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31 RESOLUTION NO. 2022-R _____________
A RESOLUTION OF THE CITY OF CULVER CITY, CALIFORNIA
REVISING STANDARD CONDITIONS OF APPROVAL FOR
WIRELESS ENCROACHMENT PERMITS TO INSTALL
WIRELESS FACILITIES IN THE PUBLIC RIGHTS -OF-WAY
PURSUANT TO CULVER CITY MUNICIPAL CODE SE CTION
11.20.065.H.1; FINDING SUCH AMENDMENTS TO BE EXEMPT
FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
(CEQA) PURSUANT TO CEQA GUIDELINES SECTION 15061
(b)(3)
WHEREAS, Section 11.20.065 of the Culver City Municipal Code (CCMC) governs the permitting, insta llation, and regulation of wireless facilities in the City’s public rights -of-way (PROW); and
WHEREAS, CCMC Section 11.20.065.H requi res that the City Council adopt standard conditions of approval applicable to a ll wireless facilities in the PROW, which m ay be modified by the approving authority on a case-by-case basis; and WHEREAS, on December 10, 2018, the City Council approved Resolution No. 2018-R019, adopting the current Standard Conditions of Approval applicable to wireless facilities (“Standard Conditions”); and
WHEREAS, the City Council wishes to revise the current Standard Conditions; and WHEREAS, on February 28, 2022, the City Council conducted a duly noticed public meeting and received test imony from City staff and all interested parties rega rding the proposed revisions to the current Standard Conditions; and WHERAS, in accordance with the California Environmental Quality Act (CEQA), the City Council determined the amendments to the Standard Conditio ns are exempt from CEQA, as set forth in this Resolution; and
WHEREAS, all legal prerequisites to the adoption of the Resolution have occurred.
NOW, THEREFORE, the City Council of the City of Culver City, California, DOES HEREBY RESOLVE as follows:
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31 SECTION 1. Findings. The foregoing Recitals are adopted as findings of the City Council as though fully set forth within the body of this Resolution.
SECTION 2. Definitions. The definitions set forth in CCMC Section 11.20.065 are incorporated by reference into this Resolution.
SECTION 3. Standard Conditions of Approval for all Wireless Facilities in the Public Rights -of-Way. In addition to any supplemental conditions imposed by the approving authority, all wireless encroachment permits shall be subj ect to the following conditions , unless modified by the approving authority:
a. 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. b. Permit Duration. A wireless encroachm ent 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 expi re, unless an extension or renewal has been granted. A person holding a wireless encroachment permit must either (i) remove the facility within thirty (30) days following the permit’s expiration (provided that any involved support structure that is not owned by the person holding the expiring permit need not be removed, but must be restored to its prior condition, except as specifically permitted by the City); or (ii) 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 wireless facility will comply with then -current wireless regulations. The wireless facilit y may remain in place until the renewal application is acted upon by the City and all appe als from the City’s decision exhausted.
c. Timing of Installation . The installation and construction authorized by a wireless encroachment permit shall begin within one (1) year after its approval, o r 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 public rights -of-way, within si xty (60) days following the day construction
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31 commenced, unl ess the Public Works Director / City Engineer grants an extension, which extension shall not be more than sixty (60) additional days. d. Commencement of Operations . T he operation of the
approved fa cility shall commence no later than three (3) months after the completion of installation, or the wireless encroachment permit will expire without further action by the City.
e. As-Built Drawings. The Permittee shall submit an as-built drawing within ninety (90) days after installation of the facility. As -builts shall be in an electronic format acceptable to the City.
f. Inspections; Emergencies . The City or its designee may enter onto the facility area to inspect the facility upo n 48 hours prior notice to the permittee. The permittee shall cooperate with all inspectio ns and may be present for any inspection of its facility by the City. The City reserves the right to enter or direct its designee to enter the facility and support, r epair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property. Permittee shall reimburse the City for any costs the City incurs related to emergency support, repairs, disabling, o r re moval of permittee’s facilities. The City shall make an effort to contact the permitt ee prior to disabling or removing any facility elements, but in any case shall notify permittee within one (1) business day of doing so.
g. Contact. The permittee sha ll at all times maintain accura te 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.
h. Insurance. Permittee and any contractors used by Permittee to install permit ted wireless facilities in the PROW shall comply with the insurance requirements attached to this Resolution, as Exhibit A, throughout the term of any permits issued by the City allowing the installati on of, permitting or regulating such wireless facilities. The City Manager or their designee shall have the authority and discretion to increase the scope or dollar amount of coverage required under any of the policies described in Exhibit A, or may requi re different or additional coverages, upon prior writte n notice to Permittee and/or Permittee’s contractors. In addition, the City Manager or their designee shall have the authority to waive one or more of the coverages listed in Exhibit A. This waiver must be express and in wri ting, and will only be made upo n a showing by the Permittee and/or Permittee’s contractor that its operations in and with respect to the City are not such as to impose liability within the scope of that particular coverage.
i. 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
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31 any and all damages, liabilities, injuries, losses, costs, a nd expenses, and from any and all claims, demands, law suits, writs of mandam us, 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 c ity’s approval of the permit, a nd (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 independe nt 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 Cit y in the course of the defense.
j. Performance Bond . Prior to issuance of a wire less
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 an other 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 an d equipment on the site and restoration of the public rights -of-way to its prior condition, based on the higher of two contractor’s quotes for removal that are provided by the permittee.
The permittee shall reimburse the City for any and all costs the City incurs in relation to permittee’s facilities, including, but not limited to, staff time associated with the processing and tracking of the bond, based on the hourly rate adopted by Resolution of the City Council. Reimburseme nt shall be paid when the security is posted and during each administrative review. k. 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 fr om the construction, operation, maintenance, modification, and removal of the facility. l. 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 stru cture, 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 af fect the City or any surrounding businesses or residents, and the Permittee p ays all costs and expenses related to the relocation of the City's structure, improvement, or
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31 property. Prior to commencement of any work pursuant to a wireless encroachment per mit, the Permittee shall provid e 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 rights-of-way or City utility easement to be affected by Permittee's facilities. m. No Right, Title, or In terest. The permission granted by a wireless encroachment permit shall not in any event constitute an easement on or an encumbrance against the public rights -of-way. No right, tit le, or interest (including franchise interest) in the public rights -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. n. No Possessory Interest. No poss essory interest is created by a wireless encro achment 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 10 7.6 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 shal l 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 pur suant to any right of possession, occupancy, or use created by this permit.
o. 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. p. RF Exposure Compliance . All fa cilities must comply with all standards and regulations of the FCC and any ot her state or federal government agency with the authority to regulate RF exposure standards. After transmitter and antenna system optimization, but prior to unattended operations of the facility, permittee or i ts 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 sect ors. For this testing, the tran smitter 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. q. Testing. Testing of any equipment sh all take place on weekdays only, and only between the hours of 8:00 a.m. and 5:00 p.m., except that testing is prohibited on holidays that fall on a weekday. Testing is prohibited on weekends.
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31 r. Modifications. No changes shall be made to the approved plans without review and approval in accordance with this Section. s. Agreement with C ity. 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 fac ility on Municipal Infrastructure. This permit is not a substitute for such agreement. t. Conflicts with Improvements . For all facilities located within the public rights -of-way, the Permittee shall remove or relocate, at its expense and without expense to th e City, any or all of its facil ities when such removal or relocation is deeme d necessary by the City by reason of any change of grade, alignment, or width of any public rights -of-way, for installation of services, water pipes, sewer pipes, drains, storm dr ains, power or signal lines, tr affic control devices, public rights-of-way improvements, or for any other construction, repair, or improvement to the public rights-of-way.
u. Abandonment. If a facility is not operated for a continuous period of ninety (90) d ays (or, if good cause exists, a longer period of time that the Public Works Director / City Engineer sets in their sole discretion), the wireless encroachment permit and any other permit or approval therefor shall be deemed abandoned and terminated automa tically, unless before the end of the ninety (90) day period the Public Works Director / City Engineer has received an application to transfer the permit to another service provider. No later than ninety (90) days from (i) the date the facility is determ ined to have ceased operation or (ii) the date the Permittee has notified the Public Works Director / City Engineer of its intent to vacate the site, the Permittee shall, unless otherwise directed by the Public Works Director / City Engineer, remove all eq uipment and improvements associ ated with the use and shall restore the site t o its original condition to the satisfaction of the Public Works Director / City Engineer. 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, b ut will not be effective for the entirety thereof until all users cease use thereof.
v. Records. The Permittee must maintain complete and
accurate copies of all permits and other regulatory approvals issued in connection with the facility, which includes wi thout limitation this approval, the approved p lans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this ap proval. In the event that the p ermittee does not maintain such records as req uired in this condition or fails to produce true and
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31 complete copies of such records within a reasonable time after a written request from the City, any ambiguities or uncertainti es that would be resolved throu gh an inspection of the missing records will be construed against the permittee. w. 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 i s taken, the Permittee shall be required to pa y 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 oth erwise agree with Permittee to waive said fees or any part thereof. The foregoing shall not apply if the Permittee prevails in the enforcement proceeding.
SECTION 4. Eligible Facility Requests. In addition to the conditions provided in Section 3 of this Resolution and any supplemental conditions imposed by the approving authority, all wireless encroachment permits issued in response to an eligible facility request shall be subject to the following additional conditions, unless modified by the approving authority:
a. 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. b. No permit term extension . Th e 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 an y permit duration established i n another permit condition, the City’s grant o r grant by operation of law of a n 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 appr oval for the subject tower or base station.
c. 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 b e construed to waive, any stand ing 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.
SECTION 5. Small Cell Facilitie s. In addition to the conditio ns provided in Section 3 of this Resolution and any supplemental conditions imposed by the approving
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31 authority, all wireless encroachment permits issued for a small cell facility shall be subject to the following additional conditions, unless modified by the approving authority:
a. 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 6. CEQA Exemption. Pursuant to the for egoing recitations, the City Council finds the amendments to the Standard Conditions are exempt from the California Environmental Quality Act (CEQA), pursuant to CEQA Guidelines Section 15061(b)(3), as it can be seen with certainty there is no possibility the adoption of the Standard Conditions will have a significant effect on the environment. The adoption of the Standard Conditions, by itself, does not result in any direct physical changes in the environment, as it only establishes standards and other conditions that may be applied to a subsequent project. Once an application is filed, that application will be subject to further environmental review. It is likely, however, that any applicable wireless facility inst allation would also be exempt from CEQA in accordance with State CEQA Guidelines Sections 15302 (replacement or reconstruction), 15303 (new construction or conversion of small structures), and/or 15304 (minor alterations to land).
SECTION 7. Effective Date. This Resolution sh all become effective upon adoption.
a. Applications submitted after Effectiv e Date . Any wireless facility application received by the City after the Effective Date shall be subject to the conditions set forth in Sections 3 through 5 of this Resolution.
b. Applications submitted on or before Effec tive Date . The conditions of approval adopted by Resolution No. 2018 -R109 shall continue to apply to any wireless facility a pplications received by the City on or before the Effective Date.
/ / /
/ / /
1 Exhibit “A”
EXHIBIT A
Insurance Requirements
A. Commercial General Liability . A policy or policies of insurance using Insurance Services Office (ISO) form CG 00 01 or an equivalent form providing coverage at least as broad as the ISO form. Total limits shall be no less than Five Million Dollars ($5,000,000) per occurrence and policy aggregate, and may be provided through any combination of primary and excess or umbrella policies. Any excess or umbrella policies shall “follow form” of the primary policy. Any excess or umbrella policy shall contain a clause stating that it takes effect and thereby drops down in the event the primary policy limits are impaired or exhausted. The City and its elected and appointed officers, agents, officials, employees, representatives, consultants, volunteers and contractors (hereinafter collectively referred to as the “ City Indemnified Parties”), shall be additional insureds under the policies required by this Section A and Section C (below).
(1) This policy or policies shall include the following coverage:
a. Bodily Injury and Property Damage;
b. Personal Injury/Advertising Injury;
c. Premises/Operations Liability;
d. Products/Completed Operations Liability;
e. Bodily Injury or Damage resulting from radio frequency exposure at levels exceeding the Federal Communications Commision limits;
f. Contractual Liability with respect to the involved permit; g. Broad Form Property Damage; and,
h. Independent Consultants or Independent Contractors coverage.
(2) The policy or policies shall not exclude or delete coverage for Explosion, Collapse, Underground (“UCX”) or cross liability claims or suits by one insured against another.
(3) The policy or policies shall contain no endorsements or provisions limiting coverage for contractual liability or products/completed operations liability or any exclusion contrary to the conditions of the permit(s) issued to the Permittee by the City.
(4) The aggregate limits of any general liability policy must apply separately to each project or location.
(5) If Permittee’s general liability policy or policies do not comply with any of the requirements contained in Subsections A(1), A(2), A(3) or A(4), Permittee shall acquire additional policies necessary to comply with all of these requirements.
B. Workers Compensation . A policy or policies of insurance providing statutory workers compensation benefits and employer’s liability coverage. Employer’s liability limits shall be no less than One Million Dollars ($1,000, 000) each accident, each employee, and policy limit. The workers’ compensation policies shall provide the following:
2 Exhibit “A”
(1) A voluntary compensation endorsement;
(2) An alternate employer endorsement; and
(3) A provision extending coverage to all states operations as appropriate.
C. Automobile Liability. A policy of insurance using Insurance Services Office (ISO) form CA 00 01 or an equivalent form providing coverage at least as broad as the ISO form. Limits shall be no less than Three Million Dollars ( $3,000,000) combined single limit. This insurance shall extend to all owned, non-owned and hired automobiles.
D. General Requirements Related to Insurance Provided by Permittee.
(1) Maintenance of Coverage . Permittee’s failure to maintain all required insurance policies required by and in accordance with this Exhibit “A” shall constitute a Default of the Agreement by Permittee.
(2) Primary Insurance. All insurance policies required to be provided by Permittee are intended to apply first and on a primary, non -contributing basis in relation to any other insurance or self-insurance available to the City and/or City Indemnified Parties.
(3) Proof of Insurance. Permittee shall provide to the City copies of C ertificates of Insurance and policy endorsements, including additional insured endorsements as required, as evidence of the insurance policies required herein, along with a waiver of subrogation en dorsement for workers’ compensation. Insurance certificates and endorsements must be approved by the City prior to the effective date of the Agreement.
Current evidence of insurance shall be provided by Permittee to the City at all times during the Term of these GTCs. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.
(4) Acceptable Insurers . All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact the business of insurance in the State of California, with an assigned policyholders’ Rating of A -:VIII (or higher) and Financial Size Category Class VII (or larger), in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City.
(5) Waiver of Subrogation . All insurance policies shall contain language or be endorsed to contain language to waive subrogation against the City and the City Indemnified Parties. Such endorsement or po licy language shall not contain any additional restrictions. Permittee hereby waives its own right of recovery against the City and the City Indemnified Parties, and Permittee shall require similar written express waivers and insurance clauses from each of its contractors.
(6) Contractors. Permittee shall require each of its contractors and any person directly or indirectly employed by any of them to provide and maintain insurance as required by 3 Exhibit “A”
this Section (D)(6) unless the contractor is covered by Permittee’s insurance. Permittee shall require general liability, auto liability and workers’ compensation/employer’s liability insurance (“basic coverages”) of its contractors. Other coverages shall be required by Permittee of its contractors if their work involves specific exposures, including environmental and professional liability exposures, not covered by the basic coverages listed in this Section (D)(6). Limits of insurance required of its contractors shall be at Permittee’s discretion, but shall be consistent with custom and practice for such requirements in the geographical area where the work or services are being performed.
Permittee shall cause each contractor to include the City and the City Indemnified Parties as additional insureds under each such contractor’s insurance policies obtained, except for any professional liability insurance. Permittee shall require that each contractor obtain from his/her/its workers’ compensation insurer a waiver of subrogation rights that such insurer may have against the City and the City Indemnified Parties. If requested by the City, Permittee shall promptly provide certificates of insurance, endorsements, or copies of policies, as requested, evidencing coverage for each such contractor of Permittee.
(7) Enforcement of Contract Provisions (non estoppel). Permittee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Permittee of non- compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder.
(8) Specifications Not Limiting. Requirements of specific coverage features or limits contained in these Insurance Requirements are not intended as a limitation on coverage, limits or other requirements, or a waiver of any c overage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
(9) Notice of Cancellation . All insurance policies required by th ese Insurance Requirements shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in coverage or in limits, except after providing the City with thirty (30) calendar days’ prior written notice, except for nonpayment for which ten (10) calendar days’ prior written notice is required. Such endorsement shall not include any limitation of liability of the insurer for failure to provide such notice.
(10) Self-insured Retentions. Permittee shall be responsible, and the City shall have no responsibility, for any self -insured retentions or deductibles. Any self -insured retentions must be declared to and approved by the City . The City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible.
Self-insurance will not be considered to comply with these specifications unless approved by the City.
(11) Timely Notice of Claim s. Permittee shall give the City prompt and timely written notice of claims made or suits instituted that arise out of or result from Permittee’s actions or inactions under the Agreement, and that involve or may involve coverage under any of the required insurance policies.
4 Exhibit “A”
(12) Additional Insurance. Permittee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judg ment may be necessary for its proper protection in connection with the Agreement.
(13) Renewal Policies . Permittee shall promptly deliver to the City a certificate of insurance and copies of all required endorsements with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance policies under the terms specified herein.
(14) Support of Indemnifications . The insurance policies provided hereunder by Permittee are not intended to, and shall not be considered, in terpreted, or deemed to, limit Permittee’s obligations to indemnify, protect, defend and hold harmless under th e Agreement.
(15) No Recourse. There shall be no recourse against the City or the City Indemnified Parties for payment of premiums, deductibles , self -insured retentions or any other amounts with respect to insurance policies required by th ese Insurance Requirements , nor shall any policies of insurance require such payment from the City or the City Indemnified Parties.