049 of 2004 - Relating to telecommunication right-of-way permits, & establishing related annual right-of-way charg 0 04-1
0 03-17
SALT LAKE CITY ORDINANCE
No. 49 of 2004
(Telecommunication Right-of-Way Permits)
AN ORDINANCE ENACTING SECTION 14.32.425 OF THE SALT
LAKE CITY CODE, RELATING TO TELECOMMUNICATION RIGHT-OF-
WAY PERMITS, AND ESTABLISHING RELATED ANNUAL RIGHT-OF-
WAY CHARGES.
Be it ordained by the City Council of Salt Lake City, Utah:
SECTION 1. That Section 14.32.425 of the Salt Lake City Code, relating to
Telecommunication Right-of-Way Permits, is hereby enacted to read as follows:
14.32.425 Telecommunication right-of-way permits.
A. Definitions.
For purposes of this Section 14.32.425, the following terms shall have the
following meanings:
"Cable" means any optical fiber, copper or other line, wire or cable, of any
dimension, (i) encased in its own sheathing and physically installed and handled as
a discrete facility, (ii) used by a Person for the transmission of Telecommunication
Signals, and (iii) situated wholly or partially in the city's Right-of-Way.
"Conduit" means any pipe, pipeline, housing, structure or similar facility,
(i) the primary purpose of which is the housing of Cables, and(ii) 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 in diameter
or smaller shall be deemed a single Conduit, and any Conduit larger than four
inches in diameter shall be deemed multiple Conduits in increments of four inches,
with any increment in excess of a multiple of four being deemed a separate
Conduit. By way of example, a Conduit with a diameter of 8 inches shall be
deemed to be two Conduits, whereas a Conduit with a diameter of 9 inches shall
be deemed to be three Conduits.
"Conduit Equivalent" means, in the case of one or more Cables (i) owned
by a single Cable Owner, (ii) situated in the City's Right-of-Way, and (iii) not
housed within a Conduit, such number of such Cables as may practicably have
been housed within a 4-inch Conduit, had the Owner elected to install such Cables
within a 4-inch 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 18 inches in width.
"Consumer Price Index"means 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" means a Telecommunications Right-of-Way Lease, a
franchise, or similar contract between the city and a Conduit Owner or Cable
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Owner relating to the use of the city's Right-of-Way, in effect on the effective date
of this ordinance.
"Linear Foot Charge" means 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
$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" means the minimum annual charge payable by a
Conduit Owner or Cable Owner under this Section, which shall initially be $500.
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" means 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.
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"Person" means any individual, partnership, association,joint venture,
limited liability company, corporation or other legal entity.
"Right-of-Way" means any present or future street, alley, viaduct, bridge,
road, lane and public way within the city, including the surface, sub-surface 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" means 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" means information in electromagnetic
frequency, electronic or optical form, and including but not limited to voice, video
or data, (i) whether or not the transmission medium is owned by the provider
itself, (ii) whether or not the transmission medium is wireline or wireless, and (iii)
whether or not the information is in digital or analog form.
B. 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
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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. 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) hereof, if applicable.
D. There is hereby imposed and assessed upon (i) each Conduit Owner,
(ii) each Owner of Cable which is not situated within a Conduit, and (iii) each
Person authorized to use a Cable under the circumstances described in subsection
(F) hereof, 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(i) the
Linear Foot Charge or (ii) 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 (i) the charge payable July 1, 2004 shall be pro-rated over the
remaining six months of calendar year 2004, and (ii) the charge shall be pro-rated
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 pro-rated over calendar year 2004, and applied as a credit
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•
against the charge hereby imposed on such Owner. Payments under this
subsection (D) shall be paid to the city at such time, and in such manner, as shall
be reasonably required by the city in the Telecommunication Right-of-Way
Permit.
E. 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 30 days of activation.
F. No charge shall be imposed under subsection (D) above 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, (i)
the operation of which does not generate gross receipts or gross revenues subject
to the above-described taxes, fees or charges, and (ii) (a) which is owned by a
Person other than the Conduit Owner, or (b) 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) above
shall be imposed, with respect to such Cable, on such other Person; provided,
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however, that in the event two or more Persons occupy such Conduit, each such
Person shall be responsible for paying only a portion of the charge imposed by
subsection (D) hereof, in an amount equal to the total charge, divided by the
number of such Persons.
G. 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) above 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) 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) shall continue paying to the city the amounts
set forth in such Existing Agreements until such Exiting Agreements terminate, at
which time such Conduit Owners or Cable Owners shall be subject to the charge
imposed under subsection (D).
H. Any Cable Owner whose Cable is situated within a Conduit owned
by a Conduit Owner subject to the charge imposed under subsection (D) above,
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 (i) identify the Conduit Owner, and (ii)
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establish the applicability of the charge imposed under subsection (D) to such
Conduit Owner.
I. Each Telecommunication Right-of-Way Permit shall include a
requirement that the permittee provided to the city, and update on at least a semi-
annual 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. 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. To the extent any requirement of this ordinance or of any
Telecommunications Right-of-Way Permit is held by a court of competent
jurisdiction, pursuant to a final, non-appealable ruling, to violate federal or state
law, such requirement shall be deemed severed from this ordinance or such
Telecommunications Right-of-Way Permit, and the remainder of the requirements
hereof or thereof shall continue in full force and effect.
SECTION 2. This ordinance shall take effect July 1, 2004.
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Passed by the City Council of Salt Lake City, Utah thisl7th day of
June , 2004.
CHAIRPERSON
ATTEST:
CHI F DEPUTY CITY'RECORDER
Transmitted to Mayor on 6-23-04
Mayor's Action: Approved. Vetoed.
AYOR
ATTEST:
CHIEF DEPUTY CITY R CORDER
.I(E \,
(SEAL) 1./e
Bill No. 49 of 2004. k4CS:• -�` ��
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Published: 7/7/04
APPROVED AS To r
Salt Lake CI Att me § O i V
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