SR-400-005-03 (5)
EPWM: CP: AA: DP:F:\DATA\SPFILES\SP-MISC\cc Reports\ccROWordinance3.doc
Council Meeting: June 22, 2004 Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Ordinance Related to Utility Excavations and Wireless Installations in the
Public Right of Way
Introduction
This report recommends that the City Council introduce for first reading an ordinance
which adds Chapter 7.06 to the Santa Monica Municipal Code to regulate utility
excavations and wireless telecommunication facilities in the public right of way. This
ordinance also repeals selected redundant sections of the Santa Monica Municipal Code
related to excavations.
Background
On February 24, 2004, staff introduced for first reading an ordinance which would have
added Section 7.06 to the Municipal Code. At that meeting, after hearing industry
opposition to various technical and procedural aspects of the proposed ordinance, Council
directed staff to conduct additional public outreach, explore ways to simplify the permit
process and return to Council with a revised ordinance implementing any necessary
revisions. In order to maintain the status quo during this public outreach period, Council
adopted a short six-month moratorium on the installation of wireless facilities in the public
right of way (PROW), which expires August 24, 2004.
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Discussion
In developing the proposed ordinance, staff sought to address several key principals:
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Preserve the integrity and aesthetic quality of the City’s PROW;
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Address the long-term management of the PROW;
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Address concerns about Public Works Projects encountering unknown utilities in
the PROW during construction;
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Ensure that the manner in which the PROW is accessed minimizes disruption to the
community;
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Ensure utilities (including telecommunication and wireless companies) competitively
neutral and non-discriminatory access to the PROW; and
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Ensure compliance with State and Federal laws allowing access to the PROW.
Following the February 24, 2004 Council meeting, staff conducted additional outreach with
utility representatives in order to address specific concerns. Staff also held an additional
public meeting on April 26, 2004 to receive feedback from all interested parties and
solicited written comments on proposed changes. Staff reviewed the proposed ordinance
in light of feedback received at the Council meeting and from subsequent contact with
utility companies and the public. Many of the comments focused on providing further
clarification, simplifying the process, and addressing franchise-specific concerns. This
review resulted in several changes to the proposed ordinance.
Highlights of Ordinance Revisions
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The most significant ordinance change involved simplifying the permit process. The
ordinance provides for four types of permits: blanket, excavation, wireless minor, and
wireless major. In recognition that certain franchise utility excavations are routine and
minimally impact the PROW, the blanket permit category was extended to include service
alterations and abandonments less than 100 feet. To address the wireless industry’s
concern that existing street light poles cannot accommodate new infrastructure, the
wireless minor permit category has been expanded to include replacement of street light
poles with new street light poles to include antennas. The wireless major category was
modified to replace the permit hearing with a written comment and response period, which
will preserve the opportunity for community input while simplifying the process for the
permit applicant.
The revised ordinance also clarifies the site selection criteria and addresses the wireless
industry’s concern that the exhaustion of other sites requirement was too burdensome. The
revised ordinance establishes that the placement of antennas on private property is
preferable to the placement of antennas on the PROW. In addition, the placement of
antennas in commercial areas is generally preferable to the placement of antennas in
residential areas. In order to provide exact limits on other sites that need to be explored
prior to locating on the PROW adjacent to a residential area, staff recommends that
applicants be required to explore all private property options within a 300-foot radius of the
proposed site, not including the width of PROW. The revised ordinance also establishes
additional site selection criteria and preferred locations for the placement of antennas and
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other facilities.
To address the industry’s concern regarding existing installations, the revised ordinance
specifies that its provisions do not apply to existing installations; however, should a facility
be reconstructed, modified, or replaced, the facility must be brought up to current
standards and have minimal impact on the PROW. Also, a reservation of rights section
was added that recognizes that some utilities have franchises with the City.
Other proposed changes include:
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Permit Issuance – deleted coverage study requirement for wireless installations
and added that reasons for denial will be provided in writing.
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Periodic Review – limited to legal authority to occupy PROW.
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Backfill – the proposed ordinance now allows native soil to be used as backfill if
compaction requirements and certain other conditions are met.
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Network Diagrams – a utility company can notify the Department if there are no
changes in lieu of re-submitting diagrams. To address the industry’s security
concerns, these diagrams will not be made public record.
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Hardship exemptions – this section was modified to include two types of exemptions
a general exemption and one specific to the Telecommunications Act of 1996. The
procedure for applying for the general hardship was simplified.
Budget/Financial Impact
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There are no budget or financial impacts associated with the adoption of this ordinance.
However, there is potential that staff’s recommendations could result in revenue generated
by lease agreements when facilities are located on City-owned street lights or other City-
owned poles.
Recommendation
It is recommended that the Council introduce the attached ordinance for first reading.
Prepared by: Craig Perkins, Director, Environmental and Public Works Management
Anthony Antich, P.E., City Engineer
Marsha Jones Moutrie, City Attorney
Joseph Lawrence, Assistant City Attorney
Cara E. Silver, Deputy City Attorney
Kathryn Vernez, Assistant to the City Manager, Government Relations
Dave Britton, P.E. Principal Engineer
Donald Patterson, Senior Administrative Analyst
Attachment: Ordinance
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F:\ATTY\MUNI\LAWS\CES\ROW Ordinance 9.doc
City Council Meeting: June 22, 2004 Santa Monica, California
ORDINANCE NUMBER _____ (CCS)
AN ORDINANCE OF THE CITY OF SANTA MONICA REGULATING
UNDERGROUND UTILITY AND WIRELESS TELECOMMUNICATIONS
INSTALLATIONS ADDING CHAPTER 7.06 OF THE SANTA MONICA
MUNICIPAL CODE AND REPEALING SECTIONS7.04.010 – 7.04.160;
7.04.240 – 7.04.250; 7.04.280 – 7.04.290; 7.04.310; 7.04.330 – 7.04.360;
and 7.04.660
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN
AS FOLLOWS:
SECTION 1. Add Chapter 7.06 to the Santa Monica Municipal Code and repeal
Sections7.04.010 – 7.04.160; 7.04.240 – 7.04.250; 7.04.280 – 7.04.290; 7.04.310;
7.04.330 – 7.04.360; and 7.04.660 of the Santa Monica Municipal Code related to
excavations.
SECTION 2. Delete the word “Excavations” in the title to Santa Monica Municipal
Code Section 7.04.
SECTION 3. The Santa Monica Municipal Code is amended by adding new
Chapters 7.06 to read as follows:
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Section 7.06.100 INTRODUCTION
Section 7.06.101 Title
Section 7.06.102 Definitions
Section 7.06.103 Purpose and Findings
Section 7.06.200 APPLICABILITY
Section 7.06.300 PERMIT
Section 7.06.301 Permit Required
Section 7.06.302 Permit Applications
Section 7.06.302.01 Application Required
Section 7.06.302.02 Fee
Section 7.06.302.03 Cancellation of Permit Application and Refunds
Section 7.06.303 Permit Types
Section 7.06.303.01 Excavation Permit
Section 7.06.303.02 Wireless Facility Minor Permits
Section 7.06.303.03 Wireless Facility Major Permits
Section 7.06.304 Wireless Major Permit Notice
Section 7.06.305 Permit Issuance
Section 7.06.305.01 Excavation Permit Issuance
Section 7.06.305.02 Wireless Minor Permit Issuance
Section 7.06.305.03 Wireless Major Permit Issuance
Section 7.06.305.04 Wireless Major Permit Appeals
Section 7.06.305.05 Permit Scope and Duration
Section 7.06.305.06 Failure to Complete Work
Section 7.06.305.07 Emergency
Section 7.06.305.08 Blanket Permit Qualifications
Section 7.06.305.09 Maintaining Permit at Work Site
Section 7.06.305.10 Procedure for Finalizing Permit
Section 7.06.305.11 Periodic Review
Section 7.06.305.12 Modifications to Existing Facilities
Section 7.06.400 DESIGN STANDARDS
Section 7.06.401 Site Selection Criteria
Section 7.06.402 Visual Impact
Section 7.06.403 Antenna Requirements
Section 7.06.500 GENERAL CONDITIONS
Section 7.06.501 Compliance with Applicable Law and Regulations
Section 7.06.502 Nonexclusive Use of PROW
Section 7.06.503 Maintenance of Facilities
Section 7.06.504 Regulations
Section 7.06.505 Submittals
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Section 7.06.506 Coordination
Section 7.06.506.01 Coordination with other Projects
Section 7.06.506.02 Network Diagram Submission
Section 7.06.506.03 Participation in Coordination Meetings
Section 7.06.507 Professional Engineer Requirements
Section 7.06.508 Monument Restoration
Section 7.06.509 Excavation Requirements
Section 7.06.509.01 Minimum Depth of Facilities
Section 7.06.509.02 Excavation Under Sidewalks
Section 7.06.509.03 Limits of Excavation
Section 7.06.509.04 Location of Excavation
Section 7.06.509.05 Excavation in Recently Paved Streets
Section 7.06.509.06 Backfilling
Section 7.06.510 Construction Requirements
Section 7.06.510.01 Construction
Section 7.06.510.02 Standard of Care
Section 7.06.510.03 Public Notification
Section 7.06.510.04 Commencement of Work
Section 7.06.510.05 Diligence Required
Section 7.06.510.06 Complaint Handling Procedure
Section 7.06.510.07 Emergency Phone List
Section 7.06.510.08 Inspection
Section 7.06.510.09 Temporary Pavement Surface and Steel Plates
Section 7.06.510.10 Vehicle and Pedestrian Crossings
Section 7.06.510.11 Job Site Cleanliness
Section 7.06.510.12 Protection of Urban Forest
Section 7.06.510.13 Excavation Backfill Compaction Testing
Section 7.06.510.14 Construction As-Built Submission
Section 7.06.511 Insurance
Section 7.06.511.01 Minimum Limits of Insurance
Section 7.06.511.02 Minimum Scope of Insurance
Section 7.06.511.03 Other Insurance Provisions
Section 7.06.511.04 All Coverages
Section 7.06.511.05 Verification of Coverage
Section 7.06.511.06 Contractors and Subcontractors
Section 7.06.512 Indemnity
Section 7.06.513 Warranty
Section 7.06.514 Cash Bond or Surety Bond
Section 7.06.515 Hazardous Materials
Section 7.06.516 Water/Storm Water Runoff Mitigation
Section 7.06.517 Facility Marking Requirements
Section 7.06.518 Duty to Remove Facilities from PROW
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Section 7.06.600 PERMIT NON-COMPLIANCE; NO WAIVERS
Section 7.06.700 PERMIT REVOCATION
Section 7.06.701 Appeal
Section 7.06.800 ADDITIONAL WIRELESS FACILITY REQUIREMENTS
Section 7.06.801 Abandonment
Section 7.06.802 Provisions for Underground Utility Districts
Section 7.06.900 EXEMPTION PROCEDURES
Section 7.06.901 Hardship Exemption.
Section 7.06.902 Telecommunications Exemption
Section 7.06.1000 APPLICABILITY OF OTHER LAWS
Section 7.06.1001 Reservation of Rights
Section 7.06.1002 Future Changes in the Law
Section 7.06.1003 Applicability of Franchise Agreements
Section 7.06.100 INTRODUCTION
Section 7.06.101 Title
This chapter is known as and may be cited as the “Right of Way
Management Ordinance” of the City of Santa Monica.
Section 7.06.102 Definitions
For the purpose of this chapter, the following words or phrases are defined
below:
(a) Applicant – Any Utility, including any Utility’s authorized agent,
requesting permission to install any Facility or to make any Excavation in the
PROW on behalf of Utility.
(b) Day – One business day.
(c) Department – Environmental and Public Works Management
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Department of the City of Santa Monica.
(e) Director – The Director of the Environmental and Public Works
Management Department or designee.
(f) Emergency – A condition that poses an imminent threat to life or
property, including any repairs necessary to restore service that is currently
disrupted.
(g) Excavation – Any trenching, digging, boring, tunneling, or jacking of
conduit or pipes or placement of a Facility or any other structure in the PROW by or
for Utilities.
(h) Facility – Any property in the PROW used to provide service by any
Utility.
(i) Hazardous Material - Any substance of any kind including, waste, gas
or other material which, because of its quantity, concentration, or physical or
chemical properties or characteristics, is deemed by any federal, state, County, or
local law or authority to pose a present or potential hazard to health or safety or to
the environment.
(j) Permittee – Any Utility that has obtained permission through the
issuance of a permit from the Department to make any Excavation or otherwise
locate, install or place Facilities in the PROW.
(k) PROW (Public right-of-way) – The area on, below, or above a city-
owned or controlled street or alley public right of way and the sidewalk and/or
parkway adjacent thereto.
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(l) Utility – A company which is certified by the California Public Utilities
Commission or the Federal Communications Commission to provide or install any
Facilities for the delivery or transmission of telecommunications, Wireless,
electricity, oil, gas, internet or other similar data transfer service, including any
utility owned or operated by another city, county, or other governmental agency to
the extent allowed by law. For the purpose of this Chapter, Utility shall also include
companies providing cable television services. City owned utilities and facilities
installed in the PROW are exempt from the provisions of this Chapter.
(m) Wireless – Personal or commercial mobile telecommunication
services certified by the California Public Utilities Commission and common carrier
wireless exchange access services utilizing radiofrequency signals emitted from
any Facility in the PROW.
(n) Work – Includes all labor, materials, equipment, services, and all other
things necessary for the Utility to install a Facility in the PROW, including without
limitation any changes requested by the City, in accordance with this Chapter and
all applicable laws and regulations.
Section 7.06.103 Purpose and Findings
The City Council finds and determines that it is in the interest of the City of
Santa Monica to establish regulations to manage the installation of Facilities in or
along the PROW. The City Council finds that the PROW within the City is crowded
with an ever increasing number of pedestrians and vehicles and both the surface
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and the subsurface of the PROW has experienced a proliferation in competing
uses, including, without limitation, water, sewer, storm drains, gas, electric,
telephone, telecommunications, and cable lines that crisscross the PROW. The
large number and variety of these uses make management of the PROW necessary
in order to preserve and to maintain the public health and welfare. Accordingly, this
PROW Management Ordinance is adopted:
(1) To ensure public health, safety, and welfare.
(2) To manage the public right of way as to the time, place, and
manner in which it is accessed.
(a) To minimize the impacts of installations in crowded
PROWS.
(b) To minimize the impacts of installations in areas of heavy
traffic.
(3) To preserve view corridors, to discourage visual blight and clutter
and to encourage aesthetic placement of Facilities.
(4) To accommodate public and City use of the PROW, so as to
permit maintenance of Facilities, and to minimize disruption to
vehicular traffic and pedestrian flow; and on-street parking.
(5) To minimize unnecessary disruption of the PROW by coordinating
installations so as to effectively manage use of the PROW.
(6) To ensure the structural integrity, reliability, performance, safety,
quality, ease of maintenance, and aesthetic integrity of the
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PROW.
(7) To ensure that similarity situated PROW users are treated in a
competitively neutral and non-discriminatory manner while
complying with applicable codes.
(8) To ensure compliance with all federal, state, county, and local
laws.
(9) To prevent hazardous conditions along the PROW.
(10) To manage the long-term use of the PROW.
Section 7.06.200 APPLICABILITY
This Chaptershall apply to any Facility installed or otherwise placed in the
PROW on or after the effective date of this ordinance. Facilities constructed prior to
the effective date of this ordinance shall be brought into compliance with this Chapter
when that Facility is reconstructed, modified or replaced. This Chapter shall also apply
to any Facility previously located, installed or otherwise placed in the PROW without
undergoing review and approval by the Director, unless otherwise authorized by
franchise agreement. Any such unauthorized Facility shall immediately be made
conforming to the regulations set forth in this Chapter.
Section 7.06.300 PERMIT
Section 7.06.301 Permit Required
No Work shall be executed in any part of the PROW for the installation,
repair or removal of any Facility, or for any other purpose, without first obtaining a
written permit in accordance with this Chapter.
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Section 7.06.302 Permit Applications
Section 7.06.302.01 Application Required
Before a permit is issued, a written application must be filed with the
Department on a form approved by the Department. The application shall set forth
the name and address of the Applicant, including the name and address of the
Utility on behalf of which the Applicant is applying for permission to excavate or
otherwise locate, place or install Facilities in the PROW, if this is different than the
Applicant; and shall state in detail the location of all proposed Facilities and the
extent of the Excavation.
No permit shall be issued under this Chapter until and unless the Applicant
shall have first complied with the provisions of this Code requiring the issuance of
business licenses.
The Applicant shall show legal authority to occupy and use for the purpose
mentioned in the application, the streets, alleys, sidewalks or other public places
where the excavation, placement, location or installation of Facilities is proposed to
be made.
In addition, Applicants shall provide the following information:
1. A site plan showing the exact location of the proposed Facility,
including other improvements in the project area;
2. A construction plan and schedule, to include start and end dates and
phasing, as required by the Department.
3. A utility study showing the location and depth of all utilities in the
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immediate vicinity of the Facility.
4. For Wireless applications, photos, computer simulations or other
accurately scaled representations of the above ground location before and after
installation of all Facilities. Such photos, simulations or other accurately scaled
representations shall include all proposed antenna structures, antennas, and
related accessory equipment, including, without limitation, all related physical
structures to be placed in the PROW on any new or existing equipment or support
device in order for the City to assess compliance with this Chapter.
5. For Wireless applications, certified documentation by a licensed
engineer demonstrating that any proposed Wireless Facility will comply with the
most current allowable radiation and emission standards allowed by the Federal
Communications Commission for non-ionizing electromagnetic radiation (NEIR) and
electromagnetic fields (EMF). The Permittee shall provide an updated certified
study to the City every two years. In the event that certified documentation is not
submitted, the City may hire a consultant to evaluate the potential NEIR or EMF of
the proposed Facility. The fee charged by the consultant shall be paid by the
Applicant/Permittee.
6. For Major Wireless Facility Permit applications, a radius map and a certified list of
the names and addresses of all property owners, as shown on the latest assessment roll of
the county assessor, and commercial and residential tenants within five hundred feet
(500’) of the exterior boundaries of the property involved. This list shall be in an approved
mailing label format.
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7. The Director is authorized to develop, revise, and require Applicants to use detailed
information request forms as may be necessary to collect information useful in evaluating
permit applications.
Section 7.06.302.02 Fee
(a) Processing Fees. Fees for any permit or application required by this
Chapter shall be governed by Resolution CCS 9667 as amended from time to time,
or other resolution as adopted by the City Council.
(b) Independent Consultant. At the discretion of the Director and as
reasonably required, the Applicant may be required to provide an authorization
waiver to permit the City to hire an independent qualified consultant to evaluate any
technical aspect of the proposed Facility, including, but not limited to, compliance
with applicable federal emission standards, potential for interference with existing or
planned public safety emergency emission standards, potential for interference with
existing or planned public safety emergency response telecommunications facilities,
or analysis of feasibility of alternate sites, screening methods or devices. Any
authorization for this purpose shall include an agreement by the Applicant to
reimburse the City for all reasonable costs associated with the consultation. Any
proprietary information disclosed to the City or the consultant is hereby deemed not
to be a public record, shall remain confidential, and not be disclosed to any third
party without the express consent of the applicant, except as hereafter required by
operation of law or by court order.
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Section 7.06.302.03 Cancellation of Permit Application and Refunds
Applicant shall notify the Department in writing to request the cancellation of
a permit application and to request any refund. Applicant will not be entitled to a
refund if the request for a cancellation is filed more than two (2) days after the
permit application was filed.
Section 7.06.303 Permit Types
The following permit types shall apply to all Work proposed by a Utility in the
PROW.
Section 7.06.303.01 Excavation Permit
An excavation permit shall be applicable when a Utility proposes to perform
an excavation in the PROW.
Section 7.06.303.02 Wireless Facility Minor Permits
A Wireless Facility Minor Permit shall be applicable when (1) a Utility
proposes to install a Wireless Facility in the PROW and (2) the proposed antenna
will be placed on an existing pole and installed in such a way that it does not result
in a material change to the existing pole and (3) any equipment associated with the
Facility, except the antenna(s), shall be substantially underground. Examples of
installations which do not qualify for a Minor Permit include Facilities which extend
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above the height of the existing poles in the immediate neighborhood, Facilities
which are installed on new poles which do not replace existing poles and Facilities
which include above ground cabinet equipment. Installations which involve the
replacement of an existing pole with a pole which is similar in operation and design
and which otherwise meet the requirements of this section shall be eligible for a
Minor Permit.
Utilities providing Wireless services which qualify for a permit under this section will
not be required to obtain a separate excavation permit for any sub-surface portion
of the Facility.
Section 7.06.303.03 Wireless Facility Major Permits
A Wireless Facility Major Permit shall be applicable when (1) a Utility
proposes to install a Wireless Facility in the PROW and (2) it does not qualify for a
Minor Permit. Examples of installations requiring a Major Permit include Facilities
which extend above the height of the existing poles in the immediate neighborhood,
Facilities which are installed on new poles and Facilities which include
aboveground cabinet equipment.
Section 7.06.304 Wireless Major Permit Notice
At least fourteen (14) days prior to rendering a decision on the Wireless
Major Permit, written notice of the application shall be sent to all property owners
and residential and commercial tenants within a five hundred foot (500’) radius of
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the proposed Facility. For this purpose, the last known name and address of each
property owner as contained in the records of the Los Angeles County Assessor
shall be used. The address of the residential and commercial tenants shall be
determined by visual site inspection or other reasonable accurate means. The
Applicant shall provide a list of property owners and tenants within the prescribed
area of notification and shall sign an affidavit verifying that the list has been
prepared in accordance with the procedure outlined in this Section.
In issuing the permit, the Director shall take into consideration all comments
provided by the public.
Section 7.06.305 Permit Issuance
Section 7.06.305.01 Excavation Permit Issuance
The Director shall issue an Excavation Permit if the Director makes all of the
following findings:
(1) The permit will not substantially interfere with pedestrian use of the
PROW;
(2) The permit will not substantially interfere with vehicular safety; and
(3) The requirements of this Chapter are met.
The Director may impose conditions on the permit prior to its issuance
relating to the time, place and manner of use of the PROW as set forth in this
Chapter. The Director may deny an Excavation Permit if the application is
incomplete or does not comply with the requirements of this Chapter. Such
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decision shall be final.
Section 7.06.305.02 Wireless Minor Permit Issuance
Following a review of the application for a Wireless Minor Permit, the
Director shall issue a Wireless Minor Permit if the Director makes all of the
following findings:
(1) The permit will not substantially interfere with pedestrian use of the
PROW;
(2) The permit will not substantially interfere with vehicular safety; and
(3) The requirements of this Chapter are met.
The Director may impose conditions on the permit prior to its issuance
relating to the time, place and manner of use of the PROW as set forth in this
Chapter. The Director may deny a Wireless Permit if the application is incomplete
or does not comply with the requirements of this Chapter. Any denial shall be in
writing and shall describe the reasons for denial. Such decision shall be final.
Section 7.06.305.03 Wireless Major Permit Issuance
Following a review of the application for a Wireless Major Permit and public
comment, the Director shall prepare a written decision which shall contain the
findings of fact upon which such decision is based. The Director may approve a
Wireless Major Permit application, in whole or in part, with or without conditions,
provided all of the following findings of fact are made:
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(1) The proposed Facility complies with all of the applicable provisions of
this Chapter and Code.
(2) The proposed Facility will not interfere with the use of the PROW.
(3) The proposed construction plan and schedule will not unduly interfere
with the public’s use of the PROW.
(4) The proposed Facility can be mitigated so that its impacts do not
result in a material change to the character of the location and the Facility relates
harmoniously with the surrounding neighborhood.
The Director may impose conditions on the permit prior to its issuance
relating to the time, place and manner of use of the PROW as set forth in this
Chapter.
The Director’s decision shall not become effective until fourteen (14)
consecutive calendar days after it is served upon the Applicant by First Class Mail,
unless it is stayed as provided for in the appeal section of this Chapter. For
purposes of this section, service is effective five (5) calendar days after deposit of
the decision into the mail.
Section 7.06.305.04 Wireless Major Permit Appeals
Within fourteen (14) calendar days after service on the Applicant of the
notice of determination by the Director to issue or deny a Major Wireless Permit or
a Telecommunications exemption application filed under this Chapter, any person
may appeal the decision to the City Council. Should a timely appeal be made,
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issuance of the permit shall be stayed. The City Council shall review the
application de novo. The decision of the City Council shall be based on the same
standards as applicable to the Director. Appeals taken pursuant to this section
shall be governed by the appeal provisions of Section 9.04.20.24 of this Code.
If no appeal is made within the fourteen (14) day period, the permit shall be
issued.
Section 7.06.305.05 Permit Scope and Duration
(a) Upon approval by the Director, or City Council on appeal, of the
application, the Director shall issue a written permit for the Work.
(b) The permit shall specify the Utility issued the permit, the particular
portion or portions of the PROW covered by the permit, the extent of such Work
and its expiration date, which shall not exceed six (6) months from the date the
permit is issued. No permit shall be transferable. Every permit shall be void unless
the Work is commenced within forty five (45) days from the date of issuance of the
permit.
(c) If the Work is not completed prior to the permit’s expiration date, the
Director in his or her discretion may extend the expiration date for no more than one
additional six (6) month period.
Section 7.06.305.06 Failure to Complete Work
If Work is not completed by the expiration date set forth on the permit,
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Permittee will be required to re-apply for a new permit.
Nothing in this section shall be construed to guarantee approval of a new
permit.
Section 7.06.305.07 Emergency
Nothing in this Chapter shall be construed to prevent any Utility from making
any Emergency Excavation that may be necessary for the preservation of public
safety; provided, that the Utility making such Excavation shall file a permit
application and pay all prescribed fees no later than ten (10) days after the
Emergency Excavation was begun.
Section 7.06.305.08 Blanket Permit Qualifications
Notwithstanding this Chapter, Utilities which have a franchise with the City
may be granted a permit to complete service connections, to perform service
alterations, to perform routine repair of underground Facilities or to perform
abandonments provided that any such Work is less than one hundred (100) feet in
length. Work completed under this section shall be contingent upon a traffic
diversion plan approved by the Transportation Management Division.
Section 7.06.305.09 Maintaining Permit at Work Site
Permittee shall keep at the location of the Work a copy of the permit and
must, on demand, exhibit the permit to any designated City representative.
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Section 7.06.305.10 Procedure for Finalizing Permit
Immediately upon completion of Work, Permittee must notify the Department
for final inspection. Nothing in this section is intended to limit any other remedies of
the City.
Section 7.06.305.11 Periodic Review
Every five (5) years starting from the issuance of any Wireless Major Permit,
each Permittee shall provide legal authority that it continues to have the right to
occupy and use the PROW for the purpose set forth in its permit. Failure to submit
such an affidavit or lack of legal authority to occupy or use the PROW shall be
grounds for revoking a Wireless Major Permit.
Section 7.06.305.12 Modifications to Existing Facilities
The City finds that the technology associated with telecommunications
equipment is subject to rapid changes and upgrades as a result of improvements in
wireless technology, industry competition, and customer demands, and anticipates
that improved telecommunications Facilities, including, without limitation, antennas
and related equipment with reduced visual impacts will be available from time to
time with comparable or improved coverage and capacity capabilities. The City
further finds that it is in the interest of the public health, safety, welfare, and
aesthetics that telecommunications providers be required to replace older Facilities
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with newer Facilities of equal or greater capabilities and reduced visual impacts as
technological improvements become available. Therefore, whenever a Permittee
seeks to reconstruct, modify or replace any Facility permitted under this Chapter,
the Director shall review the existing Facility to determine whether requiring newer
equipment or applying new screening techniques that further reduce visual impact
is appropriate and technically feasible and, if such a finding is made, the Director,
may so condition any such Work. Nothing in this section is intended to waive the
permit requirements for any such Work.
Section7.06.400DESIGNSTANDARDS
To the extent permitted by law, the City shall approve the placement and design of
all Facilities installed on the PROW governed by the Chapter. The City shall consider the
following guidelines when approving a Facility governed by this Chapter to the extent
permitted by law.
Section 7.06.401 Site Selection Criteria
(a) Traffic Obstruction. The placement of the Facility shall not impede
vehicular or pedestrian traffic flow.
(b) Over Concentration. Only one Wireless Facility and associated
equipment shall be permitted every 100 feet. Any Facility which is co-located with
another Facility shall be exempt from this requirement.
(c) Antenna Locations. Wireless facilities located on existing infra-
structure, such as utility poles and street light poles, shall be preferred.
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(d) Alley Preference. Except for antennas, Facilities located in alleys and near property
line prolongations shall be preferred.
(e) Exhaustion of Other Sites. For Wireless installations, as a general
policy, given the limited PROW in the City, the placement of antennas on private
property is preferable to the placement of antennas on the PROW. In addition, the
placement of antennas in commercial areas of the City is generally preferable to the
placement of antennas in residential areas of the City. Prior to placing an antenna
in a PROW adjacent to a residential zone, the Applicant must demonstrate that no
feasible alternate locations exist within a 300 foot radius (not including the width of
the PROW) of the following: (1) private property in commercial areas of the City; (2)
private property in residential areas of the City; and (3) PROW in commercial areas
of the City. Prior to placing an antenna in a PROW adjacent to a non-residential
zone, the Applicant must demonstrate that no feasible alternate locations exist on
private property in commercial areas within the coverage area of the proposed site.
(f) If the proposed location is not a preferred location, as set forth in
Sections (c), (d), and (e) of this section, the Applicant shall provide a list by address
and Assessor’s parcel Number and a map of all preferred location sites within the
service area; what good faith efforts and measures were taken to secure each other
of these preferred location sites; describe why each such site was not
technologically, legally or economically feasible and why such efforts were
unsuccessful; how and why the proposed site is essential to meet service demands
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for the geographic service area and the citywide network. This information is
necessary to determine whether there will be a significant gap in coverage if the
project is not approved or whether alternatives exist for providing coverage. The
City may hire a consultant to evaluate the Applicant’s showing and the fee charged
by the consultant shall be paid by the Applicant.
Section 7.06.402 Visual Impact
(a) Unobtrusive Design. Facilities shall be designed to be as visually
unobtrusive as possible. Applicant shall size antennas, mast arms, cabinet
equipment and other Facilities to minimize visual clutter. Colors and designs must
be visually neutral, integrated and compatible with surrounding buildings and/or
uses in the area. Facilities shall be sited to avoid or minimize obstruction of views
from adjacent properties and otherwise preserve the aesthetic integrity of the
PROW.
(b) Finish Materials. Facilities shall not be of a bright, shiny, or glare
reflective finish. The Facility shall be finished in a color to neutralize it and blend it
with, rather than contrast it from, the sky and site improvements immediately
surrounding, provided that, wherever feasible, a light color shall be used to meet
this requirement.
(c) Underground Placement. The base station and all associated
equipment including wires and cables necessary for the operation of a Wireless
Facility shall be placed underground so that the antenna is the only portion of the
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Facility that is above ground. If some other placement is proposed, the Applicant
shall demonstrate to the satisfaction of the City that it is not feasible to locate this
equipment below ground. The City may hire a consultant to evaluate the
Applicant’s submittal and the fee charged by the consultant shall be paid by the
Applicant.
(d) Camouflaged Design. Applicant shall use state of the art, well
camouflaged designs to minimize visual impact of the Facility. For example, the
visual impact of a Facility may be mitigated by integrating it into existing functional
facilities such as street light or utility poles. The City may hire a consultant to
evaluate the Applicant’s submittal and the fee charged by the consultant shall be
paid by the Applicant.
(e) Screening. Applicant shall screen the Facility to take into account the
existing improvements in the immediate area, including fencing, walls, berms,
structures, painting and landscaping.
(f) Landscaping. New landscaping and irrigation designs shall be
performed under the supervision of a Licensed Landscape Architect in accordance
with the City’s landscaping standards. No faux design of any kind, including
artificial landscaping materials, shall be used as part of the installation.
Section 7.06.403 Antenna Requirements
(a) Camouflage Requirement. Antennas shall be camouflaged so that
they do not materially change the aesthetic character of the immediate vicinity of
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the Facility and so that they relate harmoniously with the surrounding
neighborhood. Antennas shall be the smallest size currently available at the time
the application is filed to perform the intended function. In general, an array of
smaller antennas is preferable to one larger antenna. Antennas shall be integrated
into other facilities in the PROW such as utility poles or street light poles. For
example, if antennas are to be placed in a new operating street light, the new
operating street light shall match the adjacent lights in spacing and design.
(b) Horizontal Mast Arms. Horizontal mast arms supporting pole mounted
antennas shall be the minimum length permitted under General Order 95
promulgated by the Public Utilities Commission or other applicable safety laws.
(c) Pole Height. The maximum height of any new or replacement street
light pole installed under this Chapter shall not be substantially higher than other
comparable street light poles in the immediate vicinity.
(d) City improvements. Antenna installations on existing City
improvements shall be placed in a manner so that the size, appearance and
function of the final installation is essentially identical to the installation prior to the
antenna installation taking place. No faux or otherwise non-functioning street lights
or artificial landscaping shall be permitted.
Section7.06.500GENERAL CONDITIONS
All permits governed by the Chapter shall be subject to the following general
conditions.
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Section 7.06.501 Compliance with Applicable Law and Regulations
This Chapter is not intended to be the exclusive means of regulating
installation of Facilities in the PROW and nothing herein is intended to waive any
other applicable City requirements, including but not limited to building permit
requirements, storm water runoff requirement, business license requirements and
undergrounding regulations. The Applicant/Permittee must obtain all permits,
licenses, and similar authorizations that are required by other governmental entities
for the installation of its Facilities. The Utility must also be and remain in
compliance with all applicable statutes, ordinances, rules, regulations, orders, and
decisions issued by any federal, state or local governmental body or agency,
including without limitation those issued by the California Public Utilities
Commission and the Federal Communications Commission.
Section 7.06.502 Nonexclusive Use of PROW
All permits to construct or place Facilities in the PROW shall be non-
exclusive. Neither the granting of an Excavation or other permit under this Chapter
by the City provides any Permittee with an exclusive use of the PROW.
Section 7.06.503 Maintenance of Facilities
The Applicant/Permittee shall maintain all Facilities installed in the PROW in
a condition which maintains the safety, integrity, and aesthetics of the PROW and
the Facilities, including, but not limited to: all landscaping installed must be properly
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and regularly maintained; graffiti and posters must be removed within forty-eight
(48) hours after written notification to the Permittee; and above-ground cabinets and
other above-ground Facilities shall not appear to be unkempt.
Section 7.06.504 Regulations
To the extent not preempted by applicable laws, the Director may prescribe
regulations covering the location, size and depth of excavations in public streets
and sidewalks as he or she may deem necessary for the public safety and welfare.
Where such regulations are general in character and are designed to apply to all
excavations of a certain type or nature, they shall be promulgated in writing
showing the date of their enactment, and a copy thereof, duly certified to by the
Director shall be kept on file where they may be made available for public
inspection upon the demand of any person. All Work performed under this chapter
shall be subject to such regulations.
Section 7.06.505 Submittals
Prior to the issuance of any permit, each Applicant shall provide the
Department with evidence that it has obtained all applicable business, state
permits, and other licenses, as well as insurance and performance and payment
bonds in an amount and form specified by the Department.
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Section 7.06.506 Coordination
Section 7.06.506.01 Coordination with other Projects
To the maximum extent possible and as permitted by law, an Applicant shall
design and schedule its Work so as to coordinate its Work with other persons
installing, constructing, or maintaining Facilities in the PROW and with the City.
Section 7.06.506.02 Network Diagram Submission
th
Commencing June 15, 2005 and each June 15 of each subsequent year,
each Utility with Facilities in the City shall submit an updated diagram in a format
acceptable to the Department of all Facilities owned or controlled by each such
Utility and located in the PROW. Such diagrams shall show, but not be limited to
showing, the number, size, and locations of antennas, pipelines, conduits, cables,
vaults, pedestals, and all other associated Facilities located in the PROW.
If a Utility’s Facility diagram has not changed from the diagram submitted in a
previous year, in lieu of submitting a new diagram, a Utility may, at its election,
provide an affidavit to the City certifying that the previous year’s map has not
changed. The certification shall also include the date that the previous map was
submitted to the City.
In order to ensure the security of installations, this information shall not be
made a public record, except that Utilities requesting a permit under this Chapter
may request portions of submitted diagrams affecting their proposed installation.
Section 7.06.506.03 Participation in Coordination Meetings
Each Utility shall participate in periodic coordination meetings as requested
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by the City with other Utilities and affected public agencies. The purpose of these
meetings shall be to coordinate activity between public works projects and Utility
projects in the PROW.
Section 7.06.507 Professional Engineer Requirements
No permit shall be issued for Excavation projects over one thousand (1,000)
lineal feet without submission of plans prepared under the direction of and stamped
by a Professional Engineer registered in the State of California, except to the extent
Applicant is exempted from this requirement by Business and Professions Code
6746, 6747 or other applicable law.
Section 7.06.508 Monument Restoration
When monuments exist that control the location of boundaries, roads, streets
or highways, or provide survey control, the monuments shall be restored pursuant
to the requirements set forth in the State of California’s Professional Land
Surveyor’s Act.
Section 7.06.509 Excavation Requirements
Section 7.06.509.01 Minimum Depth of Facilities
Except where preempted by applicable law, no Permittee shall install any
Facilities in any PROW at a distance of less than that defined by a map maintained
in the Office of the City Engineer.
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Section 7.06.509.02 Excavation Under Sidewalks
Except for service connections, no Excavation shall be made under the
sidewalk or parkway between the curb line and a distance four (4) feet from the
curb line, as measured toward the property line or under any alley or court within
three (3) feet of either side of the centerline.
Section 7.06.509.03 Limits of Excavation
No trench shall be opened in the PROW for the purpose of laying pipes or
conduits more than six hundred (600) feet in advance of pipe or conduit installation,
backfill and interim pavement construction.
Section 7.06.509.04 Location of Excavation
No Permittee shall make any Excavation to install any Facility under the
surface of any PROW other than that described in the approved permit. No
Permittee shall modify the permitted location of the Excavation, except for minor
variations in alignment due to interferences, unless approved ahead of time by the
Department.
Section 7.06.509.05 Excavation in Recently Paved Streets
Except in an Emergency or in the case of new service connections to a newly
constructed or substantially remodeled building, there shall be no Excavation in
streets completely resurfaced or reconstructed by the City within the preceding
three (3) years.
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Section 7.06.509.06 Backfilling
Trench backfill shall be one of the following:
1. 3/4 sack sand/cement slurry. This is to be used in narrow trenches 6
inches wide or less.
2. Decomposed granite mechanically compacted to 95% relative
compaction in 6 inch lifts.
3. Crushed miscellaneous base mechanically compacted to 95% relative
compaction in 6 inch lifts.
Except for base material used for subgrade under street pavement, native
soil may be used for backfill, subject to verification by the Director of the
competency of the soil. In those cases, the City will rely upon the analysis and
recommendations of a private soils engineer hired by the Utility, unless the City
elects to hire its own soils engineer to verify the competency of the soil. In such
case, the Utility shall pay the cost of the City-hired engineer.
Section 7.06.510 Construction Requirements
Section 7.06.510.01 Construction
The Utility is solely responsible for construction, installation and
maintenance of its Facilities. City has the right at all times to inspect construction of
the Facilities to assure compliance with all permits or approvals granted by City.
Section 7.06.510.02 Standard of Care
The Utility will undertake all authorized activities within the PROW of the City
in a skillful manner, consistent with the highest standards generally recognized as
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being employed by professionals in the same discipline in the State of California.
Facility installation activities must comply with applicable federal, state, and local
laws, regulations and rules.
Section 7.06.510.03 Public Notification
Except in cases of Blanket Permits, Permittee shall provide written
notification to all residents and businesses located within five hundred (500’) feet,
not including the width of the PROW, of planned Work area seventy-two (72) hours
prior to the start of such Work in a form approved by the Department prior to
distribution. The Permittee shall ensure that the construction minimally impacts the
public.
Section 7.06.510.04 Commencement of Work
Permittee must provide notification to the Department that Work will
commence seventy-two (72) hours prior to start of Work.
Section 7.06.510.05 Diligence Required
The Work shall be prosecuted with due diligence so as not to obstruct the
PROW unduly. If the Work is not prosecuted diligently as determined by the
Director, the City will give Permittee written notice to correct the condition. If
Permittee does not diligently prosecute the Work to completion within the timeframe
specified by the Director, the City will restore the PROW to its preexisting condition
and charge Permittee for the Work.
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Section 7.06.510.06 Complaint Handling Procedure
Permittee shall have a designated community relations liaison to address
public concerns related to the project. Within twenty-four (24) hours of a complaint
or the next day thereafter, the liaison shall notify the Department of the date, nature,
and resolution of the complaint.
Permittee shall maintain on file with the Department a copy of the Utility’s
community relations program outlining procedures for handling complaints.
Section 7.06.510.07 Emergency Phone List
In regard to each permit issued, Permittee shall provide the Department with
Emergency contact information to include the name and phone number of the 24-
hour Emergency contact.
Section 7.06.510.08 Inspection
The Permittee shall make the Work site accessible to the City, and others
authorized by law, for inspection at all times during performance of Work under this
Chapter.
Section 7.06.510.09 Temporary Pavement Surface and Steel Plates
(a) When directed by the Department, the Permittee shall install steel
plates with non-slip surface to bridge any Excavation in the PROW during non-
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working hours. Such plates shall be anchored so as to minimize movement.
(b) Backfilled excavations in streets shall be maintained for vehicular and
pedestrian traffic by surfacing the trench with a temporary pavement according to
Department standards.
Section 7.06.510.10 Vehicle and Pedestrian Crossings
(a) It shall be the duty of every Permittee performing any Work in any
public street to maintain safe crossings for vehicular traffic and to ensure
compliance with paths of travel for disabled persons, including crossings for
pedestrians at intervals of not more than six hundred (600) feet, in accordance with
all applicable laws, including the Americans with Disabilities Act (ADA). Fire
hydrants, water and gas main shut-off valves, traffic signal control boxes, and
electrical and water meters must remain accessible at all times.
(b) It shall be the duty of every Permittee performing any Work in any
PROW to maintain signage and delineation throughout the area of the Work as may
be necessary to prevent accident and injury. In addition, if in the determination of
the Department, the nature or location of such Excavation requires lighting to
prevent injury or accidents, such lights must be placed at locations specified by the
Department.
Section 7.06.510.11 Job Site Cleanliness
The Work of removing from the PROW all excavated material and
construction debris is the responsibility of the Permittee. Removal and disposal
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must occur within eight (8) hours of deposit in accordance with Chapter 7.60 et seq.
If Permittee fails to maintain the cleanliness of the site, the permit is subject to
revocation as outlined in Section 7.06.510 et seq.
Section 7.06.510.12 Protection of Urban Forest
The Permittee shall retain, at its own cost, a certified arborist to advise
the Permittee’s contractor doing underground work in the PROW as to
appropriate locations for underground vaults, conduits and other equipment and
root pruning techniques, if needed, so as to ensure minimal impact to existing
trees and other landscaping materials that are a part of the City’s urban forest.
The Permittee's arborist shall coordinate their work with the City's Community
Forester.
Section 7.06.510.13 Excavation Backfill Compaction Testing
When requested by the City, the Permittee shall perform backfill compaction
testing by a qualified testing laboratory and furnish copies of written reports to the
City. The City reserves the right to perform backfill compaction testing in
conjunction with the Permittee’s construction activities. The Permittee must ensure
proper compaction prior to paving as required by the Department. If slurry is used
for backfill, compaction testing shall not be required.
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Section 7.06.510.14 Construction As-Built Submission
For each permit completed, Permittee shall submit an as-built set of drawings
to the Department within sixty (60) days of completion of Work.
Section 7.06.511 Insurance
Prior to commencing work, the Permittee shall secure the following types and
amounts of insurance:
Section 7.06.511.01 Minimum Limits of Insurance
Permittee shall obtain insurance of the types and in the amounts described
below:
Commercial General Liability Insurance(for projects 1,000 linear
1)
feet or less).
Permittee shall maintain commercial general liability
(CGL) with a limit of not less than $1,000,000 each
occurrence/$2,000,000 in the annual aggregate.
Commercial General Liability Insurance (for projects greater than
1,000 linear feet).
Permittee shall maintain commercial general
liability (CGL) with a limit of not less than $3,000,000 each
occurrence/$3,000,000 in the annual aggregate.
Business Auto Liability Insurance.
Premittee shall maintain
business auto liability with a limit of not less than $1,000,000 each
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accident.
2) These amounts may be increased or decreased by the Risk Manager
upon a showing of special circumstances relating to risk to public
property, public improvements or public safety.
Section 7.06.511.02 Minimum Scope of Insurance
CGL insurance shall be written on Insurance Services Office form CG 00 01
(or a substitute form providing equivalent coverage) and shall cover liability arising
from or in connection with permitted activity.
Business Auto Insurance shall cover liability arising out of any auto,
including owned, hired, and non-owned autos. Coverage shall be written on
Insurance Services Office form CA 00 01, CA 00 05, CA 00 12, CA 00 20, or a
substitute form providing equivalent liability coverage
Section 7.06.511.03 Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be
endorsed to contain, the following provisions: City of Santa Monica, its officers,
officials, employees, and volunteers are to be covered as additional insureds with
respect to liability arising out of automobiles owned, leased, hired, or borrowed by
or on behalf of the Permittee; and with respect to liability arising out of work or
41
operations performed by or on behalf of the Permittee including materials, parts or
equipment furnished in connection with such work or operations.
Under the CGL policy or commercial umbrella policy, the Insurance Services
Office additional insured endorsement form CG 20 10 or a substitute providing
equivalent coverage shall be used
Section 7.06.511.04 All Coverages
Each insurance required by this clause shall be endorsed to state that
coverage shall not be canceled except after thirty (30) days prior written notice by
certified mail, return receipt requested, has been given to the City, attention City
Engineer.
If Permittee is self-insured for any of the required coverages, Permittee shall
provide to City's Risk Manager written certification as provided by either Permittee's
risk management professional, independent insurance consultant or actuary, or a
licensed insurance broker that Permittee has sufficient assets to provide coverage
as required in this section.
Section 7.06.511.05 Verification of Coverage
Permittee shall furnish the City of Santa Monica with original certificates and
copies of amendatory endorsements effecting coverage required by this section.
The certificates and endorsements for each policy are to be signed by a person
authorized by the insurer to bind coverage on its behalf. The certificates and
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endorsements should be on forms provided by the City of Santa Monica or on other
than the City of Santa Monica’s forms, provided those forms and endorsements
conform to the requirements. All certificates and endorsements are to be received
and approved by the City of Santa Monica before work commences.
Section 7.06.511.06 Contractors and Subcontractors
Permittee shall include all contractors and subcontractors as additional
insureds under its policies or shall ensure that all contractors and subcontractors
meet all of the requirements stated herein.
Section 7.06.512 Indemnity
The Permittee shall defend, indemnify, and hold harmless the City of Santa
Monica, its Council, boards, commissions, officers, agents, volunteers, and
employees from and against any and all loss, damages, liability, claims, suits, costs
and expenses, whatsoever, including reasonable attorney's fees, regardless of the
merit or outcome of any such claim or suit, resulting from the alleged acts or
omissions of permittee, its officers, agents, or employees in connection with the
permitted Work. Nothing contained herein shall be construed as obligating
Permittee to indemnify City for losses resulting from its sole or active negligence or
willful misconduct.
Section 7.06.513 Warranty
The Utility warrants that any trench backfill, pavement restoration, or other
43
work performed by the Utility or its employees, agents, and contractors in the public
rights of way will be free from all defects due to faulty materials or quality of work for
a period of five years after the date of installation of the Facilities. The Utility will
repair or remove and replace all such backfill, pavement restoration, or other work,
together with any other pavement areas directly affected by that removal or
replacement, without any expense to City. If the Utility fails to comply diligently with
those provisions within ten (10) days after being notified in writing (or in cases of
Emergency, within 24 hours), City is authorized to proceed to have any backfill,
pavement restoration, or other defects remedied at the sole cost and expense of the
Utility, and the Utility is obligated to pay those costs and expenses within thirty (30)
days of receipt of invoice. Such action by the City will not relieve the Utility of the
warranty provided for in this subsection.
Section 7.06.514 Cash Bond or Surety Bond
Notwithstanding any other provisions of this Code, whenever the Director or
the Building Officer determines that any Work proposed to be performed under any
permit issued by the Director or the Building Officer might endanger any adjoining
property, he or she may require, as a condition precedent to the issuance of such
permit, that there be provided a cash bond or a surety bond by an authorized surety
company acceptable and approved by the Risk Manager in the substance and form
acceptable to and approved by the City Attorney. Such bond shall be in a penal
sum prescribed by the Director or the Building Officer conditioned upon the repair,
in the manner directed by and strictly in accordance with the requirements of the
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Director, of any and all damage (1) to private property (other than utilities) which in
the opinion of the Director or Building Officer was wholly or partially caused as a
direct or indirect result of any work under such permit, and (2) to public ways, other
public property, substructures and utilities, which in the opinion of the Director or
Building Officer was wholly or partially caused as the direct or indirect result of any
work under such permit, or alternatively the payment of the cost of any such repairs,
made by the City or owner of any utility, or both.
Section 7.06.515 Hazardous Materials
Permittee shall comply with all federal, state, county, and local laws
regarding Hazardous Material, including, but not limited to, all rules and regulations
concerning the storage, handling and disposal of Hazardous Material.
Section 7.06.516 Water/Storm Water Runoff Mitigation
The Permittee shall prevent all non-storm water discharge from the
construction site from entering the storm drain system in accordance with Chapter
§7.10.060 et seq. of the Municipal Code.
Section 7.06.517 Facility Marking Requirements
Upon completion of the Work, Permittee shall identify the completed project
with a marker no less than one (1) inch in diameter and embedded a minimum of
two and one-half (2.5) inches into the pavement or sidewalk. The marker shall be
permanently imprinted with the letter “G” for natural gas lines, “E” for electric power
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lines, “T” for telecommunications companies, or “C” for cable television companies.
The Director shall develop other marker symbols as necessary and appropriate.
Markers shall be placed at intervals of no more than every sixty (60) feet.
Section 7.06.518 Duty to Remove Facilities from PROW
The City may order a Utility to remove or relocate its Facilities from the
PROW at the Utility’s own expense when the Facility interferes with the City’s use
of the PROW, or when the Utility abandons the Facilities.
If not removed voluntarily by the Utility, then the City may notify such Utility
that should removal of the Facility not be accomplished within a reasonable time
specified by the City, the City may direct its officials or representatives to remove
such Facilities at that Utility’s expense.
If the City removes the Facilities and Utility does not claim the property within
sixty (60) days of its removal, then the City may take whatever steps are available
under the law to declare the property abandoned or surplus, and sell it, with the
proceeds of such sale going to the City as permitted by law.
When a Utility removes its Facilities from the PROW located within the City,
the Utility shall at its own expense, and in the manner prescribed by the City,
replace and restore such PROW in accordance with repair standards adopted by
the Department.
Section 7.06.600PERMIT NON-COMPLIANCE; NO WAIVERS
No Permittee shall be excused from complying with any of the provisions of
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this Chapter by any failure of the City on any one or more occasions to seek, or
insist upon, compliance with any requirements or provisions of this Code.
Regardless of the City’s failure to seek compliance on any occasions, such action
shall not be considered a waiver of any requirements of this Code.
Section 7.06.700 PERMIT REVOCATION
The City may revoke a permit or any other right to use the PROW issued under this
Chapter for any of the following reasons:
(a) Failure to comply with any condition of a permit issued,
(b) Failure to comply with this Chapter;
(c) A substantive change of law affecting a Utility’s authority to occupy or use
the PROW or the City’s ability to impose regulations relating to such
occupation or use;
(d) A Facility’s interference with a City project;
(e) A Facility’s interference with vehicular or pedestrian use of the PROW;
(f) Failure to make a safe and timely restoration of the PROW.
Section 7.06.701 Appeal
A Permittee whose permit or right has been revoked may have the revocation
reviewed, upon written appeal as follows:
(a) Within fourteen (14) days of the revocation, a written appeal shall be
filed with the Director. The appeal must contain a statement of any reasons why the
Permittee believes that the revocation should be reviewed. The Director shall
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render a decision within twenty-one (21) days of receipt.
(b) If the Director denies the appeal, the Permittee may file a written
notice of appeal with the City Council within twenty-one (21) days of notification of
the appeal denial. In addition to containing a statement of any significant factors
and/or hardships as well as alternatives explored, the appeal must contain a
response to the findings of the Director that resulted in the denial. The appeal shall
be conducted in accordance with the procedures governing Wireless Major Permit
appeals.
Section7.06.800ADDITIONAL WIRELESS FACILITY REQUIREMENTS
The Wireless Facilities in the PROW shall be subject to the following additional
requirements.
Section 7.06.801 Abandonment
Whenever a Wireless provider intends to discontinue use of its Wireless
Facility the provider must notify the City Engineer in writing of its planned
abandonment of the Wireless Facility. Wireless Facility shall be removed within 30
days of abandonment. Any Wireless Facility not in use for a period of six (6)
months shall be considered abandoned and shall be removed pursuant to this
Chapter.
Section 7.06.802 Provisions for Underground Utility Districts
If a Wireless Facility is placed on a utility pole or other structure that is
48
located within a new underground utility district adopted by resolution of the City
Council, the Wireless Facility must be removed from the PROW at the Utilities
expense. Replacement of the Wireless Facility is subject to this code.
Section 7.06.900 EXEMPTION PROCEDURES
A Utility may apply to the Director for an exemption from any of the requirements of
this Chapter in accordance with this section.
Section 7.06.901 Hardship Exemption.
A Utility may apply to the Director for an exemption from any of the
requirements of this Chapter on the grounds that such requirement (1) is not
feasible or (2) constitutes an undue hardship.
An application shall include information necessary for the City to make its
decision, including but not limited to reports or studies showing the factual support
for the claimed exemption. The Director may require the Utility to provide additional
information to permit the Director to determine facts regarding the Hardship
Exemption application.
Following a review of the application, the Director may approve the
exemption, in whole or in part, with or without conditions, provided all of the
following findings of fact are made:
(1) The subject requirement is not feasible or constitutes an undue
hardship;
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(2) The Work will not substantially interfere with pedestrian use of the
PROW;
(3) The Work will not substantially interfere with vehicular safety;
(4) The Facility will serve a community benefit;
(5) The requirements of this Chapter are met, except for the requirement
sought to be waived; and
(6) The proposed Facility can be mitigated so that its impacts do not
result in a material change to the character of the location and relate harmoniously
with the surrounding neighborhood.
The Director’s decision shall become effective immediately. The Director’s
decision is final and shall not be appealable.
Section 7.06.902 Telecommunications Exemption
A Wireless Utility may apply to the Director for an exemption from any of the
requirements of this Chapter on the grounds that such requirement constitutes a
prohibition pursuant to Section 253(a) of the Telecommunication Act of 1996 (as
may be amended), or other law.
An application shall include information necessary for the City to make its
decision, including but not limited to reports or studies showing the factual support
for the claimed exemption. The Director may require the Wireless Utility to provide
additional information to permit the Director to determine facts regarding the
Telecommunications Exemption application.
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In addition, the application shall include a radius map and a certified list of
the names and addresses of all property owners, as shown on the latest
assessment roll of the county assessor, and commercial and residential tenants
within five hundred feet (500’) of the exterior boundaries of the property involved.
This list shall be in an approved mailing label format.
Such waiver request shall be subject to a hearing by the Director. Following
a review of the application and hearing, the Director shall prepare a written decision
which shall contain the findings of fact upon which such decision is based. Such
decision shall be issued within 30 days of the hearing. The Director may approve
the exemption, in whole or in part, with or without conditions, provided all of the
following findings of fact are made:
(1) The subject requirement constitutes a prohibition pursuant to Section
253(a) of the Telecommunication Act of 1996 (as may be amended), or other law.
(2) There are special circumstances or exceptional characteristics
applicable to the Facility or the proposed location, including size, shape,
topography, location, or surroundings, or to the intended use or development of the
property that do not apply to other properties in the vicinity containing similar
Facilities.
(3) The proposed Facility complies with all of the applicable provisions of
this Chapter and Code, except for the requirement subject of the waiver request.
(4) The proposed Facility will not interfere with the use of the PROW.
(5) The proposed Facility can be mitigated so that its impacts do not
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result in a material change to the character of the location and relate harmoniously
with the surrounding neighborhood.
The Director’s decision shall not become effective until fourteen (14)
consecutive calendar days after it is served by First Class mail upon the Applicant,
unless it is stayed as provided for in the appeal section of this Chapter. The
Director’s decision is appealable to the City Council by any person in accordance
with the appeal provision of this Chapter.
Section7.06.1000APPLICABILITYOFOTHERLAWS
Section 7.06.1001 Reservation of Rights
(a) General Reservation. By granting a permit under the terms of this
Chapter, the City does not waive any rights reserved to the City under any
applicable law, including Public Utilities Code Sections 7901 and 7901.1 et. seq.,
including but not limited to the City’s right to regulate the time, place, and manner of
a Utility’s access to the City’s PROW. The City also does not waive any rights
reserved to the City under the Telecommunications Act of 1996, including, but not
limited to, those rights set forth in Section 253 (c) et seq. of the Act reserving to
cities the right to manage the City’s PROW and to require fair and reasonable
compensation from Utility Providers on a competitively neutral and
nondiscriminatory basis for the use of public rights of way on a nondiscriminatory
basis if the compensation required is publicly disclosed by the City.
(b) No Express Authorization to Place Utility on City-Owned Facility.
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Further, nothing in this Ordinance shall be construed as granting any right, whether
express or implied, to any Utility to place a Facility on City-owned property.
Section 7.06.1002 Future Changes in the Law
The City’s rights under this Chapter are coextensive with the City’s rights
under current state law with regard to the use of the PROW by telecommunication
corporations (as defined by the Public Utilities Code). If future changes to state or
federal law authorize the City to regulate the Utility and its activities within the City
and the public rights of way to a greater degree than is now authorized by this
Chapter, nothing in this Ordinance will be deemed to limit, restrict in any way, or to
modify the City’s exercise of that regulatory authority.
Section 7.06.1003 Applicability of Franchise Agreements
The City recognizes that in some cases a Utility’s local franchise agreement
and/or applicable federal or state laws may take precedence over this Ordinance.
The City also recognizes that the local franchise agreements generally require
compliance with the Santa Monica Municipal Code. In the case of a conflict
between a franchise provision, a federal law or a state law, on the one hand, and a
provision of this Ordinance, on the other hand, each situation will require a case by
case analysis to determine the applicable requirement.
SECTION 4. Any provision of the Santa Monica Municipal Code or appendices that
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is inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies
and no further, is hereby repealed or modified to that extent necessary to effect the
provisions of this Ordinance.
SECTION 5. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court
of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would have passed
this Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
SECTION 6. The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within fifteen (15) days after its adoption. This Ordinance shall become
effective thirty (30) days from its adoption.
APPROVED AS TO FORM:
_________________________
MARSHA JONES MOUTRIE
City Attorney
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