The ordinance codified in this chapter provides a framework to fairly and equitably recognize and facilitate the needs of city residents and businesses for access to telecommunications facilities while minimizing the disruption to public right-of-way PROW transportation and utilities, preserving the health and safety of the public, and utilizing taxpayers' dollars wisely through prudent infrastructure management and cost recovery. The recent rapid deployment of telecommunications facilities into limited PROW space, outside traditional franchise agreements and the public outcry over recent telecommunications conduit installation in the street has necessitated this ordinance. The ordinance codified in this chapter generally applies to telecommunication carriers requesting use of the PROW other than franchised cable television and other franchised video service providers, for installation and removal of facilities installed above or below ground, including pole mounted installation.
(Ord. 2339 § 1, 2002)
The following terms apply for purposes of this chapter.
"Cables"
means any wires, copper, coax, or fiber or conduit used to house the same, utilized for telecommunications purposes.
"Cable operator"
means any person or group of persons who:
1. 
Provides cable service over a cable system and directly or through one or more affiliates owns a controlling interest in such cable system; or
2. 
Otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
"Cable system" or "cable television system"
means a facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service as defined in the Cable Act and which is provided to multiple subscribers within the city. However, such terms do not include the following:
1. 
A facility that serves only to retransmit the television signals of one or more broadcast stations; or
2. 
A facility that serves subscribers without using any public right-of-way; or
3. 
A facility of a common carrier which is subject, in whole, or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system (other than for purposes of Section 621(c) of the Cable Act, codified at 47 USC 541) to the extent such facility is used in the transmission of video, voice, or data programming or services directly to subscribers; or
4. 
Any facilities of any electric utility used solely for operating its electric utility.
"Cable television facilities"
means any facility constructed within the PROW which are designed or used, in whole or in part, to provide "cable service" or "other programming service," as those terms are defined in the 1984 Cable Act, as amended.
"City"
means the city of Westminster, California.
"City council"
means the city council of the city.
"Consultant"
means the entity hired by the telecommunications carrier under the supervision of the city to inspect construction or to locate utilities.
"Easement"
means and shall include any public easement or other compatible use created by dedication, or by other means, to the city for public utility purposes or any other purpose whatsoever.
"Excess capacity"
means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for third party telecommunications facilities.
"FCC"
means the Federal Communications Commission.
"Nodes"
shall mean the cabinet and equipment, including power supply, fans, gas generators, batteries and optical to electrical converters, located in the neighborhoods, which serve homes, businesses, and institutions, and which is the point where fiber facilities, cable facilities and/or other wire cables are connected.
"Operator"
means any person or group of persons:
1. 
Who provides cable service, telecommunications, telecommunications services, or information services and, directly or through one or more affiliates, owns a significant interest in cable television facilities or telecommunications facilities; or
2. 
Who otherwise controls or is responsible for, through any arrangement, the management and operation of cable television facilities or telecommunications facilities.
"Overhead facilities"
means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
"Pedestal"
shall mean an above-ground enclosure which houses active and/or passive equipment relating to the telecommunications system.
"Person"
means any individual, corporation, estate, trust, partnership, association of two or more persons having a joint common interest, or joint stock company.
"Power supply"
shall mean an electronic or gas driven device designed to provide electrical power to all or a portion of the telecommunications system.
"Public property"
means and includes all real property owned, operated or controlled by the city, other than PROW and any privately-owned area within city's jurisdiction which is not yet, but is designated as a proposed public place on a tentative subdivision map approved by city.
"PROW"
means any 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 city and any privately-owned area within city's jurisdiction which is not yet, but is designated as a proposed public place on a tentative subdivision map approved by city.
"PUC"
means the California Public Utilities Commission.
"Revocation" or "Termination"
means an official act by the city that removes, repeals or rescinds previously approved authorization for a telecommunications carrier to operate a telecommunication system within the city.
"Services"
means cable services, telecommunications, telecommunications services and information services.
"Street"
means the surface of and the space above and below a public street (or any path or thoroughfare designated for vehicular and/or pedestrian traffic) or other easement now or hereafter held by the city (including any street, as defined, which is acquired by eminent domain) for the purpose of public travel.
"Subscriber"
means a person lawfully receiving or using a telecommunications service delivered by a telecommunications carrier over a telecommunications system.
"Surplus space"
means that portion of the usable space on a utility pole or other telecommunications facilities which has the necessary clearance from other users, as required by the orders and regulations of the California Public Utilities Commission (PUC) to allow its use by a telecommunications carrier.
"Tap"
means an electronic or photonic 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.
"TCA"
means the Telecommunications Act of 1996.
"Telecommunications"
means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the content of the information as sent and received.
"Telecommunications carrier" or "telecommunications operator"
means any person who owns or controls, by way of fee ownership, lease, management agreement, any telecommunications system or telecommunications facilities.
"Telecommunications facilities"
shall mean any facility located, in whole or in part, in, above, or below PROW or public property used by the telecommunications carrier in its telecommunications system including without limitation, conduits, cables, cabinets, nodes, structures, headend equipment, power supplies, receive only earth stations, 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. Wireless facilities located in or above PROW shall constitute telecommunications facilities.
"Telecommunications service"
means the offering of telecommunications for a fee directly or indirectly to any person upon a common carrier non-discriminatory basis.
"Telecommunications system"
means an operating system which is located, in whole or in part, on, in, above, or below PROW which is designed and utilized, in whole or in part, to provide telecommunications and/or telecommunications services. A telecommunications system may be built in conjunction with, or be part of, a cable system.
"Usable space"
means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance on the pole or affecting light standards, traffic signals, or other municipal improvements as specified in the orders and regulations of the PUC and any other federal, state, or local requirements.
"Utility facilities"
means the plant, equipment and property, including, but not limited to, the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways and used or to be used for the purpose of providing utility or telecommunications services.
(Ord. 2339 § 1, 2002)
A. 
Applicable Requirements. All telecommunication carriers seeking to utilize or utilizing PROW to provide telecommunications or telecommunications services on or after the effective date of the ordinance codified in this chapter shall be subject to the requirements set forth in this chapter and generally described in this section except as provided herein:
1. 
A telecommunications encroachment permit and the payment of all related fees pursuant to Section 12.38.050 et seq.
2. 
The additional requirements imposed by the ordinance codified in this chapter on the installation, removal and upgrade of the telecommunications facilities and/or telecommunications system and related insurance, indemnity, and other right-of-way regulatory requirements of the ordinance codified in this chapter.
3. 
Any other permits and fees and requirements otherwise imposed by federal, state, or local law, including any other applicable excavation, building, grading, or other permits.
4. 
The payment of any applicable business license fees.
B. 
Exemption for Cable Television Systems and OVS Systems Franchised Subject to Separate Ordinance. Cable operators using PROW solely to operate a cable television system providing only cable services shall not be subject to the ordinance codified in this chapter, except as provided herein, but shall comply with any other applicable provision of local, state or federal law. Nothing in this section shall exempt a cable operator who provides telecommunications, telecommunications services, or information services from the provisions of the ordinance codified in this chapter with respect to services other than cable services.
(Ord. 2339 § 1, 2002)
A. 
In addition to any other permit or entitlement required by local, state or federal law, all telecommunications carriers, other than cable operators and OVS operators, shall obtain a telecommunications encroachment permit prior to installing any telecommunications facilities on PROW and shall pay all fees imposed in connection therewith. Blanket permits may be granted at the discretion of the city to cover typical and routine construction activities. Such permit is in addition to any other permit required by any other provision of law and shall be required both where such facilities are being installed overhead, aerial in existing conduit, or in new or existing conduit necessitating an excavation of PROW is installed.
B. 
If the city determines the benefit of public notice outweighs the cost of providing public notice, the city may require telecommunications carriers to provide reasonable advance notice to the public of the proposed quantity, precise dimensions, design, color, type, potential noise and location of above-ground telecommunications facilities pursuant to guidelines promulgated by the city. If required by the city, the public notification plan shall be submitted to the city as part of the permit application process and is subject to the prior approval of the city.
C. 
Prior to the issuance of an excavation permit, telecommunications carrier shall first seek to use excess conduit, manholes, and access points of other telecommunications carriers by contacting the telecommunications carriers specified by the city in writing. Telecommunications carrier shall provide an explanation to city as to why existing conduit capacity cannot be used in the case of its project prior to receiving any excavation permit. It shall also provide reasonable advance notice to other telecommunications carriers specified by the city in writing and provide them an opportunity to jointly install telecommunications facilities in the property which is proposed to be the host of the telecommunications carrier's telecommunications facilities.
(Ord. 2339 § 1, 2002; Ord. 2557 § 3, 2019)
An application for a telecommunications encroachment permit, along with payment of any cost-based fees required by resolution therefor, shall be filed with the city, in the form and manner required by the city and shall contain all the following:
A. 
The identity of the applicant.
B. 
Engineering plans, specifications and a network map of the facilities to be located within the PROW, including a map in electronic and/or other form required by the city.
1. 
The location of all existing and proposed overhead and underground telecommunication facilities in the PROW along proposed route including the type and location of existing and proposed Pedestals and other above-ground utility facilities, along with, if required by the city, photographs or artists renderings, of all above-ground visible equipment, from which their size must be apparent. The submission may be required to include a detailed description of the equipment included within the above-ground installation including the electronic components, natural gas generator, electrical fans, and the anticipated noise levels during winter and summer months and the emergency backup operations and the proposed maintenance schedule for such above-ground facilities. For all visible facilities, proof shall be made to the satisfaction of the city that the public notice requirements of Section 12.38.040(B) have been fulfilled or the manner in which they will be fulfilled.
2. 
The specific trees, structures, improvements, facilities and obstructions, if any that applicant proposes to temporarily or permanently remove or relocate.
C. 
If the applicant is proposing to install overhead facilities, a certificate that surplus space pursuant to the standards set forth in General Order 95 or provisions of applicable law is available for locating its telecommunications system on existing utility poles along the proposed route, and that said installation will not interfere with or obstruct visibility or use of other public and private facilities or improvements.
D. 
If applicant is proposing an underground installation within new ducts, conduits, manholes or vaults to be constructed within the PROW, it shall indicate the excess capacity that the applicant believes will exist in such ducts or conduits after installation of applicant's telecommunications facilities.
E. 
A construction schedule, final completion date, and specific construction benchmark dates as to identified portions of the project.
F. 
A traffic control plan in accordance with such guidelines established by the city.
G. 
A certification that the applicant has obtained all other governmental approvals and permits to construct and operate the telecommunications facilities and to offer or provide the telecommunications services and a certification that the applicant will comply with all applicable local state and federal requirements in the installation, operation, maintenance, removal of its telecommunications system and telecommunications facilities.
H. 
Such other and further information relating directly to PROW management use as may reasonably be required by the city manager or designee.
(Ord. 2339 § 1, 2002)
A. 
Determination of telecommunications encroachment permit. City shall issue the telecommunications encroachment permit subject to the criteria and provisions of the ordinance codified in this chapter. The telecommunications encroachment permit shall be promptly issued upon a determination that the applicant has complied with all requirements of the ordinance codified in this chapter related to the management of the PROW.
B. 
The determination to grant or deny a telecommunications encroachment permit shall exclusively be based upon the criteria set forth in this section. The city shall exclusively consider the following:
1. 
The capacity of the PROW to accommodate the applicant's proposed telecommunications facilities.
2. 
The capacity of the PROW to accommodate known additional utility and telecommunications facilities if the permit is granted.
3. 
The damage or disruption, if any, to the PROW or any public or private facilities, improvements, aesthetics, services, travel or landscaping if the permit is granted.
4. 
The availability of existing overhead/underground capacity, or alternate routes and/or locations for the proposed telecommunications facilities which would be less disruptive or which better protects PROW use.
5. 
The aesthetic and blighting effect of any above-ground facilities by virtue of their design, dimensions, locations and quantity.
6. 
In the case of any excavation project where the PROW has been paved or repaved within five years, no permits will be granted to excavate PROW except for lateral extensions, repairs, or as approved by the city council.
7. 
Compliance with the requirements of the ordinance codified in this chapter and other federal, state and local requirements.
C. 
Modifications. Any approval of a permit may require modifications to the proposed activities pursuant thereto as a result of the city's consideration of the factors set forth above, including by limiting or changing the number, size and location of the above ground facilities and equipment proposed to be installed and/or requiring the installation of landscape or other camouflaging techniques or requiring undergrounding to minimize adverse visual impacts and obstructions.
D. 
Fees. As a condition of the issuance of any permit, the telecommunications carrier shall pay and submit all cost-based fees assessed by resolution of the city council.
(Ord. 2339 § 1, 2002)
A. 
Date For Work Completion. The telecommunications carrier shall complete system construction authorized by the telecommunications encroachment permit no later than the date specified in the telecommunications encroachment permit.
B. 
Construction Plan. Except as provided below, not less than thirty days prior to proposed commencement of any construction, telecommunications carrier shall file with the city manager or other designated employees of the city, a construction plan describing in detail the construction plans, locations of facilities, and an estimated time schedule for such construction ("construction plan"). Construction plans relating to repair and maintenance conducted during hours between 7:00 p.m. and 7:00 a.m. do not require prior submission or approval if, and only if, no lane will be blocked for more than two hours. Construction plans relating to all other repair and maintenance activities shall be filed two days prior to construction unless a shorter time is authorized by the city. At city request, the construction plan shall include photographs or artist renderings of all aboveground facilities as well as their locations, dimensions, and color. Any modifications to construction plans must be reviewed and approved by the city before modifications can be implemented by telecommunications carrier.
C. 
Approvals of Construction Plan. No permits shall be issued until the construction plan is reviewed pursuant to all relevant public health, safety, and welfare criteria and approved by the city.
D. 
Notice to the city. The telecommunications carrier shall provide the city with engineering base maps identifying existing underground and aerial utility facilities, poles, trench routes, and locations for above-ground equipment in the construction plan in both electronic (digital or otherwise as specified by the city) and hard-copy form.
E. 
Traffic Control Plans. At the request of the city, the telecommunications carrier shall furnish detailed traffic control plans, which shall include site-specific hours of construction, to the city engineer prior to the commencement of any construction activities which may interfere with traffic (the "traffic control plan") in arterial streets.
F. 
Telephone Contact. During construction, the telecommunications carrier shall provide the city and residents a telephone contact number, answered twenty-four hours a day, to enable the city to report any concerns regarding construction of the facilities. After business hours such calls will be routed to an on-call supervisor. In the event that the city reports any concerns to the telecommunications carrier, telecommunications carrier shall respond in a timely manner. Telecommunications carrier shall immediately correct any adverse impact to the city's use or operations or the use or operations of a third party caused by telecommunications carrier construction activities in the PROW at no cost to the city. Safety violations will be cause for immediate project shut-down.
G. 
Construction Status Report. During construction, the telecommunications carrier shall, at the request of the city, submit to the city weekly progress reports describing in detail the status of construction in relation to the construction plan. The first report shall be submitted within seven days after commencement of construction and shall be updated each seven days thereafter. Weekly work plans shall be provided in advance to the city for its review and approval.
H. 
Notification. Telecommunications providers shall provide written notification to the city of any construction and/or maintenance activities undertaken in PROW, whether undertaken pursuant to permit or otherwise, within five business days of commencement of said activities unless said activities have been previously reported to the city. Nothing herein shall constitute non-permitted prior approval for any task for which any form of permit or authorization is otherwise required.
(Ord. 2339 § 1, 2002)
A. 
All telecommunications facilities shall be installed within existing underground ducts or conduits whenever excess capacity is available on reasonable terms. Overhead facilities may be installed only if space is available on existing utility poles.
B. 
Whenever existing telecommunications facilities or utility facilities are located underground along a particular street or public way or if existing poles are filled to capacity, new telecommunications facilities must be installed underground along that street or public way.
C. 
Whenever any new or existing telecommunications facilities or utility lines are located or relocated underground along a particular street or public way, the telecommunications carrier shall relocate its telecommunications facilities underground concurrently with the other lines at its sole expense or as otherwise provided by state law.
(Ord. 2339 § 1, 2002)
A. 
All wires, conduits, cable, 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 PROW as well as adjacent private property pursuant to a routing plan to be approved by the city manager or his/her designee.
B. 
In the event a telecommunications carrier creates a hazardous or unsafe condition or an unreasonable interference with property, such telecommunications carrier shall 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 known future city uses of the PROW, with the rights of private property owners, with gas, electric, sewer 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 PROW and support or temporarily disconnect or relocate 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 not for the benefit of a private party;
4. 
Street construction or resurfacing;
5. 
A change or establishment of street grade;
6. 
Installation of governmental facilities such as, without limitation, sewers, drains, water pipes, storm drains, lift stations, force mains, communications for the city's internal utilization, power or signal lines, and any traffic control system which are owned/controlled or will be owned/controlled by any governmental entity; or
7. 
Any public improvement, construction or repair of any improvement related to a proper governmental purpose.
E. 
It shall be the responsibility of a telecommunications carrier to mark its facilities with search wire if possible and 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 forty-eight hours prior notice to USA prior to any excavation.
(Ord. 2339 § 1, 2002)
A. 
The city may order the telecommunications carrier to remove its facilities from public property or PROW at its own expense 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 telecommunications encroachment permit within the term or duration of the telecommunications encroachment permit; or
3. 
The telecommunications carrier's telecommunications encroachment permit is revoked.
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 a reasonable time specified by the city, 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, security fund, labor and materials bond, and/or performance bond or other agreement required in the ordinance codified 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 one hundred twenty 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 PROW, the telecommunications carrier shall at its own expense, and in a manner approved by the city, replace and restore such PROW to a condition comparable to that which existed before the work causing the disturbance was done.
E. 
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 non-useful telecommunications facilities in accordance with a removal plan approved by 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 ninety days after deactivation unless another period is specified by the city.
F. 
City may, upon written application by the telecommunications carrier, approve the abandonment of any property in place by the telecommunications carrier under such terms and conditions as city may approve. Upon city approved abandonment of any property in place, the telecommunications carrier shall cause to be executed, acknowledged, and delivered to city such instruments as city shall prescribe and approve transferring and conveying the ownership of such property to city.
(Ord. 2339 § 1, 2002)
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, excavation codes, construction codes, plumbing codes, National Electrical Safety Code, the National Electric Code, the codes, the public works construction standards, the municipal code, as they are modified from time to time, and any applicable federal, state or local statutes, regulations, guidelines, or requirements.
B. 
All construction, installation, maintenance and repair shall treat the aesthetics of the property as a priority and shall not substantially affect the appearance or the integrity of any structure.
C. 
All underground taps 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 permit, determine the routing or placement of cable, conduit, nodes, pedestals, power supplies, vaults, and other equipment relating to the telecommunications system.
D. 
All new and replacement construction shall be accomplished and maintained between the hours specified by the city. Construction shall not interfere with the existing or known future services of the city or private or public third parties.
E. 
Telecommunications carrier shall place all above-ground active and passive equipment in flush mounted or low profile waterproof pedestals whose design, size, location, color within manufacturer's specifications, appearance, and placement have been prior approved by the city in writing and shall be in conformance with the code and all applicable city ordinances, regulations, rules, and guidelines.
F. 
Previously installed aerial cable shall be undergrounded in concert with utilities pursuant to the general ordinances of the city and applicable state law or tariff. Coordinated undergrounding shall be performed on a cost-sharing basis by telecommunications carrier and the other public utilities involved in a manner consistent with applicable law.
G. 
Telecommunications carrier shall be responsible for maintaining all above-ground components and landscaping or other screening in good condition as specified in the permit, well painted and free of graffiti and other markings, undamaged and concealed from the public and property owner's view as long as the components remain. Telecommunications carrier assumes all responsibility for damage or injury resulting from placement or maintenance of any aboveground component. If telecommunications carrier fails to comply with any written city demand relating thereto, the city may perform said work and withdraw its costs and expenses from the security fund or other security provided by the city.
H. 
Telecommunications carrier shall identify its construction sites by name and category (i.e., "telecommunications") with sufficient clarity so that traffic flowing in both directions can determine the nature of the project and the entity upon whose behalf the construction is being undertaken.
I. 
Deviation Procedure for Nonconforming Situations.
1. 
In instances where telecommunications carrier cannot conform to any of the regulations of the ordinance codified in this chapter, telecommunications carrier may apply for a deviation.
2. 
A request for a deviation shall be submitted and approved prior to the submittal of any permit for installation of any telecommunications facilities.
3. 
The deviation will be reviewed and a determination made by the city manager or his/her designee.
4. 
A deviation request shall be submitted by letter form to the city manager or his/her designee and contain the following:
a. 
An exhibit showing the proposed location and type of telecommunications facilities to be installed.
b. 
The names and telephone numbers of any property owner, tenant or homeowners association that may be affected by the deviation request.
c. 
Documentation that any property owner, tenant or home owners association that may be affected by the deviation request has been contacted and informed about the deviation request.
d. 
A detailed explanation and justification for the proposed deviation request and references to the appropriate section(s) of the ordinance codified in this chapter which relief is being requested.
5. 
A deviation shall be reviewed and a determination made based on whether the following findings can be made:
a. 
That the proposed request is in the best interest of the public health, safety and welfare.
b. 
That the proposed request cannot conform to the regulations of the ordinance codified in this chapter due to extenuating circumstances beyond the control of telecommunications carrier, such as but not limited to:
1. 
Existing location of utilities from another utility provider; or
2. 
Existing conditions which prohibit installation (e.g., walls/fences or existing structures).
c. 
That the proposed request does not cause the accumulation of telecommunications facilities in close proximity or otherwise detrimentally impact the PROW.
(Ord. 2339 § 1, 2002)
A. 
Upon the failure, refusal or neglect of the telecommunications carrier to cause any construction, repair, or the terms of any permit thereby creating an adverse impact upon public safety or convenience, 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 twenty days to cure the default. The telecommunications carrier shall, within thirty days of billing, pay to city the actual costs incurred. Amounts not so timely paid may be deducted from the performance bonds or security deposit.
B. 
Whenever construction is being performed in a manner contrary to the provisions of the ordinance codified in this chapter, the city manager or his/her designee, or an inspection official representing the city, may order the work stopped by notice 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 his or her designated representative.
(Ord. 2339 § 1, 2002)
In the event any PROW or portion thereof used by the telecommunications carrier shall be vacated by the city for a governmental purpose, 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 thirty days' notice by the city, to do such work, city may cause it to be done, and the telecommunications carrier shall, within thirty days of billing, pay to city the actual costs incurred.
(Ord. 2339 § 1, 2002)
No telecommunications encroachment permit or other entitlement shall relieve the telecommunications carrier of any obligations involved in obtaining pole or conduit space from any department of city, any utility company or from others maintaining utilities in city's PROW.
(Ord. 2339 § 1, 2002)
The telecommunications carrier shall provide city data in a digital or other format reasonably specified by the city, on a computer disk or other data storage device requested by city, which details and documents all the geographic locations of telecommunication facilities located in PROW provided, however, nothing herein shall require the specification of the vertical location of existing facilities. Such computer disk or other device shall be updated annually and whenever there have been significant changes in the location of the telecommunication 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. As-built drawings shall show all conduits and installed equipment in PROW, and tap values and spigots. The scale of maps and drawings shall be sufficient to show the required details in easily readable form and size. If city requires use of such data in its own offices, it may make copies of as-built maps at telecommunications carrier's expense.
(Ord. 2339 § 1, 2002)
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, penalties, damages 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 facilities within the city based upon any act or omission of a telecommunications carrier, its agents or employees, contractors, subcontractors, independent contractors, or representatives except for that which is attributable to the sole negligence or willful misconduct of the city, the city council, its officers, agents, servants, attorneys and employees. 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. 2339 § 1, 2002)
A. 
Except as provided in or as supplemented by any franchise agreement, license or permit, a telecommunications carrier shall secure and maintain, public liability, property damage insurance, and umbrella coverage in at least the following amounts:
1. 
Public liability: Two million dollars per person/per occurrence;
2. 
Property damage: Two million dollars per any one claim;
3. 
Umbrella liability: Five million dollars.
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 thirty 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 fifteen days before the expiration of the insurance which such policies are to renew or be replaced.
F. 
Before a telecommunications carrier commences any construction in the PROW, the telecommunications carrier shall deliver the policies or certificates representing the insurance to the city as required herein.
(Ord. 2339 § 1, 2002)
A. 
Security Fund.
1. 
Prior to the effective date of any telecommunications encroachment permit or other authorization, the telecommunications carrier may be required to deposit into a bank account established by the city, and shall maintain on deposit through the term of any telecommunications encroachment permit or other authorization, a sum specified in any telecommunications encroachment permit or other authorization as security for the faithful performance by telecommunications carrier of all of the provisions of any telecommunications encroachment 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 telecommunications carrier's acts or defaults under any telecommunications encroachment 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, maintenance obligations relating to above-ground facilities, or taxes due the city which arise by reason of the construction, operation or maintenance of the system pursuant to any telecommunications encroachment permit or other authorization, or the ordinance codified in this chapter, and to satisfy any actual or liquidated damages arising out of a breach. In lieu of the security, the city may, in its discretion, accept a letter of credit for an equivalent amount in a form and from a financial institution acceptable to the city.
2. 
Except as otherwise provided in any telecommunications encroachment permit or other authorization, if the telecommunications carrier fails, after twenty days written notice, to pay to the city any fees that are due and unpaid, or fails to repay within such twenty 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 telecommunications encroachment permit or other authorization; or if telecommunications carrier fails to comply with any provision of any telecommunications encroachment 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, 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 thirty 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. 
The telecommunications carrier shall be entitled to the return of the security fund, or portion thereof, that remains on deposit one year after completion of construction 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 any right with respect to such security fund shall affect any other right the city may have.
B. 
Faithful Performance Bond and Labor and Materials Bond. Prior to issuance of any telecommunications encroachment permit or other authorization, telecommunications carrier may be required to furnish proof of the posting of a faithful performance bond and/or labor and materials bond in favor of the city, with corporate surety approved by the city in the sum specified in any telecommunications encroachment permit or other authorization, and conditioned that the telecommunications carrier shall well and truly observe, fulfill, and perform each term and condition of any telecommunications encroachment permit or other authorization; provided, however, that such bond(s) shall not be required after certification by 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 agent approved by the city. During the course of construction, the amount of the bond(s) may from time to time be reduced, as provided in any telecommunications encroachment permit or other authorization. Written evidence of payment of premiums shall be filed with the city.
(Ord. 2339 § 1, 2002)
A telecommunications carrier shall not be excused from complying with any of the requirements of the ordinance codified in this chapter, or any subsequently adopted amendments to the ordinance codified in 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. 2339 § 1, 2002)
A. 
Any telecommunications carrier, its assignee or transferee shall be subject to, and expected to comply with all applicable lawful ordinances and/or resolutions now or hereafter adopted and in effect within the city, including the ordinance codified in 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.
(Ord. 2339 § 1, 2002)
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 postmark unless otherwise designated by state law.
(Ord. 2339 § 1, 2002)
If any word, phrase, sentence, part, section, subsection, or other portion of the ordinance codified in 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 the ordinance codified in this chapter, and all applications thereof not having been declared void, unconstitutional or invalid, shall remain in full force and effect.
(Ord. 2339 § 1, 2002)
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.
B. 
Unless prohibited by federal, state or local law, the city manager may further delegate his/her powers and authority to a duly authorized representative with respect to administering the ordinance codified in this chapter.
In addition to all other rights and powers retained by the city, the city shall have the right to revoke any telecommunications encroachment permit granted hereunder and to terminate all rights and privileges of the telecommunications encroachment permit hereunder in the event of the following:
1. 
Violation of any material provision of the telecommunications encroachment permit;
2. 
The failure to begin or complete construction as provided under the telecommunications encroachment permit;
3. 
Failure to pay any telecommunications encroachment permit fee or any other payment required by any telecommunications encroachment permit granted pursuant to the ordinance codified in this chapter to the city when due.
(Ord. 2339 § 1, 2002)
By accepting any telecommunications encroachment permit granted pursuant to the chapter codified in this chapter, the telecommunication carrier acknowledges that notice is and was hereby given to the telecommunication 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 PROW or public property pursuant to any right of possession, occupancy or use created by any telecommunications encroachment permit.
(Ord. 2339 § 1, 2002)
A. 
Civil Penalties. Any person who violates any provision of the ordinance codified in this chapter, or who violates any material condition of any franchise, license, or permit issued hereunder, or who breaches any franchise agreement or other agreement with the city shall be liable to the city for a civil penalty of one thousand dollars per ordinance violation per day plus the city's costs of enforcement/collection including the reasonable attorney's fees. For continuing violations or breaches, each day that the violation or breach continues shall be deemed a separate violation or breach subject to an additional civil penalty.
B. 
Cumulative Remedies. The foregoing remedies shall be deemed non-exclusive, cumulative remedies and in addition to any other remedy the city may have at law or in equity.
(Ord. 2339 § 1, 2002)
The ordinance codified in this chapter shall become effective thirty days subsequent to its adoption.
(Ord. 2339 § 1, 2002)