14.18.020: DECLARATION OF FINDING AND INTENT:

For purposes of this chapter the following terms, phrases, words, and their derivatives shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended. Words used in the present tense may include the future tense, words in the single number may include the plural number, words in the plural number may include the singular. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined shall be given their common and ordinary meaning.

APPLICATION: Means the process by which a provider submits a request and indicates a desire to be granted a franchise to utilize the rights-of-way of all, or a part, of the City. An application includes all written documentation, verbal statements and representations, in whatever form or forum, made by a provider to the City concerning: the construction of a utility system over, under, on or through the rights-of-way; the utility services proposed to be provided in the City by a provider; and any other matter pertaining to a proposed system or service.

CITY: Means City of Holladay, Utah.

COMPLETION DATE: Means the date that a provider begins providing services to customers in the City.

CONSTRUCTION COSTS: Means all costs of constructing a system, including make ready costs, other than engineering fees, attorneys or accountants fees, or other consulting fees.

CONTROL OR CONTROLLING INTEREST: Means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the system or of a provider. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person, or group of persons acting in concert, of more than twenty five percent (25%) of any provider (which person or group of persons is hereinafter referred to as "controlling person"). "Control" or "controlling interest" as used herein may be held simultaneously by more than one person or group of persons.

FCC: Means the Federal Communications Commission, or any successor thereto.

FRANCHISE: Means the rights and obligation extended by the City to a provider to own, lease, construct, maintain, use or operate a system in the rights-of-way within the boundaries of the City. Any such authorization, in whatever form granted, shall not mean or include:

A. Any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City;

B. Any other permit, agreement or authorization required in connection with operations on rights- of-way or public property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along the rights-of-way.

FRANCHISE AGREEMENT: Means a contract entered into in accordance with the provisions of this chapter between the City and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.

GROSS REVENUE: Includes all revenues of a provider that may be included as gross revenue within the meaning of chapter 26, title 11 Utah Code Annotated, 1953, as amended.

INFRASTRUCTURE PROVIDER: Means a person providing to another, for the purpose of providing utility services to customers, all or part of the necessary system which uses the rights-of-way.

OPEN VIDEO SERVICE: Means any video programming services provided to any person through the use of rights-of-way, by a provider that is certified by the FCC to operate an open video system pursuant to sections 651, et seq., of the Telecommunications Act (to be codified at 47 USC title VI, part V), regardless of the system used.

OPEN VIDEO SYSTEM: Means the system of cables, wires, lines, towers, wave guides, optic fiber, microwave, laser beams, and any associated converters, equipment, or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing open video services to or from subscribers or locations within the City.

OPERATOR: Means any person who provides service over a telecommunications system and directly or through one or more persons owns a controlling interest in such system, or who otherwise controls or is responsible for the operation of such a system.

ORDINANCE: Means this chapter concerning the granting of franchises in and by the City for the construction, ownership, operation, use or maintenance of a utility system.

PSC: Means the Public Service Commission, or any successor hereto.

PERSON: Includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the City.

PERSONAL WIRELESS SERVICES FACILITIES: Has the same meaning as provided in section 704 of the Act (47 USC 332(c)(7)(c)), which includes what is commonly known as cellular and PCS services that do not install any system or portion of a system in the rights- of-way.

PROVIDER: Means an operator, infrastructure provider, resaler, or system lessee.

RESALER: Refers to any person that provides local exchange service over a system for which a separate charge is made, where that person does not own or lease the underlying system used for the transmission.

RIGHTS-OF-WAY: Means the surface of and the space above and below any public street, sidewalk, alley, or other public way of any type whatsoever, now or hereafter existing as such within the City, but shall not include City electric utility easements and rights-of-way until a separate joint facilities (pole attachment) agreement is entered into by the City and provider. City and other utility providers have or may have easements and rights-of- way that may be prescriptive in nature. Nothing in this chapter or in any franchise agreement shall "surcharge the easement or right-of-way", or be implied to in any way grant or extend the permission or right to use an easement or right-of-way beyond those rights the City and other utility providers have acquired. Easements and rights-of-way may also be subject to third party, prior, or after-acquired interests and each franchise applicant and provider shall be responsible to examine each individual easement and right-of-way and the legal arrangement between the City or other utility providers and adjacent property owners before using the easement or right-of-way. The City shall have no duty or obligation to defend any interest in any easement or right-of-way and providers shall remain solely responsible to make any necessary legal arrangements required as a result of other persons claiming an interest in the City or other utility providers easements or right-of-way.

SIGNAL: Means any transmission or reception of electronic, electrical, light or laser or radio frequency energy or optical information in either analog or digital format.

SYSTEM LESSEE: Refers to any person that leases a system or a specific portion of a system to provide services.

TELECOMMUNICATIONS: Means the transmission, between or among points specified by the user, of information of the user's choosing (e.g., data, video, and voice), without change in the form or content of the information sent and received.

TELECOMMUNICATIONS SERVICE(S) OR SERVICES: Means any telecommunications services provided by a provider within the City that the provider is authorized to provide under Federal, State and local law, and any equipment and/or facilities required for and integrated with the services provided within the City, except that these terms do not include "cable service" as defined in the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 (47 USC section 521, et seq.), and the Telecommunications Act of 1996. Telecommunications system or systems also includes an open video system.

UTILITY: Means any private company or association which provides a service and/or product for the convenience and/or necessity of the public for a fee. Utility shall include but not be limited to telecommunications, fiber and broadband internet and internet protocol television providers. A governmental entity is not a utility for purposes of this chapter.

UTILITY SYSTEM OR SYSTEM: Means all conduits, pipes, manholes, poles, antennas, transceivers, amplifiers and all other electronic devices, equipment, wire and appurtenances owned, leased, or used by a provider, located in the rights-of-way and utilized in the provision of services, including fully digital or analog, voice, data and video imaging and other enhanced telecommunications services. Telecommunications system or systems also includes an open video system.

WIRE: Means fiber optic telecommunications cable, wire, coaxial cable, or other transmission medium that may be used in lieu thereof for similar purposes. (Ord. 2018-01, 1-4-2018)

14.18.020: DECLARATION OF FINDING AND INTENT:

A. Findings And Intent:

1. Findings Regarding Rights-Of-Way: The City Council of the City of Holladay, Utah, finds that the rights-of-way within the City of Holladay (hereinafter "City"):

a. Are critical to the travel and transport of persons and property in the business and social life of the City;

b. Are intended for public uses and must be managed and controlled consistent with that intent;

c. Can be partially occupied by the facilities of utilities and other public service entities delivering utility and public services rendered for profit, to the enhancement of the health, welfare, and general economic well-being of the City and its citizens; and

d. Are a unique and physically limited resource requiring proper management to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, placement, relocation, and maintenance in the rights-of-way.

2. Finding Regarding Compensation: The City finds that the City should receive fair and reasonable compensation for use of the rights-of-way.

3. Finding Regarding Local Concern: The City finds that while utility systems are in part an extension of interstate commerce, their operations also involve rights-of-way, Municipal franchising, and vital business and community service, which are of local concern.

4. Finding Regarding Promotion Of Utility Services: The City finds that it is in the best interests of its taxpayers and citizens to promote the rapid development of utility services, including those utilizing emerging technology, on a nondiscrimination basis, responsive to community and public interest, and to assure availability for Municipal, educational and community services.

5. Findings Regarding Franchise Standards: The City finds that it is in the interests of the public to franchise and to establish standards for franchising providers in a manner that:

a. Fairly and reasonably compensates the City on a competitively neutral and nondiscriminatory basis as provided herein;

b. Encourages competition by establishing terms and conditions under which providers may use the rights-of-way to serve the public;

c. Fully protects the public interests and the City from any harm that may flow from such commercial use of rights-of-way;

d. Protects the police powers and rights-of-way management authority of the City, in a manner consistent with Federal and State law;

e. Otherwise protects the public interests in the development and use of the City infrastructure;

f. Protects the public's investment in improvements in the rights-of-way; and

g. Ensures that no barriers to entry of telecommunications providers are created and that such franchising is accomplished in a manner that does not prohibit or have the effect of prohibiting telecommunication services, within the meaning of the Telecommunications Act of 1996 ("Act") [United States PL No. 104 - 104].

6. Power To Manage Rights-Of-Way: The City adopts this chapter pursuant to its power to manage the rights-of-way, pursuant to common law, the Utah Constitution and statutory authority, and receive fair and reasonable, compensation for the use of rights- of-way by providers as expressly set forth by section 253 of the Act. (Ord. 2018-01, 1-4-2018)

14.18.030: SCOPE OF CHAPTER:

This chapter shall provide the basic local scheme for providers of utility services and systems that require the use of the rights-of-way, including providers of both the system and service, those providers of the system only, and those providers who do not build the system but who only provide services. This chapter shall apply to all future providers and to all providers in the City prior to the effective date of this chapter, whether operating with or without a franchise as set forth herein. (Ord. 2018-01, 1-4-2018)

14.18.040: EXCLUDED ACTIVITY:

A. Exclusions:

1. Provisions Applicable To Excluded Providers: Providers excused by other law that prohibits the City from requiring a franchise shall not be required to obtain a franchise, but all of the requirements imposed by this chapter through the exercise of the City's police power and not preempted by other law shall be applicable.

2. Interconnection Of Facilities Owned By Single Business: The requirement of obtaining a telecommunications franchise shall not apply to a business that only desires to cross or use City rights-of-way to interconnect its own facilities, wholly located within City limits, if the City Manager finds:

a. That the business will use City rights-of-way only to interconnect its own facilities; and

b. The entity agrees to enter into a written license agreement with the City wherein the entity agrees to:

(1) Assume all costs (including City oversight and inspection costs) associated with construction and maintenance of the facilities, including all costs associated with the complete restoration of the City right-of-way after construction (or removal) of the facilities in the City right-of-way;

(2) Assume all liability arising from the construction, installation, maintenance, repair, use, operation, and/or removal of the facilities and indemnify, defend and hold City harmless from any such liability; and

(3) Pay a reasonable license fee for use of right-of-way based on comparable revenues received by the City from its franchisees.

3. City Facilities Or Poles: Nothing herein shall give the entity the right to use City facilities or poles, the use of which shall be governed by the license agreement. (Ord. 2018-01, 1-4-2018)

14.18.050: FRANCHISE REQUIRED:

A. Nonexclusive Franchise: The City is empowered and authorized to issue nonexclusive franchises governing the installation, construction, and maintenance of systems in the City's rights-of- way, in accordance with the provisions of this chapter. The franchise is granted through a franchise agreement entered into between the City and provider.

B. Every Provider Must Obtain A Franchise: Except to the extent preempted by Federal or State law, as ultimately interpreted by a court of competent jurisdiction, including any appeals, every provider must obtain a franchise prior to constructing a utility system or providing utility services using the rights-of-way, and every provider must obtain a franchise before constructing an open video system or providing open video services via an open video system. Any open video system or service shall be subject to the customer service and consumer protection provisions applicable to the cable TV companies to the extent the City is not preempted or permitted as ultimately interpreted by a court of competent jurisdiction, including any appeals. The fact that particular utility systems may be used for multiple purposes does not obviate the need to obtain a franchise for other purposes. By way of illustration and not limitation, a cable operator of a cable system must obtain a cable franchise, and, should it intend to provide telecommunications services over the same system, must also obtain a telecommunications franchise.

C. Nature Of Grant: A franchise shall not convey title, equitable or legal, in the rights-of-way. A franchise is only the right to occupy rights-of-way on a nonexclusive basis for the limited purposes and for the limited period stated in the franchise; the right may not be subdivided, assigned, or subleased. A franchise does not excuse a provider from obtaining appropriate access or pole attachment agreements before collocating its system on the property of others, including the City's property. This section shall not be construed to prohibit a provider from leasing conduit to another provider, so long as the lessee has obtained a franchise.

D. Current Providers: Except to the extent exempted by Federal or State law, any provider acting without a franchise on the effective date of this chapter shall request issuance of a franchise from the City within ninety (90) days of the effective date of this chapter. If such request is made, the provider may continue providing service during the course of negotiations. If a timely request is not made, or if negotiations cease and a franchise is not granted, the provider shall comply with the provisions of section 14.16.010 et seq., of this title and this chapter. If a provider has previously entered into a telecommunications franchise agreement with City the term of which has not expired, the provider may continue to operate under the existing franchise agreement until the term of the franchise agreement expires or may negotiate a new franchise agreement with City.

E. Nature Of Franchise: The franchise granted by the City under the provisions of this chapter shall be a nonexclusive franchise providing the right and consent to install, repair, maintain, remove and replace its system on, over and under the rights-of- way in order to provide services.

F. Regulatory Approval Needed: Before offering or providing any services pursuant to the franchise, a provider shall obtain any and all regulatory approvals, permits, authorizations or licenses for the offering or provision of such services from the appropriate Federal, State and local authorities, if required, and shall submit to the City upon the written request of the City evidence of all such approvals, permits, authorizations or licenses.

G. Term: No franchise issued pursuant to this chapter shall have a term of less than five (5) years or greater than fifteen (15) years. Each franchise shall be granted in a nondiscriminatory manner. (Ord. 2018-01, 1-4-2018)

14.18.060: COMPENSATION AND OTHER PAYMENTS:

A. Compensation And Payments:

1. Compensation: As fair and reasonable compensation for any franchise granted pursuant to this chapter, a provider shall have the following obligations:

a. Application Fee: In order to offset the cost to the City to review an application for a franchise and in addition to all other fees, permits or charges, a provider shall pay to the City, at the time of application, a non-refundable application fee as shown on the consolidated fee schedule adopted by the City Council.

b. Franchise Fees: The franchise fee, if any, shall be set forth in the franchise agreement. The obligation to pay a franchise fee shall commence on the completion date. The franchise fee is offset by any business license fee or Business License Tax enacted by the City.

c. Excavation Permits: The provider shall also pay fees required for an excavation permit as provided in section 14.16.010 et seq., of this title.

2. Timing: Unless otherwise agreed to in the franchise agreement, all franchise fees shall be paid on a monthly basis within forty five (45) days of the close of each calendar month.

3. Fee Statement And Certification: Unless a franchise agreement provides otherwise, each fee payment shall be accompanied by a statement showing the manner in which the fee was calculated and shall be certified as to its accuracy.

4. Future Costs: A provider shall pay to the City or to third parties, at the direction of the City, an amount equal to the reasonable costs and reasonable expenses that the City incurs for the services of third parties (including but not limited to attorneys and other consultants) in connection with any renewal or provider-initiated renegotiation, or amendment of this chapter or a franchise, provided, however, that the parties shall agree upon a reasonable financial cap at the outset of negotiations. In the event the parties are unable to agree, the parties may submit the issue to arbitration in accordance with the rules and procedures of the American Arbitration Association.

5. Taxes And Assessments: To the extent taxes or other assessments are imposed by taxing authorities, other than the City on the use of the City property as a result of a provider's use or occupation of the rights-of-way, the provider shall be responsible for payment of its pro rata share of such taxes, payable annually unless otherwise required by the taxing authority. Such payments shall be in addition to any other fees payable pursuant to this chapter.

6. Interest On Late Payments: In the event that any payment is not actually received by the City on or before the applicable date fixed in the franchise, interest thereon shall accrue from such date until received at the rate charged for delinquent State Taxes.

7. No Accord And Satisfaction: No acceptance by the City of any fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such fee payment be construed as a release of any claim the City may have for additional sums payable.

8. Not In Lieu Of Other Taxes Or Fees: The fee payment is not a payment in lieu of any tax, fee or other assessment except as specifically provided in this chapter, or as required by applicable law. By way of example, and not limitation, excavation permit fees and fees to obtain space on the City owned poles are not waived and remain applicable.

9. Continuing Obligation And Holdover: In the event a provider continues to operate all or any part of the system after the term of the franchise, such operator shall continue to comply with all applicable provisions of this chapter and the franchise, including, without limitation, all compensation and other payment provisions throughout the period of such continued operation, provided that any such continued operation shall in no way be construed as a renewal or other extension of the franchise, nor as a limitation on the remedies, if any, available to the City as a result of such continued operation after the term, including, but not limited to, damages and restitution.

10. Costs Of Publication: A provider shall assume any publication costs associated with its franchise that may be required by law. (Ord. 2018-01, 1-4-2018)

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