Villa Park Municipal Code Art. 21-4 Telecommunications Regulatory Ordinance

This section, sometimes referred to herein as the "Ordinance", may be known and cited as the Telecommunications Regulatory Ordinance for the City of Villa Park.

(Ord. #97-447, § 1)

This section shall be construed in accordance with the applicable federal and state laws governing telecommunications carriers, telecommunications services, telecommunications systems, and telecommunications facilities.

This section shall apply within the geographical limits of the City including any areas subsequently annexed by the City.

(Ord. #97-447, § 1)

If any word, phrase, sentence, part, section, subsection, or other portion of this Ordinance, 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 Ordinance, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect.

(Ord. #97-447, § 1)

For purposes of this Ordinance, 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 and the Cable Act. 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.

"Act" shall mean the Telecommunications Act of 1996, as amended from time to time.

"Affiliated person" or "affiliates" shall mean each person who falls into one (1) or more of the following categories:

(1) Each person having, directly or indirectly, a controlling interest in a telecommunications carrier;

(2) Each person in which a telecommunications carrier has, directly or indirectly, a controlling interest;

(3) Each officer, director, general partner, limited partner holding an interest of five (5) percent or more, joint venturer, or joint venture partner in a telecommunications system in the City; and

(4) 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 five (5) percent 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.

"Amplifier" shall mean an electronic device which increases or magnifies an electronic signal within the telecommunications system.

"Applicant" shall mean 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 Ordinance and any required state or federal regulations.

"Application" or "Proposal" are synonymous for the purposes of this Ordinance. An "application" or "proposal" shall mean the process by which the Applicant submits a request for an initial request, 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.

"Assignment" or "Transfer" shall mean 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.

"Cable Act" shall mean the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection Act of 1992, all of which are amendments to the Communications Act of 1934, and any other subsequent amendments.

"Cable operator" shall mean any person or group of persons who:

(1) Provides cable service over a cable system and directly or through one (1) 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 service" shall mean:

(1) The one-way transmission to subscribers of video programming, or other programming service; and

(2) Subscriber interaction, if any, or other programming which is required for the selection or use of such video programming service.

"Cable system" or "Cable television system" shall mean 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 (1) 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.

"CEQA" shall mean the California Environmental Quality Act, Section 21000 et seq. of the public Resources Code of the State of California.

"City" shall mean the City of Villa Park, California.

"City Council" shall mean the City Council of the City of Villa Park, California.

"Communication Plan" shall mean the public communication plan described in subsection 21-4.30(g).

"Construction Plan" shall mean the construction plan describing the telecommunications system and telecommunications facilities, areas to be served, and an estimated time schedule for such construction.

"Consultant" shall mean the entity hired by the telecommunications carrier under the supervision of the City to inspect construction and to locate utilities.

"Control" or "controlling interest" shall mean 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 twenty (20) percent 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.

"County" shall mean the County of Orange, California.

"Easement" shall mean 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 including cable service or any telecommunications service. Easement shall include a private easement used or useable for the provision of cable service or any other telecommunications service.

"Excess capacity" shall mean 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.

"FCC" or "Commission" shall mean the Federal Communications Commission and/or such other federal regulatory agency as now or in the future may have jurisdiction to oversee telecommunications carriers.

"Fiber cable" or "fiber optic cable" shall mean very thin and pliable cylinders, or strands of glass or plastic, or any future functional equivalent, used to carry wide bands of multiple frequencies.

"Franchise" shall mean 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.

"Franchise agreement" shall mean 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.

"Franchise expiration" or "franchise agreement expiration" shall mean the date of expiration or the end of the term of a franchise agreement.

"Franchise fee" shall mean 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 and provide telecommunications services to residents of the City.

"Franchised telecommunications carrier" shall mean a person that is awarded a franchise by the City to construct or operate a telecommunications system within all or part of the City.

"Franchising authority" shall mean the City Council for the City of Villa Park, California.

"Functional equivalent" or "functionally equivalent" with respect to a specifically named or referenced piece of telecommunications equipment shall mean another piece of telecommunications equipment that has either:

(1) The same or substantially similar characteristic qualities, operational capabilities, design functions as the original, specifically named or referenced piece of telecommunications equipment; or

(2) Operates in substantially the same form and fashion as the original specifically named or referenced piece of telecommunications equipment; or

(3) Operates in a technologically superior manner to the original, specifically named or referenced piece of telecommunications equipment.

"Grantee" shall mean a person who has been granted a licensee or franchise pursuant to this chapter.

"Gross annual revenue" or "gross annual receipts" or "gross receipts" shall mean all revenue, as determined in accordance with generally accepted accounting principles, which is received, directly or indirectly, by a telecommunications carrier and by each affiliated person from or in connection with the distribution of any telecommunications service, and any other service which may, under now or then applicable federal or state law, be included in the definition for the purpose of calculation and collecting the maximum allowable franchise fee for operation of the telecommunications system, directly or indirectly, from or in connection with the distribution of any telecommunications service. It is intended that all revenue collected by the telecommunications carrier, and by each affiliated person, from the provision of telecommunications service over the telecommunications system, whether or not authorized by the franchise, be included in this definition. Gross annual revenue also specifically includes: (1) the fair market value of any non-monetary (i.e., barter) transactions between telecommunications carrier and any person, other than an affiliated person, but not less than the customary prices paid in connection with equivalent transactions; (ii) the fair market value of any non-monetary (i.e., barter) transaction between telecommunications carrier and any affiliated persons, but not less than the customary prices paid in connection with equivalent transactions conducted with persons who are not affiliated persons; and (iii) any revenue received, as reasonably determined from time to time by the City, through any shall mean which is intended to have the effect of avoiding the payment of compensation that would otherwise be paid to the City for the approval franchise granted. Gross annual revenue also includes any bad debts recovered. Gross annual revenue also includes all advertising revenue which is received directly or indirectly by telecommunications carrier, any affiliated person, or any other person from or in connection with the distribution of any telecommunications service over the system or the provision of any telecommunications service-related activity in connection with the system. Gross annual revenue does not include: (i) the revenue of any person to the extent that said revenue is also included in the gross annual revenue of the telecommunications carrier; (ii) taxes imposed by law on subscribers which the telecommunications carrier is obligated to collect; and (iii) amounts which must be excluded pursuant to applicable law.

"License" shall mean an authorization to construct a telecommunications system in the City which does not provide telecommunications services to residents of the City.

"License fee" shall mean an annual fee or charge that the City requires as payment for the privilege of using streets, public rights-of-way, and easements to construct, maintain and operate a telecommunications system which does not provide telecommunications services to residents of the City.

"Mayor" shall mean the Mayor for the City of Villa Park, California.

"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 and coaxial facilities are connected.

"Ordinance" shall mean this regulatory ordinance for the City of Villa Park, California.

"Other ways" shall mean the highways, streets, alleys, utility casements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.

"Overhead facilities" shall mean 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" shall mean any individual, corporation, estate, trust, partnership, association of two or more persons having a joint common interest, or joint stock company.

"Personal wireless services" shall mean commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.

"Personal wireless service facilities" shall mean facilities for the provision of personal wireless services.

"Power Supply" shall mean an electronic device designed to provide electrical power to all or a portion of the telecommunications system.

"Private communications network" or "PCN" or "Private communications system" shall mean 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.

"Project overview" shall mean the assessment described in subsection 21-4.30(b) to be performed by the telecommunications carrier for use by the City in its review of the construction of the telecommunications system and the telecommunications facilities.

"Proposed abandonment of telecommunications service" or "proposed withdrawal of telecommunications service" or "proposed cessation of telecommunications service" shall mean the actual or 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.

"Public property" shall mean and includes all real property owned 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 Ordinance.

"Public right-of-way" shall mean 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, in the area served by the telecommunications carrier.

"Pull box" shall mean a flush-mounted or above-ground housing which encloses one (1) or more conduit openings.

"PUC" shall mean the California Public Utilities Commission.

"Revocation", "termination" or "nonrenewal" shall mean 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 telecommunications system within the City.

"State" shall mean the State of California.

"Street" shall mean 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" shall mean a person lawfully receiving or using a telecommunications service delivered by a telecommunications carrier over a telecommunications system.

"Surplus space" or "surplus capacity" shall mean 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" shall mean 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.

"Telecommunications" shall mean 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 set and received.

"Telecommunications carrier" shall mean any owner, by way of fee ownership or lease, of any telecommunications system or telecommunications facilities, direct or indirect provider of telecommunications services whether the telecommunications 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.

"Telecommunications equipment" shall mean 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.

"Telecommunications facilities" 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.

"Telecommunications service" shall mean 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.

"Telecommunications system" shall mean 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, by a telecommunications carrier to provide telecommunications services. A telecommunications system may be built in conjunction with, or be part of, a cable system.

"Telephone company" shall mean every person within the scope of Public Utilities Code Section 7901 who has constructed or may construct telegraph or telephone lines.

"Traffic control plan" shall mean the traffic control plan described in Section 21-4.30(h).

"Underground facilities" shall mean utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.

"Usable space" shall mean 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.

"User charge" shall mean a charge used in place of a franchise fee that the City requires as payment for the privilege of using public property to construct, maintain and/or operate a telecommunications system or telecommunications facilities.

"USC" shall mean the United States Code.

"Utility easement" shall mean any easement owned by the City or acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.

"Utility facilities" shall mean the plan, 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. #97-447, § 1)

(a) The City Manager is designated the officer of the City that is responsible for the continuing administration of this Ordinance and matters related to telecommunications services.

(b) Unless prohibited by federal, state or local law, the City Manager may further delegate its powers and authority to a duly authorized representative with respect to administering this Ordinance or an applicable franchise.

(Ord. #97-447, § 1)

(a) With respect to all provisions contained within this Ordinance, those provisions shall be applicable to a telecommunications carrier unless such telecommunications carrier is either hereunder exempted from this Ordinance (or any applicable provision), granted relief from any applicable provision of this Ordinance, or exempted under applicable federal or state law.

(b) Subsection A of this section is not intended to repeal, and does not have the effect of repealing, any current franchise agreement that presently exists between the City and a franchised telecommunications carrier.

(c) The provisions of this Ordinance shall have no effect on an existing franchise agreement until the expiration of such existing agreement or until one (1) of the following occurs:

(1) Prior to the franchise agreement expiration date, the City and the affected franchised telecommunications carrier either execute an amended franchise agreement in which both parties agree to be bound by the term of the Ordinance (except as specifically granted relief, exemption, clarification, or comparable policy status); or

(2) Prior to the franchise agreement expiration date, the City and the affected franchised telecommunications carrier execute a franchise renewal agreement; or

(3) Both parties agree to a specific date for expiration of said existing franchise which is prior to the present franchise expiration date.

(Ord. #97-447, § 1)

(a) Telecommunications carriers who are exempted from complying with the provisions of this Ordinance ("exempt carriers") are as follows:

(1) A telecommunications carrier that is exempted from this Ordinance as a result of federal or state law;

(2) A telecommunications carrier that is exempted from this Ordinance as a result of an applicable FCC or PUC ruling; or

(3) A telecommunications carrier that is exempted from this Ordinance 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 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 (1) or more of the criteria of this particular section.

(c) An exempt carrier is exempt only from this Ordinance. 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.

(Ord. #97-447, § 1)

(a) Any telecommunications carrier governed by this Ordinance may file a written petition, at any time, with the City Council seeking relief from one (1) or more provisions of this Ordinance. A telecommunications carrier may specifically request the exemption from, or delay in implementation of one (1) or more provisions of this Ordinance. Also, the telecommunications carrier may request that a specific provision of this Ordinance apply to such telecommunications carrier for a specified length of time or duration. 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 (1) or more of the provisions of this Ordinance, a telecommunications carrier must demonstrate and prove to the City Council's reasonable satisfaction that at least one (1) 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 (1) or more provisions or sections of this Ordinance 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 City Council may charge the petitioning telecommunications carrier with the actual and reasonable costs for processing such a petition including costs incurred by outside consultants who are retained by the City Council to review a petition.

(Ord. #97-447, § 1)

A telecommunications carrier shall not be excused from complying with any of the requirements of this Ordinance, or any subsequently adopted amendments to this Ordinance, by any failure of the City on any one (1) or more occasions to seek, or insist upon, compliance with such requirements or provisions.

(Ord. #97-447, § 1)

(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 Ordinance, 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. #97-447, § 1)

In any case of an actual inconsistency between any provision or section of this Ordinance and any provision or section of a federal or State rules, regulation, or law, the federal or state rules, regulation or law, the federal or state rules, regulation or law shall supersede the effect of this Ordinance unless such federal or state rule, regulation or law does not preempt, supersede, or make invalid the inconsistency.

(Ord. #97-447, § 1)

(a) Where there is a conflict between this Ordinance and a subsequently granted franchise agreement or license, this Ordinance shall control and prevail, unless administratively or judicially determined invalid, unenforceable, or unconstitutional, or unless the provisions of subsection (b) of this section apply to the telecommunications carrier and its franchise agreement or license.

(b) Where a telecommunications carrier receives an exemption, relief, or clarification from one (1) or more provisions or section of this Ordinance, or has one (1) or more of its policies deemed comparable to a provision contained in this Ordinance, the franchise agreement or license shall specifically note such exemption, relief, clarification or comparable policy. As a result, to the extent that such an exemption, relief, clarification or comparable policy is inconsistent with a provision contained in this Ordinance, then the specifically noted exemption, relief, clarification or comparable policy language contained in the franchise agreement or license shall control.

(Ord. #97-447, § 1)

Notwithstanding the other provisions of this Ordinance, a telecommunications carrier shall not be held in violation or material breach, default, or noncompliance of this Ordinance 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. #97-447, § 1)

(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. #97-447, § 1)

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 herefrom, 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. #97-447, § 1)

(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:

(1) Public liability: Two million dollars ($2,000,000) per person/per occurrence;

(2) Property damage: Two million dollars ($2,000,000) per any one (1) claim;

(3) Umbrella liability: Five million ($5,000,000) 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 insured.

(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 (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 fifteen (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. #97-447, § 1)

(a) Within thirty (30) days after the effective date of any franchise or license, the telecommunications carrier shall deposit into a bank account established by the telecommunications carrier for the benefit of City, and shall maintain on deposit through the term of any franchise or license, a sum specified in the franchise agreement or license as security for the faithful performance by the telecommunications carrier of all of the provisions of the franchise agreement or license, this Ordinance, and with all orders, permits and directions of the City or any designated representative of the City having jurisdiction over the telecommunications carrier's acts or defaults under the franchise or license of this Ordinance, and as security for the payment by the telecommunications carrier of all claims, fees, liens, or taxes due the City which arise by reason of the construction, operation or maintenance of the telecommunications system pursuant to any franchise agreement or license or this Ordinance, and to satisfy any actual or liquidated damages arising out of a franchise or license breach.

(1) Except as otherwise provided in any franchise or license, if the telecommunications carrier fails, after twenty (20) days' written notice, to pay to the City any fees that are due and unpaid, or fails to repay within such twenty (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 or license; or if the telecommunications carrier fails to comply with any provision of the franchise or license or this Ordinance and the City determines that such failure was without just cause and, if 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.

(2) With thirty (30) days' notice to the 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.

(3) The 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 the franchise or license once all amounts due to the City have been paid.

(4) 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. Within thirty (30) days after the effective date of any franchise or license, the telecommunications carrier shall furnish proof of the posting of a faithful performance bond in favor of the City with a corporate surety approved by the City in the sum specified in the franchise agreement or license and conditioned that the telecommunications carrier shall well and truly observe, fulfill, and perform each term and condition of the franchise agreement or license. 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 County. Written evidence of payment of premiums shall be filed with the City.

(c) Letter of credit.

(1) At the option of the City, the telecommunications carrier may be required, in lieu of creating a security fund and/or posting a faithful performance bond, to post an irrevocable letter of credit, issued by a bank approved by the City, in the amount specified in the franchise agreement or license. Said letter of credit shall incorporate wording, approved by the City enabling it to draw from time to time such funds as the City may determine to be necessary to satisfy any material defaults of the telecommunications carrier or to make any payments due City under or in connection with this Ordinance or the franchise agreement or license, upon ten (10) days' written notice to the issuer of the letter of credit. Said letter of credit shall further provide for sixty (60) days' written notice by certified mail from its issuer to City of any pending expiration or cancellation, and said notice shall without further cause constitute reason for the City to draw the full sum to be held in its own accounts until such letter of credit is reestablished in a form satisfactory to City.

(2) If City requires such a letter of credit, the telecommunications carrier shall pay all fees or other charges required to keep it in force and shall, within thirty (30) days of any draw by City, restore its face value to the original amount.

(3) All provisions herein applicable to faithful performance bonds or security funds shall also apply to letters of credit.

(Ord. #97-447, § 1)

(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 Ordinance.

(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 sixty 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.

(Ord. #97-447, § 1)

(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 Ordinance and/or franchise agreement or license on seven (7) 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 two (2) percent 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 Ordinance.

(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 (3) 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 (1) or more classes of telecommunications carrier.

(Ord. #97-447, § 1)

In order to establish minimum uniform standards for all users of streets, public rights-of-way, and public property, any telecommunications carrier shall adhere to the following minimal construction schedule and construction-related requirements:

(a) Construct, install, maintain and repair the telecommunications system in accordance with this ordinance, all building codes, the National Electrical Code as adopted by the City, and all construction standards imposed by the FCC, the PUC, and any other governmental agency;

(b) Use the streets and public rights-of-way as set forth in this Ordinance and any franchise agreement or license;

(c) Remove telecommunications facilities as set forth in this Ordinance and any franchise agreement or license;

(d) Adopt and implement construction standards as set forth in this Ordinance and any franchise agreement or license;

(e) Pay all permit fees and inspection fees as set forth herein, in any franchise agreement or license, and in any other ordinance or resolution of the City;

(f) Maintain all permits as otherwise required; and

(g) Adhere to all standards and guidelines contained in the "Uniform Rights-of-Way Construction Standards" which may be adopted and amended from time to time by resolution of the City Council.

(Ord. #97-447, § 1)

During any phase of construction, installation, maintenance and repair of the telecommunications system, the telecommunications carrier shall use materials of good and durable quality and all such work shall be performed in a safe, thorough, and reliable manner.

(Ord. #97-447, § 1)

(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 pursuant to a routing plan to be approved by the City Manager or his/her 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 forty-eight (48) hours prior notice to USA prior to any excavation.

(f) A telecommunications carrier shall, on the request of any person holding a building moving permit, temporarily remove, raise or lower the cable wires to allow the moving of the building. The expense of temporary removal shall be paid by the person requesting it, and such telecommunications carrier may require payment in advance.

(Ord. #97-447, § 1)

(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 (6) 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 this Ordinance; or

(4) The telecommunications carrier's franchise or license is revoked pursuant to the provisions set forth in this Ordinance.

(b) 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.

(c) 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 two hundred seventy (270) days, or substantial progress towards removal not be made within two hundred ten (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 Ordinance shall be available to pay for such work.

(d) If officials or representatives of the City remove a telecommunications system, and such telecommunications carrier does not claim the property within one hundred twenty (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.

(e) 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.

(f) Removal of deactivated equipment. Telecommunications carriers shall maintain the deactivated telecommunications facilities at no cost 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 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 ninety (90) days after an underground system is activated.

(Ord. #97-447, § 1)

(a) Methods of construction, installation, maintenance and repair of any telecommunications system shall comply with the most current editions of the National Electrical Safety Code and the National Electric Code.

(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 otherwise agreed to by the parties. Construction shall not interfere with the services of the City or third parties.

(Ord. #97-447, § 1)

(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 and, in addition, all of the City's direct labor and supervisory costs, including customary and reasonable overhead (the "labor payment"). The City Council, may, from time to time by resolution, 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 Ordinance, any franchise agreement, any license, any permit, and any other requirement of the City.

(c) Both telecommunications carrier and City may hire contractors, at telecommunications carrier's sole expense, to carry out any work under this agreement. Telecommunications carrier shall make payment within ten (10) days of billing from the City. 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. 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. Telecommunications carrier shall complete restoration of or repairs to any damage caused by the construction within ten (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 subparagraph (b) above, at the City's sole option, the City may require telecommunications carrier at 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. #97-447, § 1)

It shall be the responsibility of any telecommunications carrier to comply with the most current FCC, PUC, federal, and state technical standards.

(Ord. #97-447, § 1)

In order to verify that a telecommunications carrier has constructed and maintained the telecommunications system in the manner required by this Ordinance, 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. #97-447, § 1)

A telecommunications carrier shall construct, operate, maintain, repair, remove, replace or restore the telecommunications system in strict compliance with all current technical codes adopted by the City, the state, or the United States.

(Ord. #97-447, § 1)

The telecommunications carrier shall strictly adhere to all building and zoning codes currently or hereafter in force and shall obtain all necessary permits. The telecommunications carrier shall arrange its lines, cables, and other appurtenances, on both public and private property, in such a manner as to cause no unreasonable interference with the use of said property by any person. In the event of such interference, the City may require the removal of the telecommunications carrier's lines, cables, and appurtenances from the property in question. The telecommunications carrier shall give at least forty-eight (48) hours advance notice to all property owners and to the City prior to installing any above-ground or underground structures upon easements located on private property.

(Ord. #97-447, § 1)

(a) The telecommunications carrier shall complete system construction and offer telecommunications service and any other service authorized by the franchise agreement or license no later than the date specified in the franchise agreement or license.

(b) Project overview. No later than ten (10) days after the filing of any permit application, telecommunications carrier shall file with the City Manager or other designated employee of the City a project overview which shall contain an assessment of the operation of any nodes, including without limitation, a noise study prepared by a licensed engineer approved by the City documenting noise generated from any nodes.

The City's planning department will prepare an initial study to determine the appropriate level of environmental review. Telecommunications carrier will submit the final engineering plans to the City for review and approval prior to the issuance of a permit. The planning department and engineering department will review and approve the locations for all telecommunications facilities to be located in the streets and public rights-of-way. These facilities include any nodes, pedestals, pull-boxes, amplifiers, power supplies, and taps.

(c) Construction plan. Within ninety (90) days prior to commencement of construction, and from time to time thereafter, telecommunications carrier shall file with the City manager or other designated employees of the City, a general construction plan describing in detail the telecommunications system and telecommunications facilities, areas to be served, and an estimated time schedule for such construction ("construction plan"). Telecommunications carrier may modify or change its construction plan at any time in its sole discretion, provided telecommunications carrier provides written notice to the City within five (5) business days subsequent to any modification. Any modifications to construction plans must be reviewed and approved by the City before modifications can be implemented by telecommunications carrier.

(d) Notice to the City. The City shall have thirty (30) days following receipt of the construction plan, or changes thereto, to approve or disapprove the construction plan.

(e) Notice to other providers. Telecommunications carrier shall provide the City with general engineering base maps identifying existing underground and aerial utility routes, streets, parcels, poles, and construction needs including points of connections for existing residences, potential trench routes, and potential locations for nodes, amplifiers, and taps at least one (1) month in advance of any underground construction, unless otherwise agreed to, which may be reviewed in advance by any interested party for the purpose of reducing the impact on the City's infrastructure and for the public convenience.

(f) Telecommunications carrier, with the City's assistance, shall develop a special construction schedule and submit it to the City at least twenty (20) days prior to the start of work. Prior to the underground construction of any of the telecommunications facilities, unless otherwise agreed to, telecommunications carrier shall furnish detailed plans of the proposed construction and changes thereto to the City. The proposed node sites in the City must be approved by the City prior to construction of the underground plant. Depending on health and safety issues, and input from residents, the City, at its sole discretion, may require proposed node sites to be relocated by telecommunications carrier. In the installation of the telecommunications facilities, telecommunications carrier shall comply with the City's standard construction requirements relating to telephone facilities and other comparable utility installations.

(g) Public communications plans.

(1) Telecommunications carrier agrees to develop a public communication plan ("communication plan") within sixty (60) days prior to the commencement of construction and submit it to the City for the City's review. The City shall approve or disapprove the communication plan within ten (10) business days of its receipt. The communication plan shall include the following:

a. A written notification of property owners adjacent to nodes and amplifiers not less than forty-five (45) days prior to the installation indicating the proposed location, a photograph of all above-ground pedestals and other visible equipment from which their size must be apparent, and a detailed description of the equipment included within the node including: the electronic components, natural gas generator, electrical fans, and the anticipated noise levels during winter and summer months and emergency backup operations. Telecommunications carrier will provide its non-toll telephone number and a telephone number of the City which may be called if the property owner is concerned about the installation.

b. A mailing to all residents in a construction area thirty (30) days advance of construction activity.

c. The hanging of door hangers on all residences seven (7) days prior to immediate construction activity.

d. A second written notice to the adjacent property owner(s) not less than fifteen (15) days prior to installation of such node, amplifiers and taps which shall have the same information as set forth in subparagraph (1)a. above as well as the actual date of the installation of such node, amplifiers and taps.

(2) Telecommunications carrier must provide the homeowner with a written notice of their rights to refuse to have telecommunications carrier trench or dig up their yard without their written consent. At the bottom of the form it should have a statement that reads "I am the owner of record of the property located at (blank to be filled in by property owner) in the City of Villa Park."

By signing this card, I authorize _______ to trench in my yard to install fiber optic wiring and attach a box to the side of my house.

By not signing this card, I refuse to allow _______ to trench in my yard.

The homeowner may select a choice by placing an "x" in the appropriate box. If the homeowner does not sign the card, the telecommunications carrier is not authorized to trench on that individual's private property.

(3) Telecommunications carrier shall furnish the City with the specific locations of any nodes, amplifiers and taps at least sixty (60) days in advance of the installation of the nodes. Telecommunications carrier agrees to participate in any public hearings or meetings scheduled by the City and will be prepared to answer questions concerning Pacific's proposed construction of the telecommunications facilities or the telecommunications system. Telecommunications carrier shall have available at such meetings visual aids as appropriate such as slides, maps and diagrams. The proposed node locations in the City must be approved by the City prior to construction of the underground cable plant. Depending upon health and safety issues, and input from residents, the City, at its sole discretion, may require proposed node, amplifiers and taps sites be relocated by telecommunications carrier.

(h) Traffic control plans. Telecommunications carrier shall furnish detailed traffic control plans, which shall include site-specific hours of construction, to the City Engineer no later than seven (7) days prior to the commencement of any construction activities which may incommode traffic (the "traffic control plan"). The City Engineer shall provide (if any) comments within two (2) business days of receipt. No construction related activities may be conducted in the public right-of-way without a City approved traffic control plan.

(i) Telephone contact. During construction, telecommunications carrier shall provide the City a telephone contact number, and staff it during regular business hours, 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 telecommunications carrier, telecommunications carrier shall respond in a timely manner. Telecommunications carrier shall correct within two (2) business days 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 streets and public right-of-way at no cost to the City.

(j) Daily notice. Every working day during construction, telecommunications carrier shall notify the designated City staff member of the location of that next day's construction activities. The number of concurrent construction locations may be limited by the City.

(k) Maps and plans. Telecommunications carrier shall maintain accurate maps and improvement plans of the telecommunications system and telecommunications facilities, in a manner consistent with telecommunications industry standards and which can be integrated into the City's Geographic Information System ("GIS"). Telecommunications carrier shall furnish to the City two complete sets of as-built construction drawings and a copy of the drawings in AUTOCAD usable format within sixty (60) days of completion of the construction of the facilities. Maps and improvement drawings shall be furnished to the City and other parties interested in performing work within the streets and public right-of-way, upon request, at no cost to the City. Telecommunications carrier shall pothole its telecommunications facilities, at its expense, within fifteen (15) days of receipt of a written request from the City for city projects which the City has itself or by contract designed and engineered, which directly conflicts with the facilities, unless telecommunications carrier can certify the exact location and depth of the telecommunications facilities at the location where potholing is requested.

(l) Construction status reports. During construction, telecommunications carrier shall submit to the City periodic progress reports describing in detail the status of construction in relation to the construction plan submitted under this agreement. The first report shall be submitted within thirty (30) days of commencement of construction and shall be updated each thirty (30) days thereafter.

(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, 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 fifteen (15) days to cure the default. The telecommunications carrier shall, within thirty (30) days of billing, pay to 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 Engineer, 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 Engineer or his or her designated representative.

(Ord. #97-447, § 1)

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 thirty (30) days' notice by the City, to do such work, City may cause it to be done, and the telecommunications carrier shall, within thirty (30) days of billing, pay to City the actual costs incurred.

(Ord. #97-447, § 1)

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 convincing, the ownership of such property to City.

(Ord. #97-447, § 1)

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 undergrounding, 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. #97-447, § 1)

No franchise or license 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 streets.

(Ord. #97-447, § 1)

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. #97-447, § 1)

Nothing in a franchise or license shall prevent the City from constructing, repairing, or altering any public work. All such work shall be done, insofar as practicable, in such manner as not to unnecessarily obstruct, injure or prevent the free use and operation of any property of the telecommunications carrier. However, if any property of the telecommunications carrier shall interfere with the construction, maintenance, or repair of any public improvement, that property shall be removed or replaced in such manner as directed by City so that the same shall not interfere with the public work, and such removal or replacement shall be at the expense of the telecommunications carrier.

(Ord. #97-447, § 1)

(a) Underground facilities. In those areas of the City where utility service or communications facilities are presently located underground, telecommunications carrier agrees to place its telecommunications facilities underground. This requirement shall include telecommunications carrier's performance of all necessary construction and backfilling of main line and service construction and furnishing any imported backfill material required, restoration of landscaping to its condition prior to construction and restoration of street and sidewalk pavement to then applicable City standards. Telecommunications carrier agrees to obtain and maintain photographs of the condition, prior to and after construction, of private and public property affected by underground construction.

(b) Coordination with other utilities. Previously installed aerial cable shall be undergrounded in concert with utilities pursuant to the general ordinances of the City and applicable state law or on a voluntary basis by all utilities. This coordinated undergrounding shall be performed on a cost-sharing basis by telecommunications carrier and the public utilities involved.

(c) Above-ground amplifiers, power supplies and pedestals shall be set back at least one (1) foot from the sidewalk edge in order to avoid any hazard to the public and to minimize the possibility of damage to the amplifiers, power supplies and pedestals. Telecommunications carrier shall take necessary steps, at its expense, to reduce the visual impact of all above-ground equipment, such as installing landscaping and barriers as approved by the City's department of planning. Telecommunications carrier shall be responsible for maintaining all above-ground components in good condition, 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.

(d) Location of pedestals.

(1) Private property location: Telecommunications carrier shall locate its equipment underground within otherwise underground areas and within lawful utility easements. Telecommunications carrier shall resolve all conflicts with other utilities and private property owners prior to final design and construction.

(2) Public rights-of-way location: Telecommunications carrier shall locate its equipment within lawful utility easements at a location(s) to be prior approved by the City. If no utility easements exist, then telecommunications carrier shall negotiate with the City to establish one.

(e) Private land and public rights-of-way.

(1) Permits required: Prior to the installation of equipment on private property, streets, public right-of-way or other public property, telecommunications carrier shall obtain necessary permits and approvals as specified herein.

(2) Inspection. Telecommunications carrier shall not provide complete installation of any equipment without obtaining approval of all necessary inspections as determined by the City.

(f) Design/dimension of above and below ground-mounted equipment.

(1) Below ground-mounted equipment:

The equipment cover of a pull-box shall be flush with the adjacent surface grade of the land.

(2) Above-ground-mounted equipment:

Equipment shall be mounted on concrete footings, or other mounting system approved by the City Engineer or Building Official. The footings must be adequate to assure that the equipment will remain in its original vertical alignment over time.

(3) Miscellaneous:

a. All above and below ground-mounted equipment shall have the provider's name and emergency telephone number permanently affixed or molded into the cover/door.

b. All underground conduit/cable shall be installed to provide for continuous and scaled runs between pull boxes so as to preclude the ingress into the conduit/cable system of liquids and/or other foreign materials.

c. The minimum depth of conduit/cable shall be eighteen (18) inches below grade.

d. All installations shall comply with relevant provisions of the Uniform Electrical Code and the rules, regulations, standards and orders of the PUC.

(4) Color of equipment.

All above-ground equipment shall be one (1) color. The approved color in the City is _______.

(g) Location and setbacks of equipment.

(1) All above ground equipment shall be located outside the sight distance triangle or line of sight.

(2) All above and below ground equipment shall be located within a utility easement or public right-of-way as close to the side and front property lines as possible and positioned to ensure that the location of the equipment does not cause a safety hazard.

(3) In instances where existing buildings or structures are set back from the streets and public right-of-way, all equipment shall be located adjacent to, or as close as possible to fences/walls or garages.

(4) As a goal, in instances where existing landscaping, paved areas, irrigation systems or other major obstacles exist, equipment should be located so as to minimize damage to the existing improvements.

(5) No equipment shall be permitted in any location where it may create a safety hazard as determined by the City.

(6) No equipment shall be located on the sidewalk or in driveways.

(7) Where possible, equipment shall be placed so that normal maintenance does not interfere with traffic.

(h) Security of equipment. All equipment shall have some type of mechanism to secure the lid/door to the main body of the storage container to deter theft and vandalism.

(i) Maintenance of equipment.

(1) All equipment installed prior to the adoption of this Ordinance shall be brought into conformance with all sections of this agreement at the time of replacement of the original equipment. The only exception is when equipment is replaced due to circumstances beyond the control of telecommunications carrier.

(2) Telecommunications carrier shall repair any above or below ground-mounted equipment within five (5) days of the initial report. Telecommunications carrier shall immediately respond to any report of a condition which may be construed as creating a hazard to the public. Any such hazardous condition must be rendered safe by the telecommunications carrier prior to the end of the work day in which the report was received.

(j) Deviation procedure for nonconforming situations.

(1) In instances where telecommunications carrier cannot conform to any of the regulations of this Ordinance, telecommunications carrier may apply for a deviation.

(2) A request for a deviation shall be submitted and approved prior to the submittal of any electrical, encroachment or miscellaneous permit for installation of any equipment.

(3) The deviation will be reviewed and a determination made by the City Manager.

(4) A deviation request shall be submitted by letter form to the City Manager and contain the following:

a. An exhibit showing the proposed location and type of equipment to be installed.

b. The names and telephone numbers of any property owner, tenant or home owners 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 this Ordinance which relief is being requested.

(5) A deviation shall be reviewed and a determination made based on the following findings:

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 this Ordinance 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 equipment in close proximity.

(6) The decision of the City Manager may be appealed to the City Council.

(7) The timeframe to process and approve or disapprove a deviation request will be ten (10) working days.

(k) Installation measures. Telecommunications facilities shall be installed in accordance with the standard practice for the installation of telecommunications facilities by telecommunications carrier so as to minimize interference with the proper use of the streets and public right-of-way and with the rights and reasonable convenience of property owners whose property adjoins any affected street and public right-of-way. Overhead drops shall be in accordance with normal practices to minimize visual clutter and interference with the use of private property by residents. Telecommunications carrier shall use only chalk-based paint to mark streets to avoid long-term visual impacts.

(Ord. #97-447, § 1)

The telecommunications carrier shall provide City with a computer disk or other data storage device requested by City, in a format approved by 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 chances 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 values 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 City requires use of technical data in its own offices, it may make copies of any items at City's expense.

(Ord. #97-447, § 1)

All technical data shall be available for 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. #97-447, § 1)

It shall be the telecommunications carrier's responsibility to assure that its qualified repair personnel are available at all reasonable times and that they are supplied with keys, equipment location instructions, and technical information necessary to begin repairs upon notification of the need to maintain or restore continuous service to the telecommunications system.

(Ord. #97-447, § 1)

From and after the effective date of this Ordinance, it shall be unlawful for any person to construct, install, or maintain in any street, public right-of-way, public place within City's territory, or upon any easement owned or controlled by a public utility, 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 City, any equipment, telecommunications facilities, or system for distributing signals or services through a telecommunications system unless a franchise or license has first been obtained hereunder and is in full force and effect.

(Ord. #97-447, § 1)

(a) Notice and Hearing for Franchise Default.

(1) Unless otherwise provided in this Ordinance or in the franchise agreement or license, prior to formal consideration by City of termination, revocation, or forfeiture of the telecommunications carrier's franchise or license, or any other penalty or administrative remedy available to the City, including liquidated damages, attributable to the telecommunications carrier's failure, willful, negligent, or otherwise, to adhere to the terms and conditions of the franchise agreement or license or this Ordinance; City shall make written demand on the telecommunications carrier to correct the alleged default. City and telecommunications carrier shall expeditiously meet to discuss the alleged default, at which time the telecommunications carrier shall indicate, in writing, the amount of time necessary to resolve the alleged problem. Giving due consideration to the telecommunications carrier's request, City shall, in writing, state the amount of time City will allow the telecommunications carrier to resolve the problem. During this time period, but in no event less than ten (10) days before the final date for correction, the telecommunications carrier may request additional time to correct the problem, and City shall grant said request if City determines, in the exercise of its discretion, that such time is necessary due to delays beyond the telecommunications carrier's control. If the default continues for a period of ten (10) days following the deadline for corrections, plus any extension thereof, a hearing shall be scheduled by City on such franchise termination, revocation, forfeiture, or any other penalty or administrative remedy.

(2) The City Manager shall provide written notice of such hearing, including the grounds for the proposed action, to the telecommunications carrier no less than thirty (30) days before the hearing on the matter. In addition, the City Manager, as part of said written notification, shall state the procedures to be followed by the City to determine whether cause for termination, revocation, forfeiture, or other penalty exists. At a minimum, said procedures shall afford the telecommunications carrier adequate notice and a fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to question witnesses, and to obtain a transcript of the proceeding at the telecommunications carrier's expense. Within ten (10) days after the receipt of said notice, the telecommunications carrier shall file any written objections to said procedures.The administrative officer shall notify the telecommunications carrier of any modification to the procedures and provide another ten (10) day objection period. Any objections not raised within said ten (10) day periods shall be deemed waived. At the hearing, City shall hear the telecommunications carrier, and any person interested in the matter, and shall determine, at that or subsequent meetings, an appropriate course of action for enforcement or termination of the telecommunications carrier's franchise or license.

(b) Revocation. Consistent with applicable law, and in addition to any rights set out elsewhere in this Ordinance, the City reserves the right to revoke a franchise or license, in the event that:

(1) The telecommunications carrier willfully or negligently violates any material provision of its franchise or license.

(2) The telecommunications carrier's construction schedule, as set forth in this franchise or license, is materially delayed.

(c) Forfeiture. Upon failure of the telecommunications carrier to comply with any material term of its franchise or license, the City [may] declare a forfeiture. The telecommunications carrier may be required to remove its structures or property from the City's streets and to restore those streets to their prior condition within a reasonable period of time. Upon failure to do so, the City may perform the work and collect all costs, including direct and indirect costs, from the telecommunications carrier. At City's discretion, the cost thereof may be placed as a lien upon all plant, property, or other assets of the telecommunications carrier.

(Ord. #97-447, § 1)

(a) Where not specifically prohibited by federal or state law, and either in addition to or as an alternative to the imposition of a franchise fee as set forth in this Ordinance, the City Council may impose, extract and collect a user charge from an affected telecommunications carrier for the use of public property of the City.

(b) Such a user charge shall be based on the fair market value of the public property being used, as determined by the City Council, by the affected telecommunications carrier.

(c) A user charge is adopted in order to receive fair compensation for the affected telecommunications carrier's use of public property if such compensation cannot be obtained by imposing a flat percentage fee on annual gross revenue.

(d) An affected telecommunications carrier shall pay twenty-five (25) percent of the user charge at the end of every three (3) months.

(e) The fair market value of the public property in question shall be based upon (i) the prior practices of the City; (ii) receipt of credible information from other public entities involving comparable uses not involving the applicant, or (iii) if there are no prior practices or credible information from other public entities, then through an appraisal conducted by an independent appraiser.

(Ord. #97-447, § 1)

Except as otherwise provided herein, all telecommunications carriers engaged in the business of transmitting, supplying or furnishing of telecommunications service for a fee directly to customers in the City or who own, operate, or use telecommunication facilities 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 clerk 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.

(5) Information sufficient to determine whether the registrant is subject to franchising or licensing under this Ordinance.

(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.

(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) Such other information as the City Clerk may reasonably require.

(b) Registration fee: Each application for registration as a telecommunications carrier shall be accompanied by a fee of one thousand dollars ($1,000.00) unless waived by a granted franchise.

(c) 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 Ordinance;

(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. #97-447, § 1)

Any telecommunications carrier who desires to construct, install, operate, maintain, or otherwise locate 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 Ordinance. 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 Clerk 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:

a. The location and route requested for applicant's proposed telecommunications facilities;

b. The location of all overhead and underground public utility, telecommunication, cable, water, sewage drainage and other facilities in the streets and public right-of-way along proposed route;

c. The locations, if any, for interconnection with the telecommunications system of other telecommunications carriers;

d. The specific trees, structures, improvements, facilities and obstructions, if any that 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 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:

a. The excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities;

b. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities.

(7) If applicant is proposing an underground installation within new ducts or conduits to be constructed within the streets and public right-of-ways:

a. The location proposed for the new ducts or conduits;

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

(8) A preliminary construction schedule and completion date.

(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 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 Ordinance.

(14) Such other and further information as may reasonably be required by the public works director.

(b) Determination by the public works director: Within one hundred twenty (120) days after receiving a complete application under this section the public works director 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 public works director 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) Such other factors as may demonstrate that the grant to use the streets and public rights-of-way will serve the community interest.

(c) Agreement: No license granted hereunder 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.

(d) Nonexclusive grant: No license granted under this section 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.

(e) Rights granted: No license granted under this section 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.

(f) Terms of grant: Unless otherwise specified in a license agreement, a license granted hereunder shall be in effect for a term of ten (10) years.

(g) License route: A license granted under this section shall be limited to a grant of specific public ways and defined portions thereof.

(h) Construction permits: All licensees are required to obtain encroachment permits for telecommunications facilities as required in this Ordinance, provided, however, that nothing in this section 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) Compensation to City: Each license granted under this section is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the property rights granted to the licensee.

(j) Amendment of grant:

(1) A new license application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications system in streets and public rights-of-way of the City which are not included in a previously granted [license] under this section.

(2) If ordered by the City to locate or relocate its telecommunications system in streets and public rights-of-way not included in a previously granted license, the City shall grant a license amendment to facilitate the location or relocation without further application.

(k) Renewal applications: A licensee that desires to renew its license under this section shall, not less than ninety (90) days before expiration of the current license, file an application with the City for renewal of its license which shall include the following information:

(1) The information and application fees required pursuant to section 21-4.45.

(2) Any information required pursuant to the license agreement.

(l) Renewal determinations: Within ninety (90) days after receiving a complete application under section 21-4.45(a) hereof, the public works director shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal. The public works director shall consider:

(1) The financial and technical ability of the applicant.

(2) The legal ability of the applicant.

(3) The continuing capacity of the streets and public rights-of-way to accommodate the applicant's existing facilities.

(4) The applicant's compliance with the requirements of this section and the license agreement.

(5) Applicable federal, state, and local telecommunications laws, rules and policies.

(6) Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest.

(j) Obligation to cure as a condition of renewal: No license shall be renewed until any ongoing violations or defaults in the licensee's performance of the license agreement, or of the requirements of this section, have been cured, or a plan detailing the corrective action to be taken by the licensee has been approved by the public works director.

(k) Appeals: An applicant may appeal the denial of a franchise or a condition imposed in a license to the City Council. Such appeal shall be filed in writing with the City Clerk by 5:00 p.m. on the tenth 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 thirty (30) days of the filing of the appeal. The City Council's decision on the appeal shall be final.

(Ord. #97-447, § 1)

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 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 Ordinance.

(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:

a. The location and route proposed for applicant's proposed telecommunications facilities.

b. 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.

c. The locations, if any, for interconnection with the telecommunications systems of other telecommunications carriers.

d. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate, if applicable.

e. An engineering plan showing the engineering design of the applicant's telecommunications system within the entire County.

(5) If 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 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:

a. The excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities;

b. The excess capacity, if any, that will exist in such ducts and conduits after installation of applicant's telecommunications facilities.

(7) If applicant is proposing an underground installation within new ducts or conduits to be constructed within the streets and public rights-of-way:

a. The location proposed for the new ducts or conduits;

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

(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 service 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 Ordinance.

(19) Such other and further information as may be requested by the Public Works Director.

(b) Determination by Public Works Director: Within one hundred twenty (120) days after receiving a complete application under this section, the Public Works Director 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 Public Works Director 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) Applicable federal and state telecommunications laws, regulations and policies.

(11) Such other factors-as may demonstrate that the grant to use the streets and public rights-of-way will serve the community interest.

(c) Agreement: No franchise shall be granted hereunder 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.

(d) 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.

(e) 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.

(f) 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.

(g) Amendment of grant:

(1) A new franchise application and grant shall be required of any telecommunications carrier that desires to extend its franchise territory or to locate its facilities in streets and public rights-of-way of the City which are not included in a franchise previously granted under this Ordinance.

(2) If ordered by the City to locate or relocate its facilities in streets and public rights-of-way not included in a previously granted franchise, the City shall grant a franchise amendment without further application.

(h) Renewal Application: An applicant that desires to renew its franchise under this section shall, not less than one hundred twenty (120) days before expiration of the current franchise, file an application with the City for renewal of its franchise which shall include the following information:

(1) The information required pursuant to section 21-4.47.

(2) Any information required pursuant to the franchise agreement between City and the Applicant.

(i) Renewal determinations: Within one hundred twenty (120) days after receiving a complete application under section 21-4.47 hereof, the public works director shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for non-renewal. The Public Works Director shall consider:

(1) The financial and technical ability of the applicant.

(2) The legal ability of the applicant.

(3) The continuing capacity of the streets and public rights-of-way to accommodate the applicant's existing telecommunications facilities.

(4) The applicant's compliance with the requirements of this Ordinance and the franchise agreement.

(5) Applicable federal, state and local telecommunications laws, rules and policies.

(6) Such other factors as may demonstrate that the continued grant to use the streets and public rights-of-way to serve the community interest.

(j) Obligation to cure as a condition of renewal: No franchise shall be renewed until any ongoing violations or defaults in the grantee's performance of the franchise agreement, or of the requirements of this Ordinance, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city.

(k) 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 Clerk by 5:00 p.m. on the tenth 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 thirty (30) days of the filing of the appeal. The City Council's decision on the appeal shall be final.

(Ord. #97-447, § 1)

(a) Upon an award of a franchise agreement or license, a telecommunications carrier may construct, erect, install, maintain, operate, repair, replace, remove or restore a telecommunications system within the geographical limits set forth in the franchise agreement or license.

(b) The telecommunications system may be located in, upon, along, across, over and under the streets, public rights-of-way, easements, and public property of the City.

(c) A telecommunications carrier shall be responsible for obtaining any required easements or license for private property (including privately owned utility or street light poles).

(d) A telecommunications carrier, through a separate pole or utility easement agreement with an affected utility, may locate the telecommunications system on, or within, the property of such utility company upon receipt of a franchise or license.

(Ord. #97-447, § 1)

The term of an initial or renewal franchise shall be as specified therein and shall not exceed ten (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. #97-447, § 1)

(a) Any franchised telecommunications carrier awarded a franchise after the date [of] this Ordinance shall pay to the City for the privilege and use of the streets, public rights-of-way, easements, and other property facilities of the City in the operation of the telecommunications system, a sum specified in the franchise but not less than five (5) percent of the annual gross revenue of such franchised telecommunications carrier absent a specific finding of the City Council by a four-fifths vote that said lesser amount constitutes fair and reasonable compensation for the use of the specific property at issue and the basis for said finding.

(b) A telecommunications carrier shall file with the City, within forty-five (45) days after the expiration of each of its fiscal quarters, a detailed revenue report clearly showing the franchise fee or license fee due for the preceding quarter together with the bases of the calculations thereof. Such statement shall be certified by a certified public accountant or officer of a telecommunications carrier attesting to the accuracy, completeness and veracity of the revenue figures. Such statement shall be in the form and format determined by the City and shall include revenue from whatever source, directly or indirectly derived from, or allowed, or caused to be derived from or applicable to the operation of the telecommunications system, or the provision of any service by or using the telecommunications system. Revenue will be reported by service category, type and level showing computations and using incremental billing rates for all sources, levels, tiers, clusters, types of service and other revenue sources by kind and type.

(c) Payment of the quarterly portion of the franchise fee shall be rendered to the City Council at the time the revenue report is filed.

(d) In the event that payment is not made by the due date then such telecommunications carrier may be declared in default of the franchise or license, and should the amount owed remain unpaid for an additional sixty (60) days, then the franchise or license may be revoked, terminated or cancelled as noted elsewhere in this Ordinance.

(e) The City reserves the right to audit a franchised telecommunications carrier's books, if the City Council deems it necessary. If such audit discovers an underpayment of franchise fees or license fee in an amount greater than one (1) percent of the total franchise fee, then the affected telecommunications carrier shall reimburse the City for the cost of such audit.

(f) If an audit, or other research, discovers that franchise fee or license fee have been either underpaid or not paid for a period exceeding six (6) months from the original due date, then the City Council may seek full recovery of the underpaid or nonpaid fees, plus interest, not to exceed ten (10) percent in the case of underpaid fees and fifteen percent (15%) in the case of unpaid fees per year or the maximum allowable under state law.

(g) All annual reports due and pertaining to the payment of franchise fees or license fees, will be certified by an officer of the telecommunications carrier, and will be provided in the form, format and detail applicable to quarterly reports under subsection (d) of this section. Such telecommunications carrier shall maintain records used in the preparation of said reports, to be produced in their originality and totality upon request or demand by the City Council.

(h) No acceptance of any payment shall be construed as a release of, or an accord, or satisfaction of, any claim that the City might have for further or additional sums payable under the terms of this Ordinance, or for any other performance or obligation of a telecommunications carrier hereunder.

(i) Payments of compensation made by a telecommunications carrier to the City shall be considered in addition to, and exclusive of, any and all authorized taxes, permit fees, business license fees, other fees, other levies or assessments presently in effect, or subsequently adopted.

(j) Nothing in this section shall be construed to limit the authority of the City Council to impose a fee or other assessment of any kind, on any person (other than a franchised or licensed telecommunications carrier) with respect to telecommunications service by such person over a telecommunications system for which charges are assessed to subscribers but not received by a franchised or licensed telecommunications carrier. For purposes of illustration only, this subsection shall include the situation(s) where a premium service directly bills a subscriber, or the franchised or licensed telecommunications carrier acts as collection agent for a premium service billing directly to a subscriber, or where a person leases a channel for commercial use and sells advertising or goods on that channel, and receives the money directly or through a third party.

(Ord. #97-447, § 1)

(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 one hundred twenty (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) (i) any other information or documentation required by the state or federal government; (ii) the information referenced in this Ordinance; (iii) unedited and unredacted copies of the sale or transfer documents with all schedules and exhibits thereto; and (iv) 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 this Ordinance, 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 non-compliance. 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 non-compliance.

(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 Ordinance 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 City for City's 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. City may send the telecommunications carrier an itemized description of all such charges, and the telecommunications carrier shall pay such amount within twenty (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. #97-447, § 1)

By accepting any franchise or license granted pursuant to this Ordinance, telecommunication carrier acknowledges that notice is and was hereby given to 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. 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. #97-447, § 1)

Concurrent with telecommunication carrier's installation of underground construction infrastructure on a given job, the City may elect to place its own conduit or cable in the trenches of the telecommunications carrier for the City's own use at City's sole expense. In order for the City to determine whether to have conduit placed in telecommunication carrier's trench, telecommunication carrier must provide the City maps showing the location for all trenching. These maps are to be provided to the City sixty (60) days in advance of any trenching activities. Telecommunications carrier shall impose no fee or charge upon City for placement of said conduit and/or cable in open trenches.

(Ord. #97-447, § 1)

The terms and conditions of this Ordinance shall govern any license or franchise issued pursuant thereto provided that in the event of a conflict between the provisions of this Ordinance and any express provision of a franchise, the provisions of this Ordinance shall prevail unless the franchise expressly states within its express terms that the express terms of the franchise shall supersede the terms and conditions of this Ordinance and said franchise was approved by no less than a four-fifths vote of the City Council.

(Ord. #97-447, § 1)