HomeMy WebLinkAboutOrdinance 379 CERTIFICATION
I, Marcia McClure Torgerson, City Clerk of the City of Atascadero, hereby certify that the
foregoing is a true and correct original of Ordinance No. 379 adopted by the Atascadero City
Council at a regular meeting thereof held on February 13, 2001, and that it has been duly
published pursuant to State Law.
DATED:
644 L
Marcia McClure Torgerson
City Clerk
City of Atascadero, California
ORDINANCE NO. 379
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ATASCADERO RELATING TO THE REGULATION OF
TELECOMMUNICATIONS SYSTEMS WHICH UTILIZE PUBLIC
STREETS, RIGHTS-OF-WAY OR OTHER PUBLIC PROPERTY
The City Council of the City of Atascadero ordains as follows:
SECTION 1:
1.10.010 Title.
This ordinance, sometimes referred to herein as the "Ordinance", may be known and cited
as the Telecommunications Regulatory Ordinance for the City of Atascadero.
1.10.020 Construction.
This chapter shall be construed in accordance with the applicable federal and state laws
governing Telecommunications Carriers, Telecommunications Services, Telecommunications
Systems, and Telecommunications Facilities.
1.10.030 Scope.
This chapter shall apply within the geographical limits of the City.
1.10.040 Severability.
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.
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Ordinance No. 379
Page 2
1.10.050 Definitions.
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.
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" means the Telecommunications Act of 1996, as amended from time to time.
"Affiliated Person" or "Affiliates," means each Person who falls into one or more of the
following categories: (i) each Person having, directly or indirectly, a Controlling Interest in a
Telecommunications Carrier; (ii) each Person in which a Telecommunications Carrier has, directly
or indirectly, a Controlling Interest; (iii) each officer, director, general partner, limited partner
holding an interest of five percent (5%) or more, joint venturer, or joint venture partner in a
Telecommunications System in the City; and (iv) 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 percent
(5%) in a Telecommunications Carrier, or any creditor of a Telecommunications Carrier, solely by
virtue of its status as a creditor, and which is not otherwise an Affiliated Person by reason of owning
a Controlling Interest in, being owned by, or being under common ownership, common
management, or common Control with a Telecommunications Carrier.
"Aplip cant" means a Person submitting an Application or Proposal to the City for a License
or Franchise to provide Telecommunications Services or operate a Telecommunications System
under the terms and conditions set forth in this Ordinance and any required State or federal
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Ordinance No. 379
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regulations.
"Application" or "Proposal" are synonymous for the purposes of this Ordinance. An
"application" or "proposal" means the process by which the Applicant submits a request for an initial
authorization, not inclusive of a renewal proposal, and indicates a desire to be granted a
telecommunications license or franchise (where required) for all, or a part, of the City. An
application or proposal includes all written documentation, and verbal statements and
representations, in whatever form or forum made by an Applicant to the City concerning the
construction, rendering of services, maintenance, or any other matter pertaining to the proposed
Telecommunications System.
"Assignment" or "Transfer" means any assignment, transfer, sale or other transaction of a
franchised or licensed Telecommunications System, or its corporate or partnership parent,which has
the effect of changing the operational,managerial, or financial Control of the Telecommunications
System or the Telecommunications Carrier.
"City Council" means the City Council of the City.
"Cable operator" means any Person or group of Persons whom:
1. Provides Cable Service over a Cable System and directly or through one or
more Affiliates owns a Controlling Interest in such Cable System; or
2. Otherwise controls or is responsible for, through any arrangement, the
management and operation of such a Cable System.
"Cable System" or "Cable Television System" means a facility consisting of a set of closed
transmission paths and associated signal generation,reception and control equipment that is designed
to provide Cable Service as defined in the Cable Act and which is provided to multiple subscribers
within the City. However, such terms do not include the following:
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Ordinance No. 379
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1. A facility that serves only to retransmit the television signals of one or more
broadcast stations;or
2. A facility that serves subscribers without using any public right-of-way; or
3. A facility of a common carrier which is subject, in whole, or in part, to the
provisions of Title Il 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.
"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" means actual working control in whatever manner
exercised, including, without limitation, working control through ownership, management, debt
instruments, or negative control, as the case may be, of the Telecommunications System, the
Telecommunications Carrier. A rebuttable presumption of the existence of Control or a Controlling
Interest shall arise from the beneficial ownership, directly or indirectly, by any Person or group of
Persons acting in concert (other than underwriters during the period in which they are offering
securities to the public) of twenty percent(20%) or more of any Person(which Person or group of
Persons is referred to as "Controlling Person"), or being a party to a management contract.
"City" means the City of Atascadero, California.
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Ordinance No. 379
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"Basement" means and shall include any public easement or other compatible use created by
dedication, or by other means, to the City for public utility purposes or any other purpose
whatsoever.
"Excess Capacity" means the volume or capacity in any existing or future duct, conduit,
manhole, handhole or other utility facility within the public way that is or will be available for use
for additional Telecommunications Facilities.
"FCC" or"Commission" means the Federal Communications Commission and/or such other
federal regulatory agency as now or in the future may have jurisdiction to oversee
Telecommunications Carriers.
"Fiber Cable" or "Fiber Optic Cable" means very thin and pliable cylinders, or strands of
glass or plastic, or any future functional equivalent,used to carry wide bands of multiple frequencies.
"Franchise" means an authorization or subsequent renewal granted by the City in order for
a Person to construct, operate, and/or maintain a Telecommunications System which provides
Telecommunications Services in all or part of the City.
"Franchise Agreement" means the separate contract by which the City grants a
Telecommunications Carrier the right to operate a Telecommunications System within all, or a part,
of the City.
"Franchise Expiration" or "Franchise Agreement Expiration" means the date of expiration
or the end of the term of a Franchise Agreement.
"Franchise Fee" means a fee or charge that the City requires as payment for the privilege of
using the Streets, Public Rights-of-Ways, and Easements of the City in order to construct,maintain
and operate a Telecommunications System or to provide Telecommunications Services to residents
of the City.
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Ordinance No. 379
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"Franchised Telecommunications Carrier" means a Person that is awarded a Franchise by the
City to construct or operate a Telecommunications System within all or part of the City.
"Franchising Authority" means the City Council.
"Functional Equivalent" or "Functionally Equivalent" with respect to a specifically named
or referenced piece of Telecommunications Equipment means another piece of Telecommunications
Equipment that has either:
1. The same or substantially similar characteristics 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" means a person who has been granted a Licensee or Franchise pursuant to this
Section.
"License" means an authorization to construct a Telecommunications System in the City
which does not provide Telecommunications Services to residents of the City.
"License Fee" means an annual fee or charge that the City requires as payment for the
privilege of using Streets, Public Rights-of-Way, and Easements to constrict, maintain and operate
a Telecommunications System which does not provide Telecommunications Services to residents
of the City.
"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,
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Ordinance No. 379
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businesses, and institutions, and which is the point where fiber facilities and coaxial facilities are
connected.
"Ordinance" means this regulatory ordinance for the City.
"Other Ways" means the highways, streets, alleys,utility easements or other rights-of-way
within the City, but under the jurisdiction and control of a governmental entity other than the City.
"Overhead Facilities" means utility poles, utility facilities and telecommunications facilities
located above the surface of the ground, including the underground supports and foundations for
such facilities.
"Pedestal" shall mean an aboveground enclosure which houses active and/or passive
equipment relating to the Telecommunications System.
"Person" means any individual, corporation, estate, trust, partnership, association of two or
more Persons having a joint common interest, or joint stock company.
"Power Supply" shall mean an electronic or gas driven device designed to provide electrical
power to all or a portion of the Telecommunications System.
"Private Communications Network," or"PCN" or "Private Communications System" means
any ancillary or aligned component of a Telecommunications System consisting of communications
lines, cables, equipment or facilities which are used to provide telecommunications service that in
any manner uses or occupies the streets, easements, public ways, or rights-of-way within the City
(as annexed). However, "private communications network" does not include any part of a State or
FCC licensed local exchange telephone company or any part of a federal, state, county or local
government owned Telecommunications System.
"Proposed Abandonment of Telecommunications Service" or "Proposed Withdrawal of
Telecommunications Service" or 'Proposed Cessation of Telecommunications Service" means the
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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" means and includes all real property owned, operated or controlled by the
City, other than Streets, Public Rights-of-Way, sidewalks and Easements, and all property held in
a proprietary capacity by the City, which are not subject to right-of-way licensing and franchising
as provided in this Ordinance.
"Public Right-of-Way" means any public street, public way, public place or rights-of-way,
now laid out or dedicated, and the space on, above or below it, and all extensions thereof, and
additions thereto, owned, operated and/or controlled by the City or subject to an easement owned
by City.
"Pull Box" shall mean a flush mounted or aboveground housing which encloses one or more
conduit openings.
"PUC" means the California Public Utilities Commission.
"Revocation," "Termination" or "Nonrenewal" means an official act by the Franchising
Authority that removes, repeals or rescinds previously approved authorization for a licensed or
Franchised Telecommunications Carrier to operate a Telecommunication System within the City.
"State" means the State of California.
"Street" means the surface of, and the space above and below a public street(or any path or
thoroughfare designated for vehicular and/or pedestrian traffic), or other easement now or hereafter
held by the City (including any street, as defined, which is acquired by eminent domain) for the
purpose of public travel.
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"Subscriber" means a Person lawfully receiving or using a Telecommunications Service
delivered by a Telecommunications Carrier over a Telecommunications System.
"Surplus Space" or "Surplus Capacity" means that portion of the usable space on a utility
pole or other Telecommunications Facilities which has the necessary clearance from other users, as
required by the orders and regulations of the California Public Utilities Commission(PUC)to allow
its use by a Telecommunications Carrier.
"Tap" means an electronic 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" means the transmission, between or among points specified by the
user, of information of the user's choosing, without change in the form or content of the information
as sent and received.
"Telecommunications Carrier" means (i) any owner, by way of fee ownership, lease,
management agreement, of any Telecommunications System or Telecommunications Facilities, or
(ii)the direct or indirect provider of Telecommunication Services whether the Telecommunication
Service is offered by the owner of the Telecommunications System, an affiliate, or a related entity,
by way of ownership, lease, control, or operation of a Telecommunications System. A Person shall
be deemed a Telecommunications Carrier, even if it does not directly provide Telecommunications
Services, if it rents or leases a Telecommunications System and/or Telecommunications Facilities
to another Person which provides Telecommunications Services.
"Telecommunications Equipment" means equipment, other than customer premises
equipment,used by a carrier to provide Telecommunications Services, and includes software integral
to such equipment (including upgrades) which are not located, in whole or in part, in, above, or
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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" means the offering of Telecommunications for a fee directly
to the public, or to such classes of users as to be effectively available directly to the public,
regardless of the facilities used.
"Telecommunications System" means an operating system which is located, in whole or in
part, on, in, above, or below Streets, Public Rights-of-Way, or other public property which is
designed and utilized, in whole or in part, to provide Telecommunications Services. A
Telecommunications System may be built in conjunction with, or be part of, a Cable System.
"Telephone Company" means every person within the scope of Public Utilities Code Section
7901 who has constructed or may construct telegraph or telephone lines.
"Underground Facilities" means utility and Telecommunications Facilities located under the
surface of the ground, excluding the underground foundations or supports for overhead facilities.
"Usable Space" means the total distance between the top of a utility pole and the lowest
possible attachment point that provides the minimum allowable vertical clearance as specified in the
orders and regulations of the PUC.
"USC" means the United States Code.
"Utility Easement" means any easement owned by the City or acquired, established,
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dedicated or devoted for public utility purposes not inconsistent with Telecommunications Facilities.
"Utility Facilities" means the plant, equipment and property, including but not limited to the
poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above
the surface of the ground within the public ways and used or to be used for the purpose of providing
utility or Telecommunications Services.
1.10.060 Administration--Declaration of Powers and Authority.
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 Service.
B. Unless prohibited by federal, State or local law, the City Manager may further
delegate his/her powers and authority to a duly authorized representative with respect to
administering this Ordinance or an applicable Franchise or License.
1.10.070 Applicability of this Ordinance to a Telecommunications Carrier.
A. The provisions of Section 1.10.340 of this Ordinance shall apply to all
Telecommunications Carriers, that use public rights-of-way and property and, with respect to all
other provisions contained within this Ordinance, those provisions shall be applicable to a
Telecommunications Carrier unless such Telecommunications Carrier, and all of its activities, are
hereunder exempted from this Ordinance.
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.
1.10.080 Exemption from Certain Provisions of this Ordinance for Certain
Telecommunications Carriers.
A. Telecommunications Carriers and users who are exempted from complying with the
provisions of Sections 1.10.350-390 of this Ordinance ("Exempt Carriers") are as follows:
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1. A Telecommunications Carrier that is exempted from Sections 1.10.350-390
of this Ordinance as a result of federal or State law;
2. A Telecommunications Carrier that is exempted from Sections 1.10.350-390
of 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 to the City on all revenues generated to the Telecommunications Carrier from its
Cable Service and non-cable 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 non-cable services pursuant to its cable franchise, a separate Franchise pursuant hereto
is hereby required.
B. It is expressly understood that Exempt Carriers remain exempted only as long as they
meet one or more of the criteria of this particular section and only as to those activities which are
specifically exempt from one or more of the provisions of this Ordinance.
C. An Exempt Carrier is exempt only from Sections 1.10.350-390 of this Ordinance and
only as to those activities which are specifically exempt from one or more of the provisions of 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
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Page 13
consumer protection, or customer service laws and regulations.
D. A Telecommunications Carrier shall file a petition for exemption containing all
information reasonably required by the City. The burden of persuasion and proof shall be on the
requesting Telecommunications Carrier.
1.10.090 Telecommunications Carriers Seeking Relief from This Ordinance.
A. Any Telecommunications Carrier governed by this Ordinance may file a written
petition, at any time, with the City Council seeking relief from one or more provisions of this
Ordinance. A Telecommunications Carrier may specifically request the exemption from, or delay
in implementation of one 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 burden of persuasion and proof shall be on
the requesting Telecommunications Carrier. The petition shall set forth the relief requested and the
basis thereof with such supporting information and material as may be applicable and as requested
by the City.
B. In order to receive any relief from one or more of the provisions of this Ordinance,
a Telecommunications Carrier must demonstrate and prove to the City Council reasonable
satisfaction that at least one of the following facts exist:
1. That compliance with a particular provision and/or requirement would be
commercially impracticable; or
2. That the Telecommunications Carrier has its own construction, maintenance,
operation or customer service policies, which the City Council deems comparable to, or which
exceed, any provision and/or requirement from which the Telecommunications Carrier seeks relief,
or
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3. That the health, safety and welfare interests of the City otherwise warrant the
granting of such relief.
C. As an alternative to seeking an exemption, or requesting relief, a
Telecommunications Carrier may petition for clarification concerning the precise intent and effect
that one or more provisions or sections of this 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 petitioning Telecommunications Carrier shall pay
the actual and reasonable costs to the City for processing such a petition, including costs incurred
by outside consultants who are retained by the City to review a petition. At the time such a petition
is filed with the City,the City Manager shall estimate the amount of said costs and the petitioning
Telecommunications Carrier shall deposit the amount of said estimate with the petition.
1.10.100 Failure of the City to Enforce this Ordinance.
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 or more occasions to seek, or insist upon, compliance with such
requirements or provisions.
1.10.110 Telecommunications Carriers or Its Assignees Subject to Present and Future
Ordinances and/or Resolutions.
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
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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.
1.10.120 Resolution of Inconsistencies with Federal or State Rules,Regulations or Laws.
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 rule, regulation, or law, the federal or State rule,
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.
1.10.130 Resolution of Conflicts Between this Ordinance and a Subsequent Franchise
Agreement or License.
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.
1.10.140 Force Majeure.
Notwithstanding the other provisions of this Ordinance, a Telecommunications Carrier shall
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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.
1.10.150 Notices.
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.
1.10.160 Indemnity.
A. 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,
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agents, servants, attorneys and employees, from any, and all,penalty, damage or charges arising out
of claims, suits, demands, causes of action, or award of damages whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which arise out of, or are caused by, the
construction, erection, location, performance, operation, maintenance, repair, installation,
replacement, removal or restoration of a Telecommunications System within the City based upon
any act or omission of a Telecommunications Carrier, its agents or employees, contractors,
subcontractors, independent contractors, or representatives. With respect to the penalties, damages
or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees
are included as those costs which shall be recovered by the City.
1.10.170 Liability Insurance.
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: One million dollars per person/per occurrence;
2. Property damage: One million dollars per any one claim;
3. Umbrella liability: Five million dollars.
B. The public and personal liability and property damage insurance policy shall
specifically include the City, the City Council, its employees, and agents as additional insureds.
C. The public and personal liability and property damage insurance policies shall be
issued by an agent or representative of an insurance company licensed to do business in the State and
which has one of the three highest or best ratings from the Alfred M. Best Company.
D. The public liability and property damage insurance policies shall contain an
endorsement obligating the insurance company to furnish the City with at least thirty (30) days
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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.
1.10.175 Financial Security.
A. Security Fund.
1. Prior to the Effective Date of the any Franchise, License, Permit or other
authorization, the Telecommunications Carrier shall deposit into a bank account established by the
City, which may be commingled with security deposits from other Telecommunications Carriers,
and shall maintain on deposit through the term of any Franchise, License, Permit, or other
authorization, a sum specified in any Franchise, License, Permit, or other authorization as security
for the faithful performance by Telecommunications Carrier of all of the provisions of any Franchise,
License, Permit or other authorization, and compliance with this Ordinance and with all orders,
permits and directions of the City, or any designated representative of the City having jurisdiction
over Telecommunications Carrier's acts or defaults under any Franchise, License, Permit or other
authorization of this Ordinance, and as security for the payment to the City of any claims, fees, liens,
or taxes due the City which arise by reason of the construction, operation or maintenance of the
System pursuant to any Franchise, License, Permit or other authorization, or this Ordinance, and to
satisfy any actual or liquidated damages arising out of a breach.
2. Except as otherwise provided in any Franchise, License, Permit, or other
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authorization, 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, License, Permit, or other
authorization; or if Telecommunications Carrier fails to comply with any provision of any Franchise,
License, Permit, or other authorization or this Ordinance and the City determines that such failure
was without just cause and, in a manner consistent with the procedures specified in this Ordinance,
City reasonably determines it can be remedied by a withdrawal from the security fund or is
nevertheless subject to liquidated damages, then, in any such event, the City may immediately
withdraw the amount thereof from the security fund,with interest and any liquidated damages. Upon
such withdrawal, the City shall notify the Telecommunications Carrier of the amount and the date
of withdrawal.
3. Within thirty (30) days after notice to Telecommunications Carrier that any
amount has been withdrawn by City from the security fund, the Telecommunications Carrier shall
deposit a sum of money sufficient to restore such security fund to the original amount.
4. Telecommunications Carrier shall be entitled to the return of the security
fund, or portion thereof,with interest,that remains on deposit at the expiration or termination of any
Franchise, License, Permit, or other authorization, once all amounts due to the City have been paid.
5. The rights reserved to the City with respect to the security fund are in addition
to all other rights of the City, and no action, proceeding or exercise of a right with respect to such
security fund shall affect any other right the City may have.
B. Faithful Performance Bond. Prior to issuance of any Franchise, License, Permit, or
other authorization, Telecommunications Carrier shall furnish proof of the posting of a faithful
City of Atascadero
Ordinance No. 379
Page 20
performance bond in favor of the City, with corporate surety approved by the City in the sum
specified in any Franchise, License, Permit, or other authorization and conditioned that the
Telecommunications Carrier shall well and truly observe, fulfill, and perform each term and
condition of any Franchise, License, Permit, or other authorization; provided, however, that such
bond shall not be required after certification by City of the completion of construction. The
corporate surety must be authorized to issue such bonds in the State of California, and the bond must
be obtained and secured through an authorized agent in the City of Atascadero. During the course
of construction, the amount of the bond may from time to time be reduced, as provided in any
Franchise, License, Permit, or other authorization. Written evidence of payment of premiums shall
be filed with the City.
1.10.180 Retention and Submission of Reports and Records.
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 five(5)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,
City of Atascadero
Ordinance No. 379
Page 21.
or all listed reports, records, data, or other information that were filed with the FCC, the Securities
and Exchange Commission, or another federal or state agency.
C. A Telecommunication Carrier shall provide the following information and reports
periodically to the City as more specifically described herein:
1. A Telecommunication Carrier shall furnish the City with the names and
addresses of every Affiliated Person,third party, or Person other than the Applicant that has entered
into a customer agreement,telecommunications agreement, or any other agreement which authorizes,
directly or indirectly,any Affiliated Person,third party, or Person other than the Applicant to utilize,
by way of sale, lease, or otherwise,telecommunications equipment,telecommunications facility, or
all or a portion of the Telecommunications System(the "Telecommunications Agreement") within
the City upon the issuance of any License or Franchise.
2. Upon executing any new Telecommunications Agreement, or any other
agreement which allows an Affiliated Person, third party, or Person other than the Applicant to
utilize telecommunications equipment, telecommunications facility, or all or a portion of the
Telecommunications System within the City, for the provision of video services, cable television
services, or Telecommunications Services, the Telecommunication Carrier shall promptly furnish
the City with a copy of the executed agreement.
3. Telecommunication Carrier shall include a provision substantially similar in
purpose and effect to the provision specified in subparagraph(4)below(the "Government Approval
Provision") in all future negotiated Telecommunications agreements. If the City determines that an
Affiliated Person, a third party, or a Person other than the Applicant has failed to comply with the
Governmental Approval Provision requiring prior approval from the City, the City will provide
written notice to the Telecommunication Carrier and to the affected party. If the affected party fails
City of Atascadero
ordinance No. 379
Page 22
to come into compliance or reach an agreement with the City within thirty (30) days from the date
when the Telecommunication Carrier receives written notice from the City of the dispute, then the
Telecommunication Carrier will notify the third parry that it is in breach of its Telecommunications
Agreement and that it will implement reasonable steps consistent with said Telecommunications
Agreement to terminate the agreement or the portion of the agreement which provides for the
provision of services which required governmental approval for which said approval was not
obtained.
4. The Government Approval Provision shall read in substance as follows:
". . . shall obtain all government Franchises, Licenses, permits, approvals or consents
necessary for it to provide service within the City of Atascadero ("Approvals")pursuant to
this Agreement. Failure to obtain such Approvals, or to maintain them as necessary during
the term of this Agreement, shall constitute a material breach of this Agreement."
5. Any information, agreements, or documents received by the City pursuant to
this paragraph shall be maintained as confidential to the extent allowed and consistent with
applicable law.
1.10.190 Inspection and Review of Books, Records and Other Data.
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 percent(2%) of what
was actually paid, then the City may require the Telecommunications Carrier to reimburse the City
for the actual cost of the audit.
D. A false entry into the books and/or records of a Telecommunications Carrier, made
by a Telecommunications Carrier, of a material fact shall constitute a material violation of this
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 or more classes of Telecommunications
Carrier.
1.10.200 Conditions of Use of Streets and Public Rights-of-Ways.
A. All wires, conduits, cable (coaxial, fiber or functional equivalent), and other property
and facilities of a Telecommunications Carrier shall be so located, constructed, installed and
maintained so as not to endanger or unnecessarily interfere with usual and customary use,traffic and
travel upon the Streets, Public Right-of-Way, easements and public property of the City as well as
adjacent private property pursuant to a routing plan to be approved by the City Manager or his/her
designee.
City of Atascadero
Ordinance No. 379
Page 24
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-Ways, 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
City of Atascadero
Ordinance No. 379
Page 25
otherwise visibly indicate and alert others to the location of its underground cable before employees,
agents, of 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.
1.10.210 Duty to Remove Telecommunications Facilities from Streets,Public Rights-of-
Way, Easements and Public Property.
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.
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-Ways, and Public Property located within the City.
B. If not removed voluntarily by a Telecommunications Carrier, then the City may
notify such Telecommunications Carrier that should removal of the property not be accomplished
within two hundred seventy (270)days, or substantial progress towards removal not be made within
City of Atascadero
Ordinance No. 379
Page 26
Iwo 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.
C. If officials or representatives of the City remove a Telecommunications System, and
such Telecommunications Carrier does not claim the property within one hundred twenty(120) days
of its removal, then the City may take whatever steps are available under state law to declare the
property surplus, and sell it, with the proceeds of such sale (if permitted by State law) going to the
City.
D. When such Telecommunications Carrier removes its Telecommunications System
from the Streets, Public Rights-of-Ways and Public Property located within the City, the
Telecommunications Carrier shall at its own expense, and in a manner approved by the City, replace
and restore such public property to a condition comparable to that which existed before the work
causing the disturbance was done.
E. Removal of Deactivated Equipment. Telecommunications Carriers shall maintain
the deactivated Telecommunications Facilities at no cost to the City until removed by the
Telecommunications Carrier. The Telecommunications Carrier shall provide a written list to the
City of all deactivated Telecommunications Facilities located within the City at quarterly intervals.
The Telecommunications Carrier shall remove or disable 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
City of Atascadero
ordinance No. 379
Page 27
their locations. The Telecommunications Carrier shall remove all these Telecommunications
Facilities within ninety (90) days after an underground system is activated.
1.10.220 Construction Standards.
A. Methods of construction, installation, maintenance and repair of any
Telecommunications System shall comply with the most current editions of the Zoning Codes,
Building Codes, Construction Codes, Plumbing Codes,National Electrical Safety Code the National
Electric Code and any applicable Federal or State Codes, regulations or requirements.
B. All construction, installation, maintenance and repair shall treat the aesthetics of the
property as a priority, shall not substantially affect the appearance or the integrity of the structure,
and shall not be installed on the bias across the property or side of a residence or other structure
without the property owner's permission.
C. All underground drops shall follow(to the greatest extent possible) property lines,
and cross property only at right angles unless otherwise permitted by the property owner, or required
due to the physical characteristics of the subsurface, or required under applicable law. The City may,
either by way of a generally applicable resolution or through the imposition of routing conditions
in any Franchise Agreement or License or permit, determine the routing or placement of cable,
conduit, Nodes, pedestals, Power Supplies, vaults, and other equipment relating to the
Telecommunications System.
D. Construction Hours. All construction shall be accomplished between the hours
specified by the City in the approved permit or ordinances or as otherwise agreed to by the parties.
Construction shall not interfere with the services of the City or third parties.
E. Telecommunications Carrier shall install its System, and all portions thereof,
completely below ground in those areas where existing utilities are underground. In areas of
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Ordinance No. 379
Page 28
overhead utilities, or areas where utilities are located both above-ground and below-ground,
Telecommunications Carrier shall place all above-ground active and passive equipment in low
profile waterproof pedestals whose design, size, appearance, and placement have been prior
approved by the City Engineer in writing. Above-ground installations shall only be allowed in
situations where the Applicant has demonstrated to the reasonable satisfaction of the City Engineer
that no below-ground placement is physically or economically possible.
F. Telecommunications Carrier shall provide the City a central 24 hours a day,
seven days a week, telephone contact number to receive complaints from City or its residents
regarding right-of-way installations. Telecommunications Carrier shall maintain such telephone
contact number so long as Telecommunications Carrier maintains any telecommunication
equipment, telecommunication facilities, or telecommunications system, or portion thereof, in,
above, or under Streets, Public Rights-of-Way, and Easements.
1.10.230 Permits and Licenses; Payment of Fees.
A. A Telecommunications Carrier shall obtain, at its own expense, all permits and
licenses required by local law,rule,regulation or ordinance, and maintain the same, in full force and
effect, for as long as required by the City.
B. As a condition of obtaining all necessary permits and licenses, the
Telecommunications Carrier shall pay all applicable permit fees ("Permit Fees") and, in addition,
all of the City's direct labor and supervisory costs, including customary and reasonable overhead(the
"Labor and Materials Payment"). The City Council may, from time to time by ordinance, establish
the amount of said permit fees. To the extent not inconsistent with applicable law, the permit fees
shall be sufficient to reimburse the City for its costs, including the costs of staff, independent
consultants, and related overhead, to review the proposed project, processing permits, plan check,
City of Atascadero
Ordinance No. 379
Page 29
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. The Labor and Materials Payment shall be
sufficient to reimburse the City for its costs, including the costs of staff, independent consultants,
and related overhead, direct labor and supervisory costs, including customary and reasonable
overhead, to monitor and manage the time, place and manner of the Telecommunications Carrier's
entry, occupation and abandonment of the Public Right-of-Way and shall be paid for the entire time
that the Telecommunications Carrier occupies the Public Right-of-Way. The Labor and Materials
payments shall be paid over the time that the Telecommunications Carrier occupies the Public Right-
of-Way, and the City shall specify the amounts and times of said payments in any encroachment or
other permit or license issued to the Telecommunications Carrier.
C. Both 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
City of Atascadero
Ordinance No. 379
Page 30
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.
1.10.240 Reservation of Right to Inspect Construction, Documents Related to
Construction, and Tests Related to Performance, Technical Integrity and
Quality of Signal, Preventive Maintenance and Safety.
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.
1.10.250 Construction Default.
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 Manager,or an inspection official representing the City,
may order the work stopped by notice in writing served on any person engaged in, or causing the
construction. Any work stopped shall not resume until authorized in writing by the City Manager
or his or her designated representative.
1.10.260 Vacation or Abandonment.
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.
1.10.270 Abandonment in Place.
City may, upon written application by the Telecommunications Carrier, approve the
abandonment of any property in place by the Telecommunications Carrier under such terms and
conditions as City may approve. Upon City approved abandonment of any property in place, the
Telecommunications Carrier shall cause to be executed, acknowledged, and delivered to City such
instruments as City shall prescribe and approve transferring and conveying the ownership of such
property to City.
City of Atascadero
Ordinance No. 379
Page 32
1.10.280 Undergrounding of Cable.
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.
1.10.290 Facility Agreements.
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.
1.10.300 Erection of Poles Prohibited.
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.
1.10.310 System Technical Data.
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 changes in the location of the Telecommunications Carrier's Equipment and
Telecommunications Facilities. In addition,the Telecommunications Carrier shall maintain in its
local office a complete and up-to-date set of as-built system maps and drawings upon completion
City of Atascadero
Ordinance No. 379
Page 33
of construction or reconstruction, equipment specification and maintenance publications, and signal
level diagrams for each active piece of electronic equipment in the system. As-built drawings shall
show all lines and installed equipment, and tap valves and spigots. The scale of maps and drawings
shall be sufficient to show the required details in easily readable form and size. Technical data at
the local office shall also include approved pole applications, details and documentation of satellite
and microwave equipment, mobile radio units, heavy construction vehicles and equipment, and
video and audio equipment normally used in the operation of the system. If City requires use of
technical data in its own offices, it may make copies of any items at City's expense.
1.10.320 Availability of Technical Data.
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.
1.10.330 Use of Public Property.
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 the
unincorporated area of the City, or within any other Public Property of City, or within any privately-
owned area within City's jurisdiction which is not yet, but is designated as, a proposed public place
on a tentative subdivision map approved by City, any Equipment, Telecommunications Facilities,
or system for distributing signals or services through a Telecommunications System unless a
Franchise or License, or other Agreement acceptable to the City has first been obtained hereunder
and is in full force and effect.
City of Atascadero
Ordinance No. 379
Page 34
1.10.340 Registration.
Except as otherwise provided herein and prior to any determination of exemption, all
Telecommunications Carriers engaged or who propose to engage in the business of transmitting,
supplying or furnishing of Telecommunications Service for a fee to customers in the City or who
own, operate, or use Telecommunication Facilities, Telecommunications Equipment, and/or a
Telecommunications System in Streets, Public Rights-of-Way or Public Property, shall register with
the City pursuant to this Section.
A. Registration Forms: Registration forms to be provided by the City and completed
by the Telecommunications Carrier, shall include the following:
(1) The identity and legal status of the registrant, including any affiliates.
(2) The name, address and telephone number of the officer, agent or employee
responsible for the accuracy of the registration statement.
(3) A description of registrant's existing or proposed Telecommunications
Facilities within the City.
(4) A description of the Telecommunications Service that the registrant intends
to offer or provide, or is currently offering or providing,to persons, firms, businesses or institutions
within the City as well as a specific time table or schedule for the provision of each
Telecommunications Service.
(5) Information sufficient to determine whether the registrant is subject to
franchising or licensing under 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. The Telecommunications Carrier shall state
City of Atascadero
Ordinance No. 379
Page 35
which of the Telecommunications Services, if any, offered or to be offered within the City are not
covered or authorized by said PUC certificate of authority.
(7) Information sufficient to determine that the Applicant has applied for and
received a construction permit, operating license or other approvals required by the FCC to provide
telecommunications Services or Telecommunications Facilities within the City.
(8) The identity and address of any and all persons or entities using any portion
of, or all, of the Telecommunications Carrier's Telecommunications Facilities within the City.
(9) Such other information as the City Manager may reasonably require.
B. Registration Fee: Each Telecommunications Carrier registering in accordance with
this section shall pay the actual and reasonable costs to the City for processing such registration,
including costs incurred by outside consultants who are retained by the City to review a registration.
The City Manager shall estimate the amount of said costs and the registering Telecommunications
Carrier shall deposit the amount of said estimate with the registration.
C. The Telecommunications Carrier shall annually, on January 1 of each year, provide
the City with a written notice which shall disclose to the City any changes to the information
provided by the Telecommunications Carrier in the registration form completed by the
Telecommunications Carrier and delivered to the City.
D. Purpose of Registration: The purpose of registration is to:
(1) provide the City with accurate and current information concerning the
Telecommunications Carriers who offer or provide Telecommunications Services within the City,
or that own or operate a Telecommunications System within the City;
(2) Assist the City in enforcement of this Ordinance;
(3) Assist the City in the collection and enforcement of any municipal fees,
City of Atascadero
Ordinance No. 379
Page 36
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.
1.10.350 Telecommunications License.
Any Telecommunications Carrier who desires to construct, install, operate, maintain, or
otherwise locate Telecommunications Facilities, Telecommunications Equipment, and/or a
Telecommunications System in,under, over or across any Street or Public Rights-of-Way of the City
for the purpose of providing Telecommunications Service to persons or areas outside the City shall
first obtain a license granting the use of such Street or Public Right-of-Way from the City pursuant
to this 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 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.
City of Atascadero
Ordinance No. 379
Page 37
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-Ways 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-Ways, 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 the Work Area Traffic
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Page 38
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) Any and all convictions or findings by any governmental authority that the
applicant has violated any law or ordinance (including environmental laws or ordinances)or license
agreement or franchise agreement.
(15) Such other and further information as may reasonably be required by the
City Manager.
B. Application Fee: Any person that desires a License pursuant to this section shall
file an application with the City which shall include the following information and which shall be
accompanied by an application fee which shall be in an amount which will pay the actual and
reasonable costs to the City for processing such application, including costs incurred by outside
consultants who are retained by the City to review an application. The City Manager shall estimate
the amount of said costs and the applicant shall deposit the amount of said estimate with the
application.
City of Atascadero
Ordinance No. 379
Page 39
C. Determination by the City Manager: Within 120 days after receiving a complete
application under this Section the City Manager shall issue a written determination granting or
denying the license application in whole or in part, applying the following standards. If the
application is denied, the written determination shall include the reasons for denial. The City
Manager shall consider the following:
(1) The financial and technical ability of the Applicant.
(2) The legal ability of the Applicant.
(3) The capacity of the Streets and Public Rights-of-Ways to accommodate the
Applicant's proposed Telecommunications Facilities.
(4) The capacity of the Streets and Public Rights-of-Ways 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-Ways.
(7) The services that Applicant will provide to the community and region.
(8) The effect, if any, on public health, safety and welfare if the License is
granted.
(9) The availability of alternate routes and/or locations for the proposed
Telecommunications Facilities.
(10) Applicable federal and state telecommunications laws, regulations and
policies.
(11) Any and all convictions or findings by any governmental authority that the
City of Atascadero
Ordinance No. 379
Page 40
applicant has violated any law or ordinance(including environmental laws or ordinances)or license
agreement or franchise agreement.
(12) Such other factors as may demonstrate that the grant to use the Streets and
Public Rights-of-Ways will serve the community interest.
D. 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.
E. 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-
Ways of the City for delivery of Telecommunications Services or any other purposes.
F. Rights Granted: No license granted under this Section shall convey any right, title
or interest in the Streets and Public Rights-of-Ways, but shall be deemed a License only to use and
occupy the public ways for the limited purposes and term stated in the grant. Further, no License
shall be construed as any warranty of title.
G. Terms of Grant: Unless otherwise specified in a license agreement, a License
granted hereunder shall be in effect for a term of ten (10) years.
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. License Fee: Each and every Licensee shall be subject to and pay, to the extent
not prohibited by applicable federal or state law, a License Fee for the use of the property rights
City of Atascadero
Ordinance No. 379
Page 41
granted to the Licensee, i.e., the privilege of using Streets, Public Rights-of-Way, and Easements to
construct, maintain, and operate a Telecommunications System or any portion thereof, as a condition
and requirement of each and every License. The License Fee shall consist of the following
components:
1. Minimum Compensation Component. Each and every Licensee which
constructs, maintains, and operates a Telecommunications System, or any portion thereof, or
provides a Telecommunications Service,which is not exempt in whole from compensation payment
requirements pursuant to federal or state law, shall pay minimum compensation (the "Minimum
Compensation Requirement") on an annual basis in an amount to be established in the initial
License, Franchise,permit, or other authorizations. The City Council shall from time to time and
by resolution establish the Minimum Compensation Requirement and appropriate inflation factor
to be utilized in all Licenses, Franchises, permits, and other authorizations. The Minimum
Compensation Requirement shall not exceed the fair market value of the property rights granted to
the Licensee, i.e.,the privilege of using Streets, Public Rights-of-Way, and Easements to construct,
maintain, and operate a Telecommunications System or portion thereof, which are not exempt in
their entirety from the imposition of a compensation requirement by applicable federal or state law.
2. Additional Compensation. Either at the time of issuance of any License,
Franchise, permit, or other authorization, or any time thereafter, the City shall determine whether
or not the Minimum Compensation Requirement equates to or is less than the fair market value of
the property rights granted to the Licensee, i.e.,the privilege of utilizing Streets, Public Rights-of-
Way, and Easements to construct, maintain, and operate a Telecommunications System or portion
thereof, which are not exempt in their entirety from the imposition of a compensation requirement
pursuant to federal or state law. If the City determines that said non-exempt property rights possess
City of Atascadero
Ordinance No. 379
Page 42
a fair market value in excess of the Minimum Compensation Requirement, the City shall engage in
negotiations with the Licensee, Franchisee, or holder of the permit or authorization to provide
additional compensation to the City, in cash or in-kind services or facilities, which represents in
value the difference between the Minimum Compensation Requirement and the fair market value
(the "Additional Compensation") (the Minimum Compensation Requirement and the Additional
Compensation shall collectively be referred to as the "Total Compensation"). Under no
circumstances shall the Total Compensation exceed the fair market value of the non-exempt property
rights granted to the Licensee, Franchisee, or holder of the permit or authorization. To the extent
that the City and the Applicant agree upon Total Compensation as part of the issuance of the
License, Franchise,permit, or other authorization, said agreement shall be binding upon the City for
the term of the License, Franchise, permit, or other authorization. However, to the extent that the
parties cannot or do not agree upon said Total Compensation in the Franchise, License, permit, or
other authorization,the City Council may, from time to time but no more frequently than annually,
establish by resolution the Additional Compensation and modify said Additional Compensation
based upon changes in the fair market value of the non-exempt property rights granted or conveyed.
3. Acceptance by the Applicant of any License, Franchise, permit, or other
authorization shall constitute an acceptance of the minimum Compensation Requirement unless the
Applicant can affirmatively demonstrate that all of the activities,both present and future,which will
be conducted utilizing the property rights granted to the Applicant are completely and totally exempt
from all compensation requirements pursuant to applicable federal or state law. The burden of proof
shall be on the Applicant. The Applicant shall provide all written and oral information, documents
and evidence reasonably requested by the City which are necessary or relevant to a determination
as to whether all of its activities and uses which use or occupy Streets, Public Rights-of-Way, and
City of Atascadero
Ordinance No. 379
Page 43
Easements are exempt from non-cost recovery compensation.
J. Appeals: An Applicant may appeal the denial of a License or a condition imposed
in a License to the City Council. Such appeal shall be filed in writing with the City Clerk by 5 p.m.
on the tenth(10th) business day following the date of mailing of the City's written decision that is
being appealed. The appeal shall be accompanied by a fee as established from time to time by
resolution of the City Council. The City Council shall schedule a hearing on the appeal within thirty
(30) days of the filing of the appeal. The Board's decision on the appeal shall be final.
1.10.360 Telecommunications Franchise.
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-Ways of the City, and/or to provide Telecommunications Service to persons or areas in
the City via Telecommunications Facilities, Telecommunications Facilities, and/or a
Telecommunications System in the Street and Public Rights-of-Ways, shall first obtain a Franchise
granting the use of such Streets and Public Rights-of-Ways 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.
City of Atascadero
Ordinance No. 379
Page 44
(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 City.
(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-Ways, 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
City of Atascadero
Ordinance No. 379
Page 45
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
services is subject to cable franchising.
(14) An accurate map showing the location of any existing Telecommunications
System(s) in the City that Applicant intends to use or lease.
City of Atascadero
Ordinance No. 379
Page 46
(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) Any and all convictions or findings by any governmental authority that the
applicant has violated any law or ordinance(including environmental laws or ordinances) or license
agreement or franchise agreement.
(20) Such other and further information as may be requested by the City
Administrative Officer.
B. Franchise Application Fee: Any person that desires a Franchise pursuant to this
section shall file an application with the City which shall include the following information and
which shall be accompanied by an application fee which shall be in an amount which will pay the
actual and reasonable costs to the City for processing such application, including costs incurred by
outside consultants who are retained by the City to review an application. The City Manager shall
estimate the amount of said costs and the applicant shall deposit the amount of said estimate with
the application.
C. Determination by City Manager: Within 120 days after receiving a complete
Application under this Section hereof,the City Manager shall issue a written determination granting
or denying the application in whole or in part, applying the following standards. If the application
is denied, the written determination shall include the reasons for denial. The City Manager shall
City of Atascadero
Ordinance No. 379
Page 47
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-Ways to accommodate the
Applicant's proposed Telecommunications Facilities.
(4) The capacity of the Streets and Public Rights-of-Ways 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-Ways.
(7) The service that Applicant will provide to the community and region.
(8) The effect, if any, on public health, safety and welfare if the Franchise
requested is granted.
(9) The availability of alternate routes and/or locations for the proposed
Telecommunications Facilities.
(10) Any and all convictions or findings by any governmental authority that the
applicant has violated any law or ordinance (including environmental laws or ordinances)or license
agreement or franchise agreement.
(11) Applicable federal and state telecommunications laws, regulations and
policies.
(12) Such other factors-as may demonstrate that the grant to use the Streets and
Public Rights-of-Ways will serve the community interest.
City of Atascadero
Ordinance No. 379
Page 48
D. 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.
E. Nonexclusive Grant: No Franchise granted under this section shall,confer any
exclusive right, privilege, license or franchise to occupy or use the Streets and Public Rights-of-
Ways for delivery of Telecommunications Services or any other purposes.
F. Rights Granted: No Franchise granted under this Section shall convey any right,
title or interest in the Streets and Public Rights-of-Ways, but shall be deemed a Franchise only to
use and occupy the Streets and Public Rights-of-Ways for the limited purpose and term stated in the
grant. Further, no Franchise shall be construed as any warranty of title.
G. Franchise Territory: A Franchise granted under this Section shall be limited to the
specific geographic area of the City to be served by the franchise Applicant, and the specific public
ways necessary to serve such areas.
H. Franchise Fee: Each and every Franchisee shall be subject to and pay, to the
extent not prohibited by applicable federal or state law, a Franchise Fee for the use of the property
rights granted to the Franchisee, i.e., the privilege of using Streets, Public Rights-of-Way, and
Easements to construct, maintain, and operate a Telecommunications System or any portion thereof,
as a condition and requirement of each and every Franchise. The Franchise Fee shall consist of the
following components:
1. Minimum Compensation Component. Each and every Franchisee which
constructs, maintains, and operates a Telecommunications System, or any portion thereof, or
provides a Telecommunications Service,which is not exempt in whole from compensation payment
requirements pursuant to federal or state law, shall pay minimum compensation (the "Minimum
City of Atascadero
Ordinance No. 379
Page 49
Compensation Requirement") on an annual basis in an amount to be established in the initial
License, Franchise,permit, or other authorizations. The City Council shall from time to time and
by resolution establish the Minimum Compensation Requirement and appropriate inflation factor
to be utilized in all Licenses, Franchises, permits, and other authorizations. The Minimum
Compensation Requirement shall not exceed the fair market value of the property rights granted to
the Franchisee, i.e.,the privilege of using Streets, Public Rights-of-Way, and Easements to construct,
maintain, and operate a Telecommunications System or portion thereof, which are not exempt in
their entirety from the imposition of a compensation requirement by applicable federal or state law.
2. Additional Compensation. Either at the time of issuance of any License,
Franchise, permit, or other authorization, or any time thereafter, the City shall determine whether
or not the Minimum Compensation Requirement equates to or is less than the fair market value of
the property rights granted to the Licensee, i.e., the privilege of utilizing Streets, Public Rights-of-
Way, and Easements to construct, maintain, and operate a Telecommunications System or portion
thereof, which are not exempt in their entirety from the imposition of a compensation requirement
pursuant to federal or state law. If the City determines that said non-exempt property rights possess
a fair market value in excess of the Minimum Compensation Requirement, the City shall engage in
negotiations with the Licensee, Franchisee, or holder of the permit or authorization to provide
additional compensation to the City, in cash or in-kind services or facilities, which represents in
value the difference between the Minimum Compensation Requirement and the fair market value
(the "Additional Compensation") (the Minimum Compensation Requirement and the Additional
Compensation shall collectively be referred to as the "Total Compensation"). Under no
circumstances shall the Total Compensation exceed the fair market value of the non-exempt property
rights granted to the Licensee, Franchisee, or holder of the permit or authorization. To the extent
City of Atascadero
Ordinance No. 379
Page 50
that the City and the Applicant agree upon Total Compensation as part of the issuance of the
License,Franchise,permit, or other authorization, said agreement shall be binding upon the City for
the term of the License, Franchise, permit, or other authorization. However, to the extent that the
parties cannot or do not agree upon said Total Compensation in the Franchise, License, permit, or
other authorization,the City Council may, from time to time but no more frequently than annually,
establish by resolution the Additional Compensation and modify said Additional Compensation
based upon changes in the fair market value of the non-exempt property rights granted or conveyed.
3. Acceptance by the Applicant of any License, Franchise, permit, or other
authorization shall constitute an acceptance of the Minimum Compensation Requirement unless the
Applicant can affirmatively demonstrate that all of the activities,both present and future, which will
be conducted utilizing the property rights granted to the Applicant are completely and totally exempt
from all compensation requirements pursuant to applicable federal or state law. The burden of proof
shall be on the Applicant. The Applicant shall provide all written and oral information, documents
and evidence reasonably requested by the City which are necessary or relevant to a determination
as to whether all of its activities and uses which use or occupy Streets, Public Rights-of-Way, and
Easements are exempt from non-cost recovery compensation.
I. Appeals: An Applicant may appeal the denial of a Franchise or a condition
imposed in a franchise to the City Council. Such appeal shall be filed in writing with the City by
5 p.m. on the tenth(10th)business day following the date of mailing of the City's written decision
that is being appealed. The appeal shall be accompanied by a fee as established from time to time
by resolution of the City Council. The City Council shall schedule a hearing on the appeal within
thirty (30) days of the filing of the appeal. The Board's decision on the appeal shall be final.
City of Atascadero
Ordinance No. 379
Page 51
1.10.370 Term of License or Franchise.
The term of a License or 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.
1.10.380 Assignment, Transfer or Sale of Franchise or License.
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
City of Atascadero
Ordinance No. 379
Page 52
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.
City of Atascadero
Ordinance No. 379
Page 53
1.10.390 Revocation and Termination.
In addition to all other rights and powers retained by the City, the City shall have the right to
revoke any Franchise or License granted hereunder and to terminate all rights and privileges of the
Franchisee or Licensee hereunder in the event of a substantial breach of the terms and conditions of
said Franchise or License, or of any rule or regulation of the City or City Engineer. A substantial
breach by a Franchisee or Licensee shall include, but shall not be limited to, the following:
(1) Violation of any material provision of this ordinance or of any Franchise or License
granted or renewed or pursuant to this ordinance;
(2) Any attempt by a Franchisee or Licensee to evade any material provision of the
Franchise or License or to practice any fraud or deceit or deception upon the City;
(3) The failure of a Franchisee or Licensee to obtain permits for, or to begin or
complete construction as provided under this ordinance and under the Franchise or License;
(4) Material misrepresentation of fact by a Franchisee or Licensee in the application
for or negotiation of the Franchise or License;
(5) Conviction of any director, officer, employee, or agent of a Franchisee or Licensee
of the offense of bribery or fraud connected with or resulting from the awarding of the Franchise or
License;
(6) Failure of a Licensee or Franchisee to pay any License Fee or Franchise Fee or
other compensation required by this ordinance, or required by any Franchise or License granted
pursuant to this ordinance,to the City when due. Failure of a Licensee or Franchisee to pay said fee
shall also require the Franchisee or Licensee to pay interest on any past-due fee or compensation to
the City at the rate of one and one-half percent per month on the unpaid amount.
City of Atascadero
Ordinance No. 379
Page 54
1.10.400 Possessory Interest.
By accepting any Franchise, License, or permit 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.
SECTION 2:
A summary of the ordinance, approved by the City Attorney, together with ayes and noes,
shall be published at least five days prior to its final passage in the Atascadero News, a newspaper
published and circulated in Atascadero. A summary of the ordinance, approved by the City
Attorney,together with ayes and noes, shall be published before the expiration of fifteen (15) days
after its final passage in the Atascadero News, a newspaper published and circulated in Atascadero.
A copy of the full text of this ordinance shall be on file in the City Clerk's Office on and after the
date following introduction and passage and shall be available to any interested member of the
public. This ordinance shall take effect and be in full force and effect thirty (30) days after its final
passage.
INTRODUCED at a regular meeting of the City Council held on the 23rd day of January,
2001, and PASSED and ADOPTED by the City Council of the City of Atascadero, State of
California, on the 13`h day of February, 2001, by the following roll call vote, to-wit:
City of Atascadero
Ordinance No. 379
Page 55
AYES: Council Members Clay, Johnson, Luna, Scalise and Mayor Arrambide
NOES: None
ABSENT: None
chael Arrambide, Mayor
ATTEST:
1
Marcia McClure Torgerson, City erk
ORDINANCE CODE PROVISION APPROVED
AS TO FORM AND CODIFICATION:
By: &-c �)
R1 Hanley, City Irney
Dated: