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07/09/2002 Ordinances 8747 I I I ORDINANCE NO. 8747 An ordinance to amend Chapter 34 of the Grand Island City Code; to amend Sections 34-1 through 34-68 pertaining to telecommunications; to renumber Sections 34-1 through 34-68 as now existing; to repeal Sections 34-1 through 34-68 as now existing, and any ordinance or parts of ordinances in conflict herewith; and to provide for publication and the effective date of this ordinance. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF GRAND ISLAND, NEBRASKA: SECTION 1. Article I and Sections 34-1 through 34-68 of the Grand Island City Code is hereby amended to read as follows: Article I. Telecommunications ~34-1. Purpose The purpose of this Chapter is to: (A) Establish a local policy concerning telecommunications providers and services; (B) Promote competition in telecommunications; (C) Minimize unnecessary local regulation of telecommunications providers and services; (D) Permit and manage reasonable access to the public ways of the City for telecommunications purposes on a competitively neutral basis; (E) Conserve the limited physical capacity of the public ways held by the City; (F) Assure that all telecommunications carriers providing facilities or services within the City comply with the ordinances, rules and regulations of the City. ~34-2. Definitions Terms used in this Chapter shall have the following meanings: Affiliate shall mean a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person. City shall mean the City of Grand Island, its elected and appointed officers, employees, and duly appointed and authorized agents. City ProTJertv shall mean all real property owned or controlled by the City whether in fee ownership or other interest. Code shall mean the Grand Island City Code, as amended. Overhead Facilities shall mean utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities. Person shall mean corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities and individuals. Public Ways includes the surface of an space above and below any real property in the City which the City owns or in which it holds an interest as a trustee for the public including, but not limited to, all public streets, highways, roads, alleys, easements, tunnels, viaducts, bridges, skyways, or any other public place, area or property under the ownership or control of the City, and any rights-of-way established, dedicated or devoted for public utility purposes. ... ~ a-;- Approved as to Form . ~ July 10, 2002 ... City Attorney I I I ORDINANCE NO. 8747 (Cant.) Rif!hts-of- Wav shall mean all real property and public ways, which the City owns or in which the City has an ownership interest. State shall mean the State of Nebraska. Survlus Svace shall mean that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the orders and regulations of the Nebraska Public Service Commission to allow its use by a telecommunications carrier for a pole attachment. Telecommunications Carrier includes every person that directly or indirectly owns, controls, operates or manages telecommunications facilities used or to be used to transmit, receive, distribute, provide or offer telecommunications service. Telecommunications Facilities shall mean the plant, equipment and property within the City used to transmit, receive, distribute, provide or offer telecommunications service. Telecommunications Provider includes every person who provides telecommunications serVIce over telecommunications facilities. Telecommunications Service shall mean the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium, unless excluded or exempted by local, state or federal law. Underground Facilities shall mean utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities. Usable Svace shall mean the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the Nebraska Public Service Commission. Utilitv Facilities shall mean the plant equipment and property including, but not limited to, the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within public ways and used or to be used for the purpose of providing utility or telecommunications services. ~34-3. Penalties Any person found violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall be guilty of an infraction. Upon conviction any person violating any provision of this chapter shall be subject to a fine as provided by ~ 1-7 of this Code. A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues. ~34-4. Other Remedies and Regulations Nothing in this chapter shall be construed as limiting any other remedies at law or in equity that the City may have for enforcement of this chapter. The City Administrator is authorized to establish regulations and procedures for the implementation of this chapter. ~34-5. Registration, Fees and Duration (A) To the extent permitted by law, any telecommunications carrier or provider who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in public ways and/or to provide telecommunications service, including but not limited to local exchange service, to persons or areas within the City shall register with the City pursuant to this Chapter and pay all fees provided herein. (B) A registration shall remain in effect for a period of five (5) years from the date on which the City Administrator certifies that the information required pursuant to ~34-6 has been submitted to the Administrator. A registration may be renewed by either submitting information in duplicate to the City Administrator as set forth in ~34-6 or submitting affidavits in duplicate attesting that the information submitted for the initial registration remains unchanged except to the extent modified by attachments to said affidavits. Upon filing a registration renewal the registrant shall pay all fees as provided herein. ~34-6. Registration Required All telecommunications carriers or providers required to register pursuant to ~34-5, shall register with the City by submitting information in duplicate to the City Administrator which shall include the following: (A) The identity and legal status of the registrant including any affiliates. - 2 - Approved as to Form T C--FfZ-- July 10, 2002 .. City Attorney I I I ORDINANCE NO. 8747 (Cont.) (B) The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement. (C) A general description of registrant's existing or proposed telecommunications facilities within the City. (D) Information sufficient for the City 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 municipal tax or fee. (E) Copies of the registrant's certificate of convenience and necessity issued by the Nebraska Public Service Commission. (H) A copy of relevant portions of the registrant's certificate of convenience and necessity application may be filed in lieu of item (C) above. (I) Such other information as the City may require for purposes of this Chapter. ~34-7. Registration Purpose, Exception (A) The purpose of registration is to: (1) Provide the City with accurate and current information concerning the telecommunications carriers and providers who offer or provide telecommunications services within the City, or that own or operate telecommunication facilities within the City; (2) Assist the City in enforcement of this Chapter; (3) Assist the City in the collection and enforcement of any municipal taxesor charges that are lawfully permissible and may be due the City; and (4) Assist the City in monitoring compliance with local, state and federal laws. (B) A person which provides telecommunications services solely to itself, its affiliates or members between points in the same building, or between closely located buildings under common ownership or control is excepted from the registration requirement pursuant to this Chapter, provided that such company or person does not use or occupy any public ways of the City. ~34-8. Registration; Construction Permits All registrants shall obtain permits and pay all fees required by the code prior to commencement of construction. ~34-9. Registration; Compensation to City In the absence of state, federal or other law to the contrary, each registrant hereunder is subject to the City's right, which is expressly reserved, to annually fix a fair, reasonable and non discriminatory compensation to be paid for use of public ways or property and such municipal taxes as are authorized by state and federal law. ~34-10. Conditions of Registration; Interference with the Public Ways No registrant may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City. All such facilities shall be moved by and at the expense of the registrant, temporarily or permanently, as determined by the City. ~34-11. Maintenance of Facilities Each registrant shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local laws, codes, rules and regulations. ~34-12. Relocation or Removal of Facilities (A) Within thirty (30) days following written notice from the City, a registrant shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the City Administrator shall have determined that such removal, relocation, change or alteration is reasonably necessary for: (1) The construction, repair, maintenance or installation by the City or other governmental entity of any public improvement in or upon the public ways. (2) The operations of the City or other governmental entity in or upon the public ways. (3) The vacation of a public street or the release of a utility easement. - 3 - Approved as to Form ,. July 10, 2002 A I I I ORDINANCE NO. 8747 (Cont.) (B) Provided the City has complied with the One Call Notification System Act the City shall not be liable for any damage to or loss of any telecommunications facility within the public ways 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 ways by or on behalf of the City unless directly or proximately caused by the willful, intentional or malicious acts of the City. ~34-13. Removal of Unauthorized Facilities Within thirty (30) days following written notice from the City, any registrant or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways shall at its own expense, remove such facilities or appurtenances from the public ways. If such registrant or responsible person fails to remove such facilities or appurtenances, the City may cause the removal and charge the registrant or responsible person for the costs incurred. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: (A) Upon abandonment of a facility within the public ways. (B) If the system or facility was constructed or installed without the prior issuance of a required construction permit. (C) If the system or facility was constructed or installed at a location not permitted by the City. (D) Any such other circumstances deemed reasonably necessary by the City Administrator in order to protect public health, safety and welfare. ~34-14. Emergency Removal or Relocation of Facilities The City retains the right and privilege to cut or move any telecommunications facilities located within the pubic ways as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall use its best efforts to notify the grantee through its Emergency Management Department and the One Call Notification System Act prior to cutting or moving the grantee's telecommunication facilities. ~34-15. Restoration of Rights-of-Way The Registrant shall comply with the following: (A) When a registrant, or any person acting on its behalf, does any work in or affecting any public ways, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property including trees, landscaping and grounds to the same condition which existed before the work was undertaken. (B) If weather or other conditions do not permit the complete restoration required hereunder, the registrant shall temporarily restore the affected ways or property. Such temporary restoration shall be at the registrant's sole expense and the registrant shall promptly undertake and complete the required permanent restoration when the weather conditions no longer prevent such permanent restoration. (C) A registrant or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such public ways. ~34-16. Construction; Applications Applications for permits to construct telecommunications facilities in public ways shall be submitted upon forms provided by the Public Works Department. The applicant shall pay all permit and plan review fees and shall include any additional information as requested by the Public Works Department. The application shall be accompanied by drawings, plans and specifications in sufficient detail to demonstrate: (A) That the facilities will be constructed in accordance with all applicable codes, rules and regulations. (B) The location and route of all facilities to be installed on existing utility poles. (C) The location and route of all facilities to be located under the surface of the ground including the line and grade proposed for the burial at all points along the route which are within the public way. (D) The location of all existing underground utilities, conduits, ducts, pipes, mains and installations, if known, which are within the public way along the underground route proposed by the applicant. (E) A landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction. - 4- Approved as to Form T Cf1Z)' July 10, 2002 ... City Attorney I I I ORDINANCE NO. 8747 (Cont.) ~34-17. Construction; Location of Facilities All facilities shall be constructed, installed and located in accordance with the following terms and conditions unless hardship or a valid reason to locate elsewhere can be demonstrated to the City Administrator: (A) A registrant with written authorization to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles, and then only if surplus space is available. If either of the foregoing do not exist, grantee, with prior written approved of the Utilities Director may construct additional poles. (B) Whenever all existing telephone, electric utilities, cable facilities or telecommunications facilities are located underground within public ways, a registrant with written authorization to occupy the same public ways must also locate its telecommunications facilities underground. (C) Whenever all new or existing telephone, electric utilities, cable facilities or telecommunications facilities are located or relocated underground within public ways, a registrant that currently occupies the same public ways shall concurrently relocate its facilities underground at its expense. ~34-18. Construction; Conduit Occupancy In furtherance of the public purpose of reduction of public way excavation, it is the goal of the City to encourage both the shared occupancy of underground conduit as well as the construction, whenever possible, of excess conduit capacity for occupancy of future public way occupants. ~34-19. Fees; Registration, Application and Public Way Occupancy The following fees, which shall be listed on the City's User Fee Schedule, shall be paid in connection with the administration of this Chapter: (A) Registration Fee to be paid at the time of filing registration information. (B) Occupation tax for local exchange service to be paid quarterly. (C) Pole Rental to be paid annually for installing and operating telecommunications facilities on or in conjunction with City utility facilities, including particularly utility poles. ~34-20. Severability If any section, subsection, sentence, clause, phrase or other portion of this Chapter, or its application to any person is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. SECTION 2. Section 34-1 through 34-68 as now existing, and any ordinances or parts of ordinances in conflict herewith be, and hereby are, repealed. SECTION 3. That this ordinance shall be in force and take effect from and after its passage and publication, within fifteen days in one issue of the Grand Island Independent as provided by law. - 5 - Approved as to Form " July 10, 2002 ... City Attorney I I I . ORDINANCE NO. 8747 (Cont.) Enacted: July 9, 2002. Attest: Qof'\oJl crQw~ RaNae Edwards, City Clerk - 6 - Approved as to Form ... C-ve::: July 10. 2002 A City Attorney