14.32.425: TELECOMMUNICATION RIGHT OF WAY PERMITS:
A. Definitions: For purposes of this section, the following terms shall have the following meanings:
CABLE: Any optical fiber, copper or other line, wire or cable, of any dimension: 1) encased in its own sheathing and physically installed and handled as a discrete facility, 2) used by a person for the transmission of telecommunication signals, and 3) situated wholly or partially in the city's right of way.
CONDUIT: Any pipe, pipeline, housing, structure or similar facility: 1) the primary purpose of which is the housing of cables, and 2) which is situated wholly or partially in the city's right of way. For purposes of calculating the charge assessed pursuant to this section, any conduit four inches (4") in diameter or smaller shall be deemed a single conduit, and any conduit larger than four inches (4") in diameter shall be deemed multiple conduits in increments of four inches (4"), with any increment in excess of a multiple of four (4) being deemed a separate conduit. By way of example, a conduit with a diameter of eight inches (8") shall be deemed to be two (2) conduits, whereas a conduit with a diameter of nine inches (9") shall be deemed to be three (3) conduits.
CONDUIT EQUIVALENT: In the case of one or more cables: 1) owned by a single cable owner, 2) situated in the city's right of way, and 3) not housed within a conduit, such number of such cables as may practicably have been housed within a four inch (4") conduit, had the owner elected to install such cables within a four inch (4") conduit, as determined by the city engineer; provided, however, that a single conduit equivalent shall include only those cables which occupy a contiguous space within the right of way not exceeding eighteen inches (18") in width.
CONSUMER PRICE INDEX: The U.S. city average geographic index for the components including "all urban consumers" based on "all items", as published for the month of October prior to the January in which the recalculated charge is to take effect by the U.S. department of labor, bureau of labor statistics, or in the event the consumer price index is no longer published, the generally accepted replacement index, if any.
EXISTING AGREEMENT: A telecommunications right of way lease, a franchise, or similar contract between the city and a conduit owner or cable owner relating to the use of the city's right of way, in effect on the effective date hereof.
LINEAR FOOT CHARGE: An annual charge payable to the city as and to the extent provided in this section, by each conduit owner or cable owner in an amount equal to the linear footage of conduit or conduit equivalent owned by such conduit owner or cable owner, as determined by the city engineer, times one dollar ($1.00). Effective January 1, 2005, and January 1 of each year thereafter, the linear foot charge in effect for the prior calendar year shall be adjusted to reflect the one year percentage increase or decrease, if any, in the consumer price index.
MINIMUM CHARGE: The minimum annual charge payable by a conduit owner or cable owner under this section, which shall initially be five hundred dollars ($500.00). Effective January 1, 2004, and January 1 of each year thereafter, the minimum charge in effect for the prior calendar year shall be adjusted to reflect the one year percentage increase or decrease, if any, in the consumer price index.
OWNER: The person owning a conduit or cable. For purposes of this section, each conduit or cable shall be deemed owned by only one person. In the case of a conduit or cable owned by more than one person, "owner" shall mean the person which, from time to time, has the greater ownership interest in such conduit or cable. In the event each such person has an equal ownership interest in such conduit or cable, "owner" shall mean the person so designated to the city by the persons sharing equal ownership or, in the absence of such designation, the person designated by the city.
PERSON: Any individual, partnership, association, joint venture, limited liability company, corporation or other legal entity.
RIGHT OF WAY: Any present or future street, alley, viaduct, bridge, road, lane and public way within the city, including the surface, subsurface and airspace, and shall not include any city park, pleasure grounds or other recreational areas, or other property owned by the city.
TELECOMMUNICATION RIGHT OF WAY PERMIT: A contract, including a franchise agreement, between the city and any person, authorizing such person to occupy an identified portion of the right of way with conduit or cable. Telecommunication right of way permits shall contain terms and conditions governing and relating to the use of the right of way, and the city's management thereof, substantially similar to the terms and conditions generally included in existing agreements.
TELECOMMUNICATION SIGNALS: Information in electromagnetic frequency, electronic or optical form, and including, but not limited to, voice, video or data: 1) whether or not the transmission medium is owned by the provider itself, 2) whether or not the transmission medium is wireline or wireless, and 3) whether or not the information is in digital or analog form.
B. Telecommunications Right Of Way Permit Required: No person may construct, install, maintain, situate, or permit to remain situated, any conduit or cable within any portion of the right of way without a telecommunications right of way permit; provided, however, that no telecommunication right of way permit shall be required in connection with a cable situated within a conduit, the owner of which conduit has a telecommunication right of way permit from the city.
C. Existing Agreement: Persons currently operating under an existing agreement may continue operating under such existing agreement for the remaining term thereof, subject to payment of the charge imposed by subsection D of this section, if applicable.
D. Annual Charge Imposed: There is hereby imposed and assessed upon: 1) each conduit owner, 2) each owner of cable which is not situated within a conduit, and 3) each person authorized to use a cable under the circumstances described in subsection F of this section, as a rental payment and compensation to the city for such owner's use of a portion of the right of way, an annual charge equal to the greater of: 1) the linear foot charge or 2) the minimum charge. The charge hereby imposed and assessed shall be effective on and after July 1, 2004; provided that the charge may not apply to certain owners, or with respect to certain conduits or cables, until a later date, as provided herein. Such charge shall be payable on a calendar year basis; provided that: 1) the charge payable July 1, 2004, shall be prorated over the remaining six (6) months of calendar year 2004, and 2) the charge shall be prorated on a monthly basis for new construction effective the date of commencement of construction, and otherwise for owners effective as of and including the month in which the charge becomes effective as to such owners or such owners' conduit or cable. Any rental payments paid by an owner to the city under an existing agreement shall be prorated over calendar year 2004, and applied as a credit against the charge hereby imposed on such owner. Payments under this subsection shall be paid to the city by January 31 each year. If payment is not received by January 31, a penalty is imposed equal to ten percent (10%) of the amount due. In addition, for each calendar month that a payment is late, compound interest equal to two percent (2%) per month will accrue.
E. Excess Conduit With Cables Which Have Not Been Actively Used Excepted From Charges: Excess conduit which contains cables which have never been actively used and cables which have never been actively used which are not in conduit shall not be subject to such charge until the calendar year in which such cables are first put to use. If such a cable is put into active use, the owner shall so notify the city engineer within thirty (30) days of activation.
F. Additional Exception To Charges Imposed: No charge shall be imposed under subsection D of this section on a conduit owner with respect to any portion of a conduit if such portion of conduit is occupied by any cable, the operation of which generates gross receipts or gross revenues subject to the license tax authorized under the Utah municipal telecommunications license tax act, title 10, chapter 1, part 4, Utah Code Annotated, or successor provisions, or any other gross revenue or gross receipts based tax, fee or charge. If such portion of conduit is also occupied by cable: 1) the operation of which does not generate gross receipts or gross revenues subject to the above described taxes, fees or charges, and 2) which is owned by a person other than the conduit owner, or which cable a person other than the conduit owner has the legal right to use in connection with the operation of such other person's trade or business, then the charge described in subsection D of this section shall be imposed, with respect to such cable, on such other person; provided, however, that in the event two (2) or more persons occupy such conduit, each such person shall be responsible for paying only a portion of the charge imposed by subsection D of this section, in an amount equal to the total charge, divided by the number of such persons.
G. Exception To Existing Agreements And Charges Imposed: Any conduit owner or cable owner who is currently operating such conduit or cable under an existing agreement shall be subject to the charge imposed under subsection D of this section only if such existing agreement includes language recognizing the possibility that the terms and conditions of such existing agreement may be subject to change. In such event, the charge imposed under subsection D of this section shall be payable in lieu of, and not in addition to, the payment otherwise payable under the terms of such existing agreement. Conduit owners or cable owners operating under existing agreements and not so subject to the charge imposed under subsection D of this section shall continue paying to the city the amounts set forth in such existing agreements until such existing agreements terminate, at which time such conduit owners or cable owners shall be subject to the charge imposed under subsection D of this section.
H. Abatement Of Rental Charge: Any cable owner whose cable is situated within a conduit owned by a conduit owner subject to the charge imposed under subsection D of this section, may apply to the city for the abatement of the rental charge or other payment payable by such cable owner under an existing agreement. Such abatement shall be effective from and after the date of receipt of any application accompanied by information sufficient to: 1) identify the conduit owner, and 2) establish the applicability of the charge imposed under subsection D of this section to such conduit owner.
I. Permit Requirements: Each telecommunication right of way permit shall include a requirement that the permittee provide to the city, and update on at least a semiannual basis, an as built survey of all conduit and cables, and all equipment and improvements ancillary and appurtenant thereto, situated within the right of way, in such electronic format as shall be compatible with the city's computerized GIS system, as determined by the city engineer.
J. Federal Or State Limits: To the extent that federal or state law limits the amount of charges which the city may impose on, or the compensation it may require from, a conduit owner or a cable owner, nothing in this section shall require the payment of any greater amount, unless and until the federal or state limits are raised.
K. Severability: To the extent any requirement of this section or of any telecommunications right of way permit is held by a court of competent jurisdiction, pursuant to a final, nonappealable ruling, to violate federal or state law, such requirement shall be deemed severed from this chapter or such telecommunications right of way permit, and the remainder of the requirements hereof or thereof shall continue in full force and effect. (Ord. 5-10 § 1, 2010: Ord. 49-04 § 1, 2004)
