Culver City Municipal Code Ch. 11.26 Pass Through Telecommunications Systems

A. The City Council has adopted the City municipal code Chapter 11.20 "Telecommunications Regulatory Requirements," which establishes general regulatory requirements for telecommunications- related systems operating in the City or utilizing the public rights-of-way.

B. The provisions of § 11.20.060 provides that any person proposing to install a Pass Through Telecommunications System which includes any system of wires, fiber or other devices that utilizes the public rights-of-way, but which has no connection to any residence, business or other telecommunications provider within the corporate city boundaries, shall first be required to enter into an encroachment permit agreement from the City.

C. The purpose of this Chapter is to provide detailed requirements applicable to Pass Through Telecommunications Systems with respect to the application for an encroachment permit agreement and the conditions under which the applicant for such a permit agreement shall agree to operate.

(Ord. No. 2001-007 § 1)

A. The definitions of § 11.20.020 in this code shall apply to this Chapter unless otherwise specified.

B. For purposes of this chapter, "Pass Through Telecommunications Systems" shall specifically include, but not limited to, cable systems and systems of conduit or other infrastructure that are installed for use by cable systems, telecommunications systems or other communications systems.

(Ord. No. 2001-007 § 1)

Any person may apply to obtain a Pass Through Telecommunications System by completing an application form provided by the City and submitted to the City Clerk. An application must include, but not limited to:

A. Identification of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application also shall state the names and addresses of its directors, principal offices, major stockholders and associates owning ten percent (10%) of equity interest, and the names and addresses of parent and subsidiary companies.

B. A detailed description and location maps of the public rights-of-way or other public places within which applicant proposes or seeks authority to place, construct, own, control, operate, manage, or use any facilities; a detailed description and location maps of the facilities to be installed in the public rights-of-way and any adjacent public or private facilities, equipment or property; and a detailed description of the proposed traffic control plans and street repairs.

C. If applicant is proposing to install overhead facilities on utility-owned poles, evidence that the affected utility pole owner has consented to the installation, or that the applicant has a right to attach to the pole.

D. If applicant is proposing an underground installation in existing ducts or conduits within the public rights-of-way, information in sufficient detail to identify:

1. Whether the applicant has considered the use of duct and/or pipeline capacity owned by the City;

2. The excess capacity currently available in ducts or conduits to be used, before installation of applicant's telecommunications facilities;

3. The excess capacity, if any, as defined by the Rights-of-Way Management Plan and Standards, that will exist in such ducts or conduits after installation of applicant's facilities along the proposed route.

E. If applicant is proposing an underground installation within new ducts or conduits to be installed in the public rights-of-way, information in sufficient detail to identify:

1. The location of the proposed new ducts or conduits;

2. The excess capacity that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities.

F. Financial statements prepared in accordance with Generally Accepted Accounting Principles ("GAAP") demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the telecommunications facilities. If the applicant is a 7901-telephone corporation authorized under the California Public Utilities Company, a copy of the financial reports submitted to the CPUC may be substituted.

G. Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the Pass Through Telecommunications System described in the application. If the applicant is seeking the agreement as a holder of a Certificate of Public Convenience and Necessity, the applicant may satisfy this requirement by showing that the CPUC has found it technically qualified to perform the proposed work.

H. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities including copies of all licenses, permits, franchises, petitions, or applications received or submitted by the applicant to the Federal Communications Commission, the California Public Utilities Commission, the Securities and Exchange Commission or any other federal or state regulatory commission or agency having jurisdiction concerning any matters affecting the applicant's activities or facilities under the proposed encroachment permit agreement. Specifically any CPCN application and related environmental documents shall be submitted with the application.

I. If the applicant claims that any of the facilities it is installing are telephone lines within the meaning of Cal. Public Utility Code § 7901, the applicant shall identify which facilities it claims are telephone lines, and provide proof that it is a telephone corporation within the meaning of Cal. Public Utility Code § 7901.

J. If any certificate or authorization received from any government entity requires applicant to take any steps in connection with or prior to construction or installation of its facilities, the requirements shall be clearly identified and applicant shall state what it has done to fulfill the requirements.

K. If the information required by § 11.26.020 (F) and (G) is not available at the time of application, the applicant may submit such relevant information in response to the requirements of those Sections as available. However, no encroachment permit agreement shall be presented to the City Council consideration until all information has been provided and reviewed by the City.

(Ord. No. 2001-007 § 1)

A. Any application for a Pass Through Telecommunications System shall include an application fee as determined by the City Manager or his or her designee, and based on amounts established by City Council resolution, to cover the cost of all direct and indirect administrative expenses and staff efforts, including consultants and attorneys, necessary to adequately analyze the application. In addition, the applicant shall reimburse the City for all out-of-pocket processing costs, which shall include, but not be limited to, costs of publications of notices, development and publication of relevant agreements, travel expenses, and any other out-of-pocket expenses not covered by the application fees, incurred by the City in its study and evaluation of the application. Should it be determined that the actual cost of processing the application exceeds the amount of the fee paid, the City Manager shall require an additional amount to be paid by the applicant before the application processing continues.

B. Said application fee shall be separate from and in addition to any fees for engineering or other plan reviews, and the costs of construction and/or building permits. No portion of the fee shall be considered a tax or any portion of compensation or revenue due to the City under this Chapter, or any other local, state or federal law for use of the public rights-of-way.

(Ord. No. 2001-007 § 1; Ord. No. 2006-009 § 22 (part))

Within ninety (90) days after receipt of an accepted as complete application, containing all information listed in § 11.26.020, the City's City Manager, or his or her designee, shall issue written findings recommending the granting or denying of the application in whole or in part. If the application is denied, the findings shall include the reasons for denial. In reviewing the application, the City shall consider the following:

A. The financial and technical capability of the applicant.

B. The capacity of the public rights-of-way along the proposed route to accommodate the applicant's proposed facilities.

C. The capacity of the public rights-of-way to accommodate future utility, cable and telecommunications facilities if the permit agreement is granted.

D. The damage or disruption, if any, of public or private facilities, improvements, aesthetics, services, travel or landscaping if the permit agreement is granted.

F. The public interest in minimizing the cost and disruption of construction within the public rights-of-way.

F. The effect, if any, on public health, safety and welfare if the 1 permit agreement is granted.

G. The availability of alternate routes and/or locations for the proposed telecommunications facilities.

H. Applicable federal and state telecommunications laws, regulations and policies.

I. Any and all convictions or findings by any governmental authority that the applicant has violated any law, regulation or ordinance (including any environmental laws, regulations or ordinances) or license agreement or franchise agreement.

J. Compliance with applicable environmental laws and regulations established by federal, state or local governments.

K. Compliance with all other related municipal laws and regulations.

L. Such other factors as may demonstrate that the permit agreement to use the streets and public rights-of-way will not serve the community interest. The City Manager may recommend such reasonable conditions on the proposed permit agreement for the purpose of protecting the public's health, safety and general welfare.

(Ord. No. 2001-007 § 1; Ord. No. 2006-009 § 22 (part))

A. All encroachment permit agreements for Pass Through Telecommunications Systems shall require the approval of the City Council by resolution. The City Council may impose such conditions on the permit agreement as it deems reasonably necessary to protect the public's health, safety and general welfare.

B. Any amendment to an encroachment permit agreement issued by the City shall require approval of the City Council by resolution.

(Ord. No. 2001-007 § 1)

A. The applicant shall be required to comply with all aspects of the City's Rights-of-Way Management Plan and Standards, as may be amended from time to time, and all other City requirements pertaining to constructing and maintaining facilities within the public rights-of-way. Applications pursuant to the Rights-of-Way Management Plan and Standards shall be separate from the requirements of § 11.26.020 herein.

B. No encroachment permit agreement granted under this Chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public rights-of-way for the delivery of any services within the City, whether delivered by the applicant or any other entity using the facilities of the applicant pursuant to the requirements of Division E. of this Section.

C. Any encroachment permit agreement granted shall become effective only after the City and the applicant have executed a written agreement setting forth the particular terms and conditions under which the applicant will occupy and utilize the public rights-of-way, including the period of time for which the permit is granted. No construction may begin within the public rights-of-way prior to the full execution of said written agreement.

D. Each encroachment permit agreement shall require the permitted to pay such fees as the City may establish from time to time to recover costs associated with the use of the rights-of-way. In addition, each encroachment permit agreement shall require a permittee to pay for the use and occupancy for the rights-of-way, except to the extent and for the period of time established that a permittee is exempt from such fee under Cal. Public Utilities Code § 7901. The amount of the fees will be established in each permit agreement, based on the nature of the work proposed, its location, and the amount of public property used.

E. The applicant's facilities shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purpose(s) and use(s) expressly set forth in the public encroachment permit agreement of § 11.26.040(C).

F. Any encroachment permit agreement granted under this Chapter shall be for the nonexclusive use of the public rights-of-way. By executing an encroachment permit agreement, the City does not agree to restrict the number of permit agreements to be executed that cover ail or any part of the City for any person in the same business, a competing business, or a related business to the applicant.

G. Any encroachment permit agreement only authorizes the use of the public rights-of-way and the use of any other public property, whether located within or outside a public rights-of-way, is strictly prohibited unless authorized by a separate lease or license agreement with the City.

H. Any privilege claimed by the recipient of an encroachment permit agreement ire any public rights-of-way shall be subordinate to any prior lawful occupancy of the public rights-of-way, and subordinate to any uses by the City.

I. To the maximum extent permitted by applicable law, a permit agreement permittee 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 telecommunications facilities within the City based upon any act or omission of the permit recipient, its agents or employees, contractors, subcontractors, independent contractors, or representatives. Reasonable attorney's fees, consultants' fees, and expert witness fees are included as those costs that shall be recovered by the City from the permit recipient.

J. A permit agreement permittee shall secure and maintain, public liability, property damage insurance, and umbrella coverage in at least the following amounts:

• 1. Public liability. Five million dollars ($5,000,000) per person per occurrence;
• 2. Property damage. Five million dollars ($5,000,000) per any one claim;
• 3. Umbrella liability. Ten million dollars ($10,000,000).

The public and personal liability and property damage insurance policy shall specifically include the City, the City Council, the City's employees and agents as additional insured, and 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. The public liability and property damage insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least thirty (30) days written notice in advance of the cancellation of the policy.

Evidence of self-insurance in the amounts required herein may be substituted for the insurance policy. Thirty (30) day notification of any changes in self-insurance status shall be required.

K. Prior to issuance of any encroachment permit agreement, applicant 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 the permit, and conditioned that the applicant shall well and truly observe, fulfill, and perform each term and condition of the permit; provided, however, that such bond shall not be required after certification by the City of the completion of construction. During the course of construction, the amount of the bond may, from time to time, be reduced as provided in the permit.

L. Upon written request, any permit recipient shall provide to the City, in a format specified by the City, on a computer disk or other data storage device requested by the City, the details of all the permittee's equipment and facilities and their geographic location in the City. The permittee shall maintain a complete and up-to-date set of as-built maps and drawings upon completion of construction or reconstruction.

M. In addition to all other rights and power retained by the City, the City shall have the right to revoke any encroachment permit agreement granted and to terminate all rights and privileges of the permit in the event of a substantial breach of the terms and conditions of said permit, or of any rule or regulation of the City. A substantial breach shall include, but not be limited to, the following:

1. Violation of any material provision of this Chapter or any permit granted or renewed pursuant thereto;

2. Any attempt to evade any material provision of the permit agreement or to practice any fraud or deceit or deception upon the City;

3. The failure to begin or complete construction as provided under this Chapter and under the permit agreement;

4. Material misrepresentation of fact in the application or negotiation of the permit agreement;

5. Conviction of any director, officer, employee, or agent of a permittee of the offense of bribery or fraud connected with or resulting from the awarding of the permit agreement;

6. Failure to pay an permit fee or other payment required by this Chapter, or required by any permit grated pursuant to this Chapter, to the City when due. Failure to pay said fee shall also require the permittee 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 compounded on the unpaid amount.

7. The revocation of any federal or state authorization upon which the grant of the encroachment permit agreement was based.

N. By accepting any permit agreement issued pursuant to this Chapter, the permittee acknowledges that notice is and was given pursuant to Cal. Revenue and Taxation Code § 107.6 that use or occupancy of any public property may cause certain taxes to be levied upon such interest. The permittee 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 the public rights-of-way or public property pursuant to any right of possession, occupancy or use created by any permit agreement.

(Ord. No. 2001-007 § 1)

A. A pass through encroachment permit agreement shall only authorize the permittee to place facilities along the specific routes identified in the agreement, and does not authorize the permittee or others to provide services or capacity to any entity within the City, or to interconnect to any communications facility within the City.

B. An permittee must obtain authorization from the City in accordance with the municipal code if it intends to alter the facilities so that it or any other person by sale, lease, assignment or transfer may provide any service or capacity to any entity within the City; if it intends to provide or allow its facilities to be used by a person who intends to provide services or capacity to any person within the City; or if it proposed to interconnect to any other communications facility within the City. Any breach of this requirement shall subject the encroachment permit agreement to immediate revocation.

(Ord. No. 2001-007 § 1)

A. Nothing in this Chapter shall contract away, modify, abridge, impair, or affect, in any way, to any extent, the right of the City to acquire any facility located in the public rights-of-way through the exercise of the right of eminent domain.

B. There is reserved to the City every right and power which is required to be reserved or provided by any ordinance of the City. Every person subject to this Chapter by its use of the public rights-of-way agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power, heretofore or hereafter enacted established.

C. Neither the execution of encroachment permit agreement nor any provision of this Chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the City, including the City's authority to make any proper public use of the public rights-of-way.

D. The City shall have the right to supervise all construction or installation work performed subject to the provisions of this Chapter and make such inspections as the City finds necessary to ensure compliance with the terms of this Chapter, an encroachment permit agreement, or any other local, state or federal law, regulation, permit or standard.

E. Any permittee granted an encroachment permit agreement shall at the permittee's expense, protect, support, temporarily disconnect, relocate or remove from any public rights-of-way, any facility when required by the City by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, undergrounding of power lines, signal lines, and tracks, or any other public use of the public rights-of-way.

(Ord. No. 2001-007 § 1)