(A) General Conditions. As a condition of issuing or renewing a license to use the public highways to provide telecommunications services, the town may require:
(1) Proof that the applicant has received a certificate of public convenience and necessity from the Arizona Corporation Commission;
(2) The applicant to agree to comply with highway use requirements that the town may establish from time to time;
(3) The applicant to agree to provide and maintain accurate maps showing the location of all its facilities and the facilities it will use in the highways within the town, and to comply with such other mapping requirements as the town may establish from time to time; applicant shall provide the town with electronic mapping information in a format compatible with the current town electronic mapping;
(4) The applicant to obtain the insurance, and provide proof of insurance as required by the town; to post the performance bonds and security fund required by the town; and to agree to fully indemnify the town, its officers, agents, boards and commissions, in a form satisfactory to the town; and agree that it shall have no recourse whatsoever against the town or its officials, boards, commissions, agents or employees for any loss, costs, expense or damages arising out of any provision or requirement of the town because of the enforcement of the license or because of defects in this chapter or the license issued;
(5) The applicant to agree to comply with and be bound by the administrative and enforcement provisions as may be prescribed from time to time by the town.
(B) Administration and Enforcement. Every license shall be subject to the following administrative and enforcement provisions:
(1) The permission granted by a license is limited to the use areas, which shall be identified in the system route map attached to an approved license. New use areas may be approved upon application for a permit pursuant to Ch. 156 of this code for such new use areas. The applications shall include specific information on the location of the new use areas and the proposed facilities. Upon approval by the Town Manager, the new use areas shall be depicted on the system route map and shall be subject to all terms and conditions of the license and lawful conditions, if any, imposed by the town.
(2) A licensee's facilities shall meet the applicable standard specifications and requirements of the town. Licensee's use of the public highway shall be according to plans approved by the Town Manager, provided that such approval shall not be unreasonably withheld or delayed. Facilities shall not be located above-ground unless there is no practical alternative and any such facilities shall be earth-toned colors or screened to the extent reasonably practical. Licensee's installation of facilities shall be coordinated with the town to accommodate opportunities for common installation. Prior to the start of any construction work, licensee shall notify all affected residents or businesses at least 48 hours in advance of any street, alley, sidewalk, and driveway closures in order to allow them to make suitable arrangements to have all vehicles moved to a satisfactory location outside the closed area. If an emergency requires activity without such written notice, the licensee shall use reasonable efforts to provide timely actual notice to the owners or other persons having lawful control of the adjoining property. Licensee shall identify a representative, such as a project manager, who shall be the contact person for the town during any construction periods.
(3) A licensee shall maintain "as-built" drawings of its facilities located within the public highway and furnish a copy electronically in a mapping format compatible with the current town electronic mapping format and in hard copy form. Upon completion of new or relocation construction of underground facilities in the public highway, licensee shall create and maintain precise, up-to-date maps of any of its facilities and any above ground equipment located in the public highway and precise and verifiable horizontal and vertical location information and will make this information available to the town upon the installation of any new facilities. A licensee will also provide surface-location marking of licensee's facilities that are located underground within any public highway within 30 business days of installation. If complete updates are not provided in a compatible format, licensee shall pay the actual, reasonable costs the town incurs to update the town's electronic mapping format due to the location or relocation of the licensee's facilities. In the event licensee fails to supply records in the town specified format and there is a cost to the town in converting licensee-provided files, licensee will be responsible for the conversion costs and will pay such costs within 30 days of the date of the bill from the town invoicing the amount due.
(4) The authority granted by a license does not authorize licensee's use of the facilities for the construction, installation or operation of wireless facilities, a cable television system, a cable system, or a video services system or authorize the licensee to operate as a cable operator or video services provider as those terms are defined in the Communications Act of 1934, state law, or the town code. The authority granted by a license does not authorize the use of the public highway for an open video system as defined in the Communications Act of 1996 or as defined or authorized by the Federal Communications Commission. The authority granted by a license is not in lieu of any other license or franchise the town may require to occupy the public highways to provide service other than as authorized under a license.
(5) A licensee shall comply with rules and regulations of the Federal Communications Commission and Arizona Corporation Commission that apply to the services that licensee provides over the facilities in the public highway.
(6) In order for the town to determine a licensee's compliance with the terms of a license, within 30 days of a request for disclosure by the town, the licensee shall provide the documentation requested by town. For purposes of confirming that the licensee is providing solely services authorized under a license, upon reasonable request and notice by the town, the licensee shall make available for joint inspection and testing as requested by the town, the current services being provided by licensee through the facilities authorized by a license. If the licensee determines that in order to respond to the town's request for documentation and inspection that it must reasonably provide proprietary information, the licensee shall so designate such claim to proprietary treatment on documents provided to the town.
(7) If the facilities of a licensee or any other licensee equipment, improvements or activities within the use areas present any immediate hazard or impediment to the public, to the town, to other improvements or activities within or without the use areas, or to the town's ability to safely and conveniently operate the public highway or perform the town's utility, public safety and other public health, safety and welfare functions, then licensee shall immediately remedy the hazard, comply with the town's requests to secure the use areas, and otherwise cooperate with the town, at no expense to the town, to remove any such hazard or impediment. Licensee's work crews shall report to the use areas within four hours of any request by the town under this division.
(8) If a licensee abandons use of its facilities, or upon cancellation, revocation or termination of a license, licensee shall notify the town and may, subject to the town's approval, permanently abandon the facilities in place. In lieu of permanent abandonment, the town may require a licensee to the reasonable satisfaction of the town and, without cost or expense to the town, promptly to remove its facilities and to restore the public highway. If a licensee fails or refuses to remove the facilities required by town to be removed, the town may do so and licensee shall pay the cost of such removal and the restoration of the highway. Upon permanent abandonment, if the town does not require removal, a licensee shall submit to the town a proposal and instruments for transferring ownership to the city. Any facilities which are not removed within 120 days of the town's written request, automatically shall become the property of the town. The Arizona Blue Stake Center must be notified to record abandoned facilities.
(9) Any and all rights granted to a licensee shall be subject to the prior and continuing right of the town to use the public highway, including the use areas. Any and all rights granted to a licensee shall also be subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims to title which may affect the public highway. A license shall be construed to grant, convey, create or vest a perpetual real property interest in land to a licensee.
(10) A licensee accepts the risk that there may now or in the future exist in the use areas other work and improvements that the town may approve from time to time. The town shall have full authority to regulate use of the use areas and to resolve competing demands and preferences regarding use of the use areas and to require a licensee to cooperate and participate in implementing such resolutions.
(11) Neither the town nor any agent, contractor or employee of the town shall be liable to a licensee, its customers or third parties with user contracts for any service disruption or for any other harm caused them or the facilities due to competing uses of the public highway.
(12) A licensee may enter into user contracts with unrelated third parties in the ordinary course of the licensee's business for use of portions of the facilities of the licensee. All such third parties shall obtain a license from the town pursuant to A.R.S. § 9-583(D). No person shall transmit data over the facilities of the licensee or otherwise use the facilities except under a user contract with a licensee. The licensee shall provide to town:
(a) The name of the third party,
(b) The name, title, address, telephone number, and email address of a person with authority to speak for the third party,
(c) The route of the proposed service, and
(d) Any other information relevant to the use of the public highway by the third party reasonably requested by the town.
(13) All signage is prohibited except that a licensee shall install and thereafter maintain all signs and markings that the facilities and the licensee's activities may make necessary for safe use of the use areas by the public, the town, licensee and other persons who may be at the use areas at any time for any reason.
(14) Licenses shall be personal to the licensee. Except as provided in the license, no transfer of a license 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 town and the town'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 town may consider the same information and qualifications required of an original application for a license; whether the licensee is in compliance with its license 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 town's interest. No application for a transfer of a license shall be granted unless the proposed transferee agrees in writing that it will abide by and accept all terms of the chapter and the license, and that it will assume all obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous licensee under this section and the license for all purposes, including renewal. Approval by the town of a transfer of a license does not constitute a waiver or release of any of the rights of the town under this chapter or the license, whether arising before or after the date of the transfer.
(15) Every licensee shall be subject to the town's exercise of such police, regulatory and other powers as it now has or may later obtain, and a license may not waive the application of the same.
(16) Every license shall be subject to revocation if the licensee fails to comply with the material terms and conditions of the license, or applicable law; provided, however, that a license shall not be revoked unless the licensee is given written notice of the defect in performance, and fails to cure the performance within 60 days of the notice, except where the town 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 licensee has already had notice and opportunity to cure. A hearing shall be held before a license is revoked if the licensee requests a hearing.
(17) (a) Activities of a licensee and contractors of a licensee in the public highway shall be subject to environmental laws, now or hereafter imposed. A licensee and/or its contractors shall not produce, dispose, transport, treat, use or store any hazardous substances upon or about the public highway. These prohibitions shall not apply to:
1. Ordinary gasoline, diesel fuel or other fuels or lubricants necessary for ordinary use in motor vehicles and ordinary construction machinery permitted upon the highway, and any such materials shall be properly and lawfully contained in ordinary quantities in ordinary tanks and receptacles that are permanently installed in such vehicles and machinery, or small portable tanks that are being used for fueling permitted construction machinery, and
2. Electric backup batteries and other materials that may contain hazardous substances that are commonly used in the provision of telecommunications services.
(b) Disposal of hazardous substances shall be in accordance with environmental law. A licensee shall promptly notify the town of any hazardous substance at any time discovered or existing upon the highway. Within 24 hours after any violation by a licensee or its contractors of this license pertaining to hazardous substances, the licensee shall give the town notice reporting such violation.
(18) The town shall have the right, because of a public emergency, to sever, disrupt, remove, tear out, dig up or otherwise damage and/or destroy facilities of a licensee without any prior notice to licensee, if the action is deemed necessary by the Town Manager. In such event, the town shall not be liable to the licensee, its contractors or its customers or their parties for any harm so caused to them or the facilities except due to gross negligence or willful misconduct of town. The town shall inform the licensee of any actions taken. Licensee shall be responsible for repair at its sole expense of any of its facilities damaged pursuant to any such action taken by the town.
(19) Penalties for violation of license.
(a) Damages for violation of the license terms. Any remedies available to the town are cumulative, and are not limited by the recovery of any amounts pursuant to the insurance provisions of the license or pursuant to any indemnity clause.
(b) A requirement that if the licensee fails to pay amounts owed to the town by the time prescribed for payment, the licensee shall pay interest on the amounts owed, at the rate of 1% per month.
(c) A requirement that licensee shall produce books and records for the town's inspection and copying, prepare reports, respond to questions and permit the town to have access to its facilities as the town may request in order to determine whether licensee has complied with its obligations under the license, or other applicable law.
(C) Renewal. A licensee that receives a telecommunications service license pursuant to this section may apply for a renewal of its license, which renewal shall be reviewed in accordance with the requirements of state law.
(D) Term. Any license granted by the town pursuant to this section shall commence upon adoption of the license and acceptance of the license by the licensee within 30 days of the grant. The license shall be effective for a period of five years, and subject to the conditions and restrictions provided in the instrument and this chapter.
(Ord. O2020.02, passed 3-26-2020)