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
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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.
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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.
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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;
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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.
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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
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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
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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.
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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'
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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.
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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
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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.