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HomeMy WebLinkAboutD-3 - Staff Report - Wireless Facilities in POW Urgency OrdinanceSCHEDULED ITEM D-3 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: KURT CHISTIANSEN, FAICP, ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR DATE: DECEMBER 17, 2018 SUBJECT: URGENCY ORDINANCE FOR WIRELESS FACILITIES IN THE PUBLIC RIGHTS- OF-WAY BACKGROUND: This Report introduces an ordinance and a resolution to provide the regulatory framework and standards for permitting the installation of wireless facilities within the City’s public rights-of-way (“ROW”). Traditionally, wireless antennas and equipment were primarily installed on large towers on private land and on the rooftops of buildings. These deployments are subject to land use review under the zoning code. In recent years, companies increasingly seek to install wireless facilities in the ROW on utility poles, streetlights and new poles. Current predictions indicate that the next wave of wireless facility deployment—5G—will involve $275 billion in investment over the next decade, with the vast majority of these new facilities anticipated to be placed in ROW. Historically, telecommunications installations in the ROW are typically addressed through encroachment permits. However, the City’s existing Municipal Code contains very minimal standards or regulations designed to address the unique aesthetic, safety, operational, and locational issues in connection with the installation of wireless facilities in the ROW. In addition, recent changes in federal law place shortened time frames, or “shot clocks,” and other requirements on local review of wireless facility installations in the ROW. Under a Federal Communications Commission (“FCC”) declaratory order and regulations 1 that are expected to go into effect on January 14, 2019, if a city does not render a decision on a small wireless facility application within a specified time period (60 days for installations on existing structures, and 90 days for new structures), the failure to meet the deadline for action will be presumed to violate federal law (both a failure to act within a reasonable period of time and an effective prohibition of personal wireless 1 See In re Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Federal Communications Commission, FCC 18-133, WT Docket 17-79, WC Docket 17-84 (rel. Sept. 27, 2018). APPROVED CITY COUNCIL 12/17/18 No action taken on Recommendation No. 2 Wireless Facilities in POW Urgency Ordinance December 17, 2018 Page 2 of 4 services). The FCC declares that all fees (including permit fees and rental fees for use of government- owned infrastructure, such as streetlights) must be based on a reasonable approximation of the local government’s costs, such that only objectively reasonable costs are factored into those fees, and fees are no higher than the fees charged to similarly situated competitors in similar situations. The FCC creates “safe harbors” of presumptively reasonable fee levels that include: non-recurring fees equal to $500 for the first five applications plus $100 for each additional, and $1,000 for each new pole. Recurring fees are presumed reasonable if equal to $270 per facility/per year, including the fee for attachment to municipal infrastructure and use of ROW. On aesthetics and undergrounding, the FCC declares that such requirements will not be preempted if they are reasonable, no more burdensome than those applied to other types of infrastructure deployments, objective, and published in advance. Further, another FCC order that was released in August prohibits cities from imposing a moratorium on wireless installations, which means that there can be no pause in accepting or processing applications to allow a city to study and address potential issues.2 While the legal validity of both of these FCC orders is being litigated, the effectiveness of the orders has not been stayed pending the resolution of the litigation.3 Staff therefore is taking steps discussed below to address wireless deployments in the ROW consistent with the new federal regulations, and among them, recommends Council adopt an ordinance and a resolution on fees. RECOMMENDATION: Staff recommends that the City Council take the following actions: 1) Adopt the following Ordinance No. 2018-06: AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, ADDING ARTICLE XII TO CHAPTER 62 OF THE AZUSA MUNICIPAL CODE, IMPOSING REGULATIONS ON WIRELESS FACILITIES ON THE PUBLIC RIGHT-OF-WAY; 2) Adopt Resolution No. 2018-C71: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, ESTABLISHING FEES FOR WIRELESS FACILITIES ENCROACHMENT PERMITS; and 3)Direct the Economic and Community Development Department to prepare Design Standards for Wireless Facilities in the Public Rights-of-Way and publish on the City’s website by January 13, 2019. ANALYSIS: To address wireless facilities applications in the ROW, staff recommends that the City Council approve the following: 1. Ordinance for Wireless Facilities in the ROW Ordinance; 2 See In re Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, FCC 18-111, WC Docket 17-84, WT Docket 17-79 (rel. Aug. 3, 2018). 3 Local governments and associations filed a petition to the FCC to stay the effectiveness of the FCC order pending resolution of the appeals. The FCC recently denied that petition. Wireless Facilities in POW Urgency Ordinance December 17, 2018 Page 3 of 4 2. Resolution for Fees ; and 3. Direct the Economic and Community Development Department to prepare Design Standards for Wireless Facilities in the Public Rights-of-Way and publish on the City’s website by January 13, 2019. The ordinance, resolution, and direction work in concert: • Ordinance. The Ordinance would amend Chapter 62 of the Municipal Code to add Article XII, Wireless Facilities in the Public Right-of-Way. For all wireless facility installations in the ROW, this Ordinance provides, among other regulations, the permit and review procedures as well as the operation and maintenance standards. The Ordinance treats wireless installations in the ROW similar to other installations in the ROW by requiring an encroachment permit. Specifically, the Ordinance sets additional standards and requirements for obtaining an encroachment permit to install wireless facilities. • Fees Resolution. The Fees Resolution provides for an initial application fee tied directly to the costs of reviewing and processing these applications and, if applicable, a deposit to cover the City’s costs in negotiating and implementing an agreement for attachment of wireless facilities to City-owned infrastructure. The resolution is tailored to give the City maximum flexibility under the FCC Order to recoup reasonable costs of reviewing and processing these applications. Adopting the fees by resolution allows the City the greater flexibility to adjust them in future. • Direction to City Staff. Direct the Economic and Community Development Department to prepare Design Standards for Wireless Facilities in the Public Rights-of-Way and publish on the City’s website by January 13, 2019. In addition to the Ordinance and Fee Resolution for City Council approval, City Staff is developing a standard application for wireless facility installations in the ROW and a master license agreement for use of City infrastructure such as streetlights, all of which together will serve as the City’s framework for addressing applications for wireless facility installations in the ROW. ENVIRONMENTAL REVIEW: The Ordinance and Resolution are not a “project” within the meaning of Section 15378 of the State CEQA Guidelines, because they have no potential for resulting in direct or indirect physical change in the environment. Rather, it is only once an application is filed that CEQA would be implicated. Further, even if they were interpreted to permit a “project,” any applicable wireless facility installation would likely be exempt from CEQA review in accordance with State CEQA Guidelines section 15302 (replacement or reconstruction), State CEQA Guidelines section 15303 (new construction or conversion of small structures), and/or State CEQA Guidelines section 15304 (minor alterations to land). Accordingly, City Staff recommends that the City Council direct that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. Wireless Facilities in POW Urgency Ordinance December 17, 2018 Page 4 of 4 FISCAL IMPACT: Staff is recommending the City establish a related permitting fee to process the Wireless Facilities Permit. The total Wireless Facilities Encroachment Permit shall be $4,407.30 and modification shall be $2,203.65 plus associated fees for Master License Agreement. This amount, as required by law, represents the reasonable relationship between the fees to be collected and the cost incurred by the City for processing permit applications. The data compiled by City staff to calculate the estimated hours and costs for processing per applications is shown in Attachment 1. The proposed recommendation will increase the General Fund permit revenues. The City has the authority to impose fees, charges and rates under the police power granted by Article XI, Section 7 of the California Constitution. The proposed permit fee amount will not exceed the estimated reasonable costs of providing the services. The City will follow the procedures outlined in the California Government Code to implement the permit fee. Upon Council approval, staff will add the wireless facilities encroachment permit fee, modification fee, and associated fees for master license agreement to the citywide schedule of fees and charges. Prepared by: Reviewed by: Manuel Muñoz Kurt Christiansen, FAICP Senior Planner Economic and Community Development Director Fiscal Reviewed by: Reviewed and Approved by: Talika M. Johnson Sergio Gonzalez Director of Finance City Manager Attachments: 1)Breakdown of Wireless Facilities Encroachment Permit Fee 2) Draft Urgency Ordinance No. 2108-06 for Wireless Facilities in POW 3) Resolution No. 2018-C71 for Wireless Facilities Encroachment Permit Fee Monthly Incentive Total Monthly Monthly Monthly Fully Burdened Estimated Total Fully Burdened Pay Pay Pay Benefits*Flex/Def Total Hourly Rates Hours Hourly Rates Director of Economic and Community Development 13,878.67 450.00 14,328.67 5,248.45 1,526.00 21,103.12 121.74876 2 243.4975262 Senior Planner 7,474.52 100.00 7,574.52 1,714.04 1,391.00 10,679.56 61.61284 5 308.0641828 Building Official 7,622.83 0.00 7,622.83 2,601.60 1,496.00 11,720.43 67.61784 2 135.2356832 Director of Public Works/City Engineer 13,286.52 300.00 13,586.52 4,976.61 1,676.00 20,239.13 116.76419 2 233.5283862 Assistant Director of Public Works 9,671.67 0.00 9,671.67 3,300.84 1,350.00 14,322.51 82.62989 5 413.1494576 Assistant Engineer II 6,322.00 375.00 6,697.00 1,515.46 1,390.00 9,602.46 55.39883 3 166.1964978 Director of Utilities 16,568.32 0.00 16,568.32 6,068.81 1,675.00 24,312.13 140.26229 2 280.5245815 Electric Distribution Supervisor 10,982.44 1,108.00 12,090.44 3,635.47 1,505.00 17,230.91 99.40912 2 198.8182469 Senior Electric Engineer 10,582.88 671.00 11,253.88 3,840.84 1,495.00 16,589.72 95.70991 5 478.5495295 Electric Engineer 8,305.02 121.00 8,426.02 2,875.72 1,350.00 12,651.74 72.99079 3 218.9723644 Assistant Director of Water Operations 10,830.08 0.00 10,830.08 3,696.20 450.00 14,976.28 86.40161 5 432.0080276 Senior Water Systems Engineer 9,265.59 121.00 9,386.59 3,203.55 1,496.00 14,086.14 81.26619 3 243.7985695 Water Engineer Associate 7,210.25 0.00 7,210.25 1,631.61 781.00 9,622.86 55.51649 3 166.5494595 Recreation Superintendent - Parks 7,841.03 350.00 8,191.03 2,795.52 1,495.00 12,481.55 72.00892 2 144.0178485 HR/Risk Management Analyst 5,666.85 0.00 5,666.85 1,282.35 1,391.00 8,340.20 48.11655 1 48.11654796 Assistant Director of Electric Operation 9,823.22 0.00 9,823.22 3,352.57 0.00 13,175.79 76.01416 5 380.0707791 Planning and Economic Develoment Manager 7,441.34 0.00 7,441.34 2,539.65 0.00 9,980.99 57.58266 5 287.9133208 Planning Technician 3,998.31 0.00 3,998.31 904.78 0.00 4,903.09 28.28704 1 28.28704422 4,407.30$ Grand Total Staff Title Wireless Facilities Encroachment Permit (WEP) Fee ATTACHMENT 1 Monthly Incentive Total Monthly Monthly Monthly Fully Burdened Estimated Total Fully Burdened Pay Pay Pay Benefits*Flex/Def Total Hourly Rates Hours Hourly Rates Director of Economic and Community Development 13,878.67 450.00 14,328.67 5,248.45 1,526.00 21,103.12 121.74876 1 121.7487631 Senior Planner 7,474.52 100.00 7,574.52 1,714.04 1,391.00 10,679.56 61.61284 2.5 154.0320914 Building Official 7,622.83 0.00 7,622.83 2,601.60 1,496.00 11,720.43 67.61784 1 67.61784159 Director of Public Works/City Engineer 13,286.52 300.00 13,586.52 4,976.61 1,676.00 20,239.13 116.76419 1 116.7641931 Assistant Director of Public Works 9,671.67 0.00 9,671.67 3,300.84 1,350.00 14,322.51 82.62989 2.5 206.5747288 Assistant Engineer II 6,322.00 375.00 6,697.00 1,515.46 1,390.00 9,602.46 55.39883 1.5 83.09824888 Director of Utilities 16,568.32 0.00 16,568.32 6,068.81 1,675.00 24,312.13 140.26229 1 140.2622908 Electric Distribution Supervisor 10,982.44 1,108.00 12,090.44 3,635.47 1,505.00 17,230.91 99.40912 1 99.40912347 Senior Electric Engineer 10,582.88 671.00 11,253.88 3,840.84 1,495.00 16,589.72 95.70991 2.5 239.2747648 Electric Engineer 8,305.02 121.00 8,426.02 2,875.72 1,350.00 12,651.74 72.99079 1.5 109.4861822 Assistant Director of Water Operations 10,830.08 0.00 10,830.08 3,696.20 450.00 14,976.28 86.40161 2.5 216.0040138 Senior Water Systems Engineer 9,265.59 121.00 9,386.59 3,203.55 1,496.00 14,086.14 81.26619 1.5 121.8992848 Water Engineer Associate 7,210.25 0.00 7,210.25 1,631.61 781.00 9,622.86 55.51649 1.5 83.27472973 Recreation Superintendent - Parks 7,841.03 350.00 8,191.03 2,795.52 1,495.00 12,481.55 72.00892 1 72.00892424 HR/Risk Management Analyst 5,666.85 0.00 5,666.85 1,282.35 1,391.00 8,340.20 48.11655 0.5 24.05827398 Assistant Director of Electric Operation 9,823.22 0.00 9,823.22 3,352.57 0.00 13,175.79 76.01416 2.5 190.0353895 Planning and Economic Develoment Manager 7,441.34 0.00 7,441.34 2,539.65 0.00 9,980.99 57.58266 2.5 143.9566604 Planning Technician 3,998.31 0.00 3,998.31 904.78 0.00 4,903.09 28.28704 0.5 14.14352211 2,203.65$ Grand Total Staff Title Wireless Facilities Encroachment Permit (WEP) Renewal Fee URGENCY ORDINANCE NO. 2018-06 AN URGENCY ORDINANCE OF CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, ADDING ARTICLE XII TO CHAPTER 62 OF THE AZUSA MUNICIPAL CODE, IMPOSING REGULATIONS ON “WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY”. WHEREAS, the City of Azusa, California (“City”) is a municipal corporation, duly organized under the California Constitution and laws of the State of California; WHEREAS, by virtue of the police powers delegated to it by the California Constitution, the City has the authority to enact laws which promote the public health, safety, and general welfare of its citizens, including public rights-of-way; WHEREAS, the Federal Communications Commission (“FCC”) recently issued new rules and regulations (“FCC Order”), which will become effective on January 14, 2019, regarding wireless telecommunications facilities that substantially alter the landscape of local authority to regulate such facilities; WHEREAS, in light of the FCC Order, the City deems it to be necessary and appropriate to provide for certain standards and regulations relating to the location, placement, design, construction and maintenance of telecommunications towers, antennas, and other structures within the City’s public rights-of-way, and providing for the enforcement of said standards and regulations, consistent with federal and state law limitations on that authority; and WHEREAS, considering the fast-approaching effective date of the FCC Order, the City deems it necessary and appropriate to enact regulations for wireless telecommunications facilities in the public rights-of-way by urgency ordinance under Cal. Gov. Code Section 36937(b) because the matters herein concern “the immediate preservation of the public peace, health or safety” of the City’s citizens. NOW, THEREFORE, BE IT ENACTED AND ORDAINED by the City Council of the City of Azusa: SECTION 1: The foregoing Recitals are adopted as findings of the City Council as though set forth in fully within the body of this ordinance. SECTION 2: The Chapter 62 for the City (“Code”) shall be amended to add a new Article XII, entitled “Wireless Facilities in Public Rights-Of-Way” as follows: ATTACHMENT 2 Urgency Ordinance No. Page 2 of 15 ARTICLE XII WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY Section 62-501. Purpose. (a) The purpose of this Article is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the public rights- of-way of the City consistent with the City’s obligation to promote the public health, safety, and welfare, to manage the public rights-of-way, and to ensure that the public is not incommoded by the use of the public rights-of-way for the placement of wireless facilities. The City recognizes the importance of wireless facilities to provide high- quality communications service to the residents and businesses within the City, and the City also recognizes its obligation to comply with applicable Federal and State law regarding the placement of personal wireless services facilities in its public rights-of-way. This ordinance shall be interpreted consistent with those provisions. Section 62-502. Definitions. The terms used in this Article shall have the following meanings: Application: A formal request, including all required and requested documentation and information, submitted by an applicant to the City for a wireless facilities encroachment permit. Applicant: A person filing an application for placement or modification of a wireless facility in the public right-of-way. Base Station: shall have the meaning as set forth in 47 C.F.R. Section 1.40001(b)(1), or any successor provision. Eligible Facilities Request: shall have the meaning as set forth in 47 C.F.R. Section 1.40001(b)(3), or any successor provision. FCC: The Federal Communications Commission or its lawful successor. Municipal Infrastructure: City-owned or controlled property structures, objects, and equipment in the ROW, including, but not limited to, street lights, traffic control structures, banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or electroliers located within the ROW. Permittee: any person or entity granted a wireless facilities encroachment permit pursuant to this Article. Personal Wireless Services: shall have the same meaning as set forth in 47 U.S.C. Section 332(c)(7)(C)(i). Urgency Ordinance No. Page 3 of 15 Personal Wireless Services Facility: means a wireless facility used for the provision of personal wireless services. Wireless Facility, or Facility: The transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s). Public Right-of-Way, or ROW: shall have the same meaning as in Chapter 62 but shall also include any portion of any road or public way which the City has the responsibility to maintain or manage. Small Cell Facility: shall have the same meaning as “small wireless facility” in 47 C.F.R. 1.6002(l), or any successor provision (which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forth below): (1) The facility— (i) is mounted on a structure 50 feet or less in height, including antennas, as defined in 47 C.F.R. Section 1.1320(d), or (ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is no more than three cubic feet in volume; (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; (4) The facility does not require antenna structure registration under 47 C.F.R. Part 17; (5) The facility is not located on Tribal lands, as defined under 36 C.F.R. Section 800.16(x); and (6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b). Support Structure: Any structure capable of supporting a base station. Tower: Any structure built for the sole or primary purpose of supporting any FCC- licensed or authorized antennas and their associated facilities, including structures that are constructed for personal wireless services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. This definition does not include utility poles. Underground areas: Those areas where there are no electrical facilities or facilities of the incumbent local exchange carrier in the right of way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities Urgency Ordinance No. Page 4 of 15 owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages in excess of 35,000 volts. Utility Pole: A structure in the ROW designed to support electric, telephone and similar utility lines. A tower is not a utility pole. Wireless Facilities Encroachment Permit: A permit issued pursuant to this Article authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the ROW; and the modification of any existing support structure to which the wireless facility is proposed to be attached. Wireless Service Provider: An entity that provides personal wireless services to end users. Wireless Infrastructure Provider: A person that owns, controls, operates or manages a wireless facility or portion thereof within the ROW. Wireless Regulations: Those regulations adopted pursuant to Section 5 and implementing the provisions of this Article. Section 62-503. Scope. (a) In general. There shall be a type of encroachment permit entitled a “wireless encroachment permit,” which shall be subject to all of the same requirements as an encroachment permit would under Chapter 62 in addition to all of the requirements of this Article. Unless exempted, every person who desires to place a wireless facility in the public rights-of-way or modify an existing wireless facility in the public rights-of-way must obtain a wireless encroachment permit authorizing the placement or modification in accordance with this Article. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of facility expressly allowed in the public right-of-way by state or federal law, no other wireless facilities shall be permitted pursuant to this Article. (b) Exemptions. This Article does not apply to: (1) The placement or modification of facilities by the City or by any other agency of the state solely for public safety purposes. (2) Installation of a "cell on wheels," “cell on truck” or a similar structure for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing facilities. (c) Other applicable requirements. In addition to the wireless encroachment permit required herein, the placement of a wireless facility in the ROW requires the persons who will own or control those facilities to obtain all permits required by applicable law, and to comply with applicable law, including, but not limited, applicable law governing radio frequency (RF) emissions. (d) Pre-existing Facilities in the ROW. Any wireless facility already existing in the ROW as of the date of this Article’s adoption shall remain subject to the provisions of the City Code in effect prior to this Article, unless and until an extension of such facility’s then- Urgency Ordinance No. Page 5 of 15 existing permit is granted, at which time the provisions of this Article shall apply in full force going forward as to such facility. The review of any request for a renewal of a permit for such pre-existing facilities shall be conducted pursuant to this Article, rather than the portion(s) of the City Code that it was previously reviewed under. (e) Public use. Except as otherwise provided by California law, any use of the public right- of-way authorized pursuant to this Article will be subordinate to the City’s use and use by the public. Section 62-504. Administration. (a) Authority. The Economic and Community Development Department or its designee is responsible for administering this Article. As part of the administration of this Article, the Director of the Economic and Community Development Department may: (1) Interpret the provisions of this Article; (2) Develop and implement standards governing the placement and modification of wireless facilities consistent with the requirements of this Article, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities; (3) Develop and implement acceptable designs and development standards for wireless facilities in the public rights-of-way, taking into account the zoning districts bounding the public rights-of-way; (4) Develop forms and procedures for submission of applications for placement or modification of wireless facilities, and proposed changes to any support structure consistent with this Article; (5) Determine the amount of and collect, as a condition of the completeness of any application, any fee established by this Article; (6) Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with state and federal laws and regulations; (7) Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued; (8) Require, as part of, and as a condition of completeness of any application, notice to members of the public that may be affected by the placement or modification of the wireless facility and proposed changes to any support structure; (9) Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and (10) Take such other steps as may be required to timely act upon applications for placement of wireless facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application. (b) Appeal. (1) Any person adversely affected by the decision of the Director pursuant to this Article may appeal the Director’s decision to the City Council, which may decide the issues de novo, and whose written decision will be the final decision of the City. An appeal by a wireless infrastructure provider must be taken jointly with the wireless service provider that intends to use the personal wireless services facility. Urgency Ordinance No. Page 6 of 15 (2) Where the Director grants an application based on a finding that denial would result in a prohibition or effective prohibition under applicable federal law, the decision shall be automatically appealed to the City Council. All appeals must be filed within two (2) business days of the written decision of the Director, unless the Director extends the time therefore. An extension may not be granted where extension would result in approval of the application by operation of law. (3) Any appeal shall be conducted so that a timely written decision may be issued in accordance with applicable law. Section 62-505. General Standards for Wireless Facilities in the Public Rights-of-Way. (a) Generally. Wireless facilities in the ROW shall meet the minimum requirements set forth in this ordinance and the wireless regulations, in addition to the requirements of any other applicable law. (b) Regulations. The wireless regulations and decisions on applications for placement of wireless facilities in the ROW shall, at a minimum, ensure that the requirements of this section are satisfied, unless it is determined that applicant has established that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. If that determination is made, the requirements of this Article may be waived, but only to the minimum extent required to avoid the prohibition or violation. (c) Minimum Design Standards. Wireless facilities shall be installed and modified in a manner that minimizes risks to public safety, avoids placement of aboveground facilities in underground areas, avoids installation of new support structures or equipment cabinets in the public rights-of-way, and otherwise maintains the integrity and character of the neighborhoods and corridors in which the facilities are located; ensures that installations are subject to periodic review to minimize the intrusion on the rights of way; and ensures that the City bears no risk or liability as a result of the installations, and that such use does not inconvenience the public, interfere with the primary uses of the rights-of-way, or hinder the ability of the City or other government agencies to improve, modify, relocate, abandon, or vacate the public rights of way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the rights of way. The Director shall publish such design standards in a publicly-available place, including, without limitation, the City’s website. Section 62-506. Applications. (a) Submission. Unless the wireless regulations provide otherwise, applicant shall submit a paper copy and an electronic copy of any application, amendments, or supplements to an application, or responses to requests for information regarding an application to: Economic and Community Development Department, at City Hall. (b) Pre-application meeting. Prior to filing an application for a wireless encroachment permit, an applicant is encouraged to schedule a pre-application meeting with the Economic and Community Development Department to discuss the proposed facility, the requirements of this Article, and any potential impacts of the proposed facility. Urgency Ordinance No. Page 7 of 15 (c) Content. An applicant shall submit an application on the form approved by the Economic and Community Development Department which may be updated from time-to- time, but in any event shall require the submission of all required fee(s), documents, information, and any other materials necessary to allow the Economic and Community Development Department to make required findings and ensure that the proposed facility will comply with applicable federal and state law, the City Code, and will not endanger the public health, safety, or welfare. If no form has been approved, applications must contain all information necessary to show that applicant is entitled to the wireless encroachment permit requested, and must specify whether the applicant believes state or federal law requires action on the application within a specified time period. (1) Any information required pursuant to the wireless regulations; (2) The name of the applicant, its telephone number and contact information, and if the applicant is a wireless infrastructure provider, the name and contact information for the wireless service provider that will be using the personal wireless services facility; (3) A complete description of the proposed wireless facility and the work that will be required to install or modify it, including, but not limited to, detail regarding proposed excavations, if any; detailed site plans showing the location of the wireless facility, and specifications for each element of the wireless facility, clearly describing the site and all structures and facilities at the site before and after installation or modification; and describing the distance to the nearest residential dwelling unit and any historical structure within 500 feet of the facility. Before and after 360 degree photosimulations must be provided. (4) Documentation sufficient to show that the proposed facility will comply with generally-applicable health and safety provisions of the City Code and the FCC’s radio frequency emissions standards. (5) A copy of the lease or other agreement between the applicant and the owner of the property to which the proposed facility will be attached. (6) If the application is for a small cell facility, the application shall state as such and shall explain why the proposed facility meets the definition of small cell facility in this Article. (7) If the application is for an eligible facilities request, the application shall state as such and must contain information sufficient to show that the application qualifies as an eligible facilities request, which information must show that there is an existing wireless facility that was approved by the City. Before and after 360 degree photosimulations must be provided, as well as documentation sufficient to show that the proposed facility will comply with generally-applicable health and safety provisions of the City Code and the FCC’s radio frequency emissions standards. (8) Proof that notice has been mailed to owners of all property owners, and the resident manager for any multi-family dwelling unit that includes ten (10) or more units, within 300 feet of the proposed personal wireless services facility. (9) If applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of federal law, or otherwise violate applicable law, the application must provide all information on which the applicant Urgency Ordinance No. Page 8 of 15 relies on in support of that claim. Applicants are not permitted to supplement this showing if doing so would prevent City from complying with any deadline for action on an application. (10) The electronic version of an application must be in a standard format that can be easily uploaded on a web page for review by the public. (11) Any required fees. (d) Fees. Application fee(s) shall be required to be submitted with any application for a wireless encroachment permit. The City Council is hereby authorized to determine, or cause to be determined, the amount, type, and other terms of such fee(s) from time to time by means of resolution. Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for a wireless encroachment permit unless paid as a refundable deposit. (e) Waivers. Requests for waivers from any requirement of this section shall be made in writing to the Economic and Community Development Department or his or her designee. The Economic and Community Development Department may grant or deny a request for a waiver pursuant to this subsection. The Economic and Community Development Department may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of a waiver, the City will be provided all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the permit sought. All waivers approved pursuant to this subsection shall be (1) granted only on a case-by-case basis, and (2) narrowly-tailored to minimize deviation from the requirements of the City Code. (f) Rejection for Incompleteness. For personal wireless facilities and eligible facilities requests, applications will be processed, and notices of incompleteness provided, in conformity with state, local, and federal law. If such an application is incomplete, it may be rejected by the Economic and Community Development Department by notifying the applicant and specifying the material omitted from the application. Section 62-507. Findings; Decisions; Consultants. (a) Findings Required for Approval. (1) Except for eligible facilities requests, the Economic and Community Development Department or City Council, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following: (i) The facility is not detrimental to the public health, safety, and welfare; (ii) The facility complies with this Article and all applicable design and development standards; and (iii) The facility meets applicable requirements and standards of state and federal law. (2) For eligible facilities requests, the Economic and Community Development Department or City Council, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following: (i) That the application qualifies as an eligible facilities request; and (ii) That the proposed facility will comply with all generally-applicable laws. Urgency Ordinance No. Page 9 of 15 (b) Decisions. Decisions on an application by the Economic and Community Development Department shall be in writing and include the reasons for the decision. (c) Independent Consultants. The Economic and Community Development Department or City Council, as the case may be, is authorized, in its discretion, to select and retain independent consultant(s) with expertise in telecommunications in connection with the review of any application under this Article. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including, but not limited to, application completeness or accuracy, structural engineering analysis, or compliance with FCC radio frequency emissions standards. Section 62-508. Conditions of Approval. (a) Generally. In addition to any supplemental conditions imposed by the Economic and Community Development Department or City Council, as the case may be, all permits granted pursuant to this Article shall be subject to the following conditions, unless modified by the approving authority: (1) Code Compliance. The permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations and other rules, including, without limitation, those applying to use of public rights-of-way. (2) Permit Duration. A wireless encroachment permit shall be valid for a period of ten (10) years, unless pursuant to another provision of the Code or these conditions, it expires sooner or is terminated. At the end of ten (10) years from the date of issuance, such Permit shall automatically expire, unless an extension or renewal has been granted. A person holding a wireless encroachment permit must either (1) remove the facility within thirty (30) days following the permit’s expiration (provided that removal of support structure owned by City, a utility, or another entity authorized to maintain a support structure in the right of way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City); or (2) at least ninety (90) days prior to expiration, submit an application to renew the permit, which application must, among all other requirements, demonstrate that the impact of the wireless facility cannot be reduced. The wireless facility must remain in place until it is acted upon by the City and all appeals from the City’s decision exhausted. (3) Timing of Installation. The installation and construction authorized by a wireless encroachment permit shall begin within one (1) year after its approval, or it will expire without further action by the City. The installation and construction authorized by a wireless encroachment permit shall conclude, including any necessary post-installation repairs and/or restoration to the ROW, within thirty (30) days following the day construction commenced. (4) Commencement of Operations. The operation of the approved facility shall commence no later than one (1) month after the completion of installation, or the wireless encroachment permit will expire without further action by the City. (5) As-Built Drawings. The Permittee shall submit an as-built drawing within ninety (90) days after installation of the facility. (6) Inspections; Emergencies. The City or its designee may enter onto the facility area to inspect the facility upon 48 hours prior notice to the permittee. The permittee shall cooperate with all inspections and may be present for any inspection of its Urgency Ordinance No. Page 10 of 15 facility by the City. The City reserves the right to enter or direct its designee to enter the facility and support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property. The city shall make an effort to contact the permittee prior to disabling or removing any facility elements, but in any case shall notify permittee within 24 hours of doing so. (7) Contact. The permittee shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address and email address for at least one natural person. (8) Insurance. Permittee shall obtain and maintain throughout the term of the permit commercial general liability insurance with a limit of $3,000,000.00 per occurrence for bodily injury and property damage and $6,000,000.00 general aggregate including premises operations, contractual liability, personal injury, and products completed operations and/or shall comply with other requirements by the Human Resources/Risk Management Department. The relevant policy(ies) shall name the City, its elected/appointed officials, commission members, officers, representatives, agents, and employees as additional insureds. Permittee shall use its best efforts to provide thirty (30) days’ prior notice to the City of to the cancellation or material modification of any applicable insurance policy. (9) Indemnities. The permittee and, if applicable, the owner of the property upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, and employees (i) from any and all damages, liabilities, injuries, losses, costs, and expenses, and from any and all claims, demands, law suits, writs of mandamus, and other actions or proceedings brought against the city or its agents, officers, officials, or employees to challenge, attack, seek to modify, set aside, void or annul the city’s approval of the permit, and (ii) from any and all damages, liabilities, injuries, losses, costs, and expenses, and any and all claims, demands, law suits, or causes of action and other actions or proceedings of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee or, if applicable, the private property owner or any of each one’s agents, employees, licensees, contractors, subcontractors, or independent contractors. . In the event the city becomes aware of any such actions or claims the city shall promptly notify the permittee and, if applicable, the private property owner and shall reasonably cooperate in the defense. The City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City’s defense, and the property owner and/or permittee (as applicable) shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. (10) Performance Bond. Prior to issuance of a wireless encroachment permit, the permittee shall file with the city, and shall maintain in good standing throughout the term of the approval, a performance bond or other surety or another form of security for the removal of the facility in the event that the use is abandoned or the permit expires, or is revoked, or is otherwise terminated. The security shall be in the amount equal to 100% of the cost of physically removing the facility and all related facilities and equipment on the site, based on the higher of two contractor’s quotes Urgency Ordinance No. Page 11 of 15 for removal that are provided by the permittee. The permittee shall reimburse the city for staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by the city council. Reimbursement shall be paid when the security is posted and during each administrative review. (11) Adverse Impacts on Adjacent Properties. Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, and removal of the facility. (12) Noninterference. Permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the City shall be moved to accommodate a permitted activity or encroachment, unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the Permittee pays all costs and expenses related to the relocation of the City's structure, improvement, or property. Prior to commencement of any work pursuant to a wireless encroachment permit, the Permittee shall provide the City with documentation establishing to the city's satisfaction that the Permittee has the legal right to use or interfere with any other structure, improvement, or property within the public right-of-way or city utility easement to be affected by Permittee's facilities. (13) No Right, Title, or Interest. The permission granted by a wireless encroachment permit shall not in any event constitute an easement on or an encumbrance against the public right-of-way. No right, title, or interest (including franchise interest) in the public right-of-way, or any part thereof, shall vest or accrue in Permittee by reason of a wireless encroachment permit or the issuance of any other permit or exercise of any privilege given thereby. (14) No Possessory Interest. No possessory interest is created by a wireless encroachment permit. However, to the extent that a possessory interest is deemed created by a governmental entity with taxation authority, Permittee acknowledges that City has given to Permittee notice pursuant to California Revenue and Taxation Code Section 107.6 that the use or occupancy of any public property pursuant to a wireless encroachment permit may create a possessory interest which may be subject to the payment of property taxes levied upon such interest. Permittee shall be solely liable for, and shall pay and discharge prior to delinquency, any and all possessory interact taxes or other taxes, fees, and assessments levied against Permittee’s right to possession, occupancy, or use of any public property pursuant to any right of possession, occupancy, or use created by this permit. (15) General Maintenance. The site and the facility, including, but not limited to, all landscaping, fencing, and related transmission equipment, must be maintained in a neat and clean manner and in accordance with all approved plans. All graffiti on facilities must be removed at the sole expense of the permittee within forty eight (48) hours after notification from the City. (16) RF Exposure Compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RF exposure standards. After transmitter and antenna system Urgency Ordinance No. Page 12 of 15 optimization, but prior to unattended operations of the facility, permittee or its representative must conduct on-site post-installation RF emissions testing to demonstrate actual compliance with the FCC OET Bulletin 65 RF emissions safety rules for general population/uncontrolled RF exposure in all sectors. For this testing, the transmitter shall be operating at maximum operating power, and the testing shall occur outwards to a distance where the RF emissions no longer exceed the uncontrolled/general population limit. (17) Testing. Testing of any equipment shall take place on weekdays only, and only between the hours of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays that fall on a weekday. In addition, testing is prohibited on weekend days. (18) Modifications. No changes shall be made to the approved plans without review and approval in accordance with this Article. (19) Agreement with City. If not already completed, permittee shall enter into the appropriate agreement with the City, as determined by the City, prior to constructing, attaching, or operating a facility on Municipal Infrastructure. This permit is not a substitute for such agreement. (20) Conflicts with Improvements. For all facilities located within the ROW, the permittee shall remove or relocate, at its expense and without expense to the city, any or all of its facilities when such removal or relocation is deemed necessary by the city by reason of any change of grade, alignment, or width of any right-of-way, for installation of services, water pipes, drains, storm drains, power or signal lines, traffic control devices, right-of-way improvements, or for any other construction, repair, or improvement to the right-of-way. (21) Abandonment. If a facility is not operated for a continuous period of 6 months, the wireless encroachment permit and any other permit or approval therefor shall be deemed abandoned and terminated automatically, unless before the end of the 6 month period (i) the Economic and Community Development Department has determined that the facility has resumed operations, or (ii) the City has received an application to transfer the permit to another service provider. No later than ninety (90) days from the date the facility is determined to have ceased operation or the permittee has notified the Economic and Community Development Department of its intent to vacate the site, the permittee shall remove all equipment and improvements associated with the use and shall restore the site to its original condition to the satisfaction of the Economic and Community Development Department. The permittee shall provide written verification of the removal of the facilities within thirty (30) days of the date the removal is completed. If the facility is not removed within thirty (30) days after the permit has been discontinued pursuant to this subsection, the site shall be deemed to be a nuisance, and the City may cause the facility to be removed at permittee’s expense or by calling any bond or other financial assurance to pay for removal. If there are two (2) or more users of a single facility or support structure, then this provision shall apply to the specific elements or parts thereof that were abandoned, but will not be effective for the entirety thereof until all users cease use thereof. (22) Encourage Co-location. Where the facility site is capable of accommodating a co- located facility upon the same site in a manner consistent with the permit conditions for the existing facility, the owner and operator of the existing facility shall allow Urgency Ordinance No. Page 13 of 15 co-location of third party facilities, provided the parties can mutually agree upon reasonable terms and conditions. (23) Records. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition or fails to produce true and complete copies of such records within a reasonable time after a written request from the city, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee. (24) Attorney’s Fees. In the event the City determines that it is necessary to take legal action to enforce any of these conditions, or to revoke a permit, and such legal action is taken, the Permittee shall be required to pay any and all costs of such legal action, including reasonable attorney’s fees, incurred by the City, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the City should otherwise agree with Permittee to waive said fees or any part thereof. The foregoing shall not apply if the Permittee prevails in the enforcement proceeding. (b) Eligible Facilities Requests. In addition to the conditions provided in Section 9(a) of this Article and any supplemental conditions imposed by the Economic and Community Development Department or City Council, as the case may be, all permits for an eligible facility requests granted pursuant to this Article shall be subject to the following additional conditions, unless modified by the approving authority: (1) Permit subject to conditions of underlying permit. Any permit granted in response to an application qualifying as an eligible facilities request shall be subject to the terms and conditions of the underlying permit. (2) No permit term extension. The city’s grant or grant by operation of law of an eligible facilities request permit constitutes a federally-mandated modification to the underlying permit or approval for the subject tower or base station. Notwithstanding any permit duration established in another permit condition, the city’s grant or grant by operation of law of a eligible facilities request permit will not extend the permit term for the underlying permit or any other underlying regulatory approval, and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station. (3) No waiver of standing. The city’s grant or grant by operation of law of an eligible facilities request does not waive, and shall not be construed to waive, any standing by the city to challenge Section 6409(a) of the Spectrum Act, any FCC rules that interpret Section 6409(a) of the Spectrum Act, or any modification to Section 6409(a) of the Spectrum Act. (c) Small Cell Facilities Requests. In addition to the conditions provided in Section 9(a) of this Article and any supplemental conditions imposed by the Economic and Community Development Department or City Council, as the case may be, all permits for a small cell facility granted pursuant to this Article shall be subject to the following condition, unless modified by the approving authority: Urgency Ordinance No. Page 14 of 15 (1) No waiver of standing. The city’s grant of a permit for a small cell facility request does not waive, and shall not be construed to waive, any standing by the city to challenge any FCC orders or rules related to small cell facilities, or any modification to those FCC orders or rules. Section 62-509. Breach; Termination of Permit. (a) For breach. A wireless encroachment permit may be revoked for failure to comply with the conditions of the permit or applicable law. Upon revocation, the wireless facility must be removed; provided that removal of a support structure owned by City, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City. All costs incurred by the City in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility. (b) For installation without a permit. An wireless facility installed without a wireless encroachment permit (except for those exempted by this Article) must be removed; provided that removal of support structure owned by City, a utility, or another entity authorized to maintain a support structure in the right of way need not be removed, but must be restored to its prior condition, except as specifically permitted by the City. All costs incurred by the City in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility. (c) Municipal Infraction. Any violation of this Article will be subject to the same penalties as a Violation of Administrative Provisions under Chapter 1, Section 1-13 of the City Code. Section 62-510. Infrastructure Controlled By City. The City, as a matter of policy, will negotiate agreements for use of Municipal Infrastructure. The placement of wireless facilities on those structures shall be subject to the agreement. The agreement shall specify the compensation to the City for use of the structures. The person seeking the agreement shall additionally reimburse the City for all costs the City incurs in connection with its review of, and action upon the person’s request for, an agreement. Section 62-511. Nondiscrimination. In establishing the rights, obligations and conditions set forth in this article, it is the intent of the City to treat each applicant or public right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, and with considerations that may be unique to the technologies, situation and legal status of each particular applicant or request for use of the public rights-of-way. SECTION 3: The City Manager, or his or her delegate, is directed to execute all documents and to perform all other necessary City acts to implement effect this Ordinance. SECTION 4: CEQA. This Ordinance is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act (“CEQA”) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The Ordinance does not authorize any specific development or installation on any specific piece of property within the City’s boundaries. Moreover, when and if an application for installation is submitted, the City will at that time conduct preliminary review of the application in accordance Urgency Ordinance No. Page 15 of 15 with CEQA. Alternatively, even if the Ordinance is a “project” within the meaning of State CEQA Guidelines section 15378, the Ordinance is exempt from CEQA on multiple grounds. First, the Ordinance is exempt CEQA because the City Council’s adoption of the Ordinance is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. (State CEQA Guidelines, § 15061(b)(3)). That is, approval of the Ordinance will not result in the actual installation of any facilities in the City. In order to install a facility in accordance with this Ordinance, the wireless provider would have to submit an application for installation of the wireless facility. At that time, the City will have specific and definite information regarding the facility to review in accordance with CEQA. And, in fact, the City will conduct preliminary review under CEQA at that time. Moreover, in the event that the Ordinance is interpreted so as to permit installation of wireless facilities on a particular site, the installation would be exempt from CEQA review in accordance with either State CEQA Guidelines section 15302 (replacement or reconstruction), State CEQA Guidelines section 15303 (new construction or conversion of small structures), and/or State CEQA Guidelines section 15304 (minor alterations to land). The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles within five working days of the passage and adoption of the Ordinance. SECTION 5: Severability. If any section, subsection, provision, sentence, clause, phrase or word of this Ordinance is for any reason held to be illegal or otherwise invalid by any court of competent jurisdiction, such invalidity shall be severable, and shall not affect or impair any remaining section, subsection, provision, sentence, clause, phrase or word included within this Ordinance, it being the intent of the City that the remainder of the Ordinance shall be and shall remain in full force and effect, valid, and enforceable. SECTION 6: In accordance with California Government Code Section 36937(b), this ordinance shall become effective immediately upon its passage and adoption. PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF AZUSA this ______ day of ______________, ______, by the following vote: AYES: NOES: ABSENT: APPROVED: _______________________________ ATTEST: _____________________________, City Clerk APPROVED AS TO FORM: _____________________________, City Attorney RESOLUTION NO. 2018-C71 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA ESTABLISHING FEES FOR WIRELESS FACILITIES ENCROACHMENT PERMITS WHEREAS, the City of Azusa, California (the “City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, the City adopted Resolution No. 2016-C5 decreasing and increasing certain user fees for provision of services by the City; and WHEREAS, the City proposes to amend the Azusa Municipal Code to regulate Wireless Facilities in the Public Right-of-Way; and WHEREAS, the proposed ordinance requires the applicant to obtain and maintain a Wireless Facilities Encroachment Permit; and WHEREAS, the processing of the Wireless Facilities Encroachment Permits will require services to be provided by the City which are currently not covered by the City’s general fund; and WHEREAS, the City desires to recoup the costs of providing such services in order to process the Wireless Facilities Encroachment Permits, consistent with applicable law; and WHEREAS, pursuant to Government Code Sections 66016 and 66018, the specific fees charged must be adopted by the City Council by Resolution, after providing notice and holding a public hearing; and WHEREAS, the City Council has duly noticed and conducted a public hearing on December 17, 2018, concerning the adoption of said fees; WHEREAS, the City Council has complied with Government Code section 66018 prior to imposing the application fees set forth in this Resolution. NOW, THEREFORE, BE IT RESOLVED, determined, and ordered by the City Council of the City of Azusa that: Findings. The recitals above are each incorporated by reference and adopted as findings by the City Council. Definitions. The definitions set forth in Chapter 62 – Article XII of the Municipal Code are incorporated by reference into this Resolution. Administration. The collection, processing, and other acts contemplated in this Resolution shall be administered by the City Council, who is hereby authorized to take all actions on behalf of the City with regard to this Resolution. ATTACHMENT 3 Resolution No. 2018-C71 December 17, 2018 Page 2 of 6 Fee/Deposit. At the time of submitting an application for a Wireless Facilities Encroachment Permit, an applicant shall pay (1) a fee to cover the costs of the City’s review of an application, and (2) if the application proposes to install a wireless facility on municipal infrastructure, a deposit to cover the City’s costs in negotiating and implementing an agreement for the same. The amount of the fee and deposit are set forth in the schedule below. If a deposit is required, the applicant shall be refunded the balance of the deposit remaining after the application is fully processed (if any). The City may request that the applicant replenish the deposit with additional funds to cover any additional costs to process the application. Permit Initial Fee and Deposit Wireless Facilities Encroachment Permit Fee $4,407.30 Deposit $4,407.30 Severability. If any provision of this Resolution or its application to any person or circumstance is held invalid, such invalidity has no effect on the other provisions or applications of the Resolution that can be given effect without the invalid provision or application, and to this extent, the provisions of this ordinance are severable. The City Council declares that it would have adopted this ordinance irrespective of the invalidity of any portion thereof. Certification of Resolution. The City Clerk shall certify to the adoption of this Resolution and cause it, or a summary of it, to be published once within fifteen (15) days of adoption in a newspaper of general circulation printed and published within the City of Azusa, and shall post a certified copy of this Resolution, including the vote for and against the same, in the Office of the City Clerk in accordance with California Government Code Section 36933. Records. The documents and materials associated with this Resolution that constitute the record of proceedings on which the City Council’s findings and determinations are based are located at City Clerk’s Office. Publication of Resolution. The City Clerk shall certify the adoption of this Resolution and cause it, or a summary of it, to be published as required by law. MOVED, PASSED, APPROVED and ADOPTED this _____th day of ___________, 2018 by the following vote: AYES: NAYS: ABSENT: ABSTAIN: ____________________________ Joseph R. Rocha, Mayor Resolution No. 2018-C71 December 17, 2018 Page 3 of 6 ATTEST: Jeffrey Cornejo, City Clerk APPROVED AS TO FORM: Marco Martinez Best Best & Krieger LLP City Attorney Resolution No. 2018-C71 December 17, 2018 Page 4 of 6 CERTIFICATION I, Jeffrey Cornejo, City Clerk of the City of Azusa, California, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting on the ____th day of ________, 2018, by the following vote to wit: AYES: NOES: ABSENT: ATTEST: Jeffrey Cornejo City Clerk Monthly Incentive Total Monthly Monthly Monthly Fully Burdened Estimated Total Fully Burdened Pay Pay Pay Benefits*Flex/Def Total Hourly Rates Hours Hourly Rates Director of Economic and Community Development 13,878.67 450.00 14,328.67 5,248.45 1,526.00 21,103.12 121.74876 2 243.4975262 Senior Planner 7,474.52 100.00 7,574.52 1,714.04 1,391.00 10,679.56 61.61284 5 308.0641828 Building Official 7,622.83 0.00 7,622.83 2,601.60 1,496.00 11,720.43 67.61784 2 135.2356832 Director of Public Works/City Engineer 13,286.52 300.00 13,586.52 4,976.61 1,676.00 20,239.13 116.76419 2 233.5283862 Assistant Director of Public Works 9,671.67 0.00 9,671.67 3,300.84 1,350.00 14,322.51 82.62989 5 413.1494576 Assistant Engineer II 6,322.00 375.00 6,697.00 1,515.46 1,390.00 9,602.46 55.39883 3 166.1964978 Director of Utilities 16,568.32 0.00 16,568.32 6,068.81 1,675.00 24,312.13 140.26229 2 280.5245815 Electric Distribution Supervisor 10,982.44 1,108.00 12,090.44 3,635.47 1,505.00 17,230.91 99.40912 2 198.8182469 Senior Electric Engineer 10,582.88 671.00 11,253.88 3,840.84 1,495.00 16,589.72 95.70991 5 478.5495295 Electric Engineer 8,305.02 121.00 8,426.02 2,875.72 1,350.00 12,651.74 72.99079 3 218.9723644 Assistant Director of Water Operations 10,830.08 0.00 10,830.08 3,696.20 450.00 14,976.28 86.40161 5 432.0080276 Senior Water Systems Engineer 9,265.59 121.00 9,386.59 3,203.55 1,496.00 14,086.14 81.26619 3 243.7985695 Water Engineer Associate 7,210.25 0.00 7,210.25 1,631.61 781.00 9,622.86 55.51649 3 166.5494595 Recreation Superintendent - Parks 7,841.03 350.00 8,191.03 2,795.52 1,495.00 12,481.55 72.00892 2 144.0178485 HR/Risk Management Analyst 5,666.85 0.00 5,666.85 1,282.35 1,391.00 8,340.20 48.11655 1 48.11654796 Assistant Director of Electric Operation 9,823.22 0.00 9,823.22 3,352.57 0.00 13,175.79 76.01416 5 380.0707791 Planning and Economic Develoment Manager 7,441.34 0.00 7,441.34 2,539.65 0.00 9,980.99 57.58266 5 287.9133208 Planning Technician 3,998.31 0.00 3,998.31 904.78 0.00 4,903.09 28.28704 1 28.28704422 4,407.30$ Grand Total Staff Title Wireless Facilities Encroachment Permit (WEP) Fee EXHIBIT "A" Monthly Incentive Total Monthly Monthly Monthly Fully Burdened Estimated Total Fully Burdened Pay Pay Pay Benefits*Flex/Def Total Hourly Rates Hours Hourly Rates Director of Economic and Community Development 13,878.67 450.00 14,328.67 5,248.45 1,526.00 21,103.12 121.74876 1 121.7487631 Senior Planner 7,474.52 100.00 7,574.52 1,714.04 1,391.00 10,679.56 61.61284 2.5 154.0320914 Building Official 7,622.83 0.00 7,622.83 2,601.60 1,496.00 11,720.43 67.61784 1 67.61784159 Director of Public Works/City Engineer 13,286.52 300.00 13,586.52 4,976.61 1,676.00 20,239.13 116.76419 1 116.7641931 Assistant Director of Public Works 9,671.67 0.00 9,671.67 3,300.84 1,350.00 14,322.51 82.62989 2.5 206.5747288 Assistant Engineer II 6,322.00 375.00 6,697.00 1,515.46 1,390.00 9,602.46 55.39883 1.5 83.09824888 Director of Utilities 16,568.32 0.00 16,568.32 6,068.81 1,675.00 24,312.13 140.26229 1 140.2622908 Electric Distribution Supervisor 10,982.44 1,108.00 12,090.44 3,635.47 1,505.00 17,230.91 99.40912 1 99.40912347 Senior Electric Engineer 10,582.88 671.00 11,253.88 3,840.84 1,495.00 16,589.72 95.70991 2.5 239.2747648 Electric Engineer 8,305.02 121.00 8,426.02 2,875.72 1,350.00 12,651.74 72.99079 1.5 109.4861822 Assistant Director of Water Operations 10,830.08 0.00 10,830.08 3,696.20 450.00 14,976.28 86.40161 2.5 216.0040138 Senior Water Systems Engineer 9,265.59 121.00 9,386.59 3,203.55 1,496.00 14,086.14 81.26619 1.5 121.8992848 Water Engineer Associate 7,210.25 0.00 7,210.25 1,631.61 781.00 9,622.86 55.51649 1.5 83.27472973 Recreation Superintendent - Parks 7,841.03 350.00 8,191.03 2,795.52 1,495.00 12,481.55 72.00892 1 72.00892424 HR/Risk Management Analyst 5,666.85 0.00 5,666.85 1,282.35 1,391.00 8,340.20 48.11655 0.5 24.05827398 Assistant Director of Electric Operation 9,823.22 0.00 9,823.22 3,352.57 0.00 13,175.79 76.01416 2.5 190.0353895 Planning and Economic Develoment Manager 7,441.34 0.00 7,441.34 2,539.65 0.00 9,980.99 57.58266 2.5 143.9566604 Planning Technician 3,998.31 0.00 3,998.31 904.78 0.00 4,903.09 28.28704 0.5 14.14352211 2,203.65$ Grand Total Staff Title Wireless Facilities Encroachment Permit (WEP) Renewal Fee EXHIBIT "A"