HomeMy WebLinkAboutINSTALL WIRELESS COMMUNICATION - 1997-03-03Council/Agency Meeting Held: 11Z4.98
Deferred/Continued to:
c
UAp roved ❑ Conditionally Approved ❑ Denied
City CI k's Signature
Council Meeting Date: January 5, 1998
Department ID Number: FD 98-001
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: RAY SILVER, Acting City Administrator"
PREPARED BY: MICHAEL P. DOLDER, Acting Assistant City C
trator/Fire Chief
L S M. JONES II, Director of Public Works
SUBJECT: APPROVE INTRODUCTION OF ORDINANCE .3381 AMENDING
CHAPTER 12.48 OF THE HUNTINGTON BEACH MUNICIPAL CODE
REGARDING WIRELESS DIGITAL COMMUNICATIONS RADIO
NETWORKS
Fstatement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: Should the City adopt an ordinance amending Chapter 12.48 of the
Huntington Beach Municipal Code pertaining to Wireless Communications Radio Networks, to add
Section 12.48.040 "Grant of the Franchise" and Section 12.48.050 "Franchise Processing Costs"?
Funding Source: No funding source is required. The proposed amendment provides for a
franchise application fee of $3,000 to help defray the administrative costs of granting the franchise.
Recommended Action: Motion to approve introduction of Ordinance No. 3381 Amending
Chapter 12.48 of the Huntington Beach Municipal Code Regarding the Wireless Digital
Communications Radio Networks.
Alternative Action(s): Do not introduce an ordinance amending Chapter 12.48 of the Huntington
Beach Municipal Code and proceed with the granting of franchises with the existing code language.
Analysis: Section 615 of the Charter of the City of Huntington Beach provides that the City Council
may by ordinance regulate the granting of franchises. In March 1997, Chapter 12.48 regarding
Wireless Digital Communications Radio Networks was added, which provides for City Council to grant
franchises for radio networks or other similar wireless communications facilities located within the
Public Right of Way.
The City Attorney's Office is recommending the addition of two Sections to Chapter 12.48 to further
define the process through which franchises are granted (Amended Section 12.48.040 "Grant of the
Franchise") and to make provisions for the recovery of associated costs by including a franchise
processing fee (Amended Section 12.48.050 "Franchise Processing Costs"). In addition, Section
12.48.100 "Fees and Taxes" Subsection (b) is amended to extend the period of time that a franchisee
can file a claim for overpayment, from six months to one year.
AQUEST FOR COUNCIL ACT&
MEETING DATE: January 5, 1998
DEPARTMENT ID NUMBER: FD 98-001
Analysis (Continued):
Fiscal Impact - The amended Section 12.48.050 authorizes the City to charge a $3,000 processing
fee for any franchise application to defray administrative costs. In addition, the applicant shall
reimburse the City for all administrative, consulting, and legal costs not covered through the
application fee.
Conclusion - The recommended changes to the Huntington Beach Municipal Code, Chapter 12.48
are designed to enhance the City's ability to grant franchises for radio networks located in the public
right of way and to ensure that the cost of processing franchise applications and any other associated
costs are borne by the applicant.
Environmental Status: None required.
Attachment(s):
RCA Author: Dolder/Keith, ext. 5402
FD98001 -2- 12/23/97 9:56 AM
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ATTACHMENT 1
A - O
ORDINANCE NO. 3381
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 12.48 OF
THE HUNTINGTON BEACH MUNICIPAL CODE
REGARDING WIRELESS DIGITAL COMMUNICATIONS
RADIO NETWORKS
The City Council of the City of Huntington Beach does hereby ordain as follows:
Section 1. Section 12.48.020(m) of the Huntington Beach Municipal Code is amended to
read as follows:
"(m) "Radio Month" means a calendar month during which a radio occupies space in
the public right-of-way, even if such occupancy is less than the entire month."
Section 2. Section 12.48.040 of the Huntington Beach Municipal code is hereby amended to
read as follows:
" 12.4 8.040 Grant of the Franchise.
(a) Any entity may apply for the grant of a new franchise.
(b) The City may, by advertisement or any other means, solicit applications
for new franchises pursuant to a request for proposals.
(c) Upon receipt of an application, the City Administrator (or his designee)
shall cause to be prepared a report, including his/her recommendations
respecting such application, which shall be filed with the Council, each
applicant, and any existing franchisees. Upon receipt of said report, a
public hearing shall be noticed to consider the approval of the application.
City shall give all existing franchisees notice of the public hearing.
(d) The City may, at any time prior to the close of the public hearing, require
the applicant to provide supplementary information reasonably necessary
to determine whether the application should be approved.
(e) Following the public hearing, the Council, at its discretion, shall determine
whether to approve the application. In making its determination, the
Council shall give due consideration to the quality of the service proposed,
SF/s: PCD:Ordinance:Rev-1248
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income to the City, experience, character, technical and financial
responsibility of the applicant, and any other considerations deemed
pertinent by the Council for safeguarding the interests of the City and
public."
Section 3. Section 12.48.050 of the Huntington Beach Municipal code is amended to read as
follows:
"12.48.050 Franchise Processing Costs.
(a) Any application for a new franchise grant, a franchise renewal or a
franchise transfer hall be made in a manner prescribed by the City
Administrator, and shall include an application fee in the amount of
$3,000.00. Said fee is to defray the administrative and consulting costs to
adequately analyze the application. In addition, the applicant shall
reimburse the City for all administrative, consulting and legal costs not
recovered through the application fee.
(b) These franchise processing costs are over and above any construction,
inspection and permit fees, and the franchise fees specified in this Chapter
or the franchise agreement.'
Section 4. Sections 12.48.040, 12.48.050 and 12.48.060 are hereby renumbered to be
12.48.060, 12.48.070 and 12.48.080, respectively, of the Huntington Beach Municipal Code.
Section 5. Section 12.48.070 of the Huntington Beach Municipal Code is hereby renumbered
to be Section 12.48.090 and subparagraph (b) of said section is hereby amended to read as
follows:
"(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, or on other city property 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."
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Section 6. Section 12.48.080 of the Huntington Beach Municipal Code is renumbered to be
Section 12.48.100, and"subsection (b) of said section is hereby amended to read as follows:
"(b) As compensation for the franchise, franchisee shall pay to the City on a quarterly basis
a franchise fee in an amount as established in the franchise agreement. The franchise
fee 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 the
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 amount. Any overpayment to the
City through error or otherwise shall be offset against the next payment due from
franchisee, provided that the franchisee shall file a claim for the overpayment within
one year of making the overpayment. Acceptance by the City of any payment due
under this section shall not be deemed to be 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."
Section 7. Sections 12.48.090, 12.48.100, 12.48.110, 12.48.120, 12.48.130, 12.48.140,
12.48.150,. and 12.48.160 are hereby renumbered to be 12.48.110, 12.48.120, 12.48.130,
12.48.140, 12.48.150, 12.48.160, 12.48.170, and 12.48.180, respectively, of the Huntington
Beach Municipal Code.
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PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 20th
ATTEST:
City Clerk
REVIEWED AND APPROVED:
Acting Ci Administrator
day of January , 1998.
Y�.
#ayor
APPROVED AS _TQ FORM:
t City Attorney
INITIATED AND APPROVED:
-) JIL t�
ire Chief
Director of Public W
SF/sTMOrdinance: Rev, 1248
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2
Ord. No. 3381
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing ordinance was read to said City Council
at a regular meeting thereof held on the 5th of January, 1998, and was again read to
said City Council at a regular meeting thereof held on the 20th of January,1998, and
was passed and adopted by the affirmative vote of at least a majority of all the members
of said City Council.
AYES: Julien, Harman, Green, Dettloff, Bauer, Sullivan, Garofalo
NOES: None
ABSENT: None
ABSTAIN: None
I, Connie Brockway CITY CLERK of the City of
Huntington Beach and ex-officio Clerk of the City
Council, do hereby certify that a synopsis of this
ordinance has been published in the Independent on
,19
In accordance with the City.Charter of said City
Connie Brockway Ci1y Clerk
Deputy City Clerk
City Clerk and ex-officio Werk
of the City Council of the City
of Huntington Beach, California
G/ordinanc/ordbkpg
1 /22/98
ATTACHMENT 2
• LEGISLATIVE DRAFT •
Chapter 12.48
WIRELESS DIGITAL COMMUNICATIONS RADIO NETWORKS
Sections:
12.48.010
Scope of Chapter
12.48.020
Definitions
12.48.030
Franchise Agreement
12.48.040
Grant of the Franchise
12.48.050
Franchise Processing Costs
12.48.060
Transfer of the Franchise
12.48.070
e-Breach of Franchise
12.48.080
Foote And T *es Term of Franchise
12.48.090
Scope of Franchise
12.48.100
LAMB-st-naetion Per- its Fees and Taxes
12.48.110
Removal and Relocation of Radios
12.48.120
Construction Permits
12.48.130
T T+Damage to Right -of -Way
12.48.140
Indemnification
12.48.150
Utilities
12.48.160
Insurance and Security Deposit
12.48.170
Enforcement
12.48.180
Severabi ity
12.48.010 Scope of Chapter.
(a) No person shall install or maintain any radio network or other similar wireless communications
facility utilizing transmitters, receivers, amplifiers or other equipment located within the public
right-of-way 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 cable, telephony or other communication facilities utilizing
wires within the public right-of-way, 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 wireless communication facility which is in violation
of the provisions of this Chapter at the time of adoption of this Chapter shall be removed within
thirty (30) days of the effective date of this ordinance.
12.48.020 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 PUC.
(b) "PUC" means the California Public Utilities Commission.
(c) "City" means the City of Huntington Beach.
(d) "Effective Date" means the date a franchise agreement is accepted by the Franchisee.
(e) "FCC" means the Federal Communications Commission.
(f) "Fee" means any assessment, license, charge, fee, imposition, tax (but excluding any utility users'
tax), or levy lawfully imposed by any governmental body.
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(g) "Franchise" or "Franchise Agreement" means the terms under which a franchisee is permitted to
attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace the radio
network in the public right-of-way as provided below.
(h) "Franchisee" means a person granted a franchise under this Chapter by City Council.
(i) "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.
(j) "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.
(k) "Provision" means any agreement, clause, conditions, covenant, qualifications, 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 convenants and
conditions.
(1) "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.
(m) "Radio Month" means a calendar month during which a radio occupies space en -a pole in the
public right-of-way, even if such occupancy is less than the entire month.
(n) "Radio Network" or "Radios" means that wireless communication equipment including radios,
transmitters, receivers, amplifiers, radio repeaters, microwaves and similar types of equipment
certified by the Federal Communications Commission to be installed and operated by franchisee
under this Chapter.
(o) "Services" means the wireless communications services provided through radios by a
franchisee.
12.48.030 Franchise Agreement.
(a) The City Council may grant and enter into a non-exclusive franchise agreement to install,
construct, operate, and maintain any radio network within the public right-of-way pursuant to the
provisions of this Chapter.
(b) The franchisee shall comply with all applicable laws in the exercise and performance of its rights
and obligations under the franchise. 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, including
those regarding encroachment 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.
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(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 within
the public right-of-way. ,
(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.
12.48.040 Grant of the Franchise.
(a) Any entity may apply for the grant of a new franchise.
(b) The City may, by advertisement or any other means, solicit
applications for new franchises pursuant to a request for proposals.
(c) Upon receipt of an application, the City Administrator (or his
designee) shall cause to be prepared a report, including his/her
recommendations respecting such application, which shall be filed with the
Council, each applicant, and any existing franchisees. Upon receipt of said
report, a public hearing shall be noticed to consider the approval of the
application. City shall give all existing franchisees notice of the public
hearing.
(d) The City may, at any time prior to the close of the public
hearing, require the applicant to provide supplementary information
reasonably necessary to determine whether the application should be
approved. .
(e) Following the public hearing, the Council, at its discretion, shall
determine whether to approve the application. In making its determination,
the Council shall give due consideration to the quality of the service
proposed, income to the City, experience, character, technical and financial
responsibility of the applicant, and any other considerations deemed
pertinent by the Council for safeguarding the interests of the City and
public.
Section 12.48.050 Franchise Processing Costs.
(a) Any application for a new franchise grant, a franchise renewal or
a franchise transfer shall be made in a manner prescribed by the City
Administrator, and shall include an application fee in the amount of
$3,000.00. Said fee is to defray the administrative and consulting costs to
adequately analyze the application. In addition, the applicant shall
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reimburse the City r all administrative, consulting and legal costs not
tY g g
recovered through the application fee.
(b) These franchise processing costs are over and above any
construction, inspection and permit fees, and the franchise fees specified in
this Chapter or the franchise agreement.
12.48.444060 Transfer of the Franchise.
(a) 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 stock sale, change of control 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.
(b) The franchisee shall give written notice at least thirty (30) days in advance of any actual or
proposed change of control in, transfer of, or acquisition by any other party of the franchisee. The
word "change of control" as used in this section is not limited to sales by major stockholders, but
includes actual working control in whatever manner exercised. A rebuttable presumption that a
change 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 qualifications of the prospective controlling
party, and the franchisee shall assist the City in any such inquiry. This franchise shall not be
assigned by franchisee 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.
12.48.454070 Breach of Franchise.
(a) The City reserves the right to terminate any franchise and/or assess fines and penalties 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 the franchise agreement;
(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 franchisee becomes insolvent, unable or unwilling to pay its debts.
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(b) The following procedure applies prior to revocation of the franchise:
(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 penalty,
fine or revocation. If the failure, refusal or neglect of the franchisee continues for a period of
thirty (30) days following such written demand, the City Administrator may place his
request for penalties, fines or 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 the intent to request such
penalties, fines or 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, assess fines and penalties, and/or declare that the
franchise of such franchisee shall be terminated. In the case of fines or penalties, the City
may draw upon the franchisee's cash deposit in the amount of the fine or penalty.
(c) 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.
(d) 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.
(e) 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 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.
12.48.060080 Term of Franchise. A franchise granted under this Chapter shall be for a term of up to
fifteen (15) 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
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.
12.48.474090 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.
(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, or on other
city property as designated in the franchise agreement for the purposes of providing services to
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versons located within or without the limits of the Citv. Anv work performed nursuant 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 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.
12.48.494100 Fees and Taxes.
(a) 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.
(b) As compensation for the franchise, franchisee shall pay to the City on a quarterly basis a
franchise fee in an amount as established in the franchise agreement. The franchise fee 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 the 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 amount. Any overpayment to the City through error or
otherwise shall be offset against the next payment due from franchisee, provided that the
franchisee shall file a claim for the overpayment within 180 one year of making the
overpayment. Acceptance by the City of any payment due under this section shall not be deemed
to be 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.
(c) The franchisee shall keep accurate books of account. 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
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to hold in confidence any n-public information it learns from franchisee to the extent permitted
under the California Public Records Act and any other applicable law.
(d) As additional compensation for the franchise, franchisee shall pay to the City a pole fee ("Pole
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.
12.48.494110 Removal and Relocation of Radios.
(a) Upon seven (7) days' prior written notice, City may require franchisee to relocate at franchisee's
sole cost and expense, a radio whenever City reasonably determines that the relocation is needed:
(1) To facilitate or accommodate the construction, completion, repair, relocation or maintenance
of a City or Redevelopment Agency project,
(2) Because the radio is interfering with or adversely affecting proper operation of City light
poles, traffic signals or other City facilities, including but not limited to the public safety
800 MHz radio system, or
(3) To protect or preserve the public health, safety or welfare.
(b) In the event franchisee desires to relocate any radio from one City -owned pole to another,
franchisee shall notify City upon thirty (30) days' prior written 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.
(c) In the event that any radio 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 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 the radio unless and until the City first
gives five (5) days' prior written notice to franchisee to remove the radio. If franchisee should fail
to remove the radio, the City shall be entitled to remove the radio at franchisee's sole cost and
expense. The franchisee shall execute such documents of title as will convey all right, title and
interest in the abandoned radio to the City.
12.48.400120 Construction Permits.
(a) In the event that the attachment, installation, operation or maintenance of the radio network shall
require any construction work in 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) Any and all construction work performed pursuant to the rights granted under the franchise,
including the installation, operation, maintenance, location, and attachment of the radio network in
the public right-of-way, shall, if required under applicable City ordinances, be subject to the prior
review and approval of City by means of submission of a permit application, payment of any
applicable permitting fees, and the City's ordinary administrative review. The franchisee shall
apply for and obtain all appropriate permits required by applicable law prior to the commencement
of any work of construction in the public right-of-way. The locations of franchisee's planned
initial installation of radio shall be incorporated in the franchise agreement. After the initial
deployment of the radio network, new attachments, removals, and relocations of radios shall also
be subject to the City's permitting process. If the location of any radio is different from that
applied for in the applicable permit, the location of such radio installed by franchisee shall be
disclosed in writing to the City by franchisee within ten (10) days after its installation, removal, or
relocation.
7
SF/s:G:SF-97Legdraft:MC 1248
12/17/97 - # 1
(c) Upon the completion of construction work, franchisee shall furnish the City, in hard copy and
electronic format, suitable documentation showing the exact location of the radio network and
connection points to electrical power and telephone lines within the public right-of-way and on
public facilities.
12.48.44$130 Damage to Right -of -Way. Whenever the radio network shall cause the street light
pole or other part of the public right-of-way to be damaged, either as a result of installation, removal or
relocation of a radio, the weight, size or power of a radio, or otherwise, the franchisee, at its sole cost
and expense, shall promptly repair and return the public right-of-way in which the radios are located to
a safe and satisfactory condition to the satisfaction of the City's Director of Public Works. If the
franchisee does not repair the site, then the City shall have the option, upon fifteen (15) days' prior
written notice to the franchisee, to perform or cause to be performed such reasonable and necessary
work on behalf of the franchisee and to charge the franchisee for the proposed costs to be incurred or
the actual costs incurred by the City at City's standard rates. Upon the receipt of a demand for
payment by the City, the franchisee shall reimburse the City for such costs.
12.48.4-29140 Indemnification.
(a) The 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 proceeding 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
active negligence of the City, its council members, officers, employees, agents or contractors.
(b) 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.
(c) 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 active negligence, 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.
12.48.4-34150 Utilities. Franchisee shall pay all costs that may become due for electrical energy supplies
to the radio network and shall keep City indemnified against any and all such costs.
12.48.4-48160 Insurance and Security Deposit.
(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 dollars ($1,000,000) per occurrence, combined single
limit, including bodily injury and property damage and not less than one million dollars
($1,000,000) 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
8
SF/s:G:SF-97Legdraft:MC 1248
12/ 17/97 - # 1
altered to reduce coveraguntil the City has received at least thirty30) 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
(3) That franchisee's insurance is primary and first dollar as respect 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) The 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 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 AM 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 "separation of insured" clauses shall be made a part of the
comprehensive general liability and comprehensive automobile liability policies.
(f) Prior to the commencement of any work under the franchise, the franchisee shall furnish or cause
to be furnished to City a good and sufficient security, securing the faithful performance by
franchisee of all of the work, construction, installation, and removals required to be performed by
the franchisee.
12.48.4-54170 Enforcement. The City Administrator 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.
12.48.444180 Severability. If any section, subsection, subdivision, sentence, clause, phrase, or
portion of this Chapter, 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 Chapter or its application to other persons. The City
Council hereby declares that it would have adopted this Chapter and each section, subsection,
subdivision, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more
section, subsections, subdivisions, sentences, clauses, phrases, or portions of the application thereof to
any person, be declared invalid or unconstitutional.
9
SF/s:G:SF-97Legdraft:MC 1248
12/17/97 - # 1
RCA ROUTING. SN'EET
INITIATING DEPARTMENT:
FIRE/PUBLIC WORKS
SUBJECT:
Approve Introduction of Ordinance No. 3381 Amending
Chapter 12.48 of the HBMC Regarding Wireless Digital
Communications Radio Networks
COUNCIL MEETING DATE:
January 5, 1998
RCA ATTACHMENTS
STATUS
Ordinance (w/exhibits & legislative draft if applicable)
Attached
Resolution (w/exhibits & legislative draft if applicable)
Not Applicable
Tract Map, Location Map and/or other Exhibits
Not Applicable
Contract/Agreement (w/exhibits if applicable)
(Signed in full by the City Attorney)
Not Applicable
Subleases, Third Party Agreements, etc.
(Approved as to form by City Attorney)
Not Applicable
Certificates of Insurance (Approved by the City Attorney)
Not Applicable
Financial Impact Statement (Unbudget, over $5,000)
Not Applicable
Bonds (If applicable)
Not Applicable
Staff Report (If applicable)
Not Applicable
Commission, Board or Committee Report (If applicable)
Not Applicable
Findings/Conditions for Approval and/or Denial
Not Applicable
EXPLANATION fOR MISSING.ATTACHMENTS
EXPLANATION FOR RETURN OF ITEM
3
Council/Agency Meeting Held: 3.&37
Deferred/Continued to:
MApproved ❑ Conditionally Approved ❑ Denied
11 QMZLO�� 2-n
&ya.10
City Clerk's Slinature
laeo4r
Council Meeting Date: 03/03/97
Department ID Number: FD 97-001
`311'7/9-7 &Sa- >14. 33y REa T FOR OUNCIaLACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
SUBMITTED BY: MICHAEL T. UBERUAGA, City Administr
PREPARED BY: MICHAEL P. DOLDER, Fire Chief
)ft-S M. JONES II, Director of Public Works
SUBJECT: ORDINANCE FOR NON-EXCLUSIVE FRANCHISE TO INSTALL
WIRELESS COMMUNICATION RADIO NETWORK IN CITY RIGHT-
OF-WAY A,�. 74 . 33 I/P
Statement of Issue, Funding Source, Recommended Action, Alternative Action, Analysis, Environmental Status,
Attachment(s)
Statement of Issue: 1. Should the City adopt an ordinance for a non-exclusive franchise
to install a wireless communications radio network in the City right-of-way?
Funding Source: No funding source is required.
Recommended Action: 1. Motion to approve introduction of Ordinance No. 3348 for
non-exclusive franchise to install wireless communication radio networks in City right-of-
way.
Alternative Action(s): 1. Do not introduce an ordinance for a non-exclusive franchise to
install a wireless communication radio network in City right-of-way. This alternative will
eliminate the opportunity to install a wireless communication radio networks in City right-of-
way and future revenue opportunities.
Analysis: As proposed, Ordinance No. 3348, Attachment 1, will allow communication
companies to use the City right-of-way to install and operate radio cells on SCE street -light
poles or on City -owned streetlight poles for. a franchise fee. Use of the City right-of-way will
require a specific non-exclusive franchise agreement with each applicant.
S 1li
REQUEST FOR COUNCPACTION teeting Date: 03/03/97
SUBJECT: ORDINANCE FOR NON-EXCLUSIVE FRANCHISE TO INSTALL
WIRELESS COMMUNICATION RADIO NETWORK IN CITY RIGHT-OF-WAYFD 97-
001
To date, Metricom, Inc., a private corporation dealing with wireless data communication
networks, has applied to the City of Huntington Beach for a non-exclusive franchise.
The purpose of the franchise is to install, operate and maintain a wireless
communication radio network in the public right-of-way.
Metricom, Inc.'s network consists of radio cells (approximately the size of a shoe box)
installed on the mast arms of Southern California Edison (SCE) and City -owned street
light poles, Attachment 2. The power source for the radio cell is the street light photo
cell outlet. The wireless service operates on Metricom's Ricochet wireless network
which sends data packets across a network of intelligent radio nodes. The network
operates in the license -free (902-928 MHz) part of the radio spectrum. The wireless
data communication network is a subscriber -based communication service designed
primarily for users of portable computers. The network, once installed in an area, allows
computer users to access on-line systems and utilize E-mail and other messaging
services without attachment to a hardwired phone line. This wireless network would also
be available for City use.
The terms and conditions of a non-exclusive franchise agreement with Metricom, Inc. will
be presented at a future City Council meeting. The future franchise would be a non-
exclusive franchise which allows the City to grant other communication companies the
right to install radio networks or similar types of facilities within the public right-of-way.
Other Orange County cities which have approved similar franchise agreements are as
follows: Costa Mesa, Westminster, Santa Ana, Orange, Anaheim, Laguna Niguel,
Irvine, Mission Viejo, and Seal Beach have all granted non-exclusive franchises to
Metricom, Inc. A complete listing of all cities which have already allowed Metricom, Inc.
to install wireless networks is included in Attachment 3.
The placement of a future wireless digital communications radio network within
Huntington Beach's public right-of-way benefits the public and the City by providing
additional communication network capabilities, and generates revenue for the City to
defray costs to maintain the existing right-of-way.
Staff recommends that City Council adopt the Wireless non-exclusive franchise
Ordinance. The specifics of a franchise agreement with Metricom, Inc. will be
considered at a future Council Meeting.
Fiscal Impact: Adopting the Ordinance has no immediate fiscal impact. However,
under an approved Ordinance the City can enter into a non-exclusive franchise
agreement that can generate revenues.
Legal Review: The City Attorney has approved the proposed Ordinance as to form.
FD97001 B.DOC -2- 02/25/97 6:55 AM
REQUEST FOR COUNCIOACTION feeting Date: 03/03/97
SUBJECT: ORDINANCE FOR NON-EXCLUSIVE FRANCHISE TO INSTALL
WIRELESS COMMUNICATION RADIO NETWORK IN CITY RIGHT-OF-WAYFD 97-
001
Environmental Status: Not applicable.
Attachment(s):
1. Ordinance No. 3348 for non-exclusive franchise to install wireless
communication networks in City right-of-way.
2. Pictures of radio cells installed on light pole mast arms.
3. List of other cities who have authorized the installation of Metricom's
wireless network in city right-of-way.
FD97001B.DOC -3- 02/24/97 6:05 PM
rl
•
ORDINANCE NO. 3 3 4 8
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH,
ADDING CHAPTER 12.48 TO THE
HUNTINGTON BEACH MUNICIPAL CODE
PERTAINING TO WIRELESS COMMUNICATIONS RADIO NETWORKS.
THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH DOES HEREBY
ORDAIN AS FOLLOWS:
WHEREAS, Section 615 of the Charter of the City of Huntington Beach provides that
the City Council may by ordinance regulate the granting of franchises; and
Establishing franchise regulations for the placement of wireless communications radio
networks within the public right-of-way of the City of Huntington Beach 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 right-of-way,
NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby
amend the Huntington Beach Municipal Code as follows:
Section 1. Chapter 12.48 is hereby added to the Huntington Beach Municipal Code to
read as follows:
SF-970rd:Networks
2/19/97 - #4
Ordinance. 3348
"CHAPTER 12.48
WIRELESS DIGITAL COMMUNICATIONS
RADIO NETWORKS
Sections
12.48.010
Scope of Chapter
12.48.020
Definitions
12.48.030
Franchise Agreement
12.48.040
Transfer of the Franchise
12.48.050
Breach of Franchise
12.48.060
Term of Franchise
12.48.070
Scope of Franchise
12.48.080
Fees and Taxes
12.48.090
Removal and Relocation of Radios
12.48.100
Construction Permits
12.48.110
Damage to Right -of --Way
12.48.120
Indemnification
.12.48.130
Utilities
12.48.140
Insurance
12.48.150
Permit Index File
12.48.160
Enforcement
12.48.170
Severability
Section 12.48.010 Scope of Chapter.
(a) No person shall install or maintain any radio network or other similar
wireless communications facility utilizing transmitters, receivers, amplifiers or other
equipment located within the public right-of-way 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 cable,
telephony or other communication facilities utilizing wires within the public right-of-
way, provided that a franchise for each facility has been obtained pursuant to this Code or
the Pubic Utilities Code.
2
SF-970rd:Networks
2/19/97 - #4
• Ordinances . 3348
(b) Any radio network or other similar type of wireless communication
facility which is in violation of the provisions of this Chapter at the time of adoption of
this Chapter shall be removed within thirty (30) days of the effective date of this
ordinance.
Section 12.48.020 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 PUC.
(b) PUC means the California Public Utilities Commission.
(c) City means the City of Huntington Beach.
(d) Effective Date means the date a franchise agreement is accepted by the
Franchisee.
(e) FCC means the Federal Communications Commission.
(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 or Franchise Agreement means the terms under which a
franchisee is permitted to attach, install, operate, maintain, remove, reattach, reinstall,
relocate, and replace the radio network in the public right-of-way as provided below.
(h) Franchisee means a person granted a franchise under this Chapter by City
Council.
3
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2/19/97 - #4
Ordinance No. 3348
0
(i) 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.
0) 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.
(k) Provision means any agreement, clause, conditions, covenant,
qualifications, 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 convenants and conditions.
(1) 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.
(m) 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.
4
SF-970rd:Networks
2/19/97 - #4
Ordinance No. 3348
(n) Radio Network or Radios means that wireless communication equipment
including radios, transmitters, receivers, amplifiers, radio repeaters, microwaves and
similar types of equipment certified by the Federal Communications Commission to be
installed and operated by franchisee under this Chapter.
(o) Services means the wireless communications services provided through
radios by a franchisee.
Section 12.48.030 Franchise Agreement.
(a) The City Council may grant and enter into an non-exclusive franchise
agreement to install, construct,_ operate, and maintain any radio network within the public
right-of-way pursuant to the provisions of this Chapter.
(b) The franchisee shall comply with all applicable laws in the exercise and
performance of its rights and obligations under the franchise. 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, including those regarding encroachment 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.
P
SF-970rd:Networks
2/19/97 - k4
Ordinance No..3348
(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 within the public right-of-way.
(f) Any grant of a franchise shall be conditioned on the franchisee providing a
performance bond, certificate of insurance and indemnification ina form and an amount
approved by the city attorney or risk manager and specified in the franchise agreement.
Section 12.48.040 Transfer of the Franchise.
(a) 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 stock sale, change of control
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.
(b) The franchisee shall give written notice at least thirty (30) days in advance
of any actual or proposed change of control in, transfer of, or acquisition by anyother
party of the franchisee. The word "change of control' as used in this section is not limited
to sales by major stockholders, but includes actual working control in whatever manner
exercised. A rebuttable presumption that a change 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,
6
SF-970rd:Networks
2/19/97 - #4
0 Ordinance 46. 3348
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 qualifications of
the prospective controlling party, and the franchisee shall assist the City in any such
inquiry. This franchise shall not be assigned by franchisee 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.
Section 12.48.050 Breach of Franchise.
(a) The City reserves the right to terminate any franchise and/or assess fines
and penalties 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 the franchise agreement;
(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
7
SF-970rd:Networks
2/19/97 - #4
Ordinance No. 3348
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;
debts..
(5) The franchisee becomes insolvent, unable or unwilling to pay its
(b) The following procedure applies prior to revocation of the franchise:
(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 penalty, fine or revocation. If the failure, refusal or neglect of
the franchisee continues for a period of thirty (30) days following such written demand,
the City Administrator may place his request for penalties, fines or termination of the
franchise upona 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 the intent to request such penalties, fines or 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.
SF-970rd:Net,works
2/19/97 - #4
Ordinance No. 3348
(4) If the Council determines such failure, refusal or neglect by the
franchisee was without just cause, then the Council may, by resolution, assess fines and
penalties, and/or declare that the franchise of such franchisee shall be terminated. In the
case of fines or penalties, the City may draw upon the franchisee's cash deposit in the
amount of the fine or penalty.
(c) 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.
(d) 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.
(e) 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 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.
Section 12.48.060 Term of Franchise.
A franchise granted under this Chapter shall be for a term of up to fifteen (15)
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 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.
9
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Ordinance No. 3348
Section 12.48.070 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.
(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
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Ordinance No. 3348
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 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.
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Ordinance No. 3348
• 0
Section 12.48.080 Fees and Taxes.
(a) 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.
(b) As compensation for the franchise, franchisee shall pay to the City on a
quarterly basis a franchise fee in an amount as established in the franchise agreement.
The franchise fee 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 the 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 amount. Any overpayment to the City through error or
otherwise shall be offset against the next payment due from franchisee, provided that the
franchisee shall file a claim for the overpayment within 180 days of making the
overpayment. Acceptance by the City of any payment due under this section shall not be
deemed to be 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
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• Ordinance 16. 3348
establishing that a larger amount was actually due, or from collecting any balance due to
the City.
(c) The franchisee shall keep accurate books of account. 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 to the extent permitted under the California
Public Records Act and any other applicable law.
(d) As additional compensation for the franchise, franchisee shall pay to the
City a pole fee ("Pole 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.
Section 12.48.090 Removal and Relocation of Radios.
(a) Upon seven (7) days' prior written notice, City may require franchisee to
relocate at franchisee's sole cost and expense, a radio whenever City reasonably
determines that the relocation is needed: (1) to facilitate or accommodate the
construction, completion, repair, relocation or maintenance of a City or Redevelopment
Agency project, (2) because the radio is interfering with or adversely affecting proper
operation of City light poles, traffic signals or other City facilities, including but not
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Ordinance No. 3348
limited to the public safety 800 MHz radio. system, or (3) to protect or preserve the public
health, safety or welfare.
(b) In the event franchisee desires to relocate any radio from one City -owned
pole to another, franchisee shall notify City upon thirty (30) days' prior written 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.
(c) In the event that any radio 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 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 the radio unless and until the City first gives five (5) days' prior written
notice to franchisee to remove the radio. If franchisee should fail to remove the radio, the
City shall be entitled to remove the radio at franchisee's sole cost and expense. The
franchisee shall execute such documents of title as will convey all right, title and interest
in the abandoned radio to the City.
Section 12.48.100. Construction Permits.
(a) In the event that the attachment, installation, operation or maintenance of
the radio network shall require any construction work in 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.
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Ordinance No. 3348
(b) Any and all construction work performed pursuant to the rights granted
under the franchise, including the installation, operation, maintenance, location, and
attachment of the radio network in the public right-of-way, shall, if required under
applicable City ordinances, be subject to the prior review and approval of City by means
of submission of a permit application, payment of any applicable permitting fees, and the
City's ordinary administrative review. The franchisee shall apply for and obtain all
appropriate permits required by applicable law prior to the commencement of any work
of construction in the public right-of-way. The locations of franchisee's planned initial
installation of radio shall be incorporated in the franchise agreement. After the initial
deployment of the radio network, new attachments, removals, and relocations of radios
shall also be subject to the City's permitting process. If the location of any radio is
different from that applied for in the applicable permit, the location of such radio installed
by franchisee shall be disclosed in writing to the City by franchisee within ten (10) days
after its installation, removal, or relocation.
(c) 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 network and connection points to electrical power and telephone
lines within the pubic right-of-way and on public facilities.
Section 12.48.110 Damage to Right -of -Way.
Whenever the radio network shall cause the street light pole or other part of the
public right-of-way to be damaged, either as a result of installation, removal or relocation
of a radio, the weight, size or power of a radio, or otherwise, the franchisee, at its sole
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Ordinance No. 3348
0 •
cost and expense, shall promptly repair and return the public right-of-way in which the
radios are located to a safe and satisfactory condition to the satisfaction of the City's
Director of Public Works. If the franchisee does not repair the site, then the City shall
have the option, upon fifteen (15) days' prior written notice to the franchisee, to perform
or cause to be performed such reasonable and necessary work on behalf of the franchisee
and to charge the franchisee for the proposed costs to be incurred or the actual costs
incurred by the City at City's standard rates. Upon the receipt of a demand for payment
by'the City, the franchisee shall reimburse the City for such costs.
Section 12.48.120 Indemnification.
(a) The 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
proceeding 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 active
negligence of the City, its council members, officers, employees, agents or contractors.
(b) 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
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Ordinance No. 3348
• 0
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.
(c) 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
active negligence, 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.
Section 12.48.130 Utilities.
Franchisee shall pay all costs that may become due for electrical energy supplies
to the radio network and shall keep City indemnified against any and all such costs.
Section 12.48.140 Insurance and Security Deposit.
(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 dollars
($1,000,000) per occurrence, combined single limit, including bodily injury and property
damage and not less than one million dollars ($1,000,000) 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
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Ordinance No. 3348
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
(3) That franchisee's insurance is primary and first dollar as respect 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.
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ordinance No. 3348
• •
(c) The 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 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 AM 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 "separation
of insured" clauses shall be made a part of the comprehensive general liability and
comprehensive automobile liability policies.
(f) Prior to the commencement of any work under the franchise, the
franchisee shall furnish or cause to be furnished to City a good and sufficient security,
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Ordinance No. 3348
0 •
securing the faithful performance by franchisee of all of the work, construction,
installation, and removals required to be performed by the franchisee.
Section 12.48.150 Enforcement.
The City Administrator 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.
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Ordinance . 3348
Section 12.48.160 Severability.
If any section, subsection, subdivision, sentence, clause, phrase, or portion of this
Chapter, 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 Chapter or its application to
other persons. The City Council hereby declares that it would have adopted this Chapter
and each section, subsection, subdivision, sentence, clause, phrase or portion thereof,
irrespective of the fact that any one or more section, subsections, subdivisions, sentences,
clauses, phrases, or portions of the application thereof to any person, be declared invalid
or unconstitutional."
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 17tltlay of March , 1997.
ATTEST:
City Clerk
REVIEWED AND APPROVED:
Ci y Administrator
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APPROVED AS TO FORM:
61
>ty.Attorne
INITIATED AND APPROVED:
Fire Chief
Director of P li Works
Ord. No. 3348
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing ordinance was read to said City Council
at a regular meeting thereof held on the 3rd of March, 1997, and was again read to said
City Council at a regular meeting thereof held on the 17th of March, 1997, and was
passed and adopted by the affirmative vote of at least a majority of all the members of
said City Council.
AYES: Julien, Dettloff, Bauer, Sullivan, Green, Garofalo
NOES: None
ABSENT: Harman
ABSTAIN: None
I, Connie Brockway CITY CLERK of the City of
Huntington Beach and ex-officio Clerk of the City
Council, do hereby certify that a synopsis of this
ordinance has been published in the Independent on
19
In accordance with the City Charter of said City
Connie Brockway City Clerk
Deputy City Clerk
J
City Clerk and ex-officio Clerk
of the City Council of the City
of Huntington Beach, California
G/ordinanc/ordbkpg
3/18/97
Pt
Metricom-
RIGHT OF WAY APPROVALS
JANUARY 09, 1996
NO. CALIFORNIA
Alameda
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SO. CALIFORNIA
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DISTRICT OF COLUMBIA
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of Transportation
ARIZONA
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f:\BNaja rro\citykit\cityappr.doc