Council will vote to either uphold or vacate the monetary penalty. The City Council's decision on the imposition of a monetary penalty shall be final.
(d)
City Response to State Video Franchise Applications.
(1)
Applicants for State video franchises within the boundaries of the City must concurrently provide to the City complete copies of any applications or amendments to applications filed with the California Public Utilities Commission. Once complete copy must be provided to the City Manager.
(2)
The City will provide any appropriate comments to the California Public Utilities Commission regarding an application or an amendment to an application for a State video franchise.
(e)
Public, Educational, and Governmental Channel Capacity and Capital Funding. A State video franchise holder that uses the public rights-of-way shall designate sufficient capacity on its network to enable the carriage of up to three public, educational, and governmental ("PEG") access channels. The City shall provide 90 days' notice to its existing cable operator, Charter Communications, prior to activation of an additional PEG channel.
(1)
PEG access channels shall be for the exclusive use of the City and its designees to provide PEG programming.
(2)
Advertising, underwriting, or sponsorship recognition may be carried on the PEG access channels for the purpose of funding PEG-related activities.
(3)
The PEG access channels shall be carried on the basic service tier; provided, however, that if the technology used eliminates the basic service tier, then all PEG access channels shall be placed on the cable system in a manner equivalent to local over-the-air broadcast stations.
(4)
To the extent feasible, the PEG access channels shall not be separated numerically from other channels carried on the basic service tier, and the channel numbers for the PEG access channels shall be the same channel numbers used by the incumbent cable operator, Charter Communications, unless prohibited by Federal law or otherwise agreed to by the City. After the initial designation of the PEG access channels, the channel numbers shall not be changed without written consent of the City unless the change is required by Federal law.
(5)
Each PEG access channel shall be capable of carrying a National Television System Committee television signal.
(f)
Interconnection. Where technically feasible, a State video franchise holder and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG access channel programming. Interconnection may be accomplished by direct cable, microwave link, satellite, or other reasonable method of connection. State video franchise holders and incumbent cable operators shall provide interconnection of the PEG access channels on reasonable terms and conditions and may not with-hold the interconnection. If a State video franchise holder and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement, the City may require the incumbent cable operator to allow the State video franchise holder to interconnect its network with the incumbent's network at a technically feasible point on the holder's network as identified by the State video franchise holder. If no technically-feasible point for interconnection is available, the State video franchise holder shall make an interconnection available to the channel originator and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the State video franchise holder requesting the interconnection unless otherwise agreed to by the parties.
(g)
Emergency Alert System and Emergency Overrides. A State video franchise holder must comply with the emergency alert system requirements of the Federal Communications Commission in order that the emergency messages may be distributed over the State video franchise holder's network. Provisions in the prior City-issued franchises authorizing the City to provide local emergency notifications shall remain in effect, and shall apply to all State video franchise holders in the City.
(Ord. 603 § 3, 2016)