Loading...
HomeMy WebLinkAbout2850 Amend AFN Cable Requ.ORDINANCE NO. ~ 850 AN ORDINANCE AMENDING THE TELECOMMUNICATIONS TITLE 16 OF THE ASHLAND MUNICIPAL CODE TO ADD PROVISIONS REGULATING CABLE SERVICE AND TO SIMPLIFY AND CLARIFY REQUIREMENTS FOR GRANTEES THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. The following section 16.04.025 is added to the Ashland Municipal Code: 16.04.025 Applicability to Cable Service and Open Video System. To the extent not specifically precluded by the Cable Act or any other federal law, this title shall apply to cable service provided within the city and to Open Video Systems, as that term is used in section 653 of the Telecommunications Act. SECTION 2. Sections 16.04.040.J, K, L, Q, Y and BB of the Ashland Municipal Code are amended to read: Franchise means an agreement between the city and a grantee which grants a privilege to use public right of way and utility easements within the city for a dedicated purpose and for specific compensation. Ko Grantee means the person to which a franchise is granted by the city. Gross Revenue. Except for a telecommunications utility, gross revenue means gross revenue derived by grantee from the provision of telecommunications services originating or terminating in the city on facilities covered by the franchise. For the purposes of this definition net uncollectibles from revenue included in gross revenues may be excluded from gross revenues. For a telecommunications utility, gross revenue means those revenues derived from exchange access services, as defined in ORS 401.710, less net uncollectibles from such revenues. Public Rights of Way include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways, including the subsurface under and air space over these areas, but only to the extent of the city's right, title, interest or authority to grant a franchise to occupy and use such streets and easements for telecommunications facilities. Public Rights of Way do not include trails, paths or sidewalks within parks or other areas of the city unless the trail, path or sidewalk has been dedicated as a right of way. Page 1 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) Reseller means any person that provides telecommunications service using a telecommunications facility within a public right of way for which service a separate charge is made, where that person does not own, lease, control or manage the telecommunications facility used to provide the service. BB. Utility Easement means any easement within the public right of way designated on a subdivision plat or partition map as a utility easement, public utility easement or "P.U.E." or any easement granted to or owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with the telecommunications facilities. SECTION 3. Section 16.08.010 is amended to read: 16.08.010 Purpose. The purpose for registration is: To assure that all telecommunications carriers who have facilities or provide services within the city comply with the ordinances, rules and regulations of the city. To provide the city with accurate and current information concerning the telecommunications carriers who offer to provide telecommunications services within the city, or that own or operate telecommunications facilities within the city. To assist the city in the enforcement of this title and the collection of any city franchise fees or charges that may be due the city. To assist the city in monitoring compliance with local, state and federal laws as they apply to grantees under this title. SECTION 5. Section 16.08.020 of the Ashland Municipal Code is amended to read: 16.08.020 Registration Required. Except as provided in section 16.08.040, all telecommunications carriers having telecommunications facilities within the corporate limits of the city, and all telecommunications carriers that offer or provide telecommunications service to customer premises within the city, shall register with the city. The appropriate application and license from: a) the OPUC; or b) the FCC qualify as necessary registration information. Applicants also have the option of providing the following information: The identity and legal status of the registrant, including the name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement. A description of the registrant's existing or proposed telecommunications facilities within the city, a description of the telecommunications facilities that the registrant intends to construct, and a description of the Page 2 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the city. Information sufficient to determine whether the transmission, origination or receipt of the telecommunications services provided or to be provided by the registrant constitutes an occupation or privilege subject to any business license requirements. A copy of the business license or license number must be provided. SECTION 6. Section 16.08.040 of the Ashland Municipal Code is amended to read: 16.08.040 Exceptions to Registration. The following telecommunications carriers are excepted from registration: Ao Telecommunications carriers that are owned and operated exclusively for its own use by the state or a political subdivision of this state and provide telecommunications services for governmental purposes only. A private telecommunications network, provided that such network does not use or occupy any public rights of way of the city. Telecommunications carriers that are grantees under a telecommunications franchise with the city or previous grantees that have timely filed for, and are actively and expeditiously pursuing, a franchise renewal. SECTION 7. Section 16.12.030 of the Ashland Municipal Code is amended to read: 16.12.030 Construction Permits. No person shall construct or install any telecommunications facilities within a public right of way in the city without first obtaining a construction permit and paying the construction permit fee established in section 16.12.070. No permit shall be issued for the construction or installation of telecommunications facilities in the public rights of way unless the telecommunications carrier has first applied for and received a franchise pursuant to chapter 16.20 or previous grantees that have timely filed for, and are actively and expeditiously pursuing, a franchise renewal. No permit shall be necessary for the installation of a customer specific wire ("a drop") by a franchise grantee where no excavation within the right of way occurs. Co No permit shall be necessary for the installation of telecommunication facilities within a utility easement that is not otherwise within, under or Page 3 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) over a public street, road, highway, bridge, alley, bikeway, sidewalk, trail or path. SECTION 8. Section 16.12.040 of the Ashland Municipal Code is amended to read: 16.12.040 Permit Applications. Applications for permits to construct telecommunications facilities within a public right of way shall be submitted upon forms to be provided by the city and shall be accompanied by drawings, plans, specifications and maps in sufficient detail to A. Demonstrate: That the facilities will be constructed in accordance with all applicable codes, rules and regulations and that the facilities will be constructed in accordance with the franchise agreement. The location and route of all facilities on or in the public rights of way to be installed above-ground or on existing utility poles. The location and route of all facilities to be located under the surface of the ground within the public rights of way. Existing facilities shall be differentiated on the plans from new construction. The location of all of applicant's existing underground utilities, conduits, ducts, pipes, mains and installations which are within the public rights of way along the underground route proposed by the applicant. A typical cross section shall be provided showing new or existing facilities in relation to the street, curb, sidewalk or right of way. The application shall also be accompanied by computer generated electronic maps of the proposed installations in a format specified by the city unless the applicant demonstrates that the format utilized was developed by the applicant and is proprietary. B. Show the location, dimension and types of all trees which will be substantially trimmed, removed or replaced as a result of the areas disturbed during construction and which are within or adjacent to the public rights of way along the route proposed by the applicant. The applicant shall submit a landscape plan, satisfactory to the city, for the replacement of such trees. SECTION 9. Section 16.12.060 of the Ashland Municipal Code is amended to read: 16.12.060 Traffic Control Plan. All work on, in, under, across or along any public rights of way shall be performed consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic. Page 4 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) SECTION 10. Section 16.12.070 of the Ashland Municipal Code is amended to read: 16.12.070 Construction Permit Fee. Unless otherwise provided in a franchise agreement, prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount to be determined by resolution of the city council. Nothing in this section shall require a telecommunications utility to pay a permit fee unless the utility is providing telecommunication services in addition to exchange access services. SECTION 11. The following section 16.12.075 is added to the Ashland Municipal Code: Section 16.12.075. Diminished Pavement Life Fee. Grantee, for any construction requiring pavement cuts, shall pay to city an amount to reimburse city for the pavement degradation and shortened pavement life that results from such cuts. Such fees shall be set by resolution of the city council and shall be based upon the linear feet of the pavement cut, the age of the pavement when cut and whether the excavation is transverse or longitudinal. This section shall not apply to a Telecommunication Utility if such fee is determined by a court of competent jurisdiction to fall within the restrictions of ORS 221.515(3). If such determination is made, then the fee shall apply only to cuts made after the determination. SECTION 12. Section 16.12.090 of the Ashland Municipal Code is amended to read: 16.12.090 Construction Schedule. The permittee shall submit a written construction schedule to the Department of Public Works before commencing any work in or about the public rights of way. At the city's request, the construction schedule shall include a best estimate deadline for completion of construction. The schedule is subject to approval by the Director of Public Works. The permittee shall further notify the Department of Public Works not less than two working days in advance of commencing the project under the issued permit for excavation or work in the public rights of way. When advance notice is not possible because of an emergency, the permittee shall give notice within 24 hours of the excavation or work. When feasible, permittee shall contact all other grantees or utilities located within the public right of way where construction is to occur. The purpose of the contact is to determine if joint projects are feasible to minimize duplication of work and unnecessary excavation. For those grantees or utilities expressing interest in a joint project, permittee shall give them reasonable notice of the particular dates on which open trenching exists. Upon mutual agreement, permittee shall make the trench available to grantees and utilities for installation of conduit, pedestals, vaults, laterals, wires, lines or equipment. The payment for the cost of trenching and installation shall be as mutually agreed to by the parties. Provided permittee demonstrates a good faith attempt to coordinate, the City shall not withhold issuance of any permit due to the inability of the permittee and any granteejdtity to agree upon scheduling of the project and/or reimbursement of costs associated with the project. Page 5 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) SECTION 13. Section 16.12.100 of the Ashland Municipal Code is amended to read: 16.12.100 Locates. The permittee is responsible for becoming familiar with, and understanding the provisions of ORS Chapter 757, governing the location of underground facilities (the "One-Call statutes"). Grantee shall comply with the terms and conditions set forth in the One-Call statutes. Every grantee under this title shall join and maintain membership in the Oregon Utility Notification Center and shall comply with the rules adopted by the center regulating the notification and marking of underground facilities. SECTION 14. Section 16.12.110 of the Ashland Municipal Code is amended to read: 16.12.110 Compliance with Permit. All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The Department of Public Works and its representatives shall be provided access to the work site and such information that is not confidential, sensitive or proprietary as they may require to ensure compliance with such requirements. SECTI ON 15. Section 16.12.120 of the Ashland Municipal Code is deleted. SECTION 16. Section 16.12.130 of the Ashland Municipal Code is deleted. SECTION 17. Section 16.12.140 of the Ashland Municipal Code is amended to read: 16.12.140 Noncomplying Work. Upon order of the Department of Public Works, after reasonable notice and an opportunity to cure has been given, all work which does not comply with the permit, the approved plans and specifications for the work, the franchise agreement or the requirements of this title, shall be removed at the sole expense of the permittee. SECTION 18. Section 16.12.150 of the Ashland Municipal Code is amended to read: 16.12.150 Completion of Construction. The permittee shall promptly complete all construction activities so as to minimize disruption of the city rights of way and other public and private property. All construction work authorized by a permit within city rights of way, including restoration, must be completed within 120 days of the date of issuance unless the city engineer agrees to a longer period. SECTION 19. Section 16.12.160 of the Ashland Municipal Code is deleted. SECTION 20. Sections 16.12.170.A, B and C of the Ashland Municipal Code are amended to read: Page 6 - ORD I NAN C E (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) When a permittee, or any person acting on its behalf, does any work in or affecting any public rights of way, other rights of way or city property, it shall, at its own expense, promptly remove any obstructions and restore such ways or property to as near the original condition as reasonably possible, unless otherwise directed by the city. If weather or other conditions do not permit the complete restoration required by this section, the permittee shall temporarily restore the affected rights of way or property if directed to do so by the city engineer. Such temporary restoration shall be at the permittee's sole expense and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. For the purpose of this subsection, temporary restoration means restoring the property to a safe condition permitting such use of the property as was made prior to the work being undertaken. Temporary restoration does not require paving, landscaping or surfacing of a permanent nature. If the permittee fails to restore rights of way or property to as near the original condition as reasonably possible, the city shall give the permittee written notice and provide the permittee a reasonable period of time, not exceeding 30 days, to restore the rights of way or property. If, after such notice, the permittee fails to restore the rights of way or property to as near the original condition as reasonably possible, the city shall cause such restoration to be made at the expense of the permittee. SECTION 21. Section 16.12.190 of the Ashland Municipal Code is amended to read: 16.12.190 Construction and Completion Bond. Unless otherwise provided in a franchise agreement, or unless the city otherwise specifically approves an alternative security to assure performance, a performance bond written by a corporate surety acceptable to the city, and authorized to transact business in Oregon, equal to at least 100% of the estimated cost of constructing grantee's telecomrnunications facilities within the public rights of way of the city shall be deposited before construction is commenced. The performance bond shall remain in force until 60 days after substantial completion of the work, as determined in writing by the city, including restoration of public rights of way and other property affected by the construction. Bo The performance bond shall guarantee, to the satisfaction of the city: 1. timely completion of construction; 2. construction in compliance with applicable plans, permits, technical codes and standards; 3. proper location of the facilities as specified by the city; Page 7 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) 4. restoration of the public rights of way and other property affected by the construction; and 5. timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. SECTION 22. Section 16.12.200 of the Ashland Municipal Code is deleted. SECTION 23. Section 16.12.210 of the Ashland Municipal Code is deleted. SECTION 24. Section 16.16.010 of the Ashland Municipal Code is amended to read: 16.16.010 Location of Facilities. All facilities located within the public right of way or utility easements shall be constructed, installed and located in accordance with the following terms and conditions, unless otherwise specified in a franchise agreement: Grantee shall install its telecommunications facilities underground unless the city specifically permits attachments to utility poles or other above- ground facilities, provided, however, no entity with existing attachments to utility poles shall be required to install new or existing facilities underground except as provided in the following subsections. Grantee shall install its telecommunications facilities within an existing underground duct or conduit owned by it whenever surplus capacity exists within such utility facility unless grantee demonstrates to satisfaction of city that such installation is not feasible. A grantee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if usable space is available as determined by the Department of Electric Utilities or the owner of the poles. Whenever any existing electric utilities are located underground within a public right of way of the city, a grantee with permission to occupy the same public right of way must also locate its telecommunications facilities underground. Whenever any overhead electric utilities are relocated underground, any grantee with permission to occupy the same public right of way must also relocate underground. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public right of way of the city, a grantee that currently occupies the same public right of way shall relocate its facilities underground concurrently with the other affected utilities to minimize disruption of the public right of Page 8 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) way, absent extraordinary circumstances or undue hardship as determined by the city and consistent with state law. The city engineer may grant exceptions to some or all of the requirements of this section if the engineer determines, in the engineer's sole discretion, that a waiver is necessary to fulfill the purpose and intent of this title. SECTION 25. Section 16.16.030 of the Ashland Municipal Code is amended to read: 16.16.030 Relocation or Removal of Facilities. Within 60 days following written notice from the city, a grantee shall, at no expense to the city, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public rights of way whenever the city shall have determined that such removal, relocation, change or alteration is reasonably necessary for: The construction, repair, maintenance or installation of any city or other public improvement in or upon the public rights of way. The operations of the city or other governmental entity in or upon the public rights of way unless such city operations are exclusively for its telecommunications purposes or cable services which compete with other telecommunications carriers or cable services. Notwithstanding the 60 day limit, a grantee shall, at no expense to the city, relocate overhead facilities within 30 days following written notice from the Electric Utilities Department that the city or a joint pole owner has space on poles for such purpose. The 30 or 60 day limit may be waived by consent of the parties. Waivers shall not be unreasonably withheld. SECTION 26. Section 16.16.040 of the Ashland Municipal Code is amended to read: 16.16.040 Removal of Unauthorized Facilities. Within 30 days following written notice from the city, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public rights of way of the city shall, at its own expense, remove such facilities or appurtenances from the public rights of way of the city. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: One year after the expiration or termination of the grantee's telecommunications franchise unless the grantee has timely filed for, and is actively and expeditiously pursuing, a franchise renewal. Upon abandonment of a facility within the public rights of way of the city. A facility will be considered abandoned when it is deactivated, out of Page 9 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) service, or not used for its intended and authorized purpose for a period of 90 days or longer. A facility will not be considered abandoned if it is temporarily out of service during performance of repairs, if the facility is excess capacity of a current grantee who is not in default, if the facility is being replaced or if the facility has been disconnected because the building or property being served is vacant. If the system or facility was constructed or installed without the prior grant of a telecommunications franchise. If the system or facility was constructed or installed without the prior issuance of a required construction permit. If the system or facility was constructed or installed at a location not permitted by the grantee's telecommunications franchise. If the system interferes with or adversely affects existing telecommunication facilities. The 30 day limit may be waived by consent of the parties. Waivers shall not be unreasonably withheld. If all the facilities and appurtenances are not removed within one year after the termination or expiration of the franchise or such further time as may be granted by the city, they shall be forfeited to the city. The city may notify the grantee, carrier or other person described above that it waives forfeiture and may compel removal from the public right of way and restoration of the right of way and may maintain court suit to require such removal and restoration by the grantee, carrier or other person or the payment of the cost thereof by the grantee, carrier or other person. SECTION 27. Chapter 16.20 of the Ashland Municipal Code is amended to read in its entirety as follows: Chapter 16.20 Telecommunications Franchise Sections: 16.20.020 16.20.030 16.20.040 16.20.050 16.20.060 16.20.070 16.20.090 16.20.110 16.20.120 16.20.130 Telecommunications Franchise Application Application and Review Fee Determination by the city Rights Granted Term of Grant Franchise Territory Amendment of Grant Renewal Applications Renewal Determinations Page 10 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) 16.20.140 16.20.150 16.20.160 16.20.170 16.20.180 16.20.190 16.20.200 16.20.210 Obligation to Cure As a Condition of Renewal Assignments or Transfers of Grant, Notice to city Transactions Affecting Control of Grant Revocation or Termination of Franchise Notice and Duty to Cure Public Hearing Standards for Revocation or Lesser Sanctions Other City Costs 16.20.020 Telecommunications Franchise. A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public rights of way of the city. 16.20.030 Application. Any person that desires a telecommunications franchise pursuant to this chapter shall file an application with the Finance Department which shall include the following information: A. The identity of the applicant: A description of the telecommunications services that are to be offered or provided by the applicant over its telecommunications facilities within the city. Co Preliminary engineering plans, specifications and a network map of the facilities to be located within the public rights of way in the city, including copies in a computerized format specified by the city (unless the applicant demonstrates that the format utilized was developed by the applicant and is proprietary) and all in sufficient detail to identify: 1. the location and route requested for applicant's proposed telecommunications facilities; 2. the specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate. If applicant is proposing to install above-ground facilities, to the extent that the applicant will be using utility poles, evidence from the Electric Utilities Department or pole owner that usable space is available for locating the applicant's telecommunications facilities on existing utility poles along the proposed route; and if usable space is not available in some or all service areas, an indication of these locations and a "make ready" schedule for completion. If the applicant is proposing an underground installation in existing ducts or conduits within the public rights of way, provide information in sufficient detail to identify: Page 11 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) 1. the excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities; 2. the excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public rights of way: 1. the location proposed for the new ducts or conduits; 2. the excess capacity that will exist in such ducts or conduits after the installation of applicant's telecommunications facilities. G. A preliminary construction schedule and completion date. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities. Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services proposed. Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising. Lo An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease. A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions. N. As Builts, after completion of initial construction. O. A description of applicant's access and line extension policies. The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area. Page 12 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) 16.20.040 Application and Review Fee. A. Any applicant for a franchise pursuant to this chapter shall pay an application and review fee in an amount to be determined by resolution of the city council. This section shall not apply to a telecommunication utility which provides only local exchange access. B. The application and review fee shall be deposited with the city as part of the application filed pursuant to section 16.20.030. 16.20.050 Determination by the City. The city shall issue a written determination granting or denying the application in whole or in part, applying the standards listed below. If the application is denied, the written determination shall include the reasons for denial. The standards to be applied by city are: A. The financial and technical ability of the applicant. B. The legal ability of the applicant. C. The capacity of the public rights of way to accommodate the applicant's proposed facilities. D. The capacity of the public rights of way to accommodate additional utility and telecommunications facilities if the franchise is granted. E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted. F. The public interest in minimizing the cost and disruption of construction within the public rights of way. G. The service that applicant will provide to the community and region. H. The effect, if any, on public health, safety and welfare if the franchise is granted. I. The availability of alternate routes or locations for the proposed facilities. J. Applicable federal and state telecommunications laws, regulations and policies. K. Such other factors as may demonstrate that the grant to use the public rights of way will serve the community interest. 16.20.060 Rights Granted. No franchise granted under this chapter shall convey any right, title or interest in the public rights of way, but shall be deemed a grant to use and Page 13 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) occupy the public rights of way for the limited purposes and term, and upon the conditions stated in the agreement. 16.20.070 Term of Grant. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this title shall be in effect for a term of five years. 16.20.090 Franchise Territory. Unless otherwise specified in a franchise agreement, telecommunications franchise granted under this chapter shall be limited to the specific geographic area of the city to be served by the franchise grantee, and the public rights of way necessary to serve such areas. 16.20.110 Amendment of Grant. Conditions for amending a franchise: A new application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public rights of way of the city which are not included in a franchise previously granted under this title unless the grantee has already received a franchise to occupy public rights-of-way in all areas of the city. If ordered by the city to locate or relocate its telecommunications facilities in public rights of way not included in a previously granted franchise, the city shall grant an amendment without further application. A new application and grant shall be required of any telecommunications carrier that desires to provide a service which was not included in a franchise previously granted under this title. 16.20.120 Renewal Applications. A grantee that desires to renew its franchise under this chapter shall, not less than 90 days before expiration of the current agreement, file an application with the city for renewal of its franchise which shall include the following information: The information required pursuant to section 16.20.030 that has not previously been provided to the city in connection with grantee's existing franchise agreement. Any information required pursuant to the franchise agreement between the city and the grantee. 16.20.130 Renewal Determinations. Within 90 days after receiving a complete application under section 16.20.120, the city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for non-renewal. A. The financial and technical ability of the applicant. Page 14 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) B. The legal ability of the applicant. The continuing capacity of the public rights of way to accommodate the applicant's existing facilities. The applicant's compliance with the requirements of this title and the franchise agreement. Applicable federal, state and local telecommunications laws, rules and policies. Such other factors as may demonstrate that the continued grant to use the public rights of way will serve the community interest. 16.20.140 Obligation to Cure As a Condition of Renewal. No franchise shall be renewed until any ongoing violations or defaults in the grantee's performance of the agreement, or of the requirements of this title, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city. 16.20.150 Assignments or Transfers of Grant, Notice to city. Ownership or control of a majority interest in a telecommunications system or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the city, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent. Grantee and the proposed assignee or transferee of the franchise or system shall agree, in writing, to assume and abide by all of the provisions of the franchise. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this title. Unless otherwise provided in a franchise agreement, the grantee shall reimburse the city for all direct and indirect fees, costs, and expenses reasonably incurred by the city in considering a request to transfer or assign a telecommunications franchise. Any transfer or assignment of a telecommunications franchise, system or integral part of a system without prior approval of the city under this section or pursuant to a franchise agreement shall be void and is cause for revocation of the grant. Page 15 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) 16.20.160 Transactions Affecting Control of Grant. Any transactions which singularly or collectively result in a change of ten percent or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of grantee's telecommunication system, facilities or substantial parts of such capacity or bandwidth, shall be considered an assignment or transfer requiring city approval pursuant to section 16.20.150. Transactions between affiliated entities are not exempt from city approval. 16.20.170 Revocation or Termination of Franchise. A franchise to use or occupy public rights of way of the city may be revoked for the following reasons: Construction or operation in the city or in the public rights of way of the city without a franchise grant of authorization. B. Construction or operation at an unauthorized location. C. Unauthorized substantial transfer of control of the grantee. Failure to comply with section with respect to sale, transfer or assignment of a telecommunications system or franchise. Unauthorized sale, assignment or transfer of grantee's franchise assets, or a substantial interest in the franchise. Misrepresentation by or on behalf of a grantee in any application to the city. G. Abandonment of telecommunications facilities in the public rights of way. H. Failure to relocate or remove facilities as required in this title. Willful or continued failure to pay taxes, compensation, fees or costs when and as due the city unless subject to a bona fide dispute. J. Insolvency or bankruptcy of the grantee. K. Violation of a material provision of this title. L. Violation of a material term of a franchise agreement. 16.20.180 Notice and Duty to Cure. Pursuant to section 16.20.170, in the event that the city believes that grounds exist for revocation of a franchise, the city shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding 30 days to furnish evidence: Page 16 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance. B. That rebuts the alleged violation or noncompliance. That it would be in the public interest to impose some penalty or sanction less than revocation. 16.20.190 Public Hearing. In the event that a grantee fails to provide evidence reasonably satisfactory to the city as provided in section 16.20.180, the city administrator shall refer the apparent violation or non-compliance to the city council. The city council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. 16.20.200 Standards for Revocation or Lesser Sanctions. If persuaded that the grantee has violated or failed to comply with material provisions of this title, or of a franchise agreement, the city council shall determine whether to revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: A. Whether the misconduct was egregious. B. Whether substantial harm resulted. C. Whether the violation was intentional. Do Whether there is a history of prior violations of the same or other requirements. E. Whether there is a history of overall compliance. F. Whether the violation was voluntarily disclosed, admitted or cured. 16.20.210 Other City Costs. All grantees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the franchise or any franchise agreement. SECTION 28. Section 16.24.010 of the Ashland Municipal Code is amended to read: 16.24.010 Facilities. Each grantee shall provide the city with an accurate map or maps certifying the location of all telecommunications facilities within the public rights of way. Each grantee shall provide updated maps annually including copies in a computerized format specified by the city (unless the grantee demonstrates that the format utilized was developed by the applicant and is proprietary). Page 17 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) SECTION 29. Section 16.24.020 of the Ashland Municipal Code is amended to read: 16.24.020. Damage to Grantee's Facilities. Unless directly and proximately caused by willful, intentional, malicious, or negligent acts by the city, the city shall not be liable for any damage to or loss of any telecommunications facility within the public rights of way of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public rights of way by or on behalf of the city, or for any consequential losses resulting directly or indirectly from such work. SECTION 30. Section 16.24.040 of the Ashland Municipal Code is amended to read: 16.24.040 Nondiscrimination. A grantee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for grantee's services; provided, however, that nothing in this chapter shall prohibit a grantee from making any reasonable classifications among differently situated customers. SECTION 31. Section 16.24.050 of the Ashland Municipal Code is deleted. SECTION 32. Section 16.24.060 of the Ashland Municipal Code is amended to read: 16.24.060 Compensation for City Property. If any right is granted, by lease, franchise or other manner, to use and occupy city property not located within a public right of way for the installation of telecommunications facilities, the compensation to be paid for such right and use shall be fixed by the city. SECTION 33. Section 16.24.070 of the Ashland Municipal Code is amended to read: 16.24.070 Franchise Fees. As compensation for the benefits and privileges under its franchise and in consideration of permission to use the right-of-way of the city, the grantee shall pay a quarterly franchise fee to the city, through the duration of its franchise, as follows: The minimum quarterly franchise fee shall be set by resolution of the council. The franchise fee for a telecommunication utility shall equal 7% of its gross revenue on exchange access services earned within the boundaries of the city. Except for limited use telecommunication grantees, the franchise fee shall equal a percent of the grantee's gross revenues derived from grantee's provision of telecommunications services and telecommunications facilities to retail customers and one percent (1%) on all other gross revenues derived from grantee's provision Page 18 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) of telecommunications services and telecommunications facilities to wholesale customers, including other telecommunications carriers, if such customers or carriers are also telecommunication grantees under this title. If such customers or carriers are not grantees, then the franchise fee shall equal the fee for retail customers. The amount of the percent for retail customers shall be set by resolution of the council. A limited use telecommunication grantee shall pay a fee based on the number of linear feet of right of way used. A limited use telecommunication grantee is defined as one whose franchise limits the amount of linear feet the grantee may occupy or one who has a franchise as of October 1998 for the purpose of long distance telecommunications. The fee per linear foot shall be set by resolution of the council. The annual franchise fee collectable from a telecommunications utility shall not exceed the maximum amount under Oregon Law. The city shall accept from a telecommunications utility, in full payment of the franchise fee, the maximum amount allowed under Oregon law. On request, the telecommunications utility must provide documentation to support its calculation. Grantee shall be "providing" telecommunications services or facilities if it sells, leases, resells, or otherwise conveys such services or facilities for consideration. A grantee providing resold telecommunications services or facilities shall be entitled to a credit against its franchise fee for an amount equal to a percentage of the price paid for such services or facilities at wholesale. Such percentage shall be set by resolution of the council. So long as it registers with the city as required in chapter 16.08 and pays the fees required for grantees set forth is subsections A and B above, a reseller may use another person's facilities to engage in telecommunications activities in the right-of-way without obtaining a franchise, providing the reseller does not, either itself or through an affiliate, own or lease, control or manage any facilities in the right- of-way and is not involved in construction or repair of facilities in the right-of-way. For purposes of calculating the fees to be paid by a reseller, the amount of compensation paid by the reseller to the owner or manager of facilities in the right-of-way for the services it resells shall be deducted from the reseller's gross revenues before applying the percentage rates described in subsection C above. Page 19 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) Payment shall be made by each April 25, July 25, October 25 and January 25 for the quarter just ended. Any grantee who fails to remit any fee imposed by this chapter within 30 days of the date it is due, shall pay interest at the rate of one percent (1%) per month or fraction thereof on the amount of the fee from the date on which the remittance first became due until paid. SECTION 34. The paragraph following section 16.24.100.D of the Ashland Municipal Code is amended to read: The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the telecommunications franchise, and such other period of time during which the grantee is operating without a franchise, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement: "This policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the city, by registered mail, of a written notice addressed to the city's risk manager of such intent to cancel or not to renew." SECTION 35. Section 16.24.110 of the Ashland Municipal Code is amended to read: 16.24.110 General Indemnification. Each franchise agreement shall include, to the extent permitted by law, grantee's express undertaking to defend, indemnify and hold the city and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this title or by a grant agreement made or entered into pursuant to this title. SECTION 36. Section 16.24.120 of the Ashland Municipal Code is amended to read 16.24.120 Performance Surety. Unless the city otherwise specifically approves an alternative security to assure performance, before a franchise granted pursuant to this title is effective, the grantee shall provide and maintain a performance bond, in form and substance acceptable to the city, as security for the full and complete performance of this title, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rules, regulations or permits of the city. Page 20 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) SECTION 37. The following chapter 16.26 is added to Title 16 of the Ashland Municipal Code: Chapter 16.26 CABLE FRANCHISE REQUIREMENTS Sections: 16.26.010 16.26.020 16.26.030 16.26.040 16.26.050 16.26.060 Grant of Franchise. Franchise Required. Length of Franchise. Cable Franchise Characteristics. Cable Franchisee Subject to Other Laws, Police Powers. Operation of a Cable System Without a Franchise. 16.26.010 Grant of Franchise. A. The city may grant one or more cable television franchises containing such provisions as are reasonably necessary to protect the public interest, and each such franchise shall be awarded in accordance with and subject to the provisions of this chapter. B. This chapter may be amended from time to time, and in no event shall this chapter be considered a contract between the city and a franchisee such that the city would be prohibited from amending any provision of this chapter, provided no such amendment shall in any way impair any contract right or increase obligations of a franchisee under an outstanding and effective franchise except in the lawful exercise of the city's police power. C. This chapter shall be in addition to the requirements of Title 16 that are specifically made applicable to cable service as provided in section 16.04.025. In the event of a conflict between this chapter and other requirements of Title 16, this chapter shall control. 16.26.020 Franchise Required. No person may construct, operate or maintain a cable system or provide cable service over a cable system within the city without a franchise granted by the city authorizing such activity. No person may be granted a franchise without having entered into a franchise agreement with the city pursuant to this chapter. For the purpose of this provision, the operation of part or all of a cable system within the city means the use or occupancy of rights-of-way by facilities used to provide cable service. To the extent permitted by law, a telecommunications utility, as defined by state law, which utilizes its system to provide cable service shall be Page 21 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) subject to this chapter and shall require a cable franchise under this chapter. Services similar to cable service, such as open video system service, shall also be subject to this chapter to the extent provided by law. A system shall not be deemed as operating within the city even though service is offered or rendered to one or more subscribers within the city, if no right-of-way is used or occupied. All cable franchises granted pursuant to this chapter shall contain substantially similar terms and conditions, which, taken as a whole and considering relevant characteristics of the applicants, do not provide more or less favorable terms and conditions than those required of other cable franchisees. 16.26.030 Length of Franchise. Unless otherwise specified in a cable franchise, no cable franchise shall be granted for a period of more than five years. 16.26.040 Cable Franchise Characteristics. A cable franchise authorizes use of rights-of-way for installing, operating and maintaining cables, wires, lines, optical fiber, underground conduit and other devices necessary and appurtenant to the operation of a cable system to provide cable services within the city, but does not expressly or implicitly authorize a franchisee to provide service to, or install a cable system on private property without owner consent, or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the pole owner. A cable franchise shall not mean or include any exclusive right for the privilege of transacting and carrying on a business within the city as generally required by the laws of the city. A cable franchise shall not confer any authority to provide telecommunications services or any other communications services besides cable services and a separate franchise shall be required for the provision of telecomrnunications services in addition to the cable franchise. A franchise shall not confer any implicit rights other than those mandated by federal, state or local law. A cable franchise is nonexclusive and will not explicitly or implicitly: preclude the issuance of other franchises to operate cable systems within the city; affect the city's right to authorize use of rights-of-way by other persons to operate cable systems; or for other purposes as it determines appropriate. Once a cable franchise has been accepted and executed by the city and a franchisee, such cable franchise shall constitute a valid and enforceable agreement between the franchisee and the city, and the terms, conditions and provisions of such franchise, subject to this chapter and all other duly Page 22 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) enacted and applicable laws and regulations, shall define the rights and obligations of the franchisee and the city relating to the franchise. All privileges prescribed by a cable franchise shall be subordinate to any prior lawful occupancy of the rights-of-way and the city reserves the right to reasonably designate where a franchisee's facilities are to be placed within the rights-of-way through its generally applicable permit procedures. A cable franchise shall be a privilege that is in the public trust and personal to the original franchisee. No franchise transfer shall occur without the prior written consent of the city council upon application made by the franchisee pursuant to this chapter, the franchise and applicable law. Consent shall not be unreasonably withheld, and any purported franchise transfer made without application and prior written consent shall be void and shall be cause for the city to revoke the cable franchise. 16.26.050. Cable Franchisee Subject to Other Laws, Police Powers. A cable franchisee shall at all times be subject to and shall comply with all applicable federal, state and local laws and regulations, including this chapter. A cable franchisee shall at all times be subject to all lawful exercise of the police power of the city including, but not limited to, all rights the city may have under the cable act, all powers regarding zoning, supervision of construction, control of rights-of-way and consumer protection. The city shall have full authority to regulate cable systems, cable franchisees and franchises as may now or hereafter be lawfully permissible. 16.26.060. Operation of a Cable System Without a Franchise. Any person who occupies rights-of-way for the purpose of operating or constructing a cable system or provides cable service over a cable system and who does not hold a valid franchise from the city shall be subject to all requirements of this chapter. The city administrator shall have the authority: To require such person to enter into a franchise within 30 days of receipt of written notice that a franchise is required; or To require such person to remove its property and restore the affected area to a condition satisfactory to the city. The city administrator may direct city personnel, or may employ contractors, to remove the property and restore the affected area to a condition satisfactory to the city and charge the person the costs therefor. C. To take any other action it is entitled to take under applicable law. Page 23 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd) In no event shall a franchise be created unless it is issued by the city pursuant to this chapter and subject to a written franchise agreement. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the 5th day of October , 1999, and duly ctob'th PAS~O _~O er Barbara Christensen, City Recorder ,1999. SIGNED and APPROVED this Paul Nolte, City Attorney day of ~:)~ ,1999. Catherine M. Shaw, Mayor Page 24 - ORDINANCE (F:\USER\PAUL\Telecommunications\Ordinances\ashland amend 999.wpd)