HomeMy WebLinkAbout96-16 Wireless Digital Communications Radio NetworksORDINANCE NO. 96-1(
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA
MESA, CALIFORNIA, ADDING CHAPTER'lll TO TITLE 19 OF THE COSTA
MESA MUNICIPAL CODE PERTAINING TO WIRELESS DIGITAL
COMMUNICATIONS RADIO NETWORKS.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN
AS FOLLOWS:
Section 1. The City Council of the City of Costa Mesa does hereby find and
declare as follows:
WHEREAS, the California Constitution Article 12, section 8 provides that local
governments may by ordinance grant franchises for communication equipment to be _
placed within the public rights-of-way;
WHEREAS, the establishing of franchise regulations for the placement of
wireless digital communications radio networks within the public rights-of-way of the
City of Costa Mesa will be a public benefit by providing additional communication
networks without cost to the City .and by generating revenue for the City to defray
costs to maintain the existing rights-of-way.
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NOW, THEREFORE, the City Council of the City of Costa Mesa does hereby
amend the Costa Mesa Municipal Code as follows:
Section 2.
Chapter III is hereby added to Title 19 of the Costa Mesa Municipal Code to read
as follows:
"CHAPTER III
WIRELESS DIGITAL COMMUNICATIONS
RADIO NETWORKS
Sec. 19-321 Scope of Chapter.
(a) No person shall install or maintain any radio network or other similar type
of facility within the public right-of-way of any street unless installed in accordance
with a franchise agreement granted by the City Council pursuant,to this Chapter. The
provisions of this section shall not be construed to prohibit the installation and
maintenance of cables within the public right-of-way of any street, provided that a
franchise for each facility has been obtained pursuant to this Code or the Public
Utilities Code.
(b) Any radio network or other similar type of facility which is in violation of
the provisions of this Chapter at the time of adoption of this ordinance shall be
removed within thirty (30) days of the effective date of this ordinance.
Sec. 19-322 Definitions.
For the purpose of this Chapter, the following terms, 'phrases, words,
abbreviations and their derivations shall have the meaning given to them:
(a) Agency means any governmental agency or quasi -governmental agency
other than the City, including the FCC and the PUC.
(b) PUC means the California Public Utilities Commission.
(c) City mefins the City of Costa Mesa.
(d) Effective Date means the date this franchise agreement is accepted by
the Franchisee.
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(e) FCC means the Federal Communications Commission.-
(f)
ommission:
(f) Fee means any assessment, license, charge, fee, imposition, tax (but
excluding any utility users' tax), or levy lawfully imposed by any governmental body.
(g) Franchise means the terms under which franchise is permitted to attach,
install, operate, maintain, remove, reattach, reinstall, relocate, and replace the radios
in the public right-of-way as provided below.
(h) Franchisee means a person granted a franchise under this Chapter by City
Council.
(i) Gross Revenues means the gross dollar amount accrued on franchisee's
books for services provided to its customers with billing addresses in the City,
excluding (i) the franchise fee required by section .19-326 below, (ii) local, state, or
federal taxes collected by franchisee that have been billed to the subscriber and
separately stated on such bill, and (iii) revenue uncollectible from subscribers (i.e., bad
debts) located in the City that were previously included in gross revenues..
(j) Laws means any and all judicial decisions, statutes, constitutions,
ordinances, resolutions, regulations, rules, tariffs, administrative orders, certificates,
orders, or other requirements of the City or other agency having joint or several
jurisdiction over the parties to the Franchise, in effect either at the time of, execution
of the Franchise or at any time during the presence of radios in the public right-of-way.
(k) - Person means an individual, a corporation, a limited liability company,'a
general or limited partnership, a sole proprietorship, a joint venture, a business trust,
and any other form of business association.
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(1) Provision means any agreement, clause, conditions, covenant,
qualification, restriction, reservation, term, or other stipulation in the Franchise that
defines or otherwise controls, establishes, or limits the performance required or
permitted by any party to the Franchise. All provisions, whether covenants or
conditions, shall be deemed to be both covenants and conditions.
(m) Public Right -of -Way means in, upon, above, along, across, under, and
over the public streets, roads, lanes, courts, ways, alleys, boulevards, and places"
including, without limitation, all public utility easements and public service easements,
as the same now or may thereafter exist that are under the jurisdiction of the City.
This term shall not include any property owned by any person or agency other than the
City except as provided by applicable laws or pursuant to an agreement between the
City and any such person or agency.
(n) Radio Month means a calendar month during which a radio occupies
space on a pole, even if such occupancy is less than the entire month.
(o) Radio Network or Radios means that wireless radio equipment certified
by the Federal Communications Commission to be installed and operated by franchisee
or any radio equipment pursuant to a franchise under this Chapter.
(p) Radio Repeater means a very low powered digital wireless
communications micro cellular radio certified by the Federal Communications
Commission operating in the license free (902-928 MHZ) portion of the radio .
spectrum.
(q) Services means the wireless communications services provided through
radios by a franchisee.
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Sec. 19-323 Franchise Agreement.
(a) An non-exclusive franchise to install, construct, operate, and maintain any
radio network or other similar type of facility within the public right-of-way of any
street within a specific portion of the City may be granted by the City Council to any
person who offers to furnish and provide such facilities under and pursuant to the
terms of a franchise agreement and provisions of this. Chapter.
(b) Nothing in the franchise agreement shall be deemed to waive the
requirements of this Chapter and of the various codes and ordinances of the City
regarding permits, fees to be paid or the manner of construction.
(c) Any franchise granted pursuant to this Chapter shall be limited to those
locations in the City specified in the franchise agreement.
(d) The grant of a franchise by the City is subject to whatever right, interest
or privilege others may have in the use and occupation of sidewalks, curbs or streets
where the radio network or similar facilities are located.
(e) The rights granted under a franchise pursuant to this Chapter are not
exclusive, and during the term of a franchise, the City may grant to other persons the
right to install radio networks or similar types of facilities within the public right-of-way
of the public streets and sidewalks within its corporate limits.
(f) Any grant of a franchise shall be conditioned on the franchisee providing
a performance bond, certificate of insurance and indemnification in a form and an
amount approved by the City Attorney or Risk Manager and specified in the franchise
agreement.
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(g) Franchisee may apply for renewal of a franchise in .the same manner as
an original application. Renewal applications shall be filed not less than ninety (90) nor
more than one hundred eighty (180) days prior to expiration of the existing franchise.
(h) Any franchise granted under this Chapter shall be a privilege to be held
for the benefit of the public. Such franchise cannot in any event be sold, transferred,
leased, assigned or disposed of, including but not limited to, by forced or voluntary
sale, merger, consolidation, receivership or other means without .the prior consent of
the City, except as provided in this Chapter. Such consent as required by the City
shall, however, not be unreasonably withheld.
(i) The franchisee shall give written notice at. least thirty (30) days in
advance of any actual or proposed changes in, or transfer of, or acquisition by any
other party of control of the franchisee. The word "control" as used in this subsection
is not limited to major stockholders but includes actual working control in whatever
manner exercised. A rebuttable presumption that a transfer of control has occurred
shall arise upon the acquisition or accumulation by any person or group of persons of
fifty-one percent (51 %) of the voting shares of the franchisee, except where the
transfer is to a parent, subsidiary or financially sound affiliate of. the franchisee. Every
change, transfer or acquisition of control of the franchisee shall make the franchise
subject to cancellation unless and until the City shall have consented thereto, which
consent will not be unreasonably withheld. For the purpose of determining whether
it shall consent to such change, transfer or acquisition of control, the City may inquire
into the qualification of the prospective controlling party, and the franchisee shall
assist the City in any such inquiry. This franchise shall not be assigned by franchisee
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without the express written consent of the City which consent shall not be
unreasonably withheld. Any attempted assignment in violation of this section shall be
void.
(j) The City agrees that any financial institution having a pledge of the
franchisee or its assets for the advancement of money for the construction and/or
operation under the franchise shall have the right to notify the City that it or its
designee, satisfactory to the City, will take control, operate and maintain the radio
network under such franchise, and subject to the terms of this Chapter.
(k) The City reserves the right to revoke any franchise granted hereunder and
rescind all rights and privileges associated with the franchise in the following
circumstances, each of which shall represent a default and breach under this Chapter
and the franchise:
(1) If the franchisee defaults in the performance of any of its material
obligations under this Chapter or under such documents, contracts and other terms
and provisions entered into by and between the City and the franchisee;
(2) If the franchisee fails to provide or maintain in full force and effect the
liability and indemnification coverages or the performance bonds as required in this
Chapter;
(3) If the franchisee ceases to provide services for any reason within the
control of the franchisee. The franchisee shall not be declared in default or be subject
to any sanction under any provision of this Chapter in any case in which performance
of any such provision is prevented for reasons beyond the franchisee's control. A
default shall not be deemed to be beyond the franchisee's control if committed by a
corporation or other business entity through which the franchisee holds a controlling
interest in the franchise, whether held directly or indirectly;
(4) If the franchisee attempts to evade any of the provisions of this Chapter
or the franchise agreement or practices any fraud or deceit upon the City;
(5) The franchise becomes insolvent, unable or unwilling to pay its debts.
(1) The following procedure applies prior to revocation of the franchisee:
(1) The City may make written demand that the franchisee comply with any
such requirement, limitation, term, condition, rule or regulation or correct any action
deemed cause for revocation. If the failure, refusal or neglect of the franchisee
continues for a period of thirty (30) days following such written demand, the City may
place its request for termination of the franchise upon a regular City Council meeting
agenda. The City shall cause to be served upon such franchisee, at least ten (10) .days
prior to the date of such Council meeting, a written notice of this intent to request
such termination, and the time and place of the meeting.
(2) The Council may hear any persons interested therein, and may determine,
in its discretion, whether or not any failure, refusal or neglect by the franchisee was
with just cause.
(3) If such failure, refusal or neglect by the franchisee was with just cause,
the Council may direct the franchisee to comply within such time and manner and
upon such terms and conditions as the Council determines.
(4) If the Council determines such failure, refusal or neglect by the franchisee
was without just cause, then the Council may, by resolution, declare that the franchise
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of such franchisee shall be terminated or the City may draw upon the franchisee's
performance bond.
(m) In the event a franchise expires, is revoked, or otherwise terminated, the
City may order the removal of the radio network or require the original franchisee to
maintain and operate the radio network until a subsequent franchisee is selected.
(n) The termination and forfeiture of any franchise shall in no way affect any
.of the rights of the City under the franchise or any provision of law.
Sec. 19-324 Term of Franchise.
A franchise granted under this Chapter shall be for a term of five (5) years
unless it is earlier terminated by the City in accordance with the provisions of this
Chapter and shall commence on the effective date set by City Council in the franchise
agreement. The franchise may be renewed for successive three (3) year terms by the
franchisee on the same terms and conditions as set forth in this Chapter.
Sec. 19-325 Scope of Franchise.
(a) Any and all rights expressly granted to franchisee under the franchise,
which shall be exercised at franchisee's sole cost and expense, shall be subject to the
,prior and continuing right of the City under applicable laws to use any and all parts of
the public right-of-way only, exclusively or concurrently with any other person or
persons and further shall be subject to all deeds, easements, dedications, conditions,
covenants, restrictions, encumbrances -and claims of title which may affect the right-
of-way. Nothing in the franchise shall be deemed to grant, convey, create, or vest a
perpetual real property interest in land in franchisee including any fee or leasehold
interest, easement, or any franchise rights inconsistent with this Chapter.
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(b) Upon the grant of a franchise by City Council, the franchisee is authorized
and permitted to attach, install, operate, maintain, remove, reattach, reinstall, relocate,
and replace radios in or on City street light poles, lighting fixtures, and electroliers,
within the public right-of-way, as designated in the franchise agreement for the
purposes of providing services to persons located within or without the limits of the
City. Any work performed pursuant to. the rights granted under the franchise may, at
the City's option, be subject to the prior review and approval of the City. During the
term of this franchise, the location of each radio installed by franchisee or its designee
shall be disclosed in writing to the City by franchisee within ten (10) days after its
installation, removal, or relocation.
(c) Upon grant of a franchise by City Council, the franchisee is authorized
and permitted to attach, install, operate, maintain, remove, reattach, reinstall, relocate,
and replace such number of radios in or on poles or other structures owned by public
utility companies or other property owners located within the public right-of-way as
may be permitted by the public utility company or property owner, as the case may
be as designated in the franchise agreement. Franchisee shall furnish to the City
documentation of said permission from the individual utility/property owner responsible
prior to installation of the radios.
(d) Except as permitted by applicable laws or the franchise, in the
performance and exercise .of its rights and obligations under this franchise, franchisee
shall not interfere in any manner with the existence and operation of any and all public
and private rights-of-way, sanitary sewers, water mains, storm drains, gas mains,
poles, aerial and underground electric and . telephone wires, electroliers, cable
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television, and other telecommunications, utility and municipal property without the
express written approval of the owner or owners of the affected properties.
(e) Franchisee shall comply with all applicable laws in the exercise and
performance of its rights and obligations under the franchise. If required by applicable
laws, franchisee shall obtain the approval of the radios subject to the franchise, or any
modifications or changes thereto, from any applicable governmental bodies, and secure
any required assessment of the impact that the radios subject to the franchise may
have upon the environment.
(f) If the size, weight and power of the radios change in a material way, then
franchisee shall notify the City in writing as soon as practicable and specify the change
and reasons therefore. Such notice shall be served at least thirty (30) days prior to the
effective date of any material change in the size, weight and power of the radios.
Such change shall permit City Council to reopen, review and modify the franchise if
the change materially alters the scope of the franchise.
(g) The City further reserves the right to modify the service voltage delivered
to or at any street light pole or utility pole on which a radio may be located.
Franchisee shall replace or modify any radio that will be affected by such voltage
modifications with ten (10) days of receiving notice of voltage modifications. In the
event that franchisee fails to replace or modify any radio within the ten 0 0) day notice
period before the voltage modification, the City may disconnect any such radio until
franchisee performs and completes the necessary work and advises the City
accordingly.
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Sec. 19-326 Fees and Taxes.
(a) Franchisee acknowledges and agrees that the City may require users of
revenue-producing services to pay a utility users' tax ("Utility Tax") to the City
pursuant to this Code. If the services are subject to the provisions of a utility tax,
franchisee agrees to collect the tax from service users and remit such tax to the City
in accordance with this Code.
(b) Franchisee shall be solely responsible for the payment of all lawful fees
and utility charges in connection with the exercise of franchisee's right, title, and
interest in, and the attachment, installation, operation, and maintenance of radios, and
the rendering of services under the franchise.
(c) As compensation for the franchise, franchisee shall pay to the City on a
quarterly basis an amount equal to five percent (5%) of franchisee's gross revenues
which :amount will be collected from subscribers of the services and remitted to City
as provided herein. The compensation required by this section shall be due on or
before the 45th day after the end of each calendar quarter or fraction thereof. Within
forty-five (45) days after the termination of the franchise, compensation shall be paid
for the period elapsing since the end of the last calendar quarter for which this
compensation has been paid. Franchisee shall furnish to the City with each payment
of compensation required by this section a statement executed by an authorized officer
of franchisee or his or her designee showing the amount of gross revenues for the
period covered by the payment. If franchisee discovers that it has failed to pay the
entire or correct amount of compensation due, the City shall be paid by franchisee
within fifteen (15) days of discovery of the error or determination of the correct
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amount. Any overpayment to the City through error or otherwise shall be offset
against the next payment due from franchisee. Acceptance. by the City of any
payment due under this section shall not be deemed to be a waiver by the City of any -
breach of the franchise occurring prior thereto, nor shall the acceptance by the City of
any such payments preclude the City from later establishing that a larger amount was
actually due, or from collecting any balance due .to the City.
(d) Franchisee shall keep .accurate books -of account at its principal office in
Los Gatos or such other location of its choosing for the purpose of determining the
amounts due to the City under this section. The City may inspect books of account
at any time during regular business hours on five (5) days' prior written notice and may
audit. the books from time to time at City's sole expense, but in each case only to the
extent necessary to confirm the accuracy of payments due under this section. The
City may require quarterly or annual reports from franchisee relating to its operations
and revenues within the City. City agrees to hold in confidence any non-public
information it learns _from -franchisee in accordance with applicable law.
(e) Franchisee shall reimburse the City at City's standard rates for all
reasonable expenses relating to the preparation,, issuance, implementation, renewal,
and administration of the franchise, as set by resolution of City Council.
(f) As additional compensation for the franchise, franchisee shall pay to the .
City an annual fee ("Annual Fee") in the amount set by the franchise agreement
approved by City Council for the use of each City -owned pole or other City -owned
property upon which a radio has been installed pursuant to the franchise and
designated in the franchise agreement. The initial annual fee shall be due and payable
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not later than the date of installation of the first radio on a city -owned pole or other
City -owned property pursuant to the franchise ("Installation Date"), and shall equal the
number of radios franchisee then estimates it will install on City -owned poles or other
City -owned property during the succeeding twelve (12) months multiplied by the
annual fee. The annual fee for subsequent years shall be due and payable not later
than thirty (30) days following each anniversary of the installation date and shall equal
the number of radios then installed on City -owned poles or other City -owned property
pursuant to the franchise, multiplied by the annual fee, adjusted for the prior year
adjustment, as described below. The prior year adjustment shall either increase or
decrease a subsequent year's annual fee to account for the installation or removal of
radios during the prior year, and shall equal the difference between (i) the number of
radios used to calculate. the prior year's annual fee multiplied by twelve (12), and (ii)
the actual number of radio months which occurred during such year, multiplied by one
twelfth 0 /12) of the annual fee.
(g) The annual fee shall be increased effective January of the first year of
each renewal term hereof based on the percentage change in the U.S. Department of
Labor, Bureau of Labor Statistics, Consumer Price Index of all items, Base 1982-1984,
for the Los Angeles -Anaheim -Riverside, California area which occurred during the
previous term or renewal term.
(h) Notwithstanding subsection (f), in lieu of the annual fee and solely with
respect to the first fifty (50) radios installed (or radios installed in substitution for any
such radios) by franchisee on City -owned poles or other City -owned property, City
shall be entitled to receive:
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(1) Up to fifty (50) subscriptions to use franchisee's radio services in
the City for so long as franchisee maintains such radios in use on the
appropriate number of City -owned poles or other City -owned property
pursuant to this franchise. Such option may be exercised by City in
increments of one (1) subscription in lieu of the annual fee for one (1)
radio. Franchisee shall provide such subscriptions at such time as
franchisee is providing commercial service in such area, provided that
prior to such service date City shall not be entitled to receive the annual
fee or other compensation in lieu thereof. In the event the City elects to
receive fifty (50) or less subscriptions, franchisee will not be required to
pay the annual fee for the number of radios installed on City -owned poles
or other City -owned property equal to the number of subscriptions the
City elects to receive. The number of radios installed on City -owned
poles or other City -owned property in - excess of the number of
subscriptions the City elects to receive shall be subject to the annual fee
set forth above. City's use of the subscriptions shall be .subject to
franchisee's standard radio service terms and conditions. City shall be
required to purchase at its sole cost and expense any equipment and
software required to use the radio service; or
(2) Up to twenty (20) subscriptions to use franchisee's radio services
and the use of up to twenty (20) franchisee modems for so long as
franchisee maintains such radios in use on the appropriate number of
City -owned poles or other City -owned property pursuant to the franchise.
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Such option may be exercised by City in increments of five (5)
subscriptions and five (5) modems in lieu of annual fees for twelve (12)
radios. Franchisee shall provide such subscriptions and equipment at
such time as franchisee is providing commercial service in such area,
provided that prior to such service date City shall not be entitled to
receive the annual fee or other compensation in lieu thereof. The number
of radios installed on City -owned poles or other City -owned property in
excess of the number of subscriptions/modems the City elects to receive
shall be subject to the standard terms and conditions set forth in the
terms and conditions packaged with the modems. City shall be required
to return to franchisee any equipment provided to City upon termination
of any free subscriptions in good condition, ordinary wear and tear
expected.
(3) City shall be required to make an election under this section within
thirty (30) days of the effective date or each anniversary of the effective
date as the case may be. Such election shall be applicable for the longer
of the following. one (1) year period or until a subsequent election is made
in accordance with the previous sentence. City shall use all subscriptions
and equipment provided pursuant to this section solely for its own use,
and shall not be .entitled to resell, distribute or otherwise permit the use
of the same by any other party.
(i) Should franchisee enter into an agreement with another similarly situated
jurisdiction of the same size or smaller in the Los Angeles -Anaheim -Riverside, California -
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area containing financial benefits for such jurisdiction which, taken as a whole, are
substantially superior to those in the franchise, City shall have the right to require that
Franchisee modify this franchise to incorporate the same or similar benefits.
Franchisee shall supply copies of relevant agreements upon written request by the
City. The benefits of such superior agreement shall be made available to City and
become effective on the date franchisee receives the City's request for such superior
agreement with such other jurisdiction.
Sec. 19-327 Removal and Relocation of Radios.
(a) Franchisee understands and acknowledges that City may require
franchisee to relocate and franchisee shall, at City's direction, relocate immediately
upon a request from City in situations described in subsections (2) and (3) below and
upon five (5) business days' prior written notice in all others at franchisee's sole cost
and expense, a radio repeater whenever City reasonably determines that the relocation
is needed: (1) to facilitate or accommodate the construction, completion, repair,
relocation or maintenance of a City project, (2) because the radio repeater is interfering
with or adversely affecting proper operation of City light poles, traffic signals or other
City facilities, or (3) to protect or preserve the public health, safety or welfare.
(b) In the event franchisee desires to relocate any radio repeaters from one
City -owned pole to another, franchisee shall notify City upon five (5) days' prior
writtennotice. notice. City, will use its best efforts to accommodate franchisee by making
another functionally equivalent City -owned pole available for use in accordance with
and subject to the terms and conditions of the franchise.
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(c) In the event that any radio repeater subject to the franchise is abandoned
and no longer placed in service for a period of six (6) months or more, franchisee
promptly shall notify the City and the City, at its option, may promptly remove the
abandoned radio repeater(s) at franchisee's sole cost and expense or dedicate the
same to the City. The City shall not issue notice to franchisee that the City intends
to exercise the option to require removal or dedication of radio repeaters unless and
until the City first gives five (5) days' prior written notice to franchisee to remove the
radio repeaters. If franchisee shall fail to remove the radios as required by the City,
the City shall be entitled to remove the -radio repeaters at franchisee's sole cost and
expense. Franchisee shall execute such documents of title as will convey all right, title
and interest in the abandoned radio repeaters to the City.
(d) Whenever the removal or relocation of radio repeaters is required under
this franchise, and such removal or relocation shall cause the street light pole or other
part of the public right-of-way to be damaged, or if the weight, size or power of the
radio repeaters on any street light pole causes any damage, franchisee, at its sole cost
and expense, promptly shall repair and return the street light pole or other part of the
public right-of-way in which the radios are located to a safe and satisfactory condition
in accordance with applicable laws. If franchisee does not return the affected site to
a safe and satisfactory condition, then the City shall have the option to perform or
cause to be performed such reasonable and necessary work on behalf of franchisee
and charge franchisee for the proposed costs to be incurred, or the actual costs
incurred by the City. Upon the receipt of a demand for payment by the City franchisee
shall reimburse the City for such costs within thirty (30) days.
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Sec. 19-328 Construction Permit.
(a) In the event that the attachment, installation, operation or maintenance
of radio repeaters shall require any construction work in the public right-of-way
franchisee shall apply for the appropriate permits required by law and pay any fee
charged by the City for such permits.
(b) Upon the completion of construction work, franchisee shall furnish to the
City, in hard copy and electronic format, suitable documentation showing the exact
location of the radio repeaters and connection points to electrical power and telephone
lines within the public right-of-way and on public facilities.
Sec. 19-329 Indemnification.
(a) Franchisee shall, as a condition of the franchise, agree to indemnify,
protect, defend (with counsel acceptable to the City) and hold harmless the City, its
council members, officers, employees and agents, from and against any and all claims,
demands, losses, damages, liabilities, fines, charges, penalties, administrative and
judicial proceedings and orders, judgments, remedial actions of any kind, and all costs
and cleanup actions of any kind, all costs and expenses incurred in connection
therewith, including, without limitation, reasonable attorney's fees and costs of
defense (collectively "Losses") arising directly or indirectly, in whole or in part, out of
the activities or facilities described in the franchise, except to the extent arising from
or caused by the acts or omissions of the City, its council members, officers,
employees, agents or contractors.
(b) The waiver by the City of any breach or violation of any provision of the
franchise agreement or this Chapter by franchisee shall not be deemed to be a waiver
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or a continuing waiver by the City of any subsequent breach or violation of the same
or any other provision of the franchise agreement or this Chapter by franchisee.
(c) . Franchisee shall, as a condition of the franchise, agree to waive any and
all claims, demands, causes of action, and rights it may assert against the City on
account of any loss, damage, or injury to any radio or any loss or degradation of the
services as a result of a sudden or gradual loss or change of electrical power caused
by, among other, an Act of God, an event or occurrence which is beyond the
reasonable control of the City, a power outage, a lightening strike, or occasioned by
the installation, maintenance, replacement or relocation of any City -owned facility to
which such radio is attached.
(d) Subject to the California Government Code requirements for claims, the
City may be responsible for the cost of repair to damaged radios arising from the City's
negligent acts or omissions, and the City shall not be responsible for any damages,
losses or liability of any kind occurring by reason of anything done or omitted to be
done by any third party or arising from the issuance or approval by the City of a permit
to any third party or any interruption in services.
Seca 19-330 Utilities.
Franchisee shall pay all costs that may become due for electrical energy supplied
to the radio network and shall keep City indemnified against any and all such costs.
Sec. 19-331 Insurance.
(a) Franchisee shall obtain and maintain at all times during the term of the
franchise comprehensive general liability insurance and comprehensive automotive
liability insurance protecting franchisee in an amount of not less than One Million
Kl�
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Dollars ($1,000,000.00) per occurrence, combined single limit, including bodily injury
and property damage and not less than One Million Dollars ($1,000,000.00) aggregate
for each personal injury liability, products -completed operations and each accident.
Such insurance shall name the City, its council members, officers, employees, agents
and contractors as additional insured as respects to any liability arising out of
franchisee's performance of work under the franchise, or suitable additional insured
endorsement acceptable to the City Attorney. Coverage shall be provided in
accordance with the limits specified herein. Claims -made policies are not acceptable.
When an umbrella or excess coverage is in effect, coverage shall be provided in
following form. Such insurance shall not be canceled or materially altered to reduce
coverage until the City has received at least thirty (30) days' advance written notice
of such cancellation or change. Franchisee shall be responsible for notifying the City
of such change or cancellation.
(b) Franchisee shall file the required original certificate(s) of insurance with
endorsements with the City subject to the City Attorney's prior approval which shall
clearly state:
(1.) Policy number; name of insurance company; name, address and
telephone number of the agent or authorized representative; name,
address and telephone number of insured; project name and address;
policy expiration date; and specific coverage amounts;
(2) That thirty (30) days prior notice of cancellation is unqualified as
to the acceptance of liability for failure to notify the City; and
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(3) That franchisee's insurance is primary as respects to any other
valid or collectible insurance that the City may possess, including any
self-insurance retentions the City may have and any other insurance the
City does possess shall be considered excess insurance only and shall not
be required to contribute with this insurance.
(c) Franchisee shall comply with all applicable provisions of the Workers'
Compensation Insurance and Safety Acts of the State of California, the applicable
provisions of Divisions 4 and 5 of the California Labor Code and all amendments
thereto; and all similar State or Federal acts or laws applicable; and shall indemnify and
hold harmless City from and against all claims, demands, payments, suits, actions,
proceedings and judgments of every nature and description, including attorney's fees
and costs presented, brought or recovered against City, for or on account of any
liability for failure to obtain Workers' Compensation insurance. Franchisee shall furnish
evidence of workers' compensation and employer's liability insurance with limits of at
least statutory coverage to City in such form as is acceptable to the City Attorney.
(d) Any insurance provider of franchisee shall be admitted and authorized to
do business in California and shall be rated at least A:X in A.M. Best & Company's
Insurance Guide. Insurance certificates issued by non -admitted insurance companies
are not acceptable.
(e) Prior to the execution of the franchise, any deductibles or self-insured
retentions must be stated on the certificate(s) of insurance which shall be sent to and
approved by the City Attorney. "Cross -liability," "severability of interest" or
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"separation of insured" clauses shall be made a part of the comprehensive general
liability and comprehensive automobile liability policies.
Sec. 19-332 Transfer of Ownership.
Whenever a radio network for which a franchise has been issued, has been sold,
or title or control thereof is transferred, a new franchise must be obtained by the new
owner.
Sec. 19-333 Permit Index File.
The Director of Public Services or his or her designee shall keep and maintain
an index file of all franchises granted or renewed under the provisions of this Chapter
and shall furnish a copy of all permits granted or renewed to the City Clerk. The
Director of Public Services shall make annual surveys as to the location and condition
of all such radio networks franchised under this Chapter.
Sec. 19-334 Enforcement.
The Director of Public Services or his or her designee shall enforce the
provisions of this Chapter, and may prescribe the forms and other regulations
applicable to franchises granted under this Chapter.
Sec. 19-335 Severability.
If any chapter, article, section,, subsection, subdivision, sentence, clause,
phrase, or portion of this Ordinance, or the application thereof to any person, is for any
reason held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portion of this
Ordinance or its application to other persons. The City Council hereby declares that
it would have adopted this Ordinance and each chapter, article, section, subsection,
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subdivision, sentence, clause, phrase or portion thereof, irrespective of the fact that
any one or more subsections, subdivisions, sentences, clauses, phrases, or portions
of the application thereof to any person,, be declared invalid or unconstitutional. No
portion of this Ordinance shall supersede any local, State, or Federal law, regulation,
or codes dealing with life safety factors.
Section 3. Publication.
This Ordinance shall take effect and be in full force and effect thirty (30) days
from and after its passage and, before the expiration of fifteen (15) days after its
passage, shall be published once in the NEWPORT BEACH -COSTA MESA PILOT, a
newspaper of general circulation printed and published in the City of Costa Mesa, or,
in the alternative, the City Clerk may cause to be published a summary of this
Ordinance and a certified copy of the text of this Ordinance shall be posted in the
office of the City Clerk five (5) days prior to the date of adoption of this Ordinance,
and within fifteen (15) days after adoption, the City Clerk shall cause to be published
the aforementioned summary and shall post in the office of the City Clerk a certified
copy of this Ordinance together with the names of the members of the City Council
voting for and against the same.
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PASSED AND ADOPTED this 6th day of January, 1997.
ATTEST:
J��- 7—
Deputy City lerk of the City of Costa Mesa
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
Mayor of t e City of Costa Mesa
L ?td/6 -Mm
ROUEQ . AS TO FORM K44V IA44-94
CITY ATTORNEY
I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio Clerk of the City Council
of the City of Costa Mesa, hereby certify that the above and foregoing
Ordinance No. 96-16 was introduced and considered section by section at a regular
meeting of the City Council held on the 16th day of December, 1996, and thereafter
passed and adopted as a whole at a regular meeting of the City Council held on the
6th day of January, 1997, by the following roll call vote:
AYES: Lh0nJAr4AAI EQ'icK5on)� 0-43W4---j-.OmERS
NOES: iv e) me
ABSENT:
IN WITNESS WHEREOF, I have hereunto set my hand, and affixed the Seal of
the City of Costa Mesa this 7th day of January, 1997.
= _ Deputy City Jerk and ex -officio Clerk of
the City CoLMcil of the City of Costa Mesa
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