memorandum - scottsdaleaz

CTYOfSCOnSDALE

Community & Economic Development Division Planning and Development Services

7447 East Indian School Road, Suite 105 Scottsdale, Arizona 85251

MEMORANDUM

ITEM 12

To: Honorable Mayor and City Council Members

From: Keith Niederer, Telecom Policy Coord,

Through: Randy Grant, Planning & Development Director

Date: March 27, 2019

Re: Item 12 - April 2, 2019 City Council Agenda

Based on recently received correspondence from Verizon Wireless. Staff is requesting to continue Item 12, (Amendment to Chapter 47 of the City Code).frbm the April 2, 2019 City Council hearing regular agenda to a date to be determined. This will allow additional time for staff to work with Verizon and the Telecom industry on modifications to the proposed City Code amendment.

Item 12

CITY COUNCIlREPORTMeeting Date:General Plan Element: General Plan Goal:

April 2, 2019Public Services and FacilitiesEncourage provision of power and communication systems that match the character of Scottsdale and provide reliable, efficient service for Scottsdale citizens, visitors and businesses.

ACTIONAmend Various Provisions of Chapter 47 of the Scottsdale Revised Code

1. Adopt Ordinance 4389 and approve Resolution 11403 amending various provisions of Chapter 47 of the Scottsdale Revised Code regarding streets, sidewalks and public works including an update primarily to the Telecommunication's Ordinance.

PURPOSEThe purpose of this City Council Action is to revise Chapter 47 of the Scottsdale Revised Code, primarily relating to the installation of wired telecommunications within City's rights-of-ways. This proposed ordinance will modify the terms and conditions for wired telecommunication license agreements, modify definitions and modify the compensation/annual fee provisions. This amendment also makes minor language changes to other provisions within Chapter 47 and strikes the notice of abandonment application section, which is already addressed by the City's Basic Zoning Ordinance (Appendix B of the City Code).

Key Items for Consideration- Intent to create a competitively neutral or non-discriminatory ordinance- Updates antiquated language- Telecom industry in some disagreement on proposed fees- Provides option to reduce fees for an in-kind exchange of other infrastructure facilities to City.

BACKGROUNDOn February 8, 1996, the Federal Telecommunication Act of 1996 became law, which changed the rules for competition and regulation in the communication industry to encourage marketplace competition. This set the stage for the construction of high capacity, high speed fiber optic

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infrastructure networks allowing for the two-way communication and sharing of voice, text, data, pictures, video, etc.

On June 1, 1998, the Arizona governor signed into law S.B. 1137, which amended Section 2. Title 9, Chapter 5 of the Arizona Revised Statutes to add Article 7, relating to fees and charges for the telecommunications facilities and the use of public highways by telecommunications providers. (§9- 581, §9-852 & §9-583)

On February 5, 2001, the Scottsdale City Council approved Ordinance 3368, which added Article VII to Chapter 47 of the City Revised Code. The purpose of the ordinance was to create a process and requirements for telecommunications corporations who wish to construct, operate and maintain telecommunications facilities within the City's public highways. The Ordinance largely mirrored state statute except for also requiring the following:

- A $2,000 license agreement application fee,- A route map, schedule for construction and a chart comparing their schedule to the City's

proposed street maintenance schedule,A narrative describing the types of services that will be offered and the benefits that those services will bring to Scottsdale,Requests participation in joint trench projects to minimize impact on streets.

Ordinance 3368 did not include Cable Television services (Ch. 7 of the Scottsdale Revised Code), or Wireless Communication Facilities, which are regulated by the City's Basic Zoning Ordinance (Appendix B of the Scottsdale Revised Code).

Scottsdale currently has 6 approved Wired Telecommunications Licenses, all of which allow these corporations to have conduit and wires installed in the City streets.

Level 3 TW Telecom ELI/Integra

- AT&T/TCAZayo (formerly Atlanta Gas & Light Networks - AGL)Crown Castle

MCI Metro Access Transmission Services Corp. d/b/a Verizon submitted a Telecommunications License application to the City in May of 2017, but the contract has not yet been brought to City Council for approval as Verizon and City Staff have not yet reached an agreement on the proposed terms. The proposed agreement offered to Verizon by City Staff would reflect what is being proposed with this City Code Amendment.

Many of the corporations who already have agreements and fiber installed in Scottsdale do not pay an annual fee to occupy the rights-of-ways, as they claim to be exempt under state law. The contracts contain a provision that an "Interstate Fee Payment" shall be paid based on the Licensee's use of the private plant to provide interstate telecommunications as defined by A.R.S §9-583(C)(2). The interstate fee payment is based on the amount of linear feet of copper, fiber, cable conductor or conduit in the public rights-of-ways. The amount is adjusted upward annually based on the

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United States Consumer Price Index for all Urban Consumers (CPI-U). As of 2018-2019, the fee is $2.19 per linear foot, but, due to the asserted exemption, most corporations do not pay fees.

The telecommunications industry has evolved significantly since the legislature adopted A.R.S. § 9- 581 et seq. and the City adopted its wired telecommunications ordinance. These laws were geared largely towards traditional "land-line" service involving wired telephones and a local service exchange coupled with long distance phone services. The revolutionary technologies of the wireless telecommunications industry has made much of the traditional phone service near obsolete. Thus, while the "telecommunications corporations" contemplated in the late 1990's were still geared toward providing land-line telephone service to homes, a substantial majority of the current wired telecommunications is geared toward carrying "data" through the internet and supporting wireless telecommunication services. Staff's belief is that many of the current licensees either do not provide the traditional "telecommunication services" at all or it is a limited part of their business.

Accordingly, Staff's belief is that the current wired telecommunications ordinance is outdated and not suited to the current environment of telecommunications and the City's management of the rights of way. Staff also believes that the current ordinance structure has been used by telecommunications providers to avoid paying the City fair compensation for use of the rights of way. In candor to the Council, there is some disagreement between City staff and the industry regarding the legal and regulatory environment. Some of the providers maintain that if they provide any of the traditional "telecommunications services" contemplated by A.R.S. § 9-581 at all, they are entitled to a blanket exemption from compensating the City for use of the rights of way.

Staff's position is that the exemption in state law is limited only to the extent that telecommunications corporations provide the defined telecommunications services. City staff's position is that the state law exemption is limited to just that and to the extent that the providers desire to provide fiber for the backhaul of wireless communication facilities or other services that do not meet the state law definition of telecommunication services, the City should be compensated for use of the rights-of-ways.

PROPOSALConsidering the above. City Staff proposes this ordinance and resolution to amendment Chapter 47 of the City Code. The City is proposing to modify or consolidate definitions (Sec. 47-162); make minor modifications to the Telecommunications License application and license sections (Sec. 47- 163 & 164); and update the compensation section (Sec. 47-166) to include charging an annual linear foot fee for installed conduit regardless of whether the facility carries interstate or intrastate traffic. Staff believes the proposed changes will allow the City to better manage the rights-of-ways through fair, non-discriminatory treatment of telecommunications providers and fair compensation for use of the City's rights-of-ways.

As proposed, each telecommunications provider shall:

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Pay any applicable transaction privilege tax or applicable use tax, as may be specified from time to time in the Scottsdale City Code.

Pay an annual fee based on the number of linear feet of conduit, not to exceed an aggregate of four (4) inches in outside diameter, in the rights-of-ways in which facilities are placed. The proposed rate per linear foot is ninety (90) cents. This is a decrease from the current $2.19 per linear foot. An annual fee will not apply for the installation of up to twenty five (25) feet of conduit located in the right-of-way that is directly associated with a wireless communication facility. Staff developed this fee through consultation with the City's real estate division. Staff will note that this fee was a significant source of comment with the industry representatives. Industry comments are attached to this report.

Pay a one-time pavement damage fee for each linear foot of cuts to pavement in the rights- of-ways and pay any and all additional reasonable costs for any other damage caused to the rights-of-ways by licensee, the licensee's facilities.

Pay an additional linear foot fee to be established by the city manager or designee when the conduit exceeds an aggregate of four (4) inches in diameter.

New Section 47-166a will allow the providers an opportunity to propose an in-kind exchange, where a license issued may provide for a corresponding credit against the annual linear foot fee if the telecommunications provider agrees to provide either facilities or services for the City as part of the license agreement. Such an agreement would be based on an evaluation that the provider can provide in-kind facilities or services that are beneficial to the City.

New Section 47-168 is designed to preserve state and federal exemptions to the extent such are applicable. Some providers may claim that they are exempt from some or all of these provisions pursuant to state or federal laws. A provider will be required to notify the City in writing of its claimed exemption and the nature and basis thereof. If the City is satisfied that an exemption is applicable, the City may issue a license to use the rights-of-ways pursuant to such state or federal law. However, the license will limit the provider to providing only such services that are exempt. Other exemptions may include any entity holding a utility franchise agreement with the City, (such as Cox Communications) or any governmental or quasi-governmental entity providing utility service in the City (such as Salt River Project) to the extent that such entity installs telecommunication facilities solely for the purpose of monitoring, coordinating, or otherwise improving the delivery of such utility service. The exemption would not allow for the selling of dark fiber. Dark fiber is a communications industry term that refers to a fiber-optic cable that is in-place for customers to "light" by installing and operating their own electronic equipment to transmit data over fiber-optic cables. A dark fiber provider company provides end-user customers access to the fiber-optic cable through a lease agreement. Dark fiber companies have been historically subject to the annual linear foot fee in Scottsdale.

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IMPLICATIONS

• If approved, there may be additional revenue source• Existing telecommunication license agreements will be required to conform to new

requirements upon renewal. As of the drafting of this report, staff has not received comment on this Ordinance from many of the corporations with existing license agreements with the City.

OUTREACHDiscussion of amending the Telecommunication code section started in May of 2017 when MClmetro (Verizon) submitted a Telecommunications application to the City. City staff sent a draft agreement to MClmetro (Verizon) on July 20, 2017. MClmetro responded with comments on November 2, 2017. Since that time there have been a few conference calls and meetings.

September 26, 2018: Staff sent out a draft of this City Code amendment for comments to provider who have existing telecommunications licenses with the City.

October 15, 2018: Staff sent out a follow up email to providers who didn't respond to the first request for comments.

November 5, 2018: Verizon sends in a list of comments on behalf of Verizon, T-Mobile, Sprint, CenturyLink and Cox. No comments were received from Zayo, AT&T/TCA or Level 3. This comment letter can be seen in the correspondence section of this report.

November 14, 2018: Industry representatives meets with staff regarding comment letter.

January 3, 2019: Staff sends out revised draft of the City Code Amendment to various stakeholders.

January 31, 2019: Verizon says the City did not address comments or concerns previously submitted by Verizon and the industry, and they maintain and re-iterate the same comments.

OPTIONS & STAFF RECOMMENDATION

Recommended ApproachApprove Ordinance 4389 and approve Resolution 11403 amending various provision of Chapter 47 of the Scottsdale Revised Code regarding streets, sidewalks and public works including an update primarily to the Telecommunication's Ordinance.

RESPONSIBLE DEPARTMENTPlanning and Development Services

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STAFF CONTACT

Keith NiedererTelecom Policy Coordinator

[email protected]

APPROVED BY

3’- /?- ;3ol^Keith Niederer, Telecom Policy Coordinator 480-312-2953

Date

i^derer^ ;ottsdaleaz.gov

Paul Basha, Transportation Director480-312-7651pbasha@^ottsdaleaz.gov

Date

^Rahd/Grant, Planting & Development Director

480-312-2664 r([email protected]

y

ATTACHMENTS

Dateihlh

1: Ordinance No. 43892: Resoltion No. 11403 to declare Ordinance as a Public Record

Exhibit A; Chapter 47 Code Amendment Language 3: Correspondence

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ATTACHMENT 1

ORDINANCE NO. 4389

AN ORDINANCE OF THE COUNCIL OF THE CITY OF SCOTTSDALE, MARICOPA COUNTY, ARIZONA, TO APPROVE AMENDMENTS TO CHAPTER 47, “STREETS, SIDEWALKS AND PUBLIC WORKS GENERALLY,” OF THE SCOTTSDALE REVISED CODE BY AMENDING SECTIONS AND ADDING NEW SECTIONS.

WHEREAS, the City of Scottsdale desires to continue to accommodate community needs for telecommunication services in the rights of way while also balancing the City’s need to manage and care for the public rights of way and to receive fair and reasonable compensation for use of the rights of way;

WHEREAS, the City of Scottsdale further desires to amend the provisions of Chapter 47 to provide clarity of language and improve the operations of the of the City;

BE IT ORDAINED by the Council of the City of Scottsdale as follows:

Section 1.

Chapter 47 of the Scottsdale Revised Code, relating to Streets, Sidewalks and Public Works is amended in accordance with the provisions of Resolution No. 11403 with an outline of the provisions that may be affected below:

ARTICLE I.-GENERALSec. 47-2. - Definitions. (Right-of-Way)Sec. 47-4. - Interpretation.

ARTICLE II. - ACQUISITION OF RIGHT-OF-WAY Sec. 47-11. - Right-of-way alignment.

ARTICLE III. - IMPROVEMENT OF RIGHT-OF-WAY Sec. 47-21 - Improvement standards.Sec. 47-25. - In lieu payments.Sec. 47-26. - In lieu construction.Sec. 47-28. - Agreement for city acceleration of infrastructure.Sec. 47-31 - Assurance of completion.

ARTICLE IV. - USE OF RIGHT-OF-WAYDIVISION 3. - USE OF THE RIGHT-OF-WAY-TYPES OF PERMITS

Sec. 47-50(c)(5). - Use of the right-of-way - PWR. Insurance and indemnification. Sec. 47-51 (c)(5). - Private improvements in the right-of-way - PWR. Insurance

and indemnification.Sec. 47-61. - Preservation of monuments.Sec. 47-82. - Water, gas, electric and communications facilities-encroachments.

ARTICLE V. - DISPOSITION OF RIGHTS-OF-WAY AND EASEMENTS Sec. 47-91. - Notice of the abandonment application.Sec. 47-94 - Application for release of easement.

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Ordinance No. 4389

of-way.

ARTICLE VI. ENFORCEMENTDIVISION 1. - APPEAL FROM RIGHT-OF-WAY SUPERVISOR’S INTERPRETATION

Sec. 47-104. - Additional remedies for encroachments and damage in the right-

ARTICLE VII. - TELECOMMUNICATIONS Sec. 47-161. - Purpose and findings.Sec. 47-162. - Definitions.Sec. 47-163. - Telecommunications license.Sec. 47-164. - License application.Sec. 47-165. - License terms.Sec. 47-166. - Compensation.Sec. 47-166a-Credit for Amounts Paid; In-Kind Exchange.Sec. 47-167. - Coordination to minimize disruption to the city’s public highways. Sec. 47-168. - Exemptions; Issuance of Exempt License.Sec. 47-169. - Wireless Communication Facilities.

as provided in that certain document known as “Amendments to Various Provisions of Chapter 47 of the Scottsdale Revised Code Regarding Streets, Sidewalks and Public Works Including an Update Primarily to the Telecommunications Provisions,” a paper and electronic copy of which is on file in the office of the City Clerk, which document was made a public record by Resolution No. 11403 of the City of Scottsdale, Arizona, and is hereby referred to, adopted, and made a part hereof as if fully set out in this ordinance.

Section 2.

If any section, subsection, sentence, clause, phrase or portion of this ordinance or any part of the code adopted herein is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof.

Section 3.

The effective date of this Ordinance, as it relates to the amendments to Chapter 47 of the Revised Code of the City of Scottsdale, is May 2, 2019.

ATTEST: By:_____

PASSED AND ADOPTED by the City Council of the City of Scottsdale this _________ , 2019.

CITY OF SCOTTSDALE, an Arizona municipal corporation

day of

By:.Carolyn dagger. City Clerk

APPROVED AS TO FORM:OFF^ OF/THE CITY ATTORNEY

Bruce Washburn, City AttorneyBy: Eric C. Anderson, Senior Assistant City Attorney

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W. J. "Jim" Lane, Mayor

ATTACHMENT 2

RESOLUTION NO. 11403

A RESOLUTION OF THE CITY OF SCOTTSDALE. MARICOPA COUNTY, ARIZONA, DECLARING AS A PUBLIC RECORD THE DOCUMENT FILED WITH THE CITY CLERK OF THE CITY OF SCOTTSDALE ENTITLED “AMENDMENTS TO VARIOUS PROVISIONS OF CHAPTER 47 OF THE SCOTTSDALE REVISED CODE REGARDING STREETS, SIDEWALKS AND PUBLIC WORKS INCLUDING AN UPDATE PRIMARILY TO THE TELECOMMUNICATIONS PROVISIONS.”

WHEREAS, the City desires to make changes to the Streets, Sidewalks and Public Works provisions found in Chapter 47 of the Scottsdale City Code;

WHEREAS, State law permits cities to declare documents to be public records and adopt ordinances by reference;

WHEREAS, the City Council is adding various provisions to Chapter 47 of the Scottsdale Revised Code including to address telecommunications facilities in the rights of way; and

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Scottsdale, Maricopa County, Arizona, as follows:

Section 1. Those certain documents entitled “Amendments to Various Provisions of Chapter 47 of the Scottsdale Revised Code Regarding Streets, Sidewalks and Public Works Including an Update Primarily to the Telecommunications Provisions,” attached as Exhibit “A”, a paper and electronic copy of which is on file in the office of the City Clerk are, by this Resolution, declared to be a public record, and these copies are ordered to remain on file with the City Clerk.

PASSED AND ADOPTED by the Council of the City of Scottsdale this____day of__________2019.

ATTEST:

CITY OF SCOTTSDALE, an Arizona municipal corporation

Carolyn dagger. City Clerk

APpRC5VEj2f^S TO FORM

W. J. “Jim” Lane, Mayor

B^uei Washburn, CityT=rttorr^ey—By: Eric C. Anderson, Senior Assistant City Attorney

17206816V1

AMENDMENTS TO VARIOUS PROVISIONS OF CHAPTER 47 OF THE SCOTTSDALE REVISED CODE REGARDING STREETS, SIDEWALKS AND PUBLIC WORKS INCLUDING

AN UPDATE PRIMARILY TO THE TELECOMMUNICATIONS PROVISIONS

Chapter 47 - STREETS, SIDEWALKS AND PUBLIC WORKS GENERALLY^J

Footnotes:

- (1) -

Editor's note—Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 1), adopted December9, 2013, effective July 1, 2014, amended Ch. 47, Arts. I—V to read as herein set out. See also the Code Comparative Table.

Cross reference— Closing or obstructing alleys, § 19-3; closing or obstructing rights-of-way, § 19-4; street sales and solicitation, § 16-351 et seq.

ARTICLE I.-GENERAL

Sec. 47-1. - Purposes.

The purposes of this ordinance include:

(1) Establishing and protecting the public interest in the right-of-way that promotes the efficient movement of people, goods and services;

(2) Managing the right-of-way to serve multiple transportation modes, other public uses, and permitted private uses of the right-of-way;

(3) Managing the right-of-way to optimize the location, installation and maintenance of public and private utilities for efficient service;

(4) Establishing procedures for the orderly acquisition, improvement, use and disposition of right- of-way;

(5) Providing reasonable access to property, for general use, emergency and other services; and

(6) Supporting the Transportation Master Plan, as amended.

(Ord. No. 4113, § l(Res. No. 9551, Exh. A, § 1), 12-9-13, eff. 7-1-14)

Sec. 47-2. - Definitions.

The following words, terms and phrases, when used in this chapter, have the meanings set forth in this section, except where the context clearly indicates a different meaning:

Barricade plan means a plan showing the temporary traffic control devices used to control pedestrian and vehicular traffic and protect work zones.

Blue Stake means the program operated by Arizona Blue Stake, Inc. (or its successor) for marking utilities.

Clear zone means the area beyond the edge of the through-traveled way available for recovery by an errant vehicle. The clear zone includes sidewalks, bike lanes and turn lanes.

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Exhibit A to Resolution 11403 Page 1 of 31

Design Standards and Policies Manual (DSPM) means the document detailing Scottsdale's requirements, procedures, policies, forms and document standards to help administer this chapter, among other purposes.

Emergency means a sudden, unexpected event that may create an imminent risk of injury or death to any person, or imminent risk to public health or safety, requiring immediate response.

Encroachment means (1) anything located in, or any use of, any right-of-way, or areas below, or above the right-of-way, and/or (2) anything located in, or any use of, any areas adjacent to the right-of- way that interferes with the public uses of the right-of-way.

Expense means the total cost of;

(1) Construction, maintenance and/or repair of improvements,

(2) Administration, inspection and permit fees,

(3) Engineering fees required for the design and preparation of plans and specifications, and

(4) Contingency and other incidental costs related to the work on the improvements.

Lines means wires, cables, pipes, tubes, conduits or other similar linear conductors of energy, impulses or signals, for water, gas, electricity or communications.

MAG Standards means the Uniform Standard Specifications for Public Works Construction, sponsored and distributed by the Maricopa Association of Governments (MAG), as currently adopted and supplemented by the city.

Owner means a person who owns property.Permit to work in the right-of-way (PWR) means written authorization from the city to work in or use

the right-of-way.Permit for private improvements in the right-of-way (PIR) means written authorization from the city to

construct or install private improvements in the right-of-way.

Planning, Neighborhood and Transportation Administrator means the city-department head whose duties include planning and development functions, or successor, or designee.

Private improvements means all privately-owned installations, equipment and facilities, including, but not limited to, private streets, street furniture, covered walkways, landscaping, irrigation, walls, signs, energy facilities, communications equipment and mailboxes.

Public improvements means infrastructure in the right-of-way required or accepted by the city to serve public uses, including, but not limited to streets, curbs, gutters, sidewalks, landscaping, irrigation, trails, paths, signs, signals, pavement markings and facilities for transit, recreation, public safety, and city utilities such as city communications, water, sewer and drainage.

Public uses means all functions serving the public, including, but not limited to transportation, public art, landscaping, and city utilities such as city communications, water, sewer and drainage.

Regularly means routinely, according to usual plans, practices or schedules.Related facilities means equipment to which lines are attached for distributing water, gas, electricity

or communications.

Right-of-way means land which by deed, conveyance, agreement, easement, dedication, patent, reservation, usage or process of law is reserved for or dedicated to the general public for street, highway.

Right-Of-Way Supervisor means the person whose duties include regulating the use of the right-of- way, and administering and interpreting this chapter, or successor, or designee.

Traffic control device means any sign, traffic signal, marking, barricade or channeling device used to regulate, warn or guide traffic.

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Transportation Department means the city agency responsible for regulating and operating the right- of-way for the safe and efficient movement of people, goods and services.

Transportation Director means the city department head whose duties include transportation functions, or successor, or designee.


Sec. 47-3. - Conformance with other rules.

(a) All persons using the right-of-way shall conform with:(1) All applicable statutes, rules and regulations of the United States government, the state of

Arizona and Maricopa County;

(2) The Zoning Ordinance, Design Standards and Policies Manual, General Plan and all other applicable ordinances, regulations, policies and plans of the city; and

(3) The guidelines and standards of the American Association of State Highway and Transportation Officials.

(b) For each permit issued under this chapter, the owner and the permit holder, not the city, are responsible for conformance with the statutes, rules, regulations, ordinances, plans and policies referred to in this section.


Sec. 47-4. - Interpretation.

The Right-of-Way Supervisor interprets the Streets Ordinance i^

(Ord. No. 4113, § l(Res. No. 9551, Exh. A, § 1), 12-9-13, eff 7-1-14)

Sec. 47-5. - Scope.

The requirements of this chapter are intended to apply to right-of-way, not to private streets or other forms of private access.


Secs. 47-6—47-9. - Reserved.

ARTICLE II. - ACQUISITION OF RIGHT-OF-WAY

Sec. 47-10. - Streets required.

(a) If the creation of a land division, or the erection or enlargement of a building, structure or use, will change or increase traffic, the owner shall:

(1) Dedicate or cause to be dedicated, in fee, the right-of-way required to serve the public uses generated by the land division, building, structure or use, and

(2) To the city's satisfaction:

(A) Construct the required public improvements to current standards, orExhibit A to Resolution 11403

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(B) Assure the construction of the required public improvements.

(b) The form of dedication is subject to city attorney approval.


Sec. 47-11. - Right-of-way alignment.

The Transportation Director slUi determines where rights-of-way are located and aligned.



ARTICLE III. - IMPROVEMENT OF RIGHT-OF-WAY

Sec. 47-20. - Public improvements—no city obligation.

The city is not obligated to construct public improvements.


Sec. 47-21. - Improvement standards.

(a) All public improvements shall be constructed to the standards adopted by the city.

(b) The following documents, as adopted and amended by the city, are public records, incorporated in this chapter by reference, and contain the details and procedures for public improvements in the city:

(1) The Uniform Standard Specifications and Details for Public Works Construction, 2015 Edition, sponsored and distributed by the Maricopa Association of Governments (MAG), is on file in the city clerk's office.

(2) The City of Scottsdale 2015 Supplement to MAG Uniform Standard Specifications and Details for Public Works Constructiony is on file in the city clerk's office.

(3) The Design Standards and Policies Manual is on file in the Transportation Department.

(Ord. No. 4113, § l(Res. No. 9551, Exh. A, § 1), 12-9-13, eff 7-1-14; Ord. No. 4209, §§ 1, 2 (Res. No. 10142, §§ 1,2), 8-25-15)

Sec. 47-22. - Owner's responsibility for public improvements.

Except as provided below, the owner shall construct, at its expense, the public improvements required by the city under this chapter.


Sec. 47-23. - Assurance of construction.

(a) When an owner is responsible for constructing the public improvements, before the city issues any building permit, the owner shall:

(1) Execute an agreement with the city to construct the public improvements, and


16727112v5

(2) Provide the city a cash deposit, letter of credit, or bond for constructing the public improvements.

(b) The requirements for the agreement, cash deposit, letter of credit or bond are set forth in the DSPM.

(c) If the owner fails to timely and properly construct the public improvements as set forth in the agreement, the city may take any one or more of the following actions, at the owner's expense;

(1) Decline to process or issue building permits, occupancy clearances or other regulatory approvals or inspections;

(2) Complete, remove and/or modify the public improvements in whole or in part;

(3) Restore any disturbed land;(4) Bring action to enforce the owner's responsibility under this chapter or under the agreement to

construct the public improvements;

(5) Bring action to enforce the assurance to construct the public improvements; and/or

(6) Otherwise mitigate the effects of the owner's failure to construct the public improvements.


Sec. 47-24. - Payback agreements.

(a) A payback agreement with the city is available for non-residential, multi-family and mixed-use developments, and subdivisions (except minor subdivisions).

(b) Within sixty (60) days after the city has accepted the public improvements to serve any privately- owned property, a person desiring a payback agreement with the city shall submit the following to the Transportation Department:

(1) A copy of the city's letter of acceptance stating that the public improvements conform to the approved plans and specifications.

(2) A half-size copy of the approved as-built construction drawings indicating the public improvements installed.

(3) Receipts identifying all expenses, and proof that payment was made.

(4) A diagram of properties benefiting from the public improvements, including the assessor's parcel numbers and frontage lengths.

(c) Payback agreements shall:

(1) State the expense of public improvements installed;

(2) Include a diagram of the properties benefited and reimbursement to be collected from each property;

(3) State the reimbursement from each property benefited, including the interest rate and the maximum reimbursement; and

(4) State to whom reimbursements shall be made.

(d) All expenses are subject to review for reasonableness based on current circumstances. The Transportation Department's determination as to the amount to be reimbursed through the payback agreement is final.

(e) The reimbursement from each property shall be based on the expense per linear foot of frontage or such other equitable method of spreading the expenses as the circumstances may dictate, as determined by the Transportation Department. The determination as to each reimbursement is final.

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(f) A payback agreement shall run for a payback period of thirty (30) years after the agreement is signed by all parties. At the end of the thirty (30) year period, the agreement shall terminate, including all benefits and rights under the agreement.

(g) Reimbursements shall include a simple interest rate of one-half (%) percent per month, or any portion thereof, from the date the payback agreement is recorded.

(h) Before the city executes the payback agreement, the applicant shall pay the city's cost of administering the payback agreement. This administrative charge shall be five (5) percent of the total expenses of the public improvements benefiting properties other than the applicant's property, with a maximum administrative charge often thousand dollars ($10,000.00). Administrative charges will be distributed equitably among the properties benefited.

(i) Upon receipt of the administrative charge and execution of the payback agreement, the city shall record the agreement with the Maricopa County Recorder as to each property that is subject to the agreement, together with a notice of payback. Once all reimbursements are made or the payback period has elapsed, the city will record a release with the Maricopa County Recorder.

(I) The city shall establish a separate account for the collection and payment of reimbursements. Reimbursements collected shall be paid in accordance with the terms of the agreement within ninety (90) days of receipt by the city.


Sec. 47-25. - Inflieu payments.

(a) Instead of construotion of public-improvements, tjhe city may accept a payment in lieu of construction 'oflpubliclimbrMeiineTfs when the city determines sudi action is appropriate, based on the following considerations regarding whether the proposed public improvements:

(1) Will connect to existing public improvements,

(2) Will be difficult to maintain to city standards,

(3) Will match the improvement standards of existing public improvements,

(4) Will be too short to be useful, and/or(5) Are timed to discourage orderly, sequential development.

(b) Payment shall be based on the owner's public improvement plans and current city capital expenses of public improvements, as approved by the Transportation Department. The determinations as to the acceptance and amount of payment are final. The city shall establish a separate account for the in| lieu payments, which payments will be applied to public improvements.

(c) The in|lieu payment is due before any building permit is issued for development of the

property.


Sec. 47-26. - Inflieu construction.

(a) Instead of construction the city may accept construction ofpublic improvements for a different portion of right-of-wayr when the oity ifahspiMtiijniDirect^ determines such action is appropriate. The Transportation Department's determination of whether to accept in lieu construction shall be based on the following considerations:

(1) Existing and planned traffic conditions and volume.

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(2) Priorities in strategic planning for orderly, sequential development,

(3) Conformance with the Transportation Master Plan and other applicable plans, and

(4) Benefit to the community balanced against benefit to properties served.

(b) The Transportation Department's determination of in lieu construction is final.


Sec. 47-27. - Improvement districts.

(a) ' When the Arizona Revised Statutes authorize an improvement district to construct public improvements in the right-of-way, the City Council may take action in conformance with the Arizona Revised Statutes to form an improvement district.

(b) If an improvement district is formed, it shall have the responsibilities and powers set forth in the Arizona Revised Statutes.


Sec. 47-28. - Agreement for city acceleration of infrastructure.

The city may enter into an agreement with a person benefiting from accelerated constructiorir setting forth a plan to pay the city for the city's accelerated construction of public improvements.


Sec. 47-29. - Street development fees.

(a) The city may assess street development fees for necessary public services only in compliance with the Arizona Revised Statutes.

(b) The owner may be eligible for credit against the street development fee under the Arizona Revised Statutes.

(c) The street development fee and credit calculations, and other details, shall be set forth in a written development fee agreement.


Sec. 47-30. - Voluntary public improvements.

(a) A person may construct public improvements for a single-family dwelling if the person applies for and is granted the applicable permits to construct public improvements.

(b) The city is not obligated to pay for any voluntary public improvements.


Sec. 47-31. - Assurance of completion.

(a) The city shall not issue a certificate of occupancy until an owner completes all dedications required by this chaptery to the satisfaction of the Planning, Neighborhood and Transportation- Administrator irains'SdriatibliBjre'cl^.

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(b) The city shall not issue a certificate of occupancy until an owner substantially completes or satisfactorily assures completion of all public improvements required by this chapterr to the satisfaction of the Planning, Neighborhood and Transportation Administrator {llra^borltlWiiilc^.

(c) The decision of the Planning, Neighborhood and Transportation Administrator tHrarTspontation Mrecton is final.


Secs. 47-32-47-39. - Reserved.

ARTICLE IV. - USE OF RIGHT-OF-WAY

DIVISION 1.-GENERAL

Sec. 47-40. - Right-of-way; city authority.

(a) Right-of-way is managed by the city for public uses.

(b) The city may issue, issue with conditions, or deny a permit to work in the right-of-way (PWR) or a permit for private improvements in the right-of-way (PIR).

(c) The city may remove, or direct the removal of, encroachments in the right-of-way to promote the health, safety and general welfare of the public, and to promote the public uses of the right-of-way.

(d) The city is not obligated to remove, replace or restore any private improvements in the right-of-way unless the city has agreed to do so in an encroachment permit or PIR for the private improvements.

(e) The city is not obligated to remove, replace or restore any privately-installed public improvements that are different from city standards.

(f) The city is not obligated to accept any private street that is not constructed or maintained to city standards. Even if a private street is constructed and maintained to city standards, city acceptance of the private street is subject to City Council approval.

(g) The city's issuance of a permit to work in the right-of-way or to place private improvements in the right-of-way does not create exclusive rights.

(h) The city may require inspections of all uses in the right-of-way.

(i) The Right-Of-Way Supervisor administers this article.


Sec. 47-41. - Use of the right-of-way.

(a) Overweight and oversize vehicles and loads operating on city right-of-way are subject to the requirements of the Arizona Revised Statutes and Scottsdale Revised Code.

(b) Transportation-for-hire on city right-of-way is subject to the requirements of the Arizona Revised Statutes and Scottsdale Revised Code.

(c) Persons hauling dirt and debris on city right-of-way are subject to the requirements of the DSPM.

(d) Valet parking operations using city right-of-way are subject to the requirements of the Scottsdale Revised Code.

(e) Special events are subject to the requirements of Chapter 22.

(f) Other uses of the right-of-way may be subject to additional requirements and permits.

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(Ord. No. 4113, § l(Res. No. 9551, Exh. A, § 1), 12-9-13, eff. 7-1-14; Ord. No. 4242, § l(Res. No. 10381, § l,Exh. A), 3-15-16)


DIVISION 2. - ENCROACHMENTS

Sec. 47-45. - Regulation of encroachments.

(a) There are several kinds of encroachments of the right-of-way, representing different uses and risks, and different degrees of permanency and interference with the right-of-way. Different kinds of encroachments warrant different types of government regulation.

(b) The Right-Of-Way Supervisor is responsible for developing any necessary policies and regulations to manage encroachments of the right-of-way.


Sec. 47-46. - Prohibited encroachments; limited encroachments.

(a) For purposes of this section, the owner of property adjacent to the right-of-way includes the occupant of the property.

(b) Except as authorized in writing by the city, no person shall:

(1) Place or maintain any encroachment in the right-of-way.

(2) Place or maintain any tree, hedge, shrub or other plant, or any structure or other encroachment, on property adjacent to the right-of-way, which interferes with public uses of the right-of-way.

(3) Use the right-of-way, or areas below, adjacent to or above the right-of-way, in a manner that interferes with the public uses of the right-of-way.

(4) Damage the right-of-way or public improvements in the right-of-way.

(c) However, without authorization from the city, an owner of property adjacent to the right-of-way may place and maintain the following private improvements in the area behind the curb, edge of the pavement or edge of the city-maintained dirt road or dirt shoulder. These improvements are not allowed in alleys.

(1) Ground-covers, vines or other plants that do not exceed eighteen (18) inches in height above the adjacent curb or other edge of the right-of-way.

(2) Rocks smaller than six (6) inches in diameter, bricks, pavers, gravel and similar landscape material that does not exceed eighteen (18) inches in height above the adjacent curb or other edge of the right-of-way.

(3) Irrigation conduits two (2) inches or smaller.

(4) A mailbox mounted on a break-away post no larger than four inches by four inches, outside the clear zone.

(d) In addition, persons may perform routine property maintenance as set forth in this division.

(e) Except as authorized in writing by the city, these limitations apply to all private improvements in the right-of-way:

(1) No private improvement shall interfere with public uses of the right-of-way.

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(2) The owner of the property adjacent to the right-of-way is responsible for maintaining the owner's private improvements in the right-of-way in an orderly condition.

(3) When the city or designee directs the removal of any private improvement from the right-of- way, it shall be promptly removed.

(4) All improvements in the right-of-way shall comply with all applicable federal, state, county and city laws, ordinances, rules and regulations.

(5) No hedge, shrub, tree or other similar plant shall be allowed to interfere with public uses of the right-of-way.

(6) No structure, such as a wall, fence or sculpture, shall be placed in or maintained in any right-of- way, except for mailboxes allowed above.


Sec. 47-47. - Right-of-way maintenance.

(a) For purposes of this section, the owner of property adjacent to the right-of-way includes the occupant of the property.

(b) Before the city issues a letter of acceptance for public improvements, the owner of property adjacent to the right-of-way shall maintain the adjacent right-of-way to the centerline.

(c) The owner of property adjacent to the right-of-way shall conduct routine property maintenance to keep the property and adjacent right-of-way in an orderly and safe condition, including:

(1) Mowing and trimming plants and trees,

(2) Weeding,

(3) Replacing dead plants,

(4) Removing litter and debris, and

(5) Sweeping.

(d) The owner of property adjacent to the right-of-way shall maintain the property so that it does not interfere with public uses of the right-of-way.

(e) Routine property maintenance in the right-of-way using hand tools does not require city authorization. Property maintenance using trucks and large mechanical equipment in the right-of-way requires written city authorization.

(f) Except as authorized in writing by the city, the owner of property adjacent to the right-of-way shall maintain the following:

(1) The adjacent right-of-way from the back of the curb, edge of the pavement or edge of the city- maintained dirt road or dirt shoulder, to the property line on all street frontages, where the right- of-way has been dedicated in fee to the city; and

(2) The right-of-way, from the back of the curb, edge of the pavement or edge of the city- maintained dirt road or dirt shoulder to the right-of-way boundary, where the right-of-way has been created by easement.

(3) The adjacent alley from the edge of the property line to the centerline of the alley.

(4) The sidewalk.

(5) The multi-use path and trail.

(g) The city may maintain the right-of-way, or any portion of the right-of-way, specified in (f) above, including contracting with other persons for maintenance. The city's obligation to maintain the right- of-way, or any portion of the right-of-way, specified in (f) above, shall be in writing.


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(h) The city is not obligated to maintain right-of-way that has not been improved to city improvement standards.

(i) The maintenance of drainage easements on private property is controlled by Scottsdale Revised Code, Chapter 37.


Secs. 47-48, 47-49. - Reserved.

DIVISION 3. - USE OF THE RIGHT-OF-WAY—TYPES OF PERMITS

Sec. 47-50. - Use of the right-of-way—PWR.

(a) A person proposing to use the right-of-way other than for its public uses must have a permit to work in the right-of-way (PWR). In addition, some public uses must have a PWR. A person proposing to use the right-of-way regularly other than for its public uses may be issued an annual permit to work in the right-of-way (Annual PWR). If there is a question about whether a PWR or Annual PWR is required, the Right-of-Way Supervisor shall determine whether a PWR or Annual PWR is required. The determination is final.Examples of uses requiring a PWR include, but are not limited to; working in the right-of-way to

construct, install, maintain or modify public or private improvements; using the right-of-way to erect barricades to construct, install, maintain or modify public or private improvements; borings and potholing; curb cuts; special events in the right-of-way (in conjunction with a Special Event Permit); roll-off dumpsters; and testing utilities (including fire hydrants). Examples of uses requiring an Annual PWR include, but are not limited to, utility maintenance and repair and commercial landscape maintenance.

Each holder of provisions:

a PWR and/or Annual PWR shall operate in conformance with the following

Additional permits. The holder shall obtain any additional permits required to use the right-of- way, including a building permit, barricade plan, PIR, native plant permit, and others.

Standards. All work shall be performed safely, attractively and in a workmanlike manner, and pursued diligently to completion. All work shall conform to the improvement standards set forth in article III of this chapter. All use of the right-of-way shall be conducted safely.

Applicable laws. All use of or work in the right-of-way shall be conducted and performed in conformance with all applicable federal, state, county and city laws, ordinances, rules and regulations.Conformance to permit and plans. The holder shall comply with the PWR, its attachments and

applicable approved plans.Insurance and indemnification. The holder shall obtain and maintain insurance as set forth in

the DSPM. The holder shall indemnify, defend and hold harmless the city, its employees, officials and other agents from any loss or liability arising out of the holder's use of or work in the right-ofoeglicChange of conditions. The Right-of-Way Supervisor, in an emergency or other circumstance

significantly interfering with the public uses of the right-of-way, may change the provisions of a PWR to promote, preserve and protect public health, safety and welfare within the right-of-way. No city attorney approval is required for these changes. If the provisions of a PWR are changed under this subsection, the holder:

(A) Shall comply with the changed conditions.

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(B) Has no recourse against the city.(7) PWR on site. The PWR and any applicable barricade plan shall be kept at the site indicated on

the PWR when work is performed.(8) Removal of property upon request. After termination or revocation of a PWR, upon the city's

request, the holder shall immediately remove all personal property from the right-of-way.

(d) A PWR may be included in another city form, such as a special event permit or Annual PWR. All PWR forms are subject to city attorney approval. Unless the other city form conflicts with this subsection, the provisions below are deemed part of the PWR. In the case of conflict, the provisions providing increased benefits to the city shall control.

(1) Revocation. The city may revoke the PWR with cause upon reasonable notice to the holder.

(2) Warranties. The holder warrants that all information submitted in applying for the PWR is complete and accurate.

(3) City cure rights. If the holder violates the PWR, the city may take whatever action the city deems reasonably necessary to cure the violation, at the expense of the holder. The city may pursue additional legal remedies.

(4) No changes to city form. No deletions, additions, or other exceptions to the PWR or other related documents are effective against the city unless the changed PWR is signed by the Right-Of-Way Supervisor and approved by the city attorney.

(e) The city may require an applicant for a PWR to provide the city a cash deposit or letter of credit if the following conditions exist:

(1)

(2)

If the project impairs the function of or destroys the existing public improvements, and/or

If the project is located on right-of-way classified as a collector or higher volume right-of-way, as classified in the Transportation Master Plan.

(f) The requirements for the cash deposit or letter of credit are set forth in the DSPM.

(Ord. No. 4113, § l(Res. No. 9551, Exh. A, § 1), 12-9-13, eff. 7-1-14; Ord. No. 4242, § l(Res. No. 10381, § 1, Exh. A), 3-15-16)Sec. 47-51. - Private improvements in the right-of-way—PIR.

(a) No person shall construct or install any private improvement in the right-of-way, except as follows. A person proposing to construct or install any private improvement in the right-of-way must have a permit for private improvements in the right-of-way (PIR). If there is a question about whether a PIR is required, the Right-of-Way Supervisor shall determine if a PIR is required. The determination is final.

(b) Examples of private improvements requiring a PIR include, but are not limited to, everything listed in the definition of private improvements. However, the following private improvements do not require a PIR: (i) the private improvements permitted in section 47-46, and (ii) a pipe or other conduit to transport city water from the water meter to the private use, or waste water from the private use to the city sewer connection.

(c) Each holder of a PIR shall operate in conformance with the following provisions:

(1) Additional permits. The holder shall obtain any additional permits required to construct or install any private improvements in the right-of-way, including a building permit, barricade plan, PWR, native plant permit, and others.

(2) Standards. The construction and installation of all private improvements shall conform to the improvement standards set forth in article III of this chapter.

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Applicable laws. The holder shall comply with all federal, state, county, and city laws, ordinances, rules and regulations applicable to the private improvements in the right-of-way.

Conformance to permit and plans. The holder shall comply with the PIR, its attachments and applicable approved plans.Insurance and indemnification. The holder shall obtain and maintain insurance as set forth in

the DSPM. The holder shall indemnify, defend and hold harmless the city, its employees, officials and other agents from any loss or liability arising out of the holder's private

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(6) Change of conditions. The Right-of-Way Supervisor, in an emergency or other circumstance significantly interfering with the public uses of the right-of-way, may change the provisions of a PIR to promote, preserve and protect public health, safety and welfare within the right-of-way. No city attorney approval is required for these changes. If the provisions of a PIR are changed under this subsection, the holder;

(A) Shall comply with the changed conditions.

(B) Has no recourse against the city.

(7) Removal of property upon request. After termination or revocation of a PIR, within thirty (30) days, or shorter notice, if safety or the public interest requires, as specified in the notice, the holder shall remove all private improvements permitted under the PIR.

(d) A PIR may be included in another city form, such as a license. All PIR forms may be subject to city attorney approval. Unless the other city form conflicts with this subsection, the provisions below are deemed part of the PIR. In the case of conflict, the provisions providing increased benefits to the city shall control.

(1) Revocation. The city may revoke the PIR with cause upon reasonable notice to the holder.

(2) Warranties. The holder warrants that;

(A) All information submitted in applying for the PIR is complete and accurate.

(B) The holder is the owner, or the authorized agent of the owner, of the private improvements to be installed in the right-of-way.

(3) City cure rights. If the holder violates the PIR the city may take whatever action the city deems reasonably necessary to cure the violation, at the expense of the holder. The city may pursue additional legal remedies.

(4) Ongoing obligations. Termination or revocation of the PIR does not terminate the holder's obligations under the PIR. Private improvements in the right-of-way are subject to all applicable ordinance, contract and permit requirements until the private improvements are removed from the right-of-way.

(5) Not transferable. The PIR's obligations run with the land in favor of the city and bind future owners of the land adjacent to the right-of-way where the private improvements are located. The PIR is not transferable except when transferred as part of the sale or lien of the land adjacent to the right-of-way where the private improvements are located.

(6) No changes to city form. No deletions, additions, or other exceptions to the PIR or other related documents are effective against the city unless the changed PIR is signed by the Right-of-Way Supervisor and approved by the city attorney.


Sec. 47-52. - Permits issued.

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The issuance of a PWR or PIR shall not be construed as approving any violation of city codes or policies. A PWR or PIR presuming to give authority to violate any city code or policy is invalid.



DIVISION 4. - USE OF THE RIGHT-OF-WAY—GENERAL CONDITIONS

Sec. 47-60. - Permit fees.

(a) The City Council shall establish fees to administer this chapter.

(b) The schedule of fees shall be made available to the public. Other fees required under the Scottsdale Revised Code may apply.


Sec. 47-61. - Preservation of monuments.

(a) Except as specified in (b) below, no monument set to locate or preserve the elevation or boundaries of any right-of-way, property, survey point or reference point shall be disturbed or removed.

(b) If a monument is disturbed or removed, an Arizona-registered land surveyor shall reference and replace the monument, and record a map in conformance with the DSPM, Arizona Boundary Survey Minimum Standards, and Arizona Revised Statutes. The person responsible for disturbing or removing the monument shall be responsible for paying the surveyor's expenses to reference and replace the monumentr and record the map.


Sec. 47-62. - Start work.

These requirements apply to PWRs that are not Annual PWRs:

(1) Before beginning any work that requires a PWR, the permit holder shall notify the city as specified in the permit.

(2) Work shall begin under a PWR within thirty (30) days after its issuance, unless the permit provides otherwise. If the work is not begun within thirty (30) days, the permit becomes void, unless the Right-of-Way Supervisor approves an extension.


Sec. 47-63. - Diligent completion of work.

If the permit holder fails to complete the work authorized by the PWR in a reasonable amount Of time, as determined by the Right-of-Way Supervisor, the city may enforce the city's rights under this chapter.


Sec. 47-64. - Completion of work.

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(a) Upon completion of work under PWR or PIR, the permit holder shall request a final inspection. The permit holder, at the permit holder's expense and as directed by the Right-of-Way Supen/isor, shall:

(1) Restore the public and private improvements, including landscaping, in the right-of-way;

(2) Restore natural features, including vegetation, in the right-of-way;

(3) Remove any encroachments owned by permit holder (that are not permitted), and

(4) Take other actions to return the right-of-way to its public uses.

(b) No letter of acknowledgement (for private improvements) or letter of acceptance (for public improvements) shall be issued unless the city is satisfied that the terms of the permit and requirements of this chapter have been met. The warranty period required by the MAG Standards begins on the date the city issues a letter of acknowledgement or letter of acceptance.


Sec. 47-65. - Cost of work.

The permit holder is responsible for all expenses of the work authorized by a PWR or PIR.


Sec. 47-66. - Right-of-way excavations and damage; improvements in the right-of-way.

(a) When excavations are made in any paved, resurfaced or sealed right-of-way, the right-of-way shall be reconstructed to the standards set forth in the MAG Standards. Standards are greater for newly constructed or reconstructed structural sections less than four (4) years old or pavement with a rubberized surface course. Temporary pavement sections are not allowed.

(b) Any person who damages right-of-way or public improvements in the right-of-way shall reimburse the city the expense of repairing the damage.

(c) The city is not responsible for damages to private improvements in the right-of-way.



DIVISION 5. - USE OF RIGHT-OF-WAY-WATER, GAS, ELECTRIC AND COMMUNICATIONS FACILITIES

Sec. 47-80. - Electric and communications facilities—undergrounding.

(a) All electric and communications lines installed in the right-of-way for property developed after June 26, 1979 shall be installed underground, except electric lines equal to or greater than 12.5 kVA capacity.

(b) If four or more existing sequential electric or communications poles in the right-of-way are to be moved or replaced for development, then the developer shall pay the cost to install the lines attached to those poles underground, except electric lines equal to or greater than 12.5 kVA capacity.

(c) If an electric or communications service provider proposes to move or replace four or more existing sequential electric or communications poles in the right-of-way, then the service provider shall pay the cost to install the lines attached to those poles underground, except electric lines equal to or greater than 12.5 kVA capacity.

(d) All related facilities shall be placed underground to the greatest extent practicable.Exhibit A to Resolution 11403

Page 15 of 3116727112v5


Sec. 47-81. - Water, gas, electric and communications facilities—existing agreements.

In the case of conflict with this ordinance, agreements with the city regarding water, gas, electric and communications facilities, in effect on the effective date of this ordinance shall control over this ordinance.


Sec. 47-82. - Water, gas, electric and communications facilities—encroachments.

(a) Before the city exercises its rights to remove or direct the removal of an encroachment owned by a water, gas, electrical or communications service provider under section 47-40, the city shall notify the service provider of the encroachment and allow the service provider an opportunity to remedy the encroachment.

(b) Before the city exercises its cure rights under section 47-50 or section 47-51, the city shall notify the water, gas, electrical or communications service provider and allow the service provider an opportunity to cure the violation.

(c) Water, gas, electric or communications service providers having an agreement signed by the city for facilities in the right-of-way, in effect on the effective date of this ordinance, are not required to obtain PIRs (permits for private improvements in the right-of-way), except for substantial structures, such as a substation, switching yard or communications center.


Secs. 47-83, 47-84. - Reserved.

DIVISION 6. - BARRICADE MANAGEMENT

Sec. 47-85. - Authority.

The Right-Of-Way Supervisor is responsible for barricade management, including coordinating rights- of-way restrictions and enforcing barricade plans.


Sec. 47-86. - Barricade plan.

(a) A person must have an approved barricade plan to place any traffic control device in the right-of- way, except:(1) When an emergency requires traffic control devices to be placed immediately;

(2) When public safety personnel deem it necessary to place or replace traffic control devices to protect public safety;

(3) When the city, or a city contractor under the direction of the city, performs routine right-of-way maintenance;

(4) When a city-sponsored special event requires traffic control devices;

(5) When the traffic control device is placed on a local residential street as designated in the Transportation Master Plan; or

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(6) When the traffic control device is placed in conformance with a licensed valet parking operation.

(7) When the traffic control device is placed for less than one hour, but the location, reason and expected duration shall be communicated to Inspection Services before placing the traffic control device.

(b) An application for a barricade plan shall conform to the DSPM.

(c) All traffic control devices shall be placed as close as practical to the approved barricade plan, although minor adjustments may be made to accommodate driveways and other site features.

(d) Any major change to the barricade plan shall be submitted as set forth in the DSPM.

(e) The approved barricade plan shall be kept on the site at all times when work is occurring, including placing and removing barricades.

(f) The fee for reviewing a barricade plan is set forth in the Fee Schedule.


Sec. 47-87. - Emergencies.

An emergency does not require a barricade plan or PWR before responding to the emergency, but the location, type of emergency and expected duration shall be communicated to Inspection Services as soon as possible. When a person does not apply for a barricade plan and PWR before responding to an emergency, the person shall apply for a barricade plan and PWR no later than the next business day after the emergency.


Secs. 47-88, - 47-89. Reserved.

ARTICLE V. - DISPOSITION OF RIGHTS-OF-WAY AND EASEMENTS

Sec. 47-90. - Application for abandonment of right-of-way or easement for public transportation

purposes.

(a) To apply for an abandonment under this article, the applicant must be the city or the owner of the parcel adjacent to the right-of-way and from which the right-of-way was created.

(b) Except as provided in section 47-94 below, an applicant may apply to abandon all or a portion of:

(1) A right-of-way, or

(2) An easement dedicated for public transportation purposes, designated as a street, roadway, highway or alley, or other term denoting a public thoroughfare.

(c) Procedures to apply for an abandonment are set forth in the DSPM.

(d) When an application for an abandonment is complete, the city staff shall review the application to determine whether abandonment is in best interest of the city. The city staff shall prepare a report for the City Council.


Sec. 47-91. - Notice of the abandonment application.

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—The city shall provide the following notice of the open house and City Council hearing on the abandonment. At least fifteen (15) days before the open house and at least thirty (30) days before the City Council-hearing, the city-sha4f(4^—Send notice-by first class mail to each owner of property adjacent to the property subject to the

abandonment: The notice shaH-oentain the nature of the request; a description of the property to be abandoned; the date, time and place of the open house and the hearing; and the name and contact information of the city staff responsible for the abandonment:

{2^—Post one or more signs to inform citizens of the abandonment application. The notice shall be readable from fifty (50) feet away and shall contain the nature of the request; a description of the property to be abandoned; the date, time and place of the open house and City Gouncil hearing; and the name and contact information-of the city-staff responsible--for-the abandonment.

{€)—The apptieant shall send notice of the abandonment application by first class mail, or other means as requested- by the service provider, to each service provider of water, gas, electric and communications in the city.


Sec. 47-92. - Abandonment with conditions.

(a) If the City Council proposes to grant an abandonment application with conditions, the applicant shall satisfy those conditions within two (2) years or the period directed by the City Council.

(b) The City Council may grant one (1) extension upon the applicant's written request, if the city clerk receives the request at least thirty (30) days before the expiration of the two (2) year or the City Council-directed period. The City Council shall determine the extension period. If the conditions are not satisfied within the two (2) year or City Council-directed period(s), the proposal to grant the abandonment is void. The city staff determines whether the condition(s) have been met.

(c) The city may request the applicant to enter into a development agreement regarding an abandonment with conditions.

(d) An applicable development agreement shall control if there is any conflict with this section.


Sec. 47-93. - Effect of abandonment of right-of-way.

Right-of-way abandoned by the city shall revert as provided by the Arizona Revised Statutes or other applicable laws.


Sec. 47-94. - Application for release of easement.

(a) The City Council delegates to the city staff the authority to release easements for public uses specified below.

(b) Public uses, for this section only, means:

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(1) Functions serving the public such as ingress/egress, cross-access and emergency access, vehicular non-access and public utilities;

(2) A trail, path, sidewalk, non-motorized public access or similar use outside the right-of-way width.

Public uses do not include other public transportation purposes which are addressed in the abandonment process above.(c) The city or an owner of property subject to an easement dedicated to public uses may apply to have

all or a portion of the easement released by the city. Procedures to apply for a release are set forth in the DSPM.

(d) When an application for a release is complete, the city staff shall review the application. The city staff may impose reasonable conditions for the release. Once all conditions have been satisfied, as determined by city staff, city staff shall grant the release. The city staff may determine that retention of the easement is in best interest of the cityr and may not grant the release.

(Ord.No.4113, § l(Res. No. 9551, Exh. A, § 1), 12-9-13, eff. 7-1-14)

Sec. 47-95. - Consideration for abandoned right-of-way or easement.

Before the abandonment of city property is recorded, the applicant shall provide consideration to the city for the abandoned right-of-way or easement.


Sec. 47-96. - Existing water, gas, electrical and communications facilities.

Easements shall be reserved for existing water, gas, electrical and communications facilities located in the abandoned property.



ARTICLE VI.-ENFORCEMENT

DIVISION 1. - APPEAL FROM RIGHT-OF-WAY SUPERVISOR'S INTERPRETATION

Sec. 47-100. - Appeal from Right-of-Way Supervisor's interpretation.

(a) The Transportation Director shall hear and decide appeals from the Right-of-Way Supervisor's interpretation of this chapter upon a claim that the Right-of-Way Supervisor made an error in administering this chapter.

(b) Enforcement disputes are not appealable under this section.

(c) Only a lot owner, or an applicant for or holder of a permit issued under this chapter, directly affected by the Right-of-Way Supervisor's interpretation may appeal the Right-of-Way Supervisor's interpretation of this chapter.

(d) To appeal, the appellant shall file the appeal in writing on the city form with the Right-of-Way Supervisor within thirty (30) days after the date of the Right-of-Way Supervisor's interpretation.

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(e) The Transportation Director may resolve an interpretation in favor of an appellant only if the following conditions are met.(1) The appellant's individual circumstances make the strict application of this chapter impractical;

(2) The public health, safety and general welfare are not adversely affected; and

(3) The intent and purpose of this chapter are met.


DIVISION 2. - ENFORCEMENT GENERALLY

Sec. 47-101. - Enforcement generally.

(a) A police officer, the city attorney or the city manager or designee, may bring civil complaints to enforce this chapter. A police officer, police aide, fire fighter or the city manager or designee may take additional measures necessary to address emergencies, and promote, preserve and protect public health, safety and welfare within the right-of-way.

(b) Any person authorized to issue a civil complaint may also issue a notice of violation specifying actions to be taken and the time in which they are to be taken to avoid a civil complaint.

(Ord. No. 4113, § I(Res. No. 9551, Exh. A, § 1), 12-9-13, eff. 7-1-14)

Sec. 47-102. - Civil fines for encroachments and damage in the right-of-way.

The following violations are civil offenses punishable by the minimum fine set forth below:

Section Violation DescriptionMinimum

FinePer Day

(a)No person shall place or maintain an encroachment that creates an imminent risk

of injury or death to the public within the right-of-way.$1,500.00

(b)No person shall perform any unauthorized paving, construction or drainage

changes in the right-of-way or other unauthorized changes to the right-of-way.$1,000.00

(c)No person shall use the right-of-way without a permit to work in the right-of-way

when that permit is required.$400.00

(d)No person shall use the right-of-way after a permit to work in the right-of-way has

expired.$400.00

(e)No person shall fail to maintain or remove an encroachment as directed by the

city.$400.00

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(f) No person shall fail to restore the right-of-way as directed by the city. $400.00

(g)Unless otherwise approved in writing by the Transportation Director, no person

shall violate the standards in the MAG Standards or Design Standards and Policies Manual regarding use of the right-of-way.

$400.00

(h) No person shall commit an act that is prohibited under this chapter. $400.00

(i) No person shall fail to act where an act is required under this chapter. $400.00

(Ord. No. 4113, §§ l,2(Res.No. 9551, Exh. A, § 1), 12-9-13, eff. 7-1-14)

Sec. 47-103. - Criminal fines for damage to right-of-way and public improvements.

The following violation is a class 1 misdemeanor punishable by a minimum fine of five hundred dollars ($500.00): No person shall intentionally, knowingly or recklessly remove or cause damage to the natural features, landscaping or public improvements in the right-of-way.

(Ord. No. 4113, §§ 1, 2(Res. No. 9551, Exh. A, § 1), 12-9-13, eff. 7-1-14)

Sec. 47-104. - Additional remedies for encroachments and damage in the right-of-way.

(a) If an encroachment is placed or maintained in violation of this chapter, the city may, in addition to fines for encroachments and damage in the right-of-way, take the following actions at the expense of the person responsible for the encroachment, including the owner and occupant of the property adjacent to the right-of-way:

(1) Immediately stop any work;(2) Require the person responsible for the encroachment to seek the applicable permits;

(3) Direct the removal or maintenance of the encroachment;

(4) Direct the restoration of the right-of-way to its condition before the encroachment; and(5) Remove or maintain the encroachment, and restore the right-of-way, and any public

improvements in the right-of-way.(b) The city may also exercise the remedies under subsection (a) above after the city revokes a permit

to work in the right-of-way or a permit to place private improvements in the right-of-way.

(c) If a person fails to take the actions directed by the city, within the time required, the city may take the actions at the expense of the person(s) responsible for the encroachment or damage. The expense for the city actions shall become due and payable when a statement of the expenses is mailed to the person responsible for the encroachment or damager and shall become delinquent thirty (30) days after being mailed. A late charge shall be assessed for delinquent payments.

(d) The city's remedies to enforce this chapter also include, but are not limited to:

(1) Declaring an encroachment a nuisance and abating the nuisance;

(2) Suspending or revoking any applicable permit;Exhibit A to Resolution 11403

Page 21 of 3116727112v5

(3) Seeking reimbursement for any damages suffered by the city resulting from the violation;

(4) Pursuing remedies specified in any PWR, PIR or other applicable permit or city document; and

(5) Seeking any other legal or equitable remedy.


DIVISION 3. - BARRICADE MANAGEMENT ENFORCEMENT

Sec. 47-105. - Civil fines for barricade management violations.

The following violations are civil offenses punishable by the minimum fine set forth below:

Section Violation DescriptionMinimum

FinePer Day

(a)No person shall place or maintain a traffic control device that^creates an imminent

risk of injury or death to the public within the right-of-way.$1,500.00

(b)No person shall place or maintain any traffic control device within the right-of-way

without an approved barricade plan when a barricade plan is required.$1,000.00

(c)

No person shall place or maintain any traffic control device within the right-of-way without an immediate need for the traffic control device, such as work occurring

within or adjacent to the right-of-way or hazardous conditions affecting the publicsafety.

$1,000.00

(d)No person shall violate the conditions of any permit required to work in the right-

of-way.$500.00

(e)No person shall violate the conditions of the approved barricade plan, including,

but not limited to, the hours of operation.$500.00

(f)No person without traffic control device certification, as set forth in the Design Standards and Policies Manual, shall place, adjust or remove any traffic control

device.$500.00

(g)Any person authorized to place traffic control devices must use traffic control

devices as specified in the Design Standards and Policies Manual.$250.00

(h) No person shall leave or store any traffic control device in the right-of-way for more than four (4) hours after: (i) the work warranting the traffic control device is

$250.00

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completed, or (ii) an approved barricade plan expires, whichever comes earlier.

(i)

No person operating under the authority of an approved barricade plan shall place or maintain any traffic control devices in the right-of-way,dr permit work in the right-of way, without having a copy of the approved barricade plan on site, and

producing it for inspection upon request of a city employee.

$250.00

(j)No person shall render a bus stop inaccessible without relocating it or making

accommodations that comply with the Americans with Disabilities Act of 1990, asamended.

$250.00

(k)No person shall render a sidewalk inaccessible without making accommodations

that comply with the Americans with Disabilities Act of 1990, as amended.$250.00


Sec. 47-106. - Additional remedies for barricade management violations.

In addition to fines for barricade management violations, the city may:

(1) Suspend or revoke the applicable permit, including PWR, PIR, special event permit and/or barricade plan approval;

(2) Impound and store traffic control devices left in the right-of-way in violation of this chapter, and charge a reasonable fee for impoundment and storage; and

(3) Charge a reasonable fee for actions taken by the city to correct violations of this chapter.


Secs. 47-107-47-160. - Reserved.

ARTICLE VII. - TELECOMMUNICATIONS SERVICE PROVIDERSl^l

Footnotes:

—(if-

Editof's note—Ord. No. 3368, §§ 1—7, adopted July 2, 2^1, did no-t-specificatly amend the Code; hence, inclusion as §§ 47-161—117-167 was at the discretion of the editor. Subsequently, Ord. No. 4113,§ 1(Res. No. 9551, Exh. A, § 2),-adopted DecemberQ, 2013, effective July 1, 2014, renumbered former Art. VI as Art. VII.

Sec. 47-161. - Purpose and findings.

(a) The purpose of this chapter is to establish a policy governing the management of public highways for the provision of telecommunications services to enable the city to:


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(1) Issue licenses to telecommunications corporations whs- use the public highways to provide telecommunications services pfo^jagrl on a competitively neutral and nondiscriminatory basis, except in cases where state law forbids establishment of a license requirement;

(2) Manage the public highways in order to minimize the impact and cost to Scottsdale citizens of the placement of telecommunications facilities within public highways;

(3) Manage the public highways so as to maximize their efficient use, thereby minimizing the foreclosure of future additional uses of such rights-of-way;

(4) Promote competition among telecommunications service providers and encourage the universal availability of advanced telecommunications services to all residents and businesses of the city; and

(5) Minimize congestion, inconvenience, visual impact, and other adverse effects on the city's public highways.

(b) Therefore, in this chapter the city council intends to:

(1) Ensure compliance with public health, safety and welfare measures for public highways;

(2) Conserve the limited physical capacity of the public highways held in public trust by the city; and

(3) Assure that the city's current and ongoing costs of granting and regulating public service corporation access and private corporation access to and use of the public highways riaft^f

are fully paid by the persons seeking such access and causing such costs.

(Ord. No. 3368, § 1, 7 2 01; Ord. No. 1113, § l(Res. No. 9551, Exh. A, §^), 12 9 13, eff. 7 144)

Sec. 47-162. - Definitions.

For the purpose of this chapter, unless the context otherwise requires, the following terms, phrases, words and their derivatives shall have the meanings given herein.

Arterial streets are streets or highways used primarily for through traffic in such a manner that vehicular traffic from intersecting streets and highways is required by law to stop or yield before entering or crossing the street or highway.

Cable services and cable system shall have the same meaning as defined in chapter 7 -ef the Scottsdale Revised Code.

City manager means the city manager or the city manager's designee.Commercial mobile radio serviee means two-way voice commercial mobile radio- service as defined

by the Federal Communications Commission in 47 U.S.C. § 157.

Pacilities-means the plant, equipment and property-used in the provision of telecommunications services and not owned by the GttyHncluding but not limited to poles, wires, pipe, conduits, pedestals, antenna and other appwtenances |:âeed in, on or under public highways.

Provider means a telecommunications l^reonl whoconstructs, installs, operates or maintains telecommunications facilities in the city public biqhwm^îi^

Public highway or highway means all roads, streets and alleys and all other dedicated- public rights- of-way and public utility easements of the city.

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Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.Icfîican11& The term does not include commercial mobile radio services, pay phone services, interstate services or cable services.

Telecommunications corporation means any public service corporation or private corporation to the extent that it provides telecommunications services in this stater

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Telecommunications services means the-offering of telecommunications for a fee directly to the public, or to such users as to be effectively available directly to the public, regardless of the facilities used.

(Qrd. No. 3368, § 2, 7 2-0^-; Ord. No. 'll 13, § l(Res. No. 9^51, Exh. A, § 2), 12 9 13, eff. 7 1 44)

Sec. 47-163. - Telecommunications license.

(a) No telecommunications corporation p*roîaen shaHcor^ruct, install, maintain or operate

highways to provide teleoommumcations services has first been granted by the city council under this chapter (hereinafter "license") to such telecommunications corporation Poiêl.

construct telecommunications facilities in any public highway in the city unless a ROW encroachment permit (hereinafter "permit") allowing work or construction within the public highway has first been

(c) Notwithstanding—subsection—(a4—any- telecommunications—corporation- that was providing telecommunications service within the State of Arizona on November 1, 1997, pursuant to a grant made to it or its lawful predecessors prior to the effective date of the Arizona Constitution, may continue to provide telecommunications services pursuant to that state grant, until and-unless the state grant is lawfully repealed, revoked or amended; and need not obtain any further authorization from the city to provide telecommunication services; provided, however, that such entity-must in all other respects comply with the-requirements applicable to telecommunications corporations, as provided in title 9, chapter 5, articte 7, Arizona Revised Statutes.

(d) Nothing in this chapter shall be deemed to affect the terms or conditions of any license or permit issued by the city prior to the effective date of this chapter aiifiele or to release any party from its obligations thereunder. Those licenses or permits shall remain fully enforceable in accordance with

The city manager, with consent of the citycouncil, may enter into agreements with licensees to modify or terminate an existing license or agreement.

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(e) A license to use

(f)

(g)

construct, install, maintain or operate telecommunications facnities ^ndei^îs chapter shall not

shall the issuance of the same invalidate any license or permit that authorizes the use of the highways for such other service; nor shall the fact that an entity holds a license, or permit to make any other use of the highway or to provide any other service, authorize installatio^jTâintenance,

without obtaining a license and permit hereunder.

Any license granted shall not be exclusive.A telecommunicatioiis licensee provider may enter into contracts for use of its facilities within the

public highways to provide telecommunication! -services. The licenseê rnust disclose

city to provide telecommunications services. Persons using such licensee's facilities must themselves obtain a telecommunication! license if such person constructs, installs, operates or maintains telecommunication facilities within the public highway of the city.

(h) The issuance of a license by the city is not a representation or warranty that such license is a legally sufficient substitute for a franchise and is not a representation or warranty that a franchise is not required.

(Qrd. No. 3368,-§-3, 7 2 01; Ord. No. 1113, § l(Res. No. 9551, Exh. A, § 2), 12 9 13, eff. 7 1 44)

Sec. 47-164. - License application.

(a) A telecommunications corporation Providen desiring a license under this ch^ter to operate and maintain telecommunication facilities in streets and other highways IriqlntsfQflw^ in the city shall file an application with the city manager lorlci^sial'^ requesting a license in the form prescribed by the city manager and shall pay a fee in the amount of two thousand dollars ($2,000.00). The amount of the fee is reasonably related to the cost directly incurred by the city to review and process the application.

(b) At the discretion of the city manager, an application for a telecommunications license may be processed simultaneously with the same applicant's application for a permit to install the applicant's telecommunication system facilities.Each application for a license shall include a project narrative describing the types of services that

will be offered and the benefits that these services will bring-to the community, and the following information:

(1) The names, addresses, and telephone numbers of the applicant, including those for responsible parties during the application, construction and implementation process. This includes a 24-hour emergency telephone contact;

(2) A copy of the applicant's valid certifioate of public convenience and -neoessity which has been issued by the Arizona Corporation Commission; except that this requirement shall not apply to a telecommunication corporation that provides solely interstate telecommunications within the state as demonstrated to the city's satisfaction;

(3) A statement identifying by place and date any other telecommunications or cable licenses awarded to the applicant, its parent or subsidiary; and the status of said licenses;

(4) Specific route maps for the applicant's infrastructure in Scottsdale including all areas proposed to be served for both 1) initial construction and 2) full project build-out. The initial construction map shall serve as Exhibit "A" as indicated in subsection 47-165(b)(5) below;

16727112v5


(5) A proposed time schedule for the installation of all facilities necessary to become operational throughout the entire service area together with a document comparing the schedule with the city's proposed street maintenance schedule and the city's five year capital improvement plan;

(6) A copy or abstract of any agreement covering the license area, if existing, between the applicant and the local telephone and/or other utilities providing for the use of any facilities of the utility including but not limited to poles, lines or conduits; an€l

(^) Any other details, statements, information or references, pertinent to the subject matter of such application which shall be required or requested by the city manager and/or city council, or by any other provision of law.

(c) Upon receiving an application for a license that satisfies the conditions of subsection 47-164(b), the city manager may inquire into matters relevant to the issuance of the license and, if the city manager determines all matters therein are satisfactory, shall proffer a telecommunications license to the applicant within a reasonable time for its review. If the applicant agrees to the terms and conditions of the license, and otherwise satisfies the conditions set forth herein, the request shall be submitted to city council for consideration. Notwithstanding the foregoing, the city need not issue or renew a license for any reason permitted under Arizona or federal law or if the applicant has previously had its telecommunications services license revoked.

(d) The city may retain outside experts to assist in the review and processing of complex telecommunications license applications and all costs for such experts in excess of the application processing fee shall be disclosed to the applicant and recovered by the city through mutual agreement.

(Ord. No. 3368, § 4, 7-2 01; Ord. No. 1113, § l(Res. No. 9551, Exh. A, § 2), 12 9 13, eff. 7 144)

Sec. 47-165. - License terms.

Length of license. Any license granted by the city pursuant to this chapter shall commence upon adoption of the license and acceptance of the license by the provider. The license shall be effective for a period of Eipltd five ^ (§11^) years, and subject to the conditions and restrictions provided in the

nt and this chapter. MtlMiMtinlilfinstrument and this chapter.

m(b) Every license shall be subject to the following provisions;

(1) 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 city and prior consent is obtained by the city council, which consent will not be unreasonably withheld or delayed. In making a determination as to whether to approve a transfer, the city 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 wouid result in an evasion of other applicable provisions of law, or impair lawful contracts; and the effect of the transfer on the city's interests. 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 this 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 chapter and the license for all purposes, including renewal. Approval by the city of a transfer of a license does not constitute a waiver or release of

16727112v5


any of the rights of the city under this chapter or the license, whether arising before or after the date of the transfer.

(2) Notwithstanding the foregoing, prior consent shall not be required for one transfer to any company which is owned or controlled or under common control and with the same direct parent as licensee, and which is intended after such transfer to remain under the ownership or control of that parent or an entity under common control or with the same direct parent, provided that, no such transfer shall be valid unless licensee and the proposed transferee submit a binding agreement and warranty to the city stating that;

a. The proposed transferee has read, accepts, and agrees to be bound by the license;

b. The proposed transferee assumes all obligations, liabilities and responsibility under the license for the acts and omissions of licensee, known and unknown, for all purposes, and agrees that the transfer shall not permit it to take any position or exercise any right which licensee could not have exercised; and

c. The transfer will not substantially diminish the financial resources available to the licensee.Prior to completing such transfer described in this subsection 47-165(b)(2), licensee and the proposed transferee shall submit to the city a description of the nature of the transfer, and submit complete information regarding the effect of the transfer on the direct and indirect ownership and control of the license.

(3) Every licensee shall obtain the insurance, and provide proof of insurance as required by the city; post the performance bonds and security fund required by the city; and agree to fully indemnify the city, its officers, agents, boards and commissions, in a form satisfactory to the city; and agree that it shall have no recourse whatsoever against the city or its officials, boards, commissions, agents or employees for any loss, costs, expense or damages arising out of any provision or requirement of the city because of the enforcement of the license or because of defects in this chapter or the license issued;

(4) The city shall have continuing jurisdiction and supervision over any facilities located within or on city rights-of-way. Daily administrative, supervisory and enforcement responsibilities of the provisions of this chapter shall be delegated and entrusted to the city manager to interpret, administer and enforce the provisions of this chapter, and to promulgate standards regarding the construction, reconstruction, relocation, maintenance, dismantling, abandonment or use of the facilities within the city rights-of-way. Every licensee shall comply with and be bound by the administrative and enforcement provisions as may be prescribed from time to time by the city.

(5) Every license will be a nonexclusive, revocable license, right and privilege to construct, install, operate, and maintain the facilities along certain streets and public ways in the city as specifically identified on a map to be attached to the license as Exhibit "A".

(6) Upon written consent of the city manager or bie-designee, which consent shall not unreasonably be withheld or delayed, the licensee may expand or exteiid the system to streets and public ways not currently identified on the map attached hereto inclETded as Exhibit "A" ^ K^ititt^tiliieen^. The licensee agrees that any such expansions or extensions shall be governed by the terms and conditions of this license and such conditions and/or stipulations that the city may require to minimize specific traffic impacts in all or part of the requested extension area. The licensee shall annually prepare an updated Exhibit "A" map that shows the expansions and extensions, which shall be attached to this license to replace the existing Exhibit "A- ^fiiiit upon the city's granting of consent for the expansion or extension.

(7) The licensee agrees to provide and maintain accurate digital maps in an electronic format specified by the city that shows the location of all facilities it will use in the highways within the cityr and comply with such other mapping requirements as the city may establish from time to time.

(c) Penalties for violation of license terms.

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(1) Every provider shall be subject to the city's exercise of such police, regulatory and other powers as the city now has or may later obtain, and a provider may not waive the application of the same, and the license must be exercised in strict conformity therewith. Every license shall be subject to revocation if the provider fails to comply with the terms and conditions of the license or applicable law. A license shall not be revoked unless the provider is given written notice of the defect in performance and fails to cure the defect within sixty (60) days of the notice, except where the city 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 provider has already had notice and an opportunity to cure. A hearing shall be held before a license is revoked or not renewed if the provider requests a hearing. In the event of a conflict between this chapter and other provisions of the Code, the stricter requirement shall apply.

(2) Any remedies available to the city are cumulativer and are not limited by the recovery of any amounts pursuant to the insurance provisions of the license, or pursuant to any indemnity clause.

(3) If the licensee fails to pay amounts owed to the city by the time prescribed for payment, the licensee shall pay interest on the amounts owed, at the rate of one percent per month.

(4) If licensee fails or refuses to meet any requirement of the license or this chapter and fails or refuses to remedy or perform any requirement after receiving written notice of violation, the city, at its sole discretion may elect to terminate the license.

(d) Renewal. A licensee that receives a telecommunications service license pursuant to-this chapter may-apply-fof-a-renewat-ef-its license, which renewal shall be-reviewed-in-accordance with the requirements of law.

(e) Termination or revocation. Upon termination or revocation in accordance with subsections 47- 165(c)(1), and (4), or through failure to renew, the licensee shall have two years to obtain a permit and remove its facilities from the public highway. In the event a licensee's facilities are not removed from the public highway within two years of termination the facilities shall be deemed abandoned and shall become the property of the city without further notice or compensation.

(Ord. No. 3368, § 5, 7 2 01; Ord. No. 1113, § l(Res. No. 9551, Exh. 9 13, eff. 7 144)

Sec. 47-166. - Compensation.

The city shall not levy a tax, rent, fee or charge on a telecomnwHcations corporation for the use of a public highway to provide telecommunications services, or levy a tax, fee or charge upon-the privilege of engaging in the business of providing telecommunications services, except that, in connection with its provisions of telecommunications services and its use of the highways tc provide the same, eiach telecommunications corporation pfoviS'er shall:

(1) Pay transaction privilege tax on the business of providing intrastatetelecommunications services or applicable use tax, as may be specified from time to time in the Scottsdale City Code;

P^y an^nuaj^ fe^bj^ed on the^^n^^ of linear feet of

placed carry interstate traffic between and among the telecommunications corporation's interstate points of presence exclusive of facilities used by the local network and the-portion of the interstate network that carries intrastate calls. The rate per linear4eot-shall not be increased in any calendar year by more than the increase in the average-consumer price-index as publish^by the U.S. Department of Labor, Bureau of Labor Statistics. For the calendar fiscal year 20|^9&4, the rate per linear foot shall be 1^‘d'j one dollar and fifty-two cents ($1.52);

city;

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(4) Pay all costs associated with the construction, installation, maintenance and operation of its facilities in the public highways used to provide telecommunications services, including reasonable costs associated with damage caused to the public highways by the licensee;

(5) Pay a license application processing fee of two thousand dollars ($2,000.00) to cover the cost of reviewing and processing the application;

(6) Pay the inspection fee to cover the cost of inspection of the construction, work or installation to insure it meets all city requirements; and

ff^!|iMI^^1^M;lM^^p^^1^eriliiW^^rlniQ¥tst§fMaiAf^ -Ppa7 any and all additional

reasonable costs for an^lothen damage, including but not limited to, loss of utility, reduced life, and other proportionate and attributable costs and damages caused to the public highways by the licensee, the licensee's facilities, or the licensee's use of the public highways.

(b) The city manager is authorized to review the costs associated with construction, maintenance and operation of facilities in the public highways to provide telecommunications services and to establish any fee required to recover those costs. Nothing in this section is intended to limit the obligation of any person to pay amounts owed under any license. Provided that, for licenses issued after the effective date of this chapter, payments required under such license- for the provision of telecommunications services shall comply with the provisions of applicable state and federal laws.

(Ord. No. 3368, § 6, 7 2 01; Ord. No. ^113, § l(Res. No. 9551, Exh. A, § 2), 12 9 13, eff. 7 1 44)

Sec. 47-167. - Coordination to minimize disruption to the city's public highways.

(a) The city4ias the duty to regulate and oversee the use of-the city's public highways, subterranean spaces and air-rights. The city finds that the management of the public ways has been made more complex because of the increase in building construction and influx of seasonal visitors, and a corresponding increase in vehicular traffic, along the city's major arterial streets.

(b) In order to minimize the number of street cuts, to preserve and prolong the integrity of the public highways, the City of Scottsdale requires that all telecommunications applicants wtH comply with all city right-of-way construction and management policies, including participation in joint trench projects as designated by the city.

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(Ord. No. 3368, § 7, 7 2 01-; Ord. No. ^11-3, § l(Res. No.-9551, Exh. A^§ 2), 12 9 l^eff. 7 1 44)

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16727112v5


Comments Regarding Proposed Changes to Chapter 47, Scottsdale Municipal Code

General Comments

As a general matter, the proposed changes have the potential to conflict with established federal and state law, in the following respects.

Arizona Revised Statutes §§ 9-581 et. seq.: Arizona law already provides a comprehensive framework for compensation for use of the right-of-way. The proposals to assess a flat fee of $.90 per linear foot of network and to charge a damage fee in connection with pavement cuts potentially conflict with Arizona state law. In addition, ARS 9-583(C)(3) does not permit the fee to be higher than the highest amount charged by a City before December 31,1999, adjusted by CPI.

Arizona Revised Statutes §§ 9-591(22)(ii): The definition of a "Wireless Facility" in the new Small Cell Statute includes "coaxial or fiber-optic cables" associated directly with the Small Cell antenna. The new Small Cell Statute permits a Wireless Facility in right of way, subject to specific charges. The additional $.90 per linear foot fee and damage fee, if applied to Wireless Facilities, likely violate the new Small Cell Statute.

47 use § 253: Under applicable federal law, compensation for use of the right of way must be fair and reasonable, competitively neutral, and assessed on a non-discriminatory basis. It's unclear how the proposed fees reflect a reasonable estimate of otherwise unrecovered costs of managing the City's right-of-way. And the creation of an exemption process raises questions around how compensation is going to be assessed in a competitively neutral and non-discriminatory way.

Specific Comments on Proposed Changes

The following comments are provided in order by section number.

§ 47-2 (Definitions): It is unclear why alley, trail, and path are being struck from the definition; why corresponding edits are not made elsewhere these terms appear in Chapter 47; and what to do about existing public rights-of-way in alleys and along trails and paths.

§§ 47-50(c)(5) and 47-51(c)(5): Requiring indemnification for the city's "acts, omissions, or negligence" is void as a matter of public policy under Arizona law. C/., ARS §34-226 ("a construction contract or subcontract or design professional services contract or subcontract entered into in connection with a public building or improvement shall not require that the contractor, subcontractor or design professional defend, indemnify, insure or hold harmless the contracting agent or its employees, officers, directors, agents, contractors or subcontractors from any liability, damage, loss, claim, action or proceeding, and any contract provision that is not permitted by subsection B of this section is against the public policy of this state and is void."); ARS § 41-2586 ("A covenant, clause or understanding in, collateral to or affecting a construction contract or subcontract that purports to indemnify, to hold harmless or to defend the promisee of, from or against liability for loss or damage resulting from the negligence of the promisee or the promisee's agents, employees or indemnitee is against the public policy of this state and is void."); ARS §44-1379; ARS § 32-1159.

ATTACHMENT 3

§ 47-162 (Definitions):

The definition of Telecommunications is being modified substantially. It appears the modifications are intended to create a new category of activity, right-of-way fees for which would somehow fall outside the purview of ARS § 9-581 et seq. However, cable service is subject to separate federal regulation, and the remaining items—information services, VOIP services, and advanced communications services—are long-standing uses of public right-of-way, already covered by and subject to the State's regime for right- of-way compensation. See, e.g., Section 470, Appendix C, Scottsdale Municipal Code (internet access service considered to be "telecommunications" but carved-out from the City's transaction privilege tax). Per-foot fees for use of the right-of-way for these additional services are not applicable to portions of the right-of-way containing telecommunications, as defined in State law. See, e.g., § 9-583(c).

§ 47-162: This ordinance is drafted to apply to Telecommunications; however, the last paragraph of this section excludes wireless communications facilities from the definition of Telecommunications.

§ 47-163(c): This paragraph should be retained, the paragraph is a direct legal reference to Qwest Corporation dba CenturyLink who is the legal ILEC entity in the ROW.

§ 47-164(b){2): This paragraph should be retained, changes remove ILEC protections as does item (7).

§ 47-165 (a): The length of the term of the license for the right of way use should be consistent with the new Small Cell Statute, which is 10 years, with 10-year automatic renewals unless the provider is out of compliance.

§ 47-166{a)(2): The new fee for linear feet of conduit is not consistent with Arizona law, as noted above. In addition, it is unclear how it may be applied, for example, in situations where a provider has installed two 2-inch conduits; is the fee applied per foot of ROW or per foot of conduit? With respect to the rate of $.90 per foot, it's unclear how the proposed fee reflects a reasonable estimate of otherwise unrecovered costs of managing the City's right-of-way, and how those unrecovered costs are being similarly assessed on other users of the right-of-way for non-telecommunications purposes (e.g., gas, water, sewer, power). Finally, to the extent the per-foot fee is sought to be recovered for fiber connections to small wireless facilities, it may violate the new Small Cell Statute.

§ 47-166(a)(7): More detail is required regarding the proposed pavement damage fee. Other cities have implemented requirements for pavement damage restoration that the City may wish to consult. In addition, it would be good to understand where this fee is also being implemented for other users of the right-of-way (e.g., gas, water, sewer, power) and for developers, who are frequently the cost-causers of utility-related pavement cut activity.

§ 47-166{a)(8): More detail is required with respect to the proposed additional fee.

§ 47-168: More detail is required regarding the types of exemptions the City has in mind, how those will be implemented in an open and transparent manner, and how they impact the City's obligations to manage the right-of-way on a competitively neutral and nondiscriminatory basis.

Niederer, Keith

From:Sent:To:Cc:Subject:

Vogel, Timothy A <[email protected]>Wednesday, January 09, 2019 10:12 AM Niederer, Keith; Anderson, Eric C.Jason L TaillieRe: [E] Draft Code Amendment to Chapter 47 of the Scottsdale City Code Telecommunications

Keith,

Here are some comments on behalf of Verizon with respect to the amount of the new rate being established by the proposed revisions. Verizon will provide additional comments on the remaining issues before the February 1 deadline.

Verizon believes the proposed per-foot rate of $.90 is too high. Rather, Verizon believes that at this time, the City would be well advised to set a rate no higher than $.05 per foot. There are a number of reasons for this.

The primary reason is the impact on competition. During the meeting, there was some discussion of the fact that at least one major communications provider in the City enjoys access to the right of way under an historical grant, and that this provider may not be subject to the new annual per-foot fee proposed in the revisions to City code. It could take a long time before there is any clarity over whether this major market competitor would be subject to this fee, during which time they would enjoy a significant cost advantage. There was also discussion of the City's plan to implement the fee over time, as existing license agreements expire. This puts new entrants at a competitive disadvantage, as they may, again, end up paying these fees for years before their competitors are required to. Verizon believes that it is not good public policy to subject just some companies to governmental fees that do not apply equally to all competitors.

Then there is the impact on the City's businesses and residents. New fees are likely going to be passed on to customers in the form of higher rates. The higher the fees, the higher the impact on the City's businesses and residents in terms of higher prices. Because none of the surrounding jurisdictions have implemented this type of blanket per-foot fee, the new fee will raise the cost of doing business in the City as compared to surrounding jurisdictions. In addition, to the extent the fees are implemented in a discriminatory manner (applying to some, but not all competitors), the City's businesses and residents pay in another way—through higher prices and lower quality services than would be available in a more competitive marketplace. High fees can also lead to less investment in broadband infrastructure by competitors and new entrants, thus limiting the geographic areas of the City in which high-quality, low priced, competitive broadband services are available.

The proposed new annual fee is vulnerable to challenge from a legal perspective. Some of these legal arguments are outlined in the industry comments, and others have been raised in our discussions. I will not reiterate all of the legal arguments here, but any fee that does not comport with state law, that materially impairs competition by being applied in a discriminatory manner, and that is not grounded in a reasonable estimate of the City's costs of managing the right of way for communications providers is subject to challenge under both federal and state law.

The rationale behind the amount of the new fee and how it relates to the actual use of the right of way has not been made clear. When Verizon originally approached the City for a license agreement, it was told that it would be required to pay a fee of $2.07 per linear foot of "copper, fiber optic or other cable or conductor or conduit" in the right of way. That amount appears to be based the rate the City would charge for use of the right of way for facilities used for interstate telecommunications services, exclusive of facilities used by the local network and the portion of the interstate network that carries intrastate calls, as contemplated in Arizona state law (ARS 9-583(C)). That section of Arizona state law authorizes an annual fee per "number of linear feet of trench" in the public highways carrying exclusively interstate traffic, and benchmarks that rate to the "highest rate per linear foot a political subdivision in this state charged any

licensee or franchisee on or before December 31, 1999." ARS 9-583(C)(3). It is not appropriate, or economically feasible, to assess such a rate (or even a reduction of it, as the $.90 appears to be) on use of the right of way for local services for local customers. The rate under ARS 9-583(C)(3) is for interstate long-distance networks, which aggregate traffic for thousands or millions of customers between cities and states. By comparison, the leaf-vein design of many local networks results in portions of the right of way being used to deliver services to just a handful of customers, or sometimes as few as one. The ability to provide services at such a micro-local level is potentially unsustainable if use of the right of way is subjected to the fee amount proposed by the City. For example, use of 100 feet of right of way to deliver broadband service to a small business customer could trigger an additional annual fee of $90, which could be up to 10% or more of the price of the customer's service.

The proposed new annual fee of $.90 per foot, if implemented in any way other than uniformly on all providers at the same time, has the potential to materially impair competition for communications services in the City. It is not in the City's interest to pick winners and losers in the market for communications services by placing an economic thumb on the scale for some providers but not others. It is also not lawful under applicable law. If the City decides to move forward with new annual fees, Verizon respectfully requests that the City err on the side of fostering competition, by starting with a low fee. In that regard, Michigan, with its state-wide rate of $.05 per foot, might serve as an appropriate example for the City to consider. See, MCL § 484.3108(4). A rate of $.05 per foot of right of way may give the City the ability to test implementation of such a new fee with less objection and less impact on competition for the City's businesses and residents.

Verizon is available at your convenience to discuss any questions you may have about these comments. Verizon also plans to submit additional comments by the deadline of February 1, as indicated by the City. Finally, Verizon reserves all rights with respect to this matter, and nothing in this email or Verizon's participation in the process of commenting on the proposed changes should be interpreted as any agreement regarding the lawfulness of any such changes, or as a waiver of Verizon's legal rights.

Thank you in advance for your consideration.

Sincerely,

Timothy VogelManaging Associate General Counsel Verizon

On Thu, Jan 3, 2019 at 7:49 PM Niederer, Keith <KNiederer(5)scottsdaleaz.gov> wrote:

Flello all.

Attached is the revised draft of the Chapter 47 code amendment related to telecommunications.

Please provide any comments by Friday Feb. 1.

Thank you.

Niederer, Keith

From:Sent:To:Cc:

Subject:

Vogel, Timothy A <[email protected]>Thursday, January 31, 2019 2:57 PM Niederer, KeithJason L Taillie; Timothy Potter; NOWICKI, ERIC; DANNA, COUN; ROBERTS, CUETON P; Mirasola, Jeff; [email protected]; DiRoss Patricia; Miller Leo L; Carek Gregory M (Greg); DiMaria, Michael; Aja, Rachel (CCI-Southwest); Vanessa Hayden; Fabiola Chavarria; Greg Lake; Eriese, Tanya; Richard Lee; Lundahl, Brad; Anderson, Eric C.; Hartig, Brad; Curtis, TimRe: [E] Draft Code Amendment to Chapter 47 of the Scottsdale City Code - Telecommunications

Keith,

Thank you for the opportunity to review the revisions. To the extent the City did not address comments and concerns previously submitted by Verizon and industry, Verizon respectfully maintains and re-iterates those same comments and concerns regarding the revised ordinance.

Tim

On Thu, Jan 3, 2019 at 7:49 PM Niederer, Keith <[email protected]> wrote:

Hello all.

Attached is the revised draft of the Chapter 47 code amendment related to telecommunications.

Please provide any comments by Friday Feb. 1.

Thank you.

Keith Niederer

Senior Planner

City of Scottsdale, AZ

480-312-2953

Get informed!

ITEM 12

verizoo\'J

Michelle A. RobinsonVice President - Government Affairs

One Verizon Place Alpharetta, GA 30004

Mayor W, J. LaneCity of Scottsdale3939 N. Drinkwaier BoulevardScottsdale, AZ 85251

The Honorable Mayor & City Council;

Verizon respectfully submits the following comments in connection with proposed changes to Chapter 47 of the Scottsdale Municipal Code.

For the reasons set forth in our January 9, 2019, email to Mr. Keith Niederer, Senior Planner,City of Scottsdale, and Mr. Eric Anderson, City Attorney, Verizon opposes the City’s proposed new right-of-way fee. However, if the City decides to move forw'ard with new’ right-of-way fees, Verizon proposes the following tiered/capped rate staicture instead of the City’s proposed flat fee of $.90 per foot per year.

Network Mileage RangeUp to 10 miles

From 10 miles to 20 miles




.Above 150 miles

Per Foot Annual Rate$0.90$0.70$0.40$0.21$0.14$0.11

Notes: All miles are paid at the rate applicable to the total number of miles. In no event will the total annual footage fee exceed $100,000 per year.

Verizon believes it is in the City’s best interest to implement this tiered/capped rate structure for the following reasons:

• A tiered/capped structure is pro-investment. There is tremendous value for both economic and community development associated with the availability of fiber to support Scottsdale’s small to medium sized businesses and homes. Verizon understands the demand and is poised to make a significant investment in this important fiber infrastructure - in excess of 100 miles of fiber in Scottsdale. This tiered/capped structure

provides aii incentive for smaller providers to increase their level of investment in the City and reduces the cost impact on companies that commit significant investment to the City.

• This tiered/capped structure makes Scottsdale more competitive with surrounding cities as compared to the proposed flat fee. No other city in the area has fees like the proposed flat fee. With any new per-foot fee, Scottsdale instantly becomes the highest fee jurisdiction in area. High fees can lead to less investment in broadband infrastructure by competitors and new entrants, thus limiting the geographic areas of the City’ in which high-quality, low priced, competitive broadband services are available. The proposed per-foot flat fee raises the cost of doing business in Scottsdale substantially; the tiered'capped fee reduces that impact.

■ A tiered/capped structure reduces the impact on Scottsdale businesses. New fees are likely to be passed on to customers in the fonn of higher rates for service, or less competition (if providers underinvest or avoid investing in the Scottsdale market); the tiered/capped fee reduces that impact .

• The tiered/capped structure may be legally more defensible. The proposed flat fee may violate applicable law in a number of respects; It is not based on recovery- of city costs; it does not apply to all providers; and it has a material impact on the ability’ of providers to compete in a fair and balanced market.

In closing, it is not in the City-’s interest to pick winners and losers in the market for communications serv'ices by enacting onerous right-of-way fees that apply to some providers but not others and which have a material impact on competition. It is also not lawful to do so. If the City decides to move forward with new annual fees, Verizon respectfully requests that the City eiT on the side of fostering compe'tition, by implementing the proposed tiered/capped fee structure instead of the flat fee.

Verizon is available at your convenience to discuss any questions you may have about these comments. Verizon reser\'es all rights with respect to this matter, and nothing in these comments or Verizon's participation in the process of conunenting on the proposed fee should be interpreted as any agreement regarding the lawfulness of any such fee. or as a waiver of Verizon's legal rights.

Sincerely,

/' J /

Michelle A. Robinson

memorandum - scottsdaleaz

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