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HomeMy WebLinkAboutOrdinance 4278 ORDINANCE NO, 4278 AN ORDINANCE PROVIDING FOR THEMANAGEMENT7M PRESERVATION OF THE CITY'S RIGHTS-OF-WAY AND PUBLIC PLACES WITH RESPECT TO TELECOMMUNICATIONS SERVICES; PROVIDING FOR TERMS AND CONDITIONS UNDER WHICH TELECOMMUNICATIONS PROVIDERS AND LESSEES MAY OCCUPY THE CITY' S RIGHTS-OF-WAY AND PUBLIC PLACES; PROVIDING FOR COMPENSATION TO THE CITY ON A COMPETITIVELY NEUTRAL AND NON- DISCRIMINATORY BASIS ; CREATING AN OFFENSE AND PROVIDING PENALTIES. WHEREAS, the provisions of telecommunications services has become an essential part of modem life that can significantly enhance the quality of life for the City's residents, businesses and institutions; and WHEREAS, the City's rights-of-way and public places are valuable assets to the City and its residents, businesses and institutions; and WHEREAS, the City has invested and will continue to invest substantial public monies in the acquisition, construction and maintenance of public rights-of-way and public places; and WHEREAS, grant of permission to a private entity to use public rights-of-way and public places is a valuable property right that eliminates the necessity for the private entity to invest substantial capital; and WHEREAS, the City is entitled to fair and reasonable compensation from a telecommunications provider who utilizes the City's public rights-of-way and public places for the delivery of its services; and WHEREAS, the United States Congress has recently adopted the Telecommunications Act of 1996 (the "Act"), which substantially amended the telecommunications law of the United States; and WHEREAS, Section 253(a) ofthe Act provides that no local regulation or legal requirement may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service; and WHEREAS, Section 253(c) of the Act provides that nothing in the Act affects-the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed; and Page 2 Ordinance No. 4278 WHEREAS, it is in the best interests of the City and its residents, businesses and institutions, to establish rules and regulations that encourage the provision of telecommunications services, encourage telecommunications competition, treat telecommunications providers on a competitively neutral and nondiscriminatory basis, preserve and protect the City's rights-of-way and public places, secure fair and reasonable compensation for the private use ofthe City's rights-of-way and public places, and take such other necessary steps to responsibly protect the public health, safety and welfare; NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF FAYETTEVILLE, ARKANSAS, THAT: Section 1 . TITLE. This Ordinance shall be known as "The City of Fayetteville Telecommunications Ordinance". Section 2. DEFINITIONS. As used in this Ordinance, the following terns shall have the meanings set out: 2. 1 . "Applicant" means atelecommunications provider or telecommunications lessee that applies for a franchise or license pursuant to this Ordinance. 2.2. "Franchise fee" means compensation paid to the City by the telecommunications provider or lessee in exchange for the use of the City's streets to deliver telecommunications services. 2.3. "Gross revenues" means all revenues from basic local service, excluding, among other things, extension, terminal equipment, toll, access, yellow pages, and other miscellaneous equipment revenues, consistent with Arkansas Code Ann. § 14-200- 101 (a)(1 )(E). 2.4. "Person" means any individual, resident, citizen, business, firm, corporation, partnership, governmental agency, or institution. 2.5 . "Streets" means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the City. 2.6. "Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received. Page 3 Ordinance No. 4278 2.7. "Telecommunications facilities" or "facilities" means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable) and appurtenances owned or utilized by a telecommunications provider or telecommunications lessee and located in, under or over the Streets of the City and utilized in the provision of telecommunications services. 2.8. "Telecommunications lessee" or "lessee" means any person, firm, corporation, partnership, or other business entity, including "resellers," that provides telecommunications services within the geographic boundaries of the City, including long-distance services that originate or terminate in the City, by utilizing, purchasing or leasing a telecommunications facility of a telecommunications provider or any element thereof, whether through purchase, lease, contract, interconnection agreement, or other business arrangement; provided that a person that owns its own telecommunications facilities in the City and utilizes, purchases or leases telecommunications facilities or elements thereof of other telecommunications providers in the City shall be classified as a telecommunications provider under the terms of this Ordinance. 2.9. "Telecommunications provider" or "provider" means any person, firm, corporation, partnership or other business entity, other than the City, that provides telecommunications services within or without the geographic boundaries of the City by utilizing its own telecommunications facilities to provide telecommunications services. 2. 10. "Telecommunications services" or "services" means any service delivering telecommunications by a telecommunications provider or lessee that the provider or lessee is authorized to provide under federal, state and local law, except that these terms do not include "cable service" as defined in the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 521 et seq., and the Telecommunications Act of 1996. 2. 11 . "Transmission line" means a telecommunications facility that is used solely for the purpose of transmitting signals from one point to another point and does not include a line for the purpose of delivering telecommunications services to any person in the City. Section 3. REQUIREMENT OF CITY'S CONSENT. 3. 1 . Every telecommunications provider and telecommunications lessee that utilizes a telecommunications facility must obtain a franchise or license from the City in accordance with this Ordinance in order to provide telecommunications services. Prior to providing any telecommunications facility, or utilizing any telecommunications facility, the provider or lessee must agree in writing to comply with the terms and conditions of this Ordinance and enter into a franchise agreement or license agreement. Page 4 Ordinance No. 4278 Section 4. APPLICATION PROCESS. 4. 1 . Any telecommunications provider or lessee seeking to utilize the Streets to provide telecommunications service (the "Applicant") shall complete a brief application form approved by the Department of Public Works. Such application form shall briefly describe the general nature of the service to be provided, the type of construction or use of facilities required, the name, address and telephone number of the person or entity seeking to provide the service, and the name, address and telephone number of an authorized representative of the person or entity. 4.2. The Applicant shall also provide evidence in a form satisfactory to the City that it has the financial, legal and technical qualifications necessary to provide the service for which it seeks a franchise or license. The provision of authorization from the Arkansas Public Service Commission shall be deemed satisfactory evidence of these qualifications. 4.3. In considering whether to grant a franchise or license or impose terms and conditions on the grant of a franchise or license, the City may consider, without limitation, the following factors to the extent not already considered by the Arkansas Public Service Commission: a) the Applicant's financial ability to pay the compensation and fees required by this Ordinance; b) the Applicant's ability to construct and operate the telecommunications facilities it seeks to utilize; C) the Applicant's compliance with the terms and conditions of federal, state and local law including applicant's compliance in other jurisdictions in which it operates; d) the capacity of the Streets to accommodate the Applicant's proposed facilities; e) the damage ordisruption, if any, ofpublic orprivate facilities, improvements, or landscaping if a franchise or license is granted; f) the public interest in minimizing the cost and disruption of construction in, on, under and above the Streets; g) the effect of public health, safety or welfare if a franchise or license is granted; Page 5 Ordinance No. 4978 h) the availability of alternate routes and/or locations for the proposed facilities; i) whether the imposition of certain terms and conditions or the failure to grant the requested franchise or license would prohibit or have the effect of prohibiting the ability of the Applicant to provide any interstate or intrastate telecommunications services; and j) any other factor relating to whether the grant of a franchise or license impinges on the City's right to manage its Streets. 4.4. An Applicant for a telecommunications franchise or license shall submit with its Application a fee in the amount of $ 150.00 in partial compensation to the City for processing the Application. 4.5 . If the City approves the Application, the provider or lessee shall reimburse the City for any reasonable costs and expenses, including attorney's fees, incurred by the City, which are not already covered by the Application fee required in Section 4.4 of this Ordinance, to review and evaluate the Application and prepare and negotiate a franchise agreement or license agreement with the provider or lessee, and including the costs of any publication of an ordinance as provided in Section 5 . 4.6. All Applications and/or amendments to franchise agreements shall be forwarded by the City of Fayetteville Telecommunications Board for their advice, if any, prior to City approval. 4.7. Fees, costs and expenses imposed by City on a telecommunications provider or lessee shall, only to the extent specifically required by applicable law including the regulations of the Arkansas Public Service Commission, be credited toward the Franchise fee imposed on the telecommunications provider or lessee. Section 5 . FRANCHISE OR LICENSE AGREEMENT. 5 . 1 . As a condition of the grant of a franchise or license, the provider or lessee shall enter into a franchise agreement or a license agreement with the City. A telecommunications provider shall enter into a franchise agreement. A telecommunications lessee shall enter into a license agreement. 5 .2. The franchise agreement or license agreement shall contain such additional terms and conditions as are not in conflict with the terms of this Ordinance as may be necessary and appropriate for the particular circumstances of the provider or lessee and its delivery of telecommunications services. Page 6 Ordinance No. 4278 5.3 . The franchise agreement or license agreement shall be adopted as an ordinance by the City prior to the initiation of any construction or the delivery of any service. 5 .4. A franchise agreement may be amended from time to time upon agreement of the City and the provider or lessee. 5 .5. It is not the policy or intention of the City in this Ordinance to prohibit the provision of telecommunications service within the City but rather to protect the City' s interests in the Streets. Section 6. CONSTRUCTION MAINTENANCE. 6. 1 . Construction Application. Prior to the beginning construction, excluding routine maintenance or emergency repair, of any telecommunications facility, the Applicant shall apply to the Department of Public Works of the City for permission to carry out construction activities in the City's Streets, and shall comply with all requirements of that department or any other ordinance or code applicable hereto. 6.2. Construction Plan. Prior to beginning construction, as defined above, the Applicant shall submit a plan describing the proposed construction. The plan shall specify: a) The design of any telecommunications facilities to be constructed or utilized; b) A map showing the precise location of any telecommunications facility to be constructed or utilized and any appurtenant facilities such as poles, attachments, guy wires, and the like; C) A description of any agreements that have been reached or are necessary with other telecommunications providers or providers of other utility services regarding use of existing facilities; d) The timetable for completion of construction, including any phases of construction; C) Such other information as will provide the City with pertinent information relating to the construction of the telecommunications facilities, including any pertinent information requested by the City. 6.3. Prior Authority. Prior to beginning construction, the Applicant shall have received all necessary regulatory authority to construct a telecommunications facility or provide telecommunications service from the Arkansas Public Utilities Commission, the (LI Page 7 Ordinance No. 4278 Federal Communications Commission, or other appropriate state or federal agency. Evidence that it has received such regulatory authority shall be filed with the City. 6.4. Standards of Construction. The method of construction, workmanship used, and materials utilized in the construction shall conform to all applicable federal, state and local statutes, rules, regulations and ordinances. All work shall be performed in a safe, thorough, and reliable manner using materials of good and durable quality so as not to create a hazard or dangerous condition on the Streets. If, at any time, it is determined by the City or any other agency or authority of competent jurisdiction that any telecommunications facility presents a danger to the public health, safety or welfare, then the telecommunications provider or lessee shall, at its own cost and expense, upon thirty (30) days advance written notice, at its own cost and expense, promptly correct all such conditions. 6.5 . Maintenance and Repair. Any telecommunications facility constructed or utilized pursuant to a franchise or license shall be maintained and repaired in accordance with the standards and under the terms and conditions set out in the preceding paragraph and such other terms and conditions as shall appear in this Ordinance or the franchise agreement or license agreement. 6.6. Minimal Disruption. Construction, maintenance and repair of the telecommunications facilities shall be conducted in such a manner as to minimize any interference with or disruption of the City's Streets, traffic, residences, businesses and institutions. The provider shall at all times endeaver to use trenchless technology in appropriate circumstances. 6.7. Restoration. Any disturbance of the City's Streets shall be repaired and restored by the telecommunications provider or lessee at its expense and to a condition as good as that prevailing before the work causing such disturbance was commenced. 6.8. Location of Facilities. New poles and other new facilities shall be located to the extent feasible in such a way as to minimize their effect on the visual landscape and on other aesthetic considerations and so as to minimize inconvenience. 6.9. Burial of Transmission Lines. A telecommunications provider shall place its transmission line or other facilities underground in certain areas designed by the City Council, but only if existing utility providers maintaining line or facilities in the same areas have or will be required by the City to place their lines or facilities underground. 6. 10. Co-location: Sharing of Pole Space. To the maximum extent feasible, a telecommunications provider constructing a new transmission line or other facility, or expanding an existing line or facility, shall utilize facilities. The owner of any existing Page 8 Ordinance No. 4278 facility shall to the extent permitted by law and consistent with any pole attachment regulations of the Public Service Commission, the Federal Communications Commission or other appropriate agency, permit the telecommunications provider to utilize its pole. 6. 11 . Movement of Facilities. A telecommunications provider shall be required to temporarily disconnect or relocate any of its facilities located in the Streets at its own expense when required by the City by reason of traffic conditions; public safety; or the construction, installation or repair of any public road, highway, building, park or other public project. The provider shall cooperate with any other public utility authorized by the City to provide utility service utilizing the City's Streets. If a private entity is required by City to modify or affect the Streets, that entity shall compensate the provider for its costs for the disconnection or relocation of any of the provider's facilities. Provider shall be notified by said private entity as soon as practical of any plan affecting provider's facilities. 6. 12. Tree Trimming. A telecommunications provider is authorized to trim trees in the City's Streets to the extent necessary to properly maintain its transmission line or other facility, but prior to major trimming projects, it shall provide 24 hours' notice to the City. The City, at its option, may choose to supervise such tree trimming. Upon conclusion of the tree trimming, the provider shall immediately clean up and remove all debris. 6. 13 . Curb Cuts. No provider shall make paving cuts or curb cuts without the written consent of the Director of the Department of Public Works. Section 7. PERFORMANCE BOND. 7. 1 . Prior to the provision of service, the provider shall post a performance bond, satisfactory to the City, in the City's favor to ensure faithful performance of the terms and provisions of the franchise agreement and any planned construction as designated in the construction plan the provider has filed with the City pursuant to Section 6.2. The bond shal l be equivalent to ten (10%) percent of the total cost of the construction as provided in the construction plan, or $100,000, whichever is greater. 7.2. In the event the provider fails to comply with this Ordinance or the franchise agreement, or to complete the construction in a safe, timely, and competent manner, after notice and a reasonable opportunity to cure, the City may recover,jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the provider, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. Page 9 Ordinance No. 4278 7.3 . The City in its sole discretion may waive this requirement of a bond upon provider demonstrating sufficient financial resources or upon good cause shown to the Director of the Department of Public Works. Section 8. TERM OF FRANCHISE FOR PROVIDERS. 8. 1 . Unless otherwise specified in a franchise agreement, a telecommunications franchise shall be for a term of no less than five (5) years and no more than twenty (20) years. Section 9. TERM OF LICENSE FOR LESSEES OR RESELLERS. 9. 1 . Unless otherwise specified in a license, a telecommunications license shall be for a term of no less than five (5) years and no more than twenty (20) years. Section 10. FEES. 10. 1 . Amount. Inconsideration of the City's grant of authority to utilize the City's Streets for the provision or lease of telecommunications services and for other good and valuable consideration, the telecommunications provider or lessee shall pay a franchise fee or license fee to the City in the following amounts: a) A telecommunications provider who provides service to residents, businesses or institutions in the City shall pay an amount equal to four percent (4%) of its annual Gross Revenues within the corporate limits of the City during the preceding year. Payments shall be in equal quarterly installments on or before the last day of March, June, September and December of each year; b) A telecommunications provider who provides service solely to persons outside the geographic boundaries of the City by utilizing a transmission line shall pay the City a reasonable annual fee based upon an installation fee and charge per linear foot of transmission line that traverses the City or based upon such other method as the City deems appropriate. Such a fee may be paid in a lump sum in advance, or in a combination of a lump sum plus annual payment as the City deems fit; C) A telecommunications lessee who delivers telecommunications services shall pay the City four percent (4%) of its annual Gross Revenues derived from the delivery of telecommunications service within the City. 10.2. Public Interest Oblieations. If, as a condition of the grant of a franchise or a e' Page 10 Ordinance N04278 license, the City negotiates with a telecommunications provider or lessee regarding certain conditions or requirements in the public interest as provided in Section 15 of this Ordinance, the City shall, if requested of a telecommunications provider, provide a credit against the fee based upon the percentage of Gross Revenues it would otherwise require in compensation so that the total compensation paid to the City is no more than the equivalent of that which would be required under Section 10. 1 hereof. Any such conditions or requirements will be the result of negotiations between the City and a telecommunications provider or licensee. 10.3. Time of Payment. All fees due and owing shall be paid on a quarterly basis on or before the last day of March, June, September and December of each year. 10.4. Late Payment. In the event that any payment is not actually received by the City on or before the date due under this Ordinance, interest thereon shall accrue from such date until received at the rate of ten percent ( 10%) per annum. 10.5 . Calculation of Payments. All payments made to the City shall be accompanied by a statement certified as true by an appropriate employee of the provider or lessee explaining the basis of the calculation on which the payment was made. 10.6. Payments. Payments shall be made by certified check to the City of Fayetteville, c/o City Treasurer, 113 West Mountain, Room 309, Fayetteville, Arkansas 72701 or by wire transfer to an account of the City designated in writing by the City Treasurer. 10.7. Public Disclosure. The payment of any fee under this Section 10 shall be publicly disclosed. 10.8. Audit. Upon reasonable notice, the City shall have the right to inspect and copy the telecommunications providers or lessee's books and records that are reasonably necessary for the City to determine compliance with this Section 10. A telecommunications provider or lessee shall maintain sufficient financial records governing its operation in the City to allow the determination of Gross Revenues and to otherwise document accurate payment of fees. To the extent permitted under the Arkansas Freedom of Information Act, the City shall maintain the confidentiality of such records. 10.9. Fees not a Tax. Unless otherwise inconsistent with applicable law, the fees provided in this Section 10 are not taxes and are separate from, and in addition to, any and all federal, state, local and city taxes as may be levied, imposed or due from a telecommunications provider or lessee, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services; provided that no fee imposed by this section shall be imposed in violation of state or federal law. Page 11 Ordinance No. 4278 Section 11 . INDEMNIFICATION. 11 . 1 . Asa condition of the grant of a franchise or license, the telecommunications provider or lessee shall agree to indemnify, defend and hold harmless the City, its officers, boards, commissions, agents and employees (collectively the "Indemnified Parties") from and against any and all lawsuits, claims, causes of action, actions, liabilities, demands, damages, judgments, settlements, disability, losses, expenses (including attorneys' fees and disbursements of counsel) and costs of any nature that any of the Indemnified Parties may at any time suffer, sustain or incur arising out of, based upon or in any way connected with the provider' s or lessee's operations, the exercise of the franchise or license herein granted or the breach by the provider or lessee of its obligations under this Ordinance and the franchise agreement or license and/or based upon or in any way connected with the activities of the provider or lessee, or their subcontractors, employees and agents. The provider or lessee shall be solely responsible for and shall indemnify, defend and hold the Indemnified Parties harmless from and against any and all .matters relative to payment of the providers or lessee's employees, including compliance with Social Security and withholding requirements. 11 .2. The indemnification obligations of the provider or lessee set forth in this Ordinance are not limited in any way by the amount or type of damages or compensation payable by or for the provider or lessee under Worker's Compensation, disability or other employee benefit acts, acceptance of insurance certificates required under any franchise agreement or license, if any, or the terms, applicability or limitations of any insurance held by the provider or lessee. 11 .3 . The City does not, and shall not, waive any rights against the provider or lessee which it may have by reason of the indemnification provided for in this Ordinance because of the acceptance by the City, or the deposit with the City by provider or lessee, of any of the insurance policies described in this Ordinance. 11 .4. The indemnification of the City by a provider or lessee provided for in this Ordinance shall apply to all damages and claims for damages of any kind suffered by reason of any of the provider's or lessee's operations referred to in this Ordinance regardless of whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages. 11 .5. A provider or lessee shall not be required to indemnify the City for negligence or misconduct on the part the City or its officials, boards, commissions, agents, or employees, provided that the provider or lessee shall be responsible for its proportionate share, if any, of any damages or claims resulting from any negligent act or omission. e Page 12 Ordinance No. 4278 Section 12. INSURANCE. 12. 1 . Asa condition of the grant of any franchise under this Ordinance, the provider shall, at its sole expense, take out and maintain during the term of the franchise public liability insurance with a company licensed to do business in the State of Arkansas with a rating by A.M. Best & Co. of not less than "A" that shall protect the provider, the City and their officials, officers, directors, employees and agents from claims which may arise from operations under the franchise, whether such operations be by the provider or a lessee, or its officials, officers, directors, employees and agents or any subcontractors of the provider or a lessee. This liability insurance shall include, but shall not be limited to, protection against claims rising from bodily and personal injury and damage to property, resulting from provider's or lessee's vehicles, products and operations. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall not be less than Two Million Dollars ($2,000,000.00). The following endorsements shall be attached to the liability policy: a) The policy shall provide coverage on an "occurrence" basis; b) The policy shall cover personal injury as well as bodily injury; C) The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier's standard endorsement as to bodily injuries, personal injuries and property damage; d) Broad form property damage liability shall be afforded; e) The City shall be named as an additional insured on the policy; f) An endorsement shall be provided which states that the coverage is primary insurance and that no other insurance maintained by the City will be called upon to contribute to a loss under this coverage. g) Standard form of cross-liability shall be afforded; and h) An endorsement stating that the policy shall not be canceled without thirty (30) days notice of such cancellation given to the City. 12.2. In any franchise granted pursuant to this Ordinance, the City shall reserve the right to adjust the insurance limit coverage requirements of the franchise no more often than once every three (3) years. Any such adjustment by the City will be no greater than the increase in the Arkansas Consumer Price Index (all consumers) for such three (3) year period.