Tustin Municipal Code Ch. 7 Telecommunications

The purposes of this Chapter are to:

1. Establish local regulations with respect to the location of private telecommunications facilities in the public right-of-way;

2. Comply with the Telecommunications Act in affording access for telecommunications providers to the public right-of-way in a nondiscriminatory manner;

3. Conserve the limited physical capacity of the public right-of-way held in trust by the City; and

4. Secure fair and reasonable compensation to the City and the residents of the City for permitting private use of the public right-of-ways by telecommunications providers. (Ord. No. 1229, Sec. 1, 5-1-00)

For the purpose of this Chapter, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used indicates otherwise:

"City" means the City of Tustin.

"Council" means the City Council of the City.

"Grantee" means a person who has been granted an agreement pursuant to this Chapter.

"Overhead facilities" means utility poles, street light poles, utility facilities and telecommunications facilities located above the surface of the ground in the public right-of-way, including the underground supports and foundations.

"Person" means and includes corporations, companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees, receivers, and successors in interest.

"Public right-of-way" means and includes all public streets, sidewalks and utility easements, now or hereafter owned in fee or easement by the City.

"Public Works Director" means the Director of Public Works of the City.

"Right-of-way agreement" means a contract granted to a person pursuant to this chapter as follows: (1) a license in the case of a telecommunications provider that will not serve areas or persons within the City, or (2) a franchise in the case of a telecommunications provider that will serve areas or persons within the City, as it may be amended.

"Telecommunications Act" means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and by the Telecommunications act of 1996 (47 U.S.C. § 521 et seq.).

"Telecommunications facility" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services.

"Telecommunications provider" means and includes every person that proposes to or does own, control, operate or manage plant, equipment or property within the City in the public right-of-way that is used or to be used for the purpose of offering telecommunications services within or outside areas of the City.

"Telecommunications service" means the proposal to or the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points of wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium, using facilities in the public right-of-way.

"Telegraph or Telephone provider" means every person within the scope of California Public Utilities Code Section 7901 who has constructed or may construct telegraph or telephone lines within the public right-of-way for purposes of oral and aural communication by telephone or communication by telegraph. (Ord. No. 1229, Sec. 1, 5-1-00)

Except for Telegraph or Telephone Providers, no person shall place, construct, install, own, control, operate, manage, maintain, or use any telecommunications facility in, upon, above, beneath, or across any public right-of-way without first obtaining a right-of-way agreement from the City for such purpose. The execution of a right-of-way agreement pursuant to this chapter shall not diminish, abrogate, or otherwise affect a grantee's obligation to comply with any other applicable provision of this code, or state or federal law, including, but not limited to, the following:

A. Any permit or authorization required for the privilege of transacting business within the City as required by the code or ordinances of the City.

B. Any permit, agreement, or authorization required in connection with activities in, upon, above, beneath, or across the public right-of-way, including by way of example but not limitation, encroachment permits for street work, street excavation, use, removal and relocation of property within a street, and other street work, and design review of above ground cabinets pursuant to Ordinance No. 1213, codified at Part 6 of Chapter 2 of Article 7 of the Tustin City Code.

C. Any permits or agreements for occupying any other property of the City to which access is not specifically granted by the right-of-way agreement including, without limitation, permits and licenses for placing devices on or in poles, conduits, or other structures or facilities owned by the City or other governmental entity. (Ord. No. 1229, Sec. 1, 5-1-00)

Each application for a right-of-way agreement required under this Chapter shall be in writing, shall be filed with the City Clerk, and shall contain, at a minimum, the following information:

A. The name and address 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 shall also state the names and addresses of its directors, main offices, major stockholders and associates, and the names and addresses of parent and subsidiary companies.

B. A statement and description of the facilities proposed to be placed, constructed, owned, controlled, operated, managed, or used by the applicant; the proposed location of such facilities; the manner in which the applicant proposes to place, construct, own, control, operate, manage, or use the same; and the extent and manner in which existing or future poles or other facilities of other person will be used.

C. A detailed description and location map of the public right-of-way or other public places within which the applicant proposes or seeks authority to place, construct, own, control, operate, manage, or use any facilities; a detailed description and location map of the facilities to be installed in public right-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.

D. A copy of any contract, if existing, between the applicant and any person providing for use of the person's facilities such as poles, lines, or conduits.

E. A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person with respect to the applicant's proposed facilities in the public right-of-way. If a right-of-way agreement is granted to a person posing as the representative of another person, and such information is not disclosed in the original application, such right-of-way agreement shall be null and void and of no force or effect whatsoever.

F. A financial statement prepared by a certified public accountant showing applicant's financial status and financial ability to complete the construction, operation, and maintenance of the proposed facilities.

G. 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 right-of-way agreement.

H. The City may at any time demand, and applicant shall provide, such supplementary, additional or other information as the Council or City staff may deem reasonably necessary to determine whether the requested right-of-way agreement should be granted. (Ord. No. 1229, Sec. 1, 5-1-00)

Each application for a right-of-way agreement required under this Chapter shall be accompanied by payment to the City of an application fee in an amount necessary to pay all expenses incurred by the City in connection with the processing of such application and the execution of a right-of-way agreement, including any expense incurred by the City for outside technical or legal services to review any such application or agreement and submit a recommendation thereon. A minimum initial deposit of $5,000.00 is required. In the event the City subsequently determines the initial deposit is insufficient to pay for all City expenses incurred, it may require the applicant to pay an additional deposit in an amount sufficient to cover the additional estimated expenses. 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 code, or any other local, state, or federal law for use of the public right-of-way. (Ord. No. 1229, Sec. 1, 5-1-00)

Each right-of-way agreement approved pursuant to this Chapter shall contain an annual compensation to be paid by Grantee for the property rights granted in the right-of-way agreement. (Ord. No. 1229, Sec. 1, 5-1-00)

Grantee'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 Grantee's right-of-way agreement. Grantee shall not in any way use, or authorize or allow another person to use, any facility subject to grantee's right-of-way agreement for any purpose or use other than the purpose(s) and use(s) expressly set forth in the right-of-way agreement. (Ord. No. 1229, Sec. 1, 5-1-00)

a Any right-of-way agreement executed under this Chapter shall be for the nonexclusive use of the public right-of-way. By executing a right-of-way agreement, the City does not agree to restrict the number of right-of-way agreements to be executed that cover all or any part of the City for any person in the same business, a competing business, or a related business as the grantee.

b A right-of-way agreement only authorizes grantee to use the public right-of-way, and the use of any other public property, whether located within or outside a public right-of-way, is strictly prohibited unless authorized by a separate lease or license agreement with the City.

c No reference herein, nor in any right-of-way agreement shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of the property that is the subject of a right-of-way agreement is sufficient to permit its use for the purposes specified in the agreement. Any right-of-way agreement executed under this chapter shall be deemed to grant no more than the rights which the City may have the authority to grant.

d Any privilege claimed by grantee in any public right-of-way shall be subordinate to any prior lawful occupancy of the public right-of-way. (Ord. No. 1229, Sec. 1, 5-1-00)

a Conformance with Applicable Law. No person shall place, construct, install, own, control, operate, manage, maintain, or use any telecommunications facility in, upon, above, beneath, or across any public right-of-way without first obtaining all necessary or required permits, agreements, or approvals from the City and all other governmental entities with jurisdiction over the facility or public right-of-way. All telecommunications facilities shall be maintained in compliance with such permits, agreements, or approvals, and all applicable statutes, ordinances, rules, regulations, orders, and decisions issued by any federal, state, or local governmental body, agency, or court.

b Time, Place and Manner. All telecommunications facilities shall be located, constructed, operated, and maintained in the time, place, and manner that causes the least interference with the public's use of the public right-of-way, and the rights or reasonable convenience of property owners who adjoin the public right-of-ways, all as determined by and approved by the City in conformance with the City's code and ordinances, including, but not limited to, encroachment permits for street work, street excavation, use, removal and relocation of property within a street, and other street work, and design review of above ground cabinets and/or other similar facilities pursuant to Ordinance No. 1213, codified at Part 6 of Chapter 2 of Article 7 of the Tustin City Code.

c Undergrounding. The City reserves the right to require that all telecommunications facilities be placed underground.

d Overhead Wire/Pole Attachments. All new telecommunications facilities proposed to be installed on utility poles or as overhead facilities shall be reviewed and approved by the City Council subject to the recommendations by the Planning Commission for the maximum protection of the public health, safety and welfare. (Ord. No. 1229, Sec. 1. 5-1-00)

Every person subject to this chapter shall, at its expense, protect, support, temporarily disconnect, relocate or remove from any public right-of-way, any facility of said person when required by the Public Works Director 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 right-of-way. (Ord. No. 1229, Sec. 1, 5-1-00)

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 right-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, and every person subject to this chapter, by its use of the public right-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 or established.

c Neither the execution of a right-of-way agreement nor any provisions 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 right-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 it finds necessary to ensure compliance with the terms of this chapter, a right-of-way agreement, or any other local, state, or federal law, regulation, permit, or standard. (Ord. No. 1229, Sec. 1, 5-1-00)