Subject to the requirements of the City Charter, a Franchise requirement and the Franchise application process may be waived, in whole or in part, for a Telecommunications System where the use of the Public Rights-of-Way by the Operator is De minimis. For such facilities, the City acting through the City Manager or his designee may issue a License.
(Ord. 27910 Ex. A, 2010-08-03)
No License shall convey title, equitable or legal, in the Public Rights-of-Way. The right granted is only the right to occupy those portions of the Public Rights-of-Way to which the City has the right to grant access, for the purposes and for the period stated in the License, and, subject to the limitations in this Subtitle or applicable law, the right may not be subdivided or subleased to a person other than the holder of the License.
(Ord. 27910 Ex. A, 2010-08-03)
Every License shall be:
A. 
Construed to exclude the grant of any rights in any easement granted for, or in favor of, public utility facilities or operations, unless the License shall expressly state otherwise; and
B. 
Revocable at will.
(Ord. 27910 Ex. A, 2010-08-03)
No reference herein or in any License to a Public Rights-of-Way shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a License shall be deemed to grant no more than those rights which the City may have the undisputed right and power to give.
(Ord. 27910 Ex. A, 2010-08-03)
In order to enable the City to treat Persons providing similar Services similarly, as may be appropriate to comply with applicable law and considering differences in circumstances, and to comply with requirements of federal law which may require the City to separate its authority over Cable Systems from its authority over other providers of Telecommunications Services, the City requires separate Licenses for the provision of cable, telecommunication, and other Services. The revocation of a License for one particular Service in and of itself will not affect the authority of an Operator to continue to occupy the Public Rights-of-Way to provide Services for which it holds other Franchises, Licenses, or Special Street Use Permits.
(Ord. 27910 Ex. A, 2010-08-03)
The issuance of a License shall not affect the City’s right to itself construct, operate, or repair any Telecommunications Facility, with or without a License.
(Ord. 27910 Ex. A, 2010-08-03)
In addition to satisfying the other applicable requirements of this Subtitle, every License for a Telecommunications System shall contain the following provisions:
A. 
The License shall provide that neither the granting of any License, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the City, as may exist at the time the License is issued or thereafter be obtained. Licensees must comply with all applicable provisions of Chapter 10.22, and any other City ordinances and regulations governing Public Rights-of-Way use.
B. 
The License shall only authorize occupancy of the Public Rights-of-Way for the purposes described in the License and for no other purpose whatsoever.
C. 
The rights granted pursuant to a License shall be a privilege that is held in the public trust and personal to the original Licensee.
D. 
The License shall be for a specified term set forth in the License. Unless otherwise provided or authorized by law, no License issued under this Subtitle shall be for a term of longer than one year.
E. 
Such other terms as are required to be included in the License by the City Charter.
(Ord. 27910 Ex. A, 2010-08-03)
A. 
Possession or removal. Upon termination or expiration of a License, without renewal or other authorization, whether by action of the City, or by passage of time, the Licensee shall be obligated to cease using the Telecommunications System for the purposes authorized by the License. The City may either take possession of some or all of the Licensee’s facilities in the Public Rights-of-Way or, upon written order, require the Licensee or its bonding company to remove some or all of the Licensee’s facilities from the Public Rights-of-Way and restore the Public Rights-of-Way to its same, or better, condition as existed just prior to removal. Should the Licensee neglect, refuse, or fail to remove such facility from the Public Rights-of-Way, the City may remove the facility at the expense of the Licensee.
B. 
Survival of terms. The obligation of the Licensee to remove shall survive the termination, forfeiture, or expiration of the License; provided that, such obligation shall terminate if the City does not exercise its authority to require removal within two years after termination, forfeiture, or expiration of the License.
C. 
Other services. The provisions of Section 16B.03.090A do not permit the City to take possession of, or require the Licensee to remove, any facilities that are used to provide another service for which the Licensee holds a valid Franchise, Special Street Use Permit, or License issued by the City.
D. 
Time for removal. In no case shall the Telecommunications System Operator be provided less than 12 months to remove its facilities, measured from the date the Telecommunications System Operator is ordered to remove its facilities.
E. 
Service of order. Any order by the City issued, pursuant to this Section 16B.03.090 to remove the Telecommunications System in whole or in part, shall be sent by registered or certified mail to the Telecommunications System Operator not later than 24 months following the date of License termination, forfeiture, or expiration.
F. 
Removal plan. The Telecommunications System Operator shall file a written removal plan with the City not later than 30 calendar days following the date of the receipt of any orders directing removal, or any consent to removal, describing the work that will be performed, the manner in which it will be performed, and a schedule for removal by location. The removal plan shall be subject to approval and regulation by the City. The affected property shall be restored to as good or better condition than existed immediately prior to removal, as required by TMC Chapter 10.22.
G. 
Abandonment. To the extent any portion of the Telecommunications System in the Public Rights-of-Way or on any other public property is not removed by the Telecommunications System Operator within the time period specified herein or such other period as the City may establish, the property will be deemed abandoned and shall become the property of the City if the City wishes to own it. Within 60 days of a request by the City, the Telecommunications System Operator shall execute such documents as may be required to convey such abandoned property to the City free and clear of all encumbrances.
(Ord. 27910 Ex. A, 2010-08-03)
A. 
Application required. Each entity that is authorized by this Subtitle to hold a License, must file an application for an initial License, Transfer of a License, or renewal of a License in accordance with the requirements of this Subtitle.
B. 
Who may file. An application may be filed by any Person, on that Person’s own initiative or in response to a request for proposals.
C. 
Form of application. All applications required by this Subtitle shall be made on a form prescribed by the City Manager and on file with the City Clerk. All License applications shall be filed with the City Clerk unless otherwise directed by the City Manager.
D. 
Review. All applications for a License shall be reviewed by the City to determine if the application is complete. An application shall be deemed to be complete if it is made on the form prescribed by the City Manager, filed as required by this Subtitle, contains all information required by this Subtitle, and is in compliance with all requirements of Sections 16B.03.100 to 16B.03.180.
E. 
Notice upon review. Except as otherwise provided in Section 16B.03.100F, an applicant shall be notified, within ten business days of filing of an application, if the application is incomplete and the basis for the determination that the application is incomplete. Notice shall be in writing and deemed to have been duly given upon placing such notice in the United States mail, postage prepaid, properly sealed, correctly addressed to the applicant at the address stated on the application or when hand delivered to said address. In the event that such notice is not timely given, the application shall be deemed to have been complete at the time of filing for purposes of Section 16B.03.100G.
F. 
Notice of incomplete application. In the event that an application has been filed and the City, upon review, is unable to determine within ten business days of filing that the application is complete, notice shall be given, as provided in Section 16B.03.100E, stating the amount of time necessary to complete the review to determine if the application is complete and the reason for the additional period of time.
G. 
Applications acted upon. Except as otherwise provided in Section 16B.03.100H, completed applications for a License shall be acted upon within 120 days of filing of the completed application.
H. 
Tolling. The time period for acting upon a filed and completed application for a License shall be tolled for (1) any period of time agreed to by the applicant; or (2) a reasonable period of time necessary, in the ordinary course, to submit the License to the City Council for approval or denial, when such action by the City Council cannot reasonably be scheduled within the 120-day period.
I. 
Acted upon defined. An application for an initial License is acted upon if the City Council has taken action to grant, conditionally grant, or deny the License application.
J. 
Denial. The City may (1) approve or disapprove a License; and (2) require such terms and conditions in the License agreement as deemed in the best interests of the City. In the event that the City takes action to deny a License, the reasons for denial shall be available in a written record. A License shall be deemed denied only in circumstances in which the City has taken action to deny a License in any form. Denial of a License shall not prejudice the rights of the applicant to apply for a Franchise or Special Street Use Permit.
(Ord. 27910 Ex. A, 2010-08-03)
Every application for an initial License, a Transfer of a License, or a renewal of a License, shall include the following:
A. 
Identity of authorized parties. The names and addresses of Persons authorized to act on behalf of the applicant with respect to the application and Person(s) who are authorized to receive all notices required pursuant to Section 16B.03.100E.
B. 
Initial deposit. An initial refundable Application Fee deposit in the amount of $1,000.
C. 
Identity of applicant. Identity of the applicant, the Persons who exercise working control over the applicant, and the Persons who control those Persons, to the ultimate parent.
D. 
Affidavit verifying status as operator of telecommunications system. An affidavit of an authorized officer of the applicant that the operation of its facilities in the Public Rights-of-Way will be limited to providing Telecommunications Services as defined herein; provided that, if such facilities will be used to provide services other than Telecommunications Services as defined herein, the applicant shall state what other services will be provided and under what authority applicant will be utilizing facilities located within the Public Rights-of-Way to provide such services.
E. 
Location/description of facilities. Identification of the area of the City in which the applicant proposes to initially install facilities in the Public Rights-of-Way, including the approximate linear feet of overhead facilities, the approximate linear feet of underground facilities, and the type of facilities to be installed.
F. 
Affidavit verifying authorizations. An affidavit of an authorized officer of the applicant stating that prior to the granting of this License that the applicant has received, or is in a position to receive, necessary authorizations from state and federal authorities to provide Telecommunications Services using facilities within the Public Rights-of-Way.
G. 
Affidavit of compliance. An affidavit of an authorized representative of the applicant stating that the applicant is not in default relative to any existing Franchise, Special Street Use Permit, or License for facilities in the Public Rights-of-Way. An applicant may show that it would be inappropriate to deny it a License under Section 16B.03.130D, by virtue of: the particular circumstances surrounding the default at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant’s principals or the remoteness of the acts or omissions from the operation of Telecommunications Facilities.
H. 
Affidavit of de minimis use. An affidavit of an authorized representative of the applicant stating that the applicant’s use of the Public Rights-of-Way during the term of the License will be De minimis and explaining in detail the factual basis for such assertion.
I. 
Affidavit of acceptance. An affidavit of an authorized representative of the applicant stating that the applicant is willing to accept a License and abide by the provisions of applicable law, including those relating to the construction, operation, or maintenance of its Telecommunications Facilities in the Public Rights-of-Way, and that the applicant has not entered into any agreement that would prevent it from doing so.
J. 
Affidavit verifying truth/accuracy. An affidavit of an authorized representative of the applicant certifying the truth and accuracy of the information in the application and certifying that the application meets all requirements of applicable law.
(Ord. 27910 Ex. A, 2010-08-03)
The City Manager may request such additional information as it finds necessary and which may be lawfully required. A completed application for a License shall be subject to review by the City Manager and approval shall be subject to the City Manager’s determination that:
A. 
Completed application. The applicant has submitted a complete and accurate application.
B. 
Acceptance of license. The applicant will enter into a License agreement upon terms and conditions required or authorized by this Subtitle and comply with any conditions precedent to its effectiveness as required by this Subtitle.
C. 
Authorizations. The applicant has received, or is in a position to receive, necessary authorizations from state and federal authorities to provide Telecommunications Services using facilities within the Public Rights-of-Way.
D. 
Default. The applicant is not in material default as to any other Franchise, Special Street Use Permit, or License for facilities in the Public Rights-of-Way and, if the applicant is in such default, has demonstrated that it would be inappropriate to deny it a License by virtue of: the particular circumstances surrounding the default at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant’s principals or the remoteness of the acts or omissions from the operation of Telecommunications Facilities.
E. 
De minimis use determination. The applicant’s use of the Public Rights-of-Way during the term of the License will be De minimis.
(Ord. 27910 Ex. A, 2010-08-03)
In the case of a Transfer, any approval will also be subject to the requirements that:
A. 
Transferee will agree to be bound by all the conditions of the License and to assume all the obligations of its predecessor; and
B. 
Any outstanding compliance issues will be resolved or preserved to the satisfaction of the City.
(Ord. 27910 Ex. A, 2010-08-03)
An applicant shall not be issued a License if it files, or in the previous three years filed, materially inaccurate or misleading information in a Franchise, Special Street Use Permit, or License application or intentionally withheld information that the applicant lawfully is required to provide; provided that, an applicant may show that it would be inappropriate to deny it a License under this section, by virtue of: the particular circumstances surrounding the filing or failure to provide information at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant’s principals or the remoteness of the acts or omissions from the operation of Telecommunications Facilities.
(Ord. 27910 Ex. A, 2010-08-03)
Notwithstanding any other provision of this Subtitle, pledges in trust or mortgages of the assets of a licensed Telecommunications System to secure the construction, operation, or repair of the system may be made without application and without the City’s prior consent; except that no such arrangement may be made if it would, in any respect, under any condition, prevent the Telecommunications System Operator or any successor from complying with the License and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the Operator, or to own or control the Telecommunications System, without the prior consent of the City. Any mortgage, pledge, or lease shall be subject to, and subordinate to, the rights of the City under any License, this Subtitle, or other applicable law.
(Ord. 27910 Ex. A, 2010-08-03)