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HomeMy WebLinkAbout3448• • ORDINANCE NO. 3 4 4 8 AN ORDINANCE of the City of Port Angeles, Washington, relating to Telecommunications Utility, adding a new Chapter, 13.53, to Title 13 of the Port Angeles Municipal Code. WHEREAS, the City Council does hereby find that there is need to establish a "Telecommunications Utility " for the purpose of operating, managing and maintaining telecommunications facilities owned by the City, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PORT ANGELES do hereby ordain as follows: Section 1. Title 13, Public Utilities, of the Port Angeles Municipal Code is hereby amended by adding a new chapter 13.53 of PAMC, to read as follows: Chapter 13.53 TELECOMMUNICATIONS UTILITY Sections: 13.53.005 Definitions. 13.53.010 Purposes of Chapter. 13.53.020 Telecommunications Utility Established. 13.53.025 Powers and Authorities of the Telecommunications Utility. 13.53.030 Transfer of Property. 13.53.040 Director of Public Works and Utilities Department. 13.53.050 Applicability of Chapter. 13.53.060 No Obligation to Serve. 13.53.070 Rates and Rate Schedules. 13.53.080 Right —of -Way and Pole Attachments. 13.53.090 Liability for Interruptions of Access. 13.53.100 Shut -Down for Repairs. 13.53.110 Tampering with Telecommunications Facilities. 13.53.120 Theft of Telecommunications Access. -1- • • Section 13.53.005 — Definitions For purposes of this Chapter: A. "Telecommunications" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. As used in this definition, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. B. "Telecommunications Facilities" means lines, conduits, ducts, poles, wires, cables, crossarms, receivers, transmitters, instruments, machines, appliances, instrumentalities and all devices, real estate, easements, apparatus, property, and routes used, operated, owned, or controlled to facilitate the provision of Telecommunications services. C. "Metropolitan Area Network" means the City -wide broadband digital network comprised of Telecommunications Facilities that are owned by the City that interconnects a number of City owned and non -City owned Local Area Networks. D. "Local Area Network" means a computer network that interconnects computers in a limited area such as a home or a business. E. "Point of Delivery" is the physical point at which the Metropolitan Area Network ends, and the customer's Local Area Network begins. In the event of any dispute or uncertainty about the location of a Point of Delivery, the records of the Telecommunications Utility that show the location of the particular Point of Delivery shall control. F. "Right -of -Way" shall have the same meaning as 11.14.020 PAMC. Section 13.53.010 — Purposes of Chapter. The purposes of this Chapter are as follows: A. To operate, manage, and maintain Telecommunications Facilities owned or controlled by the City in the Right -of -Way up to the Point of Delivery. B. To reduce the costs of providing City services by using high capacity Telecommunications Facilities to support City services. C. To provide the opportunity to extend and improve a high capacity Metropolitan Area Network owned by or under the control of the City, and to use excess capacity thereon to provide access to high capacity Internet and other Telecommunications services, to accommodate expanding technologies and demand, to facilitate intergovernmental coordination and services (such as educational and health institutions), and to provide more and faster Telecommunications services to residents of the City. D. To enhance the growth and continued economic vitality of the City. E. To manage and regulate competing demands for the use of the public Right - of -Way by minimizing the installation of duplicative communications lines and facilities on, over or under the public Right -of -Way. F. To reduce the cost of Telecommunications services to City residents. -2- • • G. To effectuate the foregoing purposes, it is the intent of the City to provide for the operation, management and maintenance of the Metropolitan Area Network by contracting with private sector providers, and to operate the Telecommunications Facilities as an open access facility available to retail providers who will be charged for access thereto, and who will normally have the direct business relationship with the end -use customers, instead of the City filling such role. 13.53.020 — Telecommunications Utility Established. For the purposes of this Chapter and for the purposes of operating the Metropolitan Area Network of the City, there is created and established a Telecommunications Utility to be operated by the City's Department of Public Works and Utilities, which, for purposes of this Chapter, may also be referred to as "the Department." 13.53.025 — Powers and Authorities of the Telecommunications Utility. The Telecommunications Utility shall perform the functions, and have the authority, as set forth in this Chapter for managing, regulating, and controlling the City's Metropolitan Area Network. Without limiting the generality of the preceding sentence, the Telecommunications Utility shall have the power and authority: A. To operate, manage, and maintain Telecommunications Facilities owned or controlled by the City in the Right -of -Way to the Point of Delivery. B. To extend and improve a high capacity Metropolitan Area Network owned by or under the control of the City, and to use excess capacity thereon to provide access to high capacity Internet and other Telecommunications services to the public. C. To contract with private sector providers to provide for the operation, management and maintenance of the City's Telecommunications Facilities, and D. To operate the Telecommunications Facilities, or cause them to be operated, as an open access facility available to retail providers who will be charged for access thereto, and who will normally have the direct business relationship with the end -use customers. 13.53.030 - Transfer of Property -- All Telecommunication Facilities, equipment, property, and property rights and interests in the Right -of -Way to the Point of Delivery, owned or acquired by the City after January 1, 2012, insofar as they relate to or concern Telecommunications are hereby transferred to the Telecommunications Utility. 13.53.040 — Director of Public Works and Utilities Department. A. The word "Director ", as used in this Chapter, shall mean the Director of the City Public Works and Utilities Department, or his designated agent or employee. B. The Telecommunications Utility shall be administered under direction of the Director of Public Works and Utilities. The Director shall have full charge and control of all work provided for and contemplated by this Chapter, subject to the ultimate control and authority of the City Manager and the City Council. -3- • • C. The City shall have exclusive right to sell, lease and deliver access on the Metropolitan Area Network owned by or under the control of the City. Rights of access and delivery of services across the Telecommunications Facilities owned by or under the control of the City arising under the provisions of this Chapter shall not be transferred to any person or entity without the express written approval of the City Council. 13.53.050 — Applicability of Chapter. The provisions of this Chapter shall apply only to the delivery of access to and related services across the Telecommunications Facilities owned by or under the control of the City. Nothing in this Chapter shall be construed or deemed to regulate the delivery of Telecommunications services over or across lines, facilities or equipment owned by a private telecommunications provider, or which may be located in the public right -of -way pursuant to a franchise, lease, permit, license, or other privilege granted to such private communications provider by the City. 13.53.060 — No Obligation to Serve. The City shall have no obligation to serve or provide access on the Telecommunications Facilities owned by or under the control of the City. The City reserves the right to limit or refuse access to the Telecommunications Facilities owned by or under the control of the City at its sole discretion, provided such access shall not be limited or denied in a manner that is inconsistent with applicable federal, state or local law or regulations. 13.53.070 — Rates and Rate Schedules. Rates and charges for delivery of access and related services across the Telecommunications Facilities owned by or under the control of the City shall be billed in accordance with contracts with private sector providers as established from time to time by the City Council. 13.53.080 — Right —of -Way and Pole Attachments. A. The City hereby grants to the Telecommunications Utility established by this Chapter authority to use the City's Right —of -Way to install Telecommunication Facilities and apparatus necessary to effectuate the purposes of this Chapter, and the right to enter onto such public Right -of -Way to operate and maintain such Telecommunications Facilities, and to extend, improve and expand the Telecommunications Facilities owned or controlled by the City. B. The City may condition access to the Telecommunications Facilities owned or controlled by the City upon the dedication or conveyance to the City of a utility easement for the installation, operation and maintenance of such Telecommunications Facilities over, across, upon and under property owned or controlled by another. The City may also require such dedication or conveyance to be by warranty deed or it may require execution of an indemnification covenant assuring good and merchantable title thereto. Such utility easement may be used for the purpose of providing delivery of Telecommunications access and related services to the City as well as to others. Such utility easement shall permit access thereto by City employees and agents at all reasonable hours or at any time in an emergency situation, as determined by the City in its sole discretion. -4- • • C. Any Telecommunications Facilities attached to any pole owned or controlled by the City shall be subject to all ordinances and regulations pertaining to such pole attachments, including payment of fees. 13.53.'090 — Liability for Interruptions of Access. The City shall not be liable for any loss, injury or damage of any kind, including but not limited to consequential, special and punitive damages, resulting for the interruption, reduction, loss or restoration of access to the Telecommunications Facilities owned or controlled by the City from any cause, including without limitation any loss by fire, flood, accident, casualty, sabotage, terrorist act, strike, labor slow -down, act of God or the public enemy, or failure or inadequacy of Telecommunications access or appurtenant facilities. The City disclaims any express or implied warranty of merchantability or fitness for a particular purpose for access to the Telecommunications Facilities owned or controlled by the City provided pursuant to this Chapter. The delivery of Telecommunications access to any person or entity shall not be construed as or deemed to be the delivery of goods under the Washington Uniform Commercial Code. Every person and entity accepting access to the Telecommunications Facilities owned or controlled by the City agrees to, and shall be deemed to, waive any and all claims for damage or loss to the person's or entity's lines, facilities or communications equipment caused by any act or omission of the City; provided however, that nothing herein shall be deemed or construed as a waiver of any claim for damage or liability arising out of the gross negligence or malicious act of the City or its agents. 13.53.100 — Shut -Down for Repairs. Prior to a planned suspension of access to the Telecommunications facilities, the City will make reasonable efforts under the applicable circumstances to provide prior notice of such suspension to any person with access to such Telecommunication Facilities. However, for purposes of making repairs, upgrades, extensions or changes to the Telecommunications Facilities owned or controlled by the City, or to avoid damage to property or to persons, the City may without prior notice suspend access to the Telecommunications Facilities owned or controlled by the City for such periods as the City determines in its sole discretion to be reasonably necessary to make such repairs, upgrades, extensions, or changes, or to avoid damage to property or to persons. The City shall not be liable for damage of any kind, direct or indirect, resulting from any such suspension of access to the Telecommunications Facilities owned or controlled by the City. 13.53.110 — Tampering with Telecommunications Facilities. No person shall connect to, adjust, tamper with or make any alteration or addition to the Telecommunications Facilities owned or controlled by the City, without having first obtained written permission from the Director, and any person who causes damage to the Telecommunications Facilities owned or controlled by the City shall be liable to the City for any damage proximately caused by such unauthorized connection, adjustment, tampering, alteration or addition to such Telecommunications Facilities. 13.53.120 — Theft of Telecommunications Access. It shall be unlawful for any person to make any connection to or to install or to construct any facility or equipment with the intent of obtaining access from or make use of the Telecommunications Facilities or network -5- • • owned or under the control of the City without paying for such access or without paying the fees and charges applicable thereto. Section 2 - Severability. If any provisions of this Ordinance or its applications to any person or circumstances is held to be invalid, the remainder of the Ordinance or application of the provisions of the Ordinance to other persons or circumstances is not affected. Section 3 - Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum. This ordinance shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title. Section 4 - Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of the scrivener's /clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. PASSED by the City Council of the City of Port Angeles at a regular meeting of said Council held on the 2 0 day March, 2012. ATTEST: 1 I ssaH fd, Cit Clerk leftt?CAT.-0_1 tAt PUBLISHED: March 25 , 2012 By Summary Cherie Kidd, M - yor APPR VED AS TO FORM: William E. Bloor, City Attorney G \LEGAL \a ORDINANCES &RESOLUTIONS \ORDINANCES 2012 \01 - Telecommunicattons Utility Final 01 31 12 docx -6- • Summary of Ordinances Adopted by the Port Angeles City Council On March 20, 2012 Ordinance No. 3448 An Ordinance of the City of Port Angeles, Washington, relating to Telecommunications Utility, adding a new Chapter, 13.53, to Title 13 of the Port Angeles Municipal Code. Ordinance No. 3449 An Ordinance of the City of Port Angeles, Washington, amending Chapter 3.24 of the Port Angeles Municipal Code relating to Electric Fund. The full texts of the Ordinances are available at City Hall in the City Clerk's office, on the City's website at www.cityofpa.us, or will be mailed upon request. Office hours are Monday through Thursday, 8:30 a.m. to 4:00 p.m., and Friday 8:30 a.m. to 12:30 p.m. These Ordinances shall take effect five days following the date of publication by summary. Publish: March 25, 2012 • Janessa Hurd City Clerk