Chapter
31A
TELECOMMUNICATIONS
SERVICE PROVIDERS
Art. I. Purpose,
Findings and Definitions, §§ 31A-1—31A-9
Art. II. License or Franchise to Occupy
Rights-of-Way,
§§
31A-10—31A-19
Art. III. Rental Fees for Use of Public
Rights-of-Way,
§§
31A-20—31A-29
Art. IV. Location and Relocation of Facilities
in Rights-of-Way,
§§
31A-30—31A-39
Art. V. General Provisions, §§ 31A-40—31A-42
ARTICLE I. PURPOSE, FINDINGS AND DEFINITIONS
Sec. 31A-1. Purpose and findings.
(a) The
purpose of this chapter is to establish a policy governing the management of
public highways for the provision of telecommunications services to enable the
city to:
(1) Issue licenses and franchises to
telecommunications corporations who use the public highways to provide
telecommunications services on a competitively neutral and nondiscriminatory
basis, except in cases where state law forbids establishment of a license or
franchise requirement;
(2) Manage the public highways in order to
minimize the impact and cost to
(3) Manage the public highways so as to
maximize their efficient use, thereby minimizing the foreclosure of future
additional uses of such rights-of-way; and
(4) Minimize congestion, inconvenience, visual
impact, and other adverse effects on the city's public highways.
(b) Therefore,
in this chapter the city council intends:
(1) To ensure that locally elected officials
manage local public highways consistent with their fiduciary trust obligations;
(2) To ensure compliance with public health,
safety and welfare measures for public highways;
(3) To encourage public-private partnerships to
provide telecommunications facilities needed for the most cost-effective
delivery of public services, including schools, libraries, police and fire
protection, as well as private services;
(4) To conserve the limited physical capacity
of the public highways held in public trust by the city; and
(5) To assure that the city's current and
ongoing costs of granting and regulating private access to and use of the
public highways are fully paid by the persons seeking such access and causing
such costs.
(Ord.
No. 97.69,
Sec. 31A-2. Definitions.
For the purpose of this chapter, unless
the context otherwise requires, the following terms, phrases, words and their
derivatives shall have the meanings given herein.
Cable
services and cable system shall
have the same meaning as defined in Chapter 10 of the Tempe City Code.
Commercial
mobile radio service means two (2) way voice commercial mobile radio
service as defined by the Federal Communications Commission in 47 U.S.C. § 157.
Facilities
means the plant,
equipment and property used in the provision of telecommunications services and
not owned by the city, including but not limited to poles, wires, pipe,
conduits, pedestals, antenna and other appurtenances placed in, on or under
public highways.
Provider
means a telecommunications corporation who constructs, installs, operates
or maintains telecommunications facilities in the city public highways.
Public
highway or highway means all
roads, streets and alleys and all other dedicated public rights-of-way and
public utility easements of the city.
Rights-of-way
shall have the same
meaning as public highway or highway.
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 as sent and
received. The term does not include
commercial mobile radio services, pay phone services, interstate services or
cable services.
Telecommunications
corporation means any
public service corporation to the extent that it provides telecommunications
services in this state.
Telecommunications
services means the
offering of telecommunications for a fee directly to the public, or to such
users as to be effectively available directly to the public, regardless of the
facilities used.
(Ord. No. 97.69,
Secs. 31A-3—31A-9. Reserved.
ARTICLE II. LICENSE OR FRANCHISE TO OCCUPY RIGHTS-OF-WAY
Sec. 31A-10. License or franchise required.
(a) No
telecommunications corporation shall install, maintain, construct or operate
telecommunications facilities in any public highway in the city unless a
license to use the highways to provide telecommunications services has first
been granted by the city council under this chapter or a franchise awarded by
the electorate under Article XIII of the Arizona Constitution and this chapter
to such telecommunications corporation.
(b) Notwithstanding
subsection (a), any telecommunications corporation that was providing
telecommunications service within the State of Arizona as of October 31, 1997,
pursuant to a grant made to it or its lawful predecessors prior to the
effective date of the Arizona Constitution, may continue to provide
telecommunications services pursuant to that state grant, until and unless the
state grant is lawfully repealed, revoked or amended, and need not obtain any
further authorization from the city to provide telecommunication services;
provided, however, that such entity must in all other respects comply with the
requirements applicable to telecommunications corporations, as provided in
Title 9, Chapter 5, Article 7, Arizona Revised Statutes.
(c) Nothing
in this chapter shall be deemed to affect the terms or conditions of any
franchise, license or permit issued by the city prior to the effective date of
the amendments to this chapter, or to release any party from its obligations
thereunder. Those franchises, licenses
or permits shall remain fully enforceable in accordance with their terms. The city manager, with the consent of the city
council, may enter into agreements with franchise holders, licensees or
permittees to modify or terminate an existing franchise, license or agreement.
(d) A
license or franchise to any telecommunications corporation to use the highways
to install, maintain, construct or operate telecommunications facilities under
this chapter shall not authorize the use of the highways to provide any other
service; nor shall the issuance of the same invalidate any franchise, license
or permit that authorizes the use of the highways for such other service; nor
shall the fact that an entity holds a franchise, license or permit to make any
other use of the highway or to provide any other service authorize
installation, maintenance, construction or operation of telecommunications
facilities in any highway in the city without obtaining a license or franchise
hereunder.
(e) Any
license or franchise granted shall not be exclusive.
(f) A
telecommunications licensee may enter into contracts for use of its facilities
within the public highways to provide telecommunication services. Persons using such licensee’s facilities must
themselves obtain a telecommunication license if such person constructs,
installs, operates or maintains telecommunication facilities within the public
highway of the city. If the persons
using such licensee’s facilities do not construct, install, operate or maintain
telecommunication facilities within the public highway of the city, such
persons need not obtain a separate license but the telecommunications licensee
must disclose the identity of such persons to the city.
(Ord.
No. 97.69,
Sec.
31A-11. License or franchise
application.
(a) A
telecommunications corporation desiring a license or franchise under this chapter
to construct, install, operate and maintain telecommunication facilities in
streets and other highways in the city shall file an application with the
public works manager requesting at the applicant’s election, either a license
or a franchise, in the form prescribed by the public works department, and
shall pay a fee determined by the public works department. The amount of the fee shall be reasonably
related to the cost directly incurred by the city to process the application
and can be appealed to the city council.
(b) Each
application shall, at a minimum, include the following information:
(1) Show where the facilities the applicant
will use will be located, or contain such other information as the city may
deem necessary in order to ensure that the applicant will comply with
requirements for use of the highways;
(2)
Identify the applicant, its name,
address and telephone number;
(3) Contain a description of the services to be provided; and
(4)
Set out a description of any agreement
with any other entity that would permit such entity to use the facilities.
(c) Upon
receiving an application for a franchise or license that satisfies the
conditions of subsection (b), the city shall promptly proffer a
telecommunications franchise or license to the applicant for its review, and
may inquire into matters relevant to the issuance of the license or
franchise. If the applicant agrees to
the terms and conditions of the franchise or license, and otherwise satisfies
the conditions set forth herein, the request shall be submitted to city council
with a recommendation for approval (in the case of a license) or scheduled for
a franchise election (in the case of an application for a franchise). Notwithstanding the foregoing, the city need
not issue or renew a license, or schedule a franchise election if the applicant
has previously had its telecommunications services license or franchise
revoked, or for any other reason permitted under
(Ord.
No. 97.69,
Sec. 31A-12. License terms.
(a) Length of license. Any license granted by the city pursuant
to this chapter shall commence upon adoption of the license and acceptance of
the license by the provider. The license shall be effective for a period
determined by the city council, but not to exceed five (5) years, and subject
to the conditions and restrictions provided in the instrument and this chapter.
(b) License or franchise agreement. As a
condition of issuing or renewing a license or franchise to use the public
highways to construct, install, operate and maintain telecommunication
facilities, the city may require the applicant to:
(1) Show proof of receipt of a certificate of
public convenience and necessity from the Arizona Corporation Commission;
(2) Agree to comply with highway use
requirements that the city may establish from time to time;
(3) Agree to provide and maintain accurate maps
showing the location of all the facilities it will use in the highways within the
city, and to comply with such other mapping requirements as the city may
establish from time to time;
(4) Obtain the insurance, and provide proof of
insurance as required by the city; post the performance bonds and security fund
required by the city; and agree to fully indemnify the city, its officers,
agents, boards and commissions, in a form satisfactory to the city; and agree
that it shall have no recourse whatsoever against the city or its officials,
boards, commissions, agents or employees for any loss, costs, expense or
damages arising out of any provision or requirement of expense or damages
arising out of any provision or requirement of the city because of the
enforcement of the license or franchise or because of defects in this chapter
or the license or franchise issued;
(5) Agree to comply with and be bound by the
administrative and enforcement provisions as may be prescribed from time to
time by the city. Every franchise or
license shall be subject to the following administrative and enforcement
provisions:
a. Franchises and licenses shall be personal
to the franchisee or licensee. Except as provided in the license or franchise,
no transfer of a franchise, franchisee, licensor or licensee, or change of
control over the same (including, but not limited to, transfer by forced or
voluntary sale, merger, consolidation, receivership, or any other means) shall
occur unless prior application is made to the city and the city’s prior written
consent is obtained, which consent will not be unreasonably withheld or
delayed. In making a determination as to
whether to approve a transfer, the city may consider the same information and
qualifications required of an original application for a license or franchise;
whether the licensee or franchisee is in compliance with its license or
franchise and this chapter and, if not, the proposed transferee’s commitment to
cure such noncompliance; whether the transfer would result in an evasion of
other applicable provisions of law, or impair lawful contracts; and the effect
of the transfer on the city’s interests.
No application for a transfer of a license or franchise shall be granted
unless the proposed transferee agrees in writing that it will abide by and
accept all terms of this chapter and the license or franchise, and that it will
assume all obligations, liabilities, and responsibility for all acts and
omissions, known and unknown, of the previous licensee or franchisee under this
chapter and the license or franchise for all purposes, including renewal. Approval by the city of a transfer of a
license or franchise does not constitute a waiver or release of any of the
rights of the city under this chapter or the franchise or license, whether
arising before or after the date of the transfer;
b. Every
franchisee or licensee shall be subject to the city’s exercise or such police,
regulatory and other powers as it now has or may later obtain, and a franchise
or license may not waive the application of the same;
c. Penalties for violation of franchise or
license;
d. Damages for violation of the franchise or
license terms. Any remedies available to
the city are cumulative, and are not limited by the recovery of any amounts
pursuant to the insurance provisions of the license or franchise, or pursuant
to any indemnity clause;
e. A requirement that if the franchisee or
licensee fails to pay amounts owed to the city by the time prescribed for
payment, the franchisee or licensee shall pay interest on the amounts owed, at
the rate of one percent (1%) per month; and
f. A requirement that franchisee or licensee
shall produce books and records for the city’s inspection and copying, prepare
reports, respond to questions and permit the city to have access to its
facilities as the city may request in order to determine whether licensee or
franchisee has complied with its obligations under the franchise or license, or
other applicable law; and
(6) A licensee that receives a
telecommunications service license pursuant to this chapter may apply for a renewal
of its license, which renewal shall be reviewed in accordance with the
requirement of state law.
(c) No warranty. The issuance of a license,
permit or other authorization by the city is not a representation or warranty
that such license, permit, or authorization is a legally sufficient substitute
for a franchise, and is not a representation of warranty that a franchise is
not required.
(Ord. No. 97.69,
Sec. 31A-13. Limited licenses authorized.
The city council may issue limited,
non-exclusive licenses under the following circumstances:
(1) De
minimus license. The city council may issue a limited license to authorize
placement of interstate fiber-optic telecommunications facilities within city
rights-of-way in the event the facilities do not exceed ten (10) lineal miles
in total length of installation and connect only to interstate
telecommunication carrier points of presence, and to no other connection within
the city. Said license shall provide for quarterly payments to the city of a
right-of-way occupancy fee for each lineal foot of installation on the bases of
fair market value and cost, as determined by the city council at the time of
the granting of the license and adjusted periodically thereafter at the city's
discretion. The license may also contain such additional terms and conditions
as the city council may approve consistent with the purposes and findings in
this chapter and applicable law;
(2) Transitting
traffic license. The city council may issue a limited license to authorize
use of the city's rights-of-way solely for the purpose of providing
telecommunications service where no sale or exchange of service originates or
terminates in the city. Said license shall provide for quarterly payments to the
city of a right-of-way occupancy fee for each lineal foot of installation on
the bases of fair market value and cost, as determined by the city council at
the time of the granting of the license and adjusted periodically thereafter at
the discretion of the city. The license may also contain such other terms and
conditions as the city council may approve consistent with the purposes and
findings in this chapter and applicable law; or
(3) Wireless
facilities license. The city council may issue a limited license to
authorize the installation, operation or maintenance of wireless
telecommunication facilities, such as antennas, within the city's
rights-of-way. Said license shall provide for quarterly payments to the city of
a right-of-way occupancy fee for each site or installation on the bases of fair
market value and cost, as determined by the city council at the time of the
granting of the license and adjusted periodically thereafter at the discretion
of the city. The license may contain such other terms and conditions as the
city council may approve consistent with the purposes and findings in this
chapter and applicable law.
(Ord.
No. 97.69,
Sec. 31A-14. Right-of-way permit.
The public works manager shall not
issue a right-of-way construction permit or other authorization for a provider
to construct or install telecommunications facilities in the city's rights of
way unless the provider has first obtained the license or franchise required to
occupy the city's rights-of-way under this chapter.
(Ord.
No. 97.69,
Secs. 31A-15—31A-19. Reserved.
ARTICLE III. RENTAL FEES FOR USE OF PUBLIC RIGHTS-OF-WAY
Sec. 31A-20. Repealed.
(Ord. No. 97.69,
Sec. 31A-21. Compensation.
(a) The
city shall not levy a tax, rent, fee or charge to a telecommunications
corporation for the use of a public highway to provide telecommunications
services, or levy a tax, fee or charge upon the privilege of engaging in the
business of providing telecommunications services, except that, in connection
with its provisions of telecommunications services and its use of the highways
to provide the same, each telecommunications corporation shall:
(1) Pay a transaction privilege tax on the
business of providing telecommunications services or applicable use tax, as may
be specified from time to time in the Tempe City Code;
(2) Pay public highway construction permit fees
established from time to time by the city; and
(3) Pay all reasonable costs associated with
the construction, maintenance and operation of its facilities in the public
highways used to provide telecommunications services, including reasonable
costs associated with damage caused to the public highways.
(b) The public works manager is authorized to review the costs associated with construction, maintenance and operation of facilities in the public highways to provide telecommunications services and to establish any fee required to recover those costs.
(c) Nothing
in this section is intended to limit the obligation of any person to pay
amounts owed under any franchise or license.
Provided that, for franchises or licenses issued after the effective
date of this chapter, payments required under such franchise or license for the
provision of telecommunications services shall comply with the provisions of
A.R.S. § 9-581.
(Ord.
No. 97.69,
Secs. 31A-22—31A-29. Reserved.
ARTICLE IV. LOCATION AND RELOCATION
OF FACILITIES IN RIGHTS-OF-WAY.
Sec. 31A-30. Registration.
(a) Providers
using or planning to use the city's rights-of-way must register with the city
on a form prescribed by the city and must include the following information:
(1) The provider's name, address and telephone
number;
(2) A description of the services provided and to be provided;
(3) A description of the facilities used or to
be provided by provider; and
(4) A description of the location of the
facilities.
(b) A
provider shall file a proposed amendment to the registration before it makes
any change that would render the registration information incomplete or
inaccurate. A change of the provider's
name or address must be filed at least sixty (60) days prior to the date the
change becomes effective; a change in the telephone number must be filed ten
(10) days before the change becomes effective; in the case of change in
facilities (by addition, subtraction or modification or movement) the change in
facilities must be filed at least sixty (60) days before work commences on the
facilities unless the relocation was ordered by the city. In the case of a change in services, the
change must be noticed thirty (30) days before the earlier of the date the
service commences, or provider begins marketing the service.
(Ord.
No. 97.69,
Sec. 31A-31. Location and relocation of facilities in
rights-of-way.
(a) Each
provider is responsible for ensuring that its facilities are installed,
constructed and maintained in strict accordance with the city code; that all
required licenses, franchises and permits are applied for and obtained before
any work commences; and that the terms and conditions thereof are strictly
followed. Where a facility has more than
one provider, each provider is fully responsible for ensuring that all
requirements are satisfied. Facilities
shall be installed, constructed and maintained so that no additional costs are
imposed upon the city, and so that the facility does not interfere with other
uses or users of the public rights-of-way.
Without limiting the requirement of any other provision of the city
code, or the provisions of any license, permit or franchise issued by the city,
this shall require, at a minimum, compliance with the provisions of this
chapter.
(b) The
facilities to be constructed, installed, operated and maintained by the
provider shall be so located or relocated as to interfere as little as possible
with traffic or other authorized uses over, under or through the rights-of-way. Those phases of construction relating to
traffic control, backfilling, compaction and paving, as well as the location or
relocation of said facilities shall be subject to regulation by the city
council.
(c) The
provider shall keep accurate installation records of the location of all
facilities in the rights-of-way and furnish them to the city upon request or at
such periodic intervals as the city may require. Upon completion of new or relocation
construction of underground facilities in the rights-of-way, the provider shall
provide the city, if requested or as required, with installation records in a
format compatible with the then-current city mapping format showing the
location of the underground and above ground facilities.
(d) Whenever
the provider shall cause any opening or alteration whatever to be made for any
purpose in any rights-of-way, the work shall be completed within the time
specified in the license, permit or franchise, or if no time is specified then
within a reasonable time. In addition, the provider shall, without expense to
the city and upon the completion of such work, restore the property disturbed
in a manner consistent with the city's duly adopted standards, or as required
by its permits, licenses or franchises.
(e) The
installation, use and maintenance of the provider's facilities within the
rights-of-way authorized herein shall be in such a manner as not to interfere
with the city's placement, construction, use and maintenance of its
rights-of-way, street lighting, water pipes, drains, sewers, traffic signal
systems or other city systems that have been, or may be, installed, maintained,
used or authorized by the city. Upon the
city's request, provider's facilities will be relocated at provider's expense,
unless state law expressly requires otherwise.
Upon the city's request, by a time specified by the city, if the
provider fails to move its facilities, the city may do so and will bill the
provider the costs therefor and the provider shall pay those costs within
thirty (30) days after its receipt of the invoice therefor. Further, the provider shall reimburse the
city any additional cost the city incurs due to the location or relocation of
the provider's facilities, including all design and construction costs.
(f) The
provider shall not install, maintain or use any of its facilities in such a
manner as to damage or interfere with facilities of another located within the
rights-of-way of the city.
(g) All
facilities shall be installed per plans approved by the city. If the provider makes use of existing conduit
of another provider, the provider shall be subject to the provisions of this
chapter in the use of such conduit in the rights-of-way.
(h) Each
provider must obtain and maintain such insurance, bonding and security fund
requirements as specified by the city, or if no specific requirements are
designated, as are required by the city for similar facilities. No work shall commence unless these
requirements have been satisfied, and the city may require the provider to
remove or stop work on facilities, or require a provider to cease using the
facility, when any insurance, bonding or security fund requirements are not
satisfied.
(i) A
permit shall be obtained from the public works department prior to a provider
removing, abandoning, relocating or reconstructing, if necessary, any portion
of a provider's facilities.
Notwithstanding the foregoing, the city understands and acknowledges
there may be instances when a provider is required to make repairs, in
compliance with federal or state laws, that are of an emergency nature. The provider will notify the city prior to
such repairs, if practicable, and will obtain the necessary permits in a
reasonable time after notification.
(Ord.
No. 97.69, 12-11-97)
Sec. 31A-32. Conflict with city projects.
(a) If,
during the design process for public improvements, the city discovers a
potential conflict with proposed construction, the provider shall either:
(1) Locate and, if necessary, expose its facilities in conflict; or
(2) Use a location service under contract with
the city to locate or expose its facilities.
The provider shall reimburse the city for the cost resulting from the
use of such location service.
(b) The
city shall make reasonable efforts to design and construct projects pursuant to
this section so as to avoid relocation expense to the provider. Provider shall furnish location information
to the city in a timely manner, but in no case longer than fifteen (15)
calendar days from the date of the city's request.
(c) The
city reserves the prior and superior right to lay, construct, erect, install,
use, operate, repair, replace, remove, relocate, regrade, widen, realign or
maintain any rights-of-way, aerial, surface or subsurface improvements,
including, but not limited to, water mains, traffic control conduits, cable and
devices, sanitary or storm sewers, subways, tunnels, bridges, viaducts or any
other public construction within the rights-of-way of the city.
(d) When
the city invokes its prior superior right to the rights-of-way, the provider
shall move its facilities located in the rights-of-way, at its own cost, to
such a location as the city directs.
(e) If,
during the course of a project, the city determines provider's facilities are
in conflict, the following shall apply:
(1) Prior to city notice to proceed to
contractor, the provider shall, within a reasonable time, but in no event
exceeding one month, remove or relocate the conflicting facility. This time period shall begin running upon receipt
by the provider of written notice from the city. However, if both the city and the provider
agree, the time frame may be extended based on the requirements of the project;
or
(2) Subsequent to city notice to proceed to
contractor, the city and the provider will immediately begin the coordination
necessary to remove or relocate the facility.
Actual construction of such removal or relocation is to begin no later
than seventy-two (72) hours, if practicable, after written notification from
the city of the conflict.
(Ord. No. 97.69, 12-11-97)
Sec. 31A-33. Damage to city rights-of-way and facilities.
(a) If,
in the installation, use, or maintenance of its facilities, the provider
damages or disturbs the surface or subsurface of any rights-of-way or adjoining
public property, or the public improvement located thereon, therein or
thereunder, the provider shall promptly, at its own expense, and in a manner
acceptable to the city, restore the surface or subsurface of the rights-of-way
or public property, or repair or replace the public improvement thereon,
therein or thereunder, in as good a condition as before such damage or
disturbance. If such restoration, repair
or replacement of the surface, subsurface or any structure located thereon,
therein or thereunder is not completed within a reasonable time, or such repair
or replacement does not meet duly adopted standards, the city shall have the
right to perform the necessary restoration, repair or replacement, either
through its own forces, or through a hired contractor, and the provider shall
pay the city for its expenses in so doing within thirty (30) days after its
receipt of the invoice therefor.
(b) The
provider shall reimburse the city for all costs arising from the reduction in
the service life of any public road or pavement damage, to the extent required
by any other city chapters, resulting from pavement cuts of the provider. The provider shall pay such costs within
thirty (30) days from the date of issuance of an invoice from the city.
(Ord.
No. 97.69, 12-11-97)
Sec. 31A-34. Relocation of facilities.
(a) The
city shall not bear any cost of relocating existing facilities, irrespective of
the function served, where city facilities or other facilities occupying the
rights-of-way under authority of a city permit, license or franchise which must
be relocated, are already located in the rights-of-way and the conflict between
the provider's potential facilities and the existing facilities can only be
resolved expeditiously as determined by the city by the movement of the
existing city or other approved facilities.
(b) If
provider's relocation effort so delays construction of a public project causing
the city to be liable for delay damages, the provider shall reimburse the city
for those damages attributable to the delay created by the provider. If the provider should dispute the amount of
damages attributable to the provider, the matter shall be referred to the
dispute resolution board. The dispute
resolution board shall consist of one member selected by the city, one member
selected by the provider, and a third person agreed upon by both parties. The person agreed upon by both parties shall
be chairperson of the dispute resolution board.
Expenses for the dispute resolution board shall be shared equally by the
city and the provider. The board will
hear the dispute promptly, and render an opinion as soon as possible, but in no
case later than sixty (60) days after notification by the city of provider's
allocated share of damages suffered by the city. All decisions of the dispute resolution board
are non-binding on either the city or the provider, however, the findings of
the dispute resolution board shall be admissible in any legal action. The city and the provider shall accept or
reject findings of the dispute resolution board within thirty (30) days after
receipt of the findings. If damages are
assessed by the dispute resolution board, the provider shall pay the city
within thirty (30) days of receipt of an invoice. Late charges of five percent (5%) and
interest charges of one and one-half percent (1-1/2%) per month shall be added
for late payment.
(c) Except
as otherwise provided in a license, franchise, or permit, or by other provision
of law, the entire cost of relocation shall be borne by the city if the
provider is required by the city to relocate facilities which are located in
private easements obtained by the provider prior to the dedication of the
public street or easement from which the facilities must be relocated. These prior rights of the provider would also
be unaffected by any subsequent relocation.
A prior rights as used in this subsection, means private easement rights
obtained by the provider prior to the dedication of the streets or public ways
from which the facilities are requested by the city to be relocated. In the case of a facility that serves
multiple purposes, the prior rights must extend to all uses for this exception
to apply.
(Ord.
No. 97.69, 12-11-97)
Secs. 31A-35—31A-39. Reserved.
ARTICLE V. GENERAL
PROVISIONS
Sec. 31A-40. Rights reserved to city.
Without limiting the rights that the
city might otherwise have, the city does hereby expressly reserve the following
rights, powers and authorities:
(1) To exercise its governmental powers now or
hereafter to the full extent that such powers may be vested in or granted to
the city;
(2) To determine any question of fact relating
to the meaning, terms, obligations or other aspects of this chapter and the
instruments issued under this chapter; and
(3) To grant multiple, nonexclusive licenses, franchises,
licenses or permits within the city to other persons.
(Ord.
No. 97.69, 12-11-97)
Sec. 31A-41. City police power; continuing jurisdiction.
(a) Every provider shall be subject to the city’s
exercise of such police, regulatory and other powers as the city now has or may
later obtain, and a provider may not waive the application of the same, and
must be exercised in strict conformity therewith. Every license shall be subject to revocation
if the provider fails to comply with the terms and conditions of the license or
applicable law. A license shall not be
revoked unless the provider is given written notice of the defect in
performance and fails to cure the defect within sixty (60) days of the notice,
except where the city finds that the defect in performance is due to
intentional misconduct, is a violation of criminal law, or is part of a pattern
of violations where the provider has already had notice and opportunity to
cure. A hearing shall be held before a
license is revoked or not renewed if the provider requests a hearing. In the event of a conflict between
this chapter and other provisions of the city code, the stricter requirement
shall apply.
(b) The
city shall have continuing jurisdiction and supervision over any facilities
located within or on city rights-of-way. However, it is recognized that the
daily administrative, supervisory and enforcement responsibilities of the
provisions of this chapter shall be delegated and entrusted to the city manager
or designee to interpret, administer and enforce the provisions of this
chapter, and to promulgate standards regarding the construction,
reconstruction, relocation, maintenance, dismantling, abandonment or use of the
facilities within the city rights-of-way.
(Ord.
No. 97.69, 12-11-97; Ord. No. 99.14, 6-10-99)
Sec. 31A-42. Violation.
From and after the effective date of
this chapter, it shall be unlawful for any provider to occupy the streets and
public rights-of-way unless the provider is in compliance with the provisions
of this chapter. The city may pursue any remedy at law, including but not
limited to, injunctive relief, civil or criminal trespass, and withholding
other city permits and authorizations until the provider complies with this
chapter. These remedies are cumulative
and may be pursued in the alternative.
(Ord.
No. 97.69, 12-11-97)