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HomeMy WebLinkAbout08913RESOLUTION NO. 6913 A RESOLUTION APPROVING A LIMITED LICENSE AGREEMENT BETWEEN WESTPLAINS VENTURES, INC. AND THE CITY OF PUEBLO WHICH CONDITIONALLY AUTHORIZES TELECOMMUNICATIONS FACILITIES TO BE PLACED UPON AND WITHIN DESIGNATED STRUCTURES WITHIN PUBLIC RIGHTS OF WAY, AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1 The Limited License Agreement dated February 14, 2000, between WestPlains Ventures, Inc. and the City of Pueblo, a Municipal Corporation (the "Limited License Agreement ") which conditionally authorizes telecommunications facilities to be placed upon and within designated structures within public rights of way within the City, in accordance with its terms and provisions, a true copy of which is attached hereto and incorporated herein by reference, having been approved as to form by the City Attorney, is hereby approved. SECTION 2 The President of the City Council is hereby authorized to execute the Limited License Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk is directed to affix the Seal of the City thereto and attest same. INTRODUCED: February 14, 2000 BY Al Gurule ATTEST: AYP R (WV ED: bl AA ._ City C k resident of the City Council Rev. 2/1/2000 LIMITED LICENSE AGREEMENT THIS AGREEMENT is entered into this 14th day of February, 2000, by and between the City of Pueblo, a Municipal Corporation (hereinafter referred to as "City ") and WestPlains Ventures, Inc., a Delaware corporation (hereinafter referred to as "Licensee "). WITNESSETH: WHEREAS, City is a Colorado home rule city organized and existing under and by virtue of Article XX of the Colorado Constitution and possesses plenary power and authority over the use and occupation of the public rights of way within its corporate boundaries; and WHEREAS, Licensee is an unregulated entity which, among other things, is in the business ofconstruct- ing, maintaining, operating and /or leasing telecommunications facilities to telecommunications providers and to other entities for their own use or for their provision of telecommunications service to end -use customers; and WHEREAS, Licensee desires to construct, own, lease and maintain telecommunications facilities within the City's corporate boundaries upon or within towers, poles or conduits of utilities holding a current franchise with City or of telecommunications providers which have been granted permission by City to place towers, poles or conduit within public rights of way within the corporate boundaries of the City; and WHEREAS, City is authorized under the constitution and laws of the State of Colorado to grant consent to telecommunications providers to occupy the public rights of way for such purposes; provided, however, the same shall not be nor constitute the granting of a local franchise under Article 16 of the City's Charter nor shall same ever become or ripen into any franchise; and WHEREAS, the City and Licensee have agreed to be bound by the terms and conditions set forth herein which shall govern Licensee's use of the public rights of way; NOW, THEREFORE, in consideration of the foregoing recitals and the terms, conditions and mutual promises set forth herein, the parties agree as follows: ARTICLE I - DEFINITIONS As used in this Limited License Agreement, the following terms, phrases, and words shall be ascribed the following meanings, unless the context indicates otherwise. As used in this Limited License Agreement, the word "shall" is mandatory, and the word "may" is permissive. Words not defined herein shall be given their common and ordinary meanings, consistent with the context in which such words are used and the purposes of this Limited License Agreement. "Telecommunications Act" shall mean the Telecommunications Act of 1996 (47 U.S.C. §151, r et aeL .) 2. "Facilities" means all physical plant of the Licensee which is located, or which may become located pursuant to this Limited License Agreement, within the City and which may be reasonably necessary, useful or convenient to permit the provision of telecommunications services by other entities within the territorial boundaries of the City, including without limitation, wires, cables, pipes, underground conduits, ducts, manholes, vaults, fiber optic cables and devices, switches and other structures and appurtenances. 3. "Account" shall mean each telephone or telecommunications access line provided by or on behalf of Licensee, if Licensee provides any type of local exchange or special voice or data transmission service at an end -use customer's premises over which an end -use customer may send or receive any telephone, telegraph, fax, data, video or other similar telecommunications signals; except that "Account" shall not include any customer line used solely for receipt of cable television programming. If Licensee does not provide any type of local exchange or special voice or data transmission service at an end -use customers premises, then "Account" shall mean each lease or other agreement through which Licensee leases facilities to telecommunications providers or to other entities for their own use or for their provision of telecommunications service to end -use customers. 4. "Rights of Way" shall mean City streets, roads, alleys, sidewalk areas and other dedicated rights of way within the territorial boundaries of the City, together with dedicated utility easements within the City and easements deeded to the City for utility purposes, and including state highways and highways which are part of the federal interstate highway system. The term shall not include any other property owned or leased by the City for other public use. 5. "Telephone Utility" shall mean every telecommunications provider that provides telecommunications service as the latter term is defined in Section 14 -4- 21(40) of the Pueblo Municipal Code. 6. "Telephone and telegraph services" shall be identical in meaning with telecommunications service as the latter term is defined in Section 14 -4 -2] (40) of the Pueblo Municipal Code. "PMC" shall mean the Pueblo Municipal Code, as amended, and as same may be amended in the future. "FUTL" or "Franchised Utility or Telecommunications Licensee " shall mean and include any of the following: (a) an electric, gas, cable television or other utility holding a valid and unexpired franchise with City; or (b) a telecommunications provider authorized by the Colorado Public Utilities Commission or Federal Communications Commission to provide either local exchange or interexchange telecommunications services within the State of Colorado and which has been granted a non- exclusive license by City to make reasonable use of the Rights of Way. 9. "Designated Structures" shall mean the towers, poles, pipes, underground conduits, ducts, manholes, vaults or other structures lawfully installed or hereafter installed within or upon Rights of Way by any FUTL. -2- ARTICLE II - CONSENT GRANTED 1. Subjectto Licensee's compliance at all times with all of the terns and conditions of this Limited License Agreement, all of the ordinances referenced herein, all applicable local, state and federal laws, and subject to the City's exercise of its police power (including, but not limited to, zoning, subdivision, permit and building code requirements) and the City's prior and superior right to usage for municipal purposes, and subject to Licensee obtaining requisite advance permission from the controlling FUTL, City hereby grants to Licensee, insofar as it has or may have the requisite power and authority to do so, a non - exclusive license to place Facilities upon or within Designated Structures within the Rights of Way, including the right to cross over or under Rights of Way between Designated Structures (along the course of existing wires, cables, pipes, ducts or conduit of FUTLs), to make additional limited use of the Rights of Way as set forth in Article III hereof, and to construct, install, operate and maintain Licensee's Facilities within the City to and for the benefit of the City and the inhabitants of the City; provided, however, that with respect to state highways, Licensee must separately obtain consent from the Colorado Department of Transportation. This license shall extend to all areas of the City as it is now constituted, and to additional areas as the City may increase in size by annexation or otherwise. 2. The limited right granted herein to make reasonable use of Designated Structures within Rights of Way and to make limited additional use of the Rights of Way, as set forth in Article III, shall not be deemed to be a franchise, nor an exclusive license or right, and the City reserves the right to make or grant a similar use of the Designated Structures within Rights of Way to any other person or persons, including one or more telecommunications providers. The City retains the following rights in regard to this license: (a) To revoke the license and consent hereby granted for misuse, non -use or failure of Licensee to comply with the provisions hereof, (b) To use, control and regulate the use of the City streets, roads, easements, other public places and the Rights of Way, and the space above and beneath the same; and (c) To require, upon reasonable notice, whenever feasible, the removal or relocation of any of the Facilities from the Rights of Way if necessary or desirable, in the sole judgment of the City, for any public or municipal purpose or project. 4. Licensee acknowledges that use by Licensee of Designated Structures owned or controlled by any FUTL is also subject and shall only be pursuant to separate agreement between Licensee and the applicable FUTL; and nothing in this License Agreement is intended, nor shall it be construed, to confer rights in or upon the property of any FUTL or to affect or modify the right of any FUTL to control its Designated Structures. ARTICLE III - SCOPE The license and consent granted by this Limited License Agreement confers only the right to make reasonable use of Designated Structures within the Rights of Way, including the right to cross over or under Rights of Way between Designated Structures following the course of existing wires, cables, pipes, ducts or conduit of FUTLs, and the right to make limited use of the Rights of Way for new extensions of Licensee's Facilities from its Facilities placed upon or within Designated Structures within the Rights of Way, provided any such extension shall not exceed five hundred feet in length, for Licensee's construction, maintaining, operating and /or leasing of telecommunications facilities, and it is expressly conditioned that the Licensee shall not operate 1911 as a "cable operator" as that term is defined under federal law (47 U.S.C. §522(5)), nor shall it provide or offer to provide "cable services" as that tern as defined under federal law (47 U.S.C. §522(6)), without proper local, state and federal authorization, as required by law. Nothing in this Limited License Agreement is intended as a general authorization for the use of the Right of Way. ARTICLE 1V - OCCUPATION TAX 1. Licensee understands and acknowledges that City had heretofore adopted Ordinance No. 4267 in December 1976 imposing upon all telecommunications utilities operating within the City, and effective January 1, 1977, an occupation tax as stated in said Ordinance. Licensee acknowledges that the City has the right to apply and to enforce its ordinances, including the foregoing occupation tax ordinance against any lessee of Licensee subject to such ordinance. To the extent Licensee provides any local exchange services, whether directly or through resale, Licensee agrees to be bound by and comply with said Ordinance, including payment of the tax in an amount equal to $6.00 per annum for each Account, payable in equal installments. To the extent Licensee provides any local exchange services, Licensee hereby expressly agrees that it is and constitutes a telephone utility within the meaning of Ordinance No. 4267 and Licensee irrevocably waives and relinquishes any right it has or may have to claim or assert that said Ordinance is invalid under law or should not be applied to Licensee, including, without limitation, any claim that said Ordinance violates any provision of state law or the Telecommunications Act. 2. For the rights and privileges granted pursuant to this Limited License, Licensee agrees to pay to City an occupation tax in an amount equal to $6.00 per annum for each Account, payable in twelve equal installments. 3. Licensee acknowledges that any lessee of its facilities, which provides telecommunications services to end -use customers for a fee or charge, may be required to pay to the city occupation taxes based upon the number of such end -use customers. Licensee agrees to include language in its leases which states that lessee agrees to comply with all applicable federal, state or local laws and regulations. City agrees that Licensee has no duty under this Limited License Agreement to remit any occupation taxes or fees owed by its lessees, or to assist in enforcing City's ordinances and regulations. ARTICLE V - SALES AND USE TAXES 1. Licensee agrees to obtain a sales and use tax license from the City and to comply with all provisions of Title XIV of the Pueblo Municipal Code relating to sales and use taxes. 2. Licensee acknowledges and agrees that any sale of telecommunications services to end -use customers within the City in which it may engage, including any provision of interstate telephone access service and interLATA access service, is taxable by City pursuant to §14 -4- 61(3), PMC, and Licensee shall collect any such taxes from end -use customers and promptly remit same to the City in accordance with Title XIV, PMC. ARTICLE VI - USE OF RIGHTS OF WAY 1. Facilities shall be located, installed and maintained so that none of the Facilities endanger the lives, health or safety of persons, or interfere with any public improvements the City or other governmental entities (including any storm water, sanitary sewer or water utilities or enterprises) have in place or may deem proper to make, nor shall the location, installation or maintenance of the Facilities hinder or obstruct the free use of the streets or other public ways. All Facilities shall be so located as to cause minimum interference with the -4- rights and reasonable convenience of property owners of property which adjoins any Right of Way. 2. Prior to commencement of construction of any portion of its telecommunications facilities within the City, Licensee shall furnish to the City the general schematic plans for its Facilities, including preliminary architectural, engineering, traffic control, and landscaping plans. In addition, the Licensee shall assess and report on the impact of its proposed construction on the City environment. Such plans and reports may be reviewed by the City to ensure, (a) that all applicable laws including building and zoning codes and air and water pollution regulations are complied with, (b) that aesthetic and good planning principles have been given due consideration, and (c) that adverse impact on the environment has been minimized. The Licensee shall comply with all regulatory requirements of the City lawfully binding on the Licensee and shall incorporate all other reasonable changes to its plans requested by the City. 3. Not less than thirty (30) days prior to construction of any Facilities within the Rights of Way at any specific location, Licensee shall furnish the City's Director of Public Works with detailed plans for such Facilities including detailed location drawings and final architectural, engineering, traffic control and landscaping plans. Prior to commencing construction, Licensee shall: (a) obtain written approval of the Director of Public Works of the construction plans, (b) procure appropriate excavation permits pursuant to Chapter 6 of Title XII, PMC, and permits required by Chapter 3 of Title X1I, PMC, or permits required pursuant to any similar ordinance adopted by City in the future, (c) pay all fees associated with such permits, and (d) comply with all requirements of said Chapters 3 and 6 of Title X11, the terms of said permits, and the City's Standard Construction Specifications and Standard Details dated June 9, 1997 or as subsequently revised. 4. All construction, excavation, maintenance and repair work done by Licensee shall be done in a workmanlike and expeditious manner which minimizes the inconvenience to the City, the general public and individuals. Licensee shall be liable for any damage to the City or City owned property caused by Licensee's failure to act in a timely manner. All such construction, excavation, maintenance and repair work done by Licensee shall comply with all applicable codes of the City and the State of Colorado, and Licensee shall be responsible for obtaining all applicable permits and licenses. The City shall have the right to inspect all construction or excavation work to insure compliance with applicable codes and permits, and may order Licensee to perform corrective work. All public and private property disturbed by Licensee's activities shall be promptly restored by Licensee at its expense to substantially its former condition, subject to inspection by the City's Director of Public Works or his designee and compliance by Licensee with reasonable remedial action required by said official pursuant to the inspection. Licensee shall be liable to City for the full cost of restoring any public property not promptly remedied by Licensee as required by said official. 5. The installation, maintenance, renovation and replacement of Facilities by Licensee shall be subject to regulation by City including as to (a) the location of Facilities in or upon the streets, alleys and dedicated easements, (b) the disturbance and reconstruction of pavement, sidewalks, and surface of streets, alleys, dedicated easements and driveways, (c) the timing and scheduling of work, and (d) the temporary closure of portions of streets and alleys. All Facilities shall be designed and installed so as to cause a minimal amount of interference with public property, water mains, sewer mains, electric and natural gas facilities, street lights, traffic signals, and all other municipal or authorized public use of the Rights of Way. The City's Director of Public Works may direct and require Licensee to locate its Facilities within a defined telecommunications corridor within any street or other Right of Way or otherwise at a specific location to minimize interference with other facilities or utilities. Licensee shall install and maintain its Facilities in such manner as to minimize interference with trees, natural features and vegetation. At all times, Licensee shall enter into pole - sharing and conduit - sharing agreements with FUTLs in order to co- locate its wires and cables upon poles or within conduit of telecommunications providers or utilities. -5- 6. Licensee shall, upon reasonable notice and at its sole cost and expense, remove, locate and relocate its Facilities in, on, over or under any Designated Structures upon or within Rights of Way in such manner as City may at any time require for the purpose of facilitating the construction, reconstruction, maintenance, repair, or change in grade of any street, sidewalk, public improvement or City project, or for the purpose of promoting the efficient operation of any such public improvement or project, or for the purpose of facilitating the vacation and /or redevelopment of Right of Way by the City. In the event Licensee fails to act within a reasonably allocated time the City may cause Licensee's Facilities to be relocated, and Licensee shall be liable to City for the costs thereof. 7. It is the official policy of the City that all new Facilities located within Rights of Way shall be located underground. Consequently, should the City subsequently determine for any area of the City that telephone or telecommunications wires or electric utility wires located above ground shall be relocated underground, Licensee shall, upon reasonable notice, at its sole cost and expense, relocate its Facilities below ground in cooperation with other affected interests. In the event Licensee fails to act within a reasonable time the City may cause Licensee's Facilities to be relocated, and Licensee shall be liable to City for the costs thereof. 8. After execution of this Limited License Agreement, Licensee shall join and associate with the notification association of owners and operators of underground facilities in accordance with the requirements of Article 1.5 of Title 9, Colorado Revised Statutes. Prior to undertaking any excavation within the Rights of Way, Licensee shall comply with the notice requirements of said Article. ARTICLE VII - ADDITIONAL CITY REGULATION I . The City expressly reserves its right and duty to adopt, from time to time, in addition to the provisions herein contained, such charter provisions, ordinances and rules and regulations as may be deemed necessary by the City to promote the health, safety and welfare of its inhabitants and their property. 2. Notwithstanding anything in this Limited License Agreement to the contrary, Licensee acknowledges that City is currently developing a new telecommunications policy which will be implemented through one or more ordinances or resolutions to be adopted by City Council of City, and /or through regulations to be adopted by Departments of the City. Licensee agrees that upon adoption of any such policy after the date of this Limited License Agreement, this Limited License Agreement or any provision thereof may be unilaterally revoked or canceled by City without cause upon ninety (90) days prior written notice and replaced with new terms and conditions which shall be applicable to all telecommunications providers operating within the City; provided, however, that City may establish classes of such providers, in which case terms and conditions shall be identical within each class but may vary among classes. 3. If during the term of this Limited License Agreement City enacts an ordinance concerning the use of Rights of Way which requires compensation for the use of the Rights of Way from all telecommunications providers on a competitively neutral and nondiscriminatory basis, then Licensee shall, in accordance with the terms of such ordinance, pay such compensation, if applicable. ARTICLE VIII - COORDINATION AND CONDUIT /POLE SHARING In order to minimize disruption to vehicular traffic and inconvenience to the public, and to enable the limited width of Rights of Way to be apportioned among all utilities, telecommunications providers and other interests needing to locate or maintain facilities in the Rights of Way for the benefit of the public, it is imperative that pole sharing and conduit sharing be encouraged to the greatest extent possible. In furtherance of such -6- purposes, Licensee agrees that it shall cooperate with City, FUTLs and telecommunications providers in placing its Facilities only within or upon the Designated Structures within Rights of Way. ARTICLE IX - INDEMNIFICATION 1. Licensee shall install, construct, maintain and operate its telecommunications facilities in a safe manner providing reasonable protection against injury or damage to any and all persons or property. Licensee specifically agrees to indemnify, defend and hold City harmless from all claims, costs, demands, suits, costs of defense and judgments which arise from, in whole or in part, Licensee's acts or omissions pursuant to this License Agreement, and from all damages or penalties arising out of the installation, construction, operation, or maintenance of Licensee's telecommunications facilities, whether or not any act or omission complained of is authorized, allowed, or prohibited by this Limited License Agreement, except to the extent such damages or penalties result from the intentional or willful and wanton misconduct of the City. City shall not be liable for, and Licensee shall indemnify, defend and hold the City harmless from all costs, damages and claims which arise from or relate to delay by Licensee in performing its obligations hereunder, for any cause whatsoever, except for intentional or willful and wanton misconduct of the City. Licensee also hereby agrees to pay all reasonable expenses of the City incurred by the City in defending itself with regard to any such damages, claims or penalties, including all out -of- pocket expenses, reasonable attorney' fees, and the reasonable value of any services rendered by the City Attorney, his assistants, or any employees of the City. 2. The City will provide written notice to the Licensee of the pendency of any claim or action against the City arising out of the operations of the Licensee, the exercise by the Licensee of its rights under this Limited License Agreement or the performance thereof by the Licensee. The Licensee shall thereafter be required to appear and defend any such claim or action. Nothing herein stated shall limit the Licensee's obligation of full indemnification of the City hereunder. ARTICLE X - INSURANCE Prior to commencement of any installation of Facilities under this Limited License Agreement, Licensee shall procure and thereafter continuously maintain, for as long as this License Agreement remains in effect, at Licensee's expense, Commercial General Liability ( "CGL ") insurance written on ISO form CG 00 01 01 96, or a substitute form providing equivalent coverage, with a limit of not less than $2 Million per occurrence, covering liability arising from premises, operations, independent contractors, personal injury, products completed operations, and liability assumed under an insured contract, on an occurrence basis. Under the terms of the required CGL policy, this Limited License Agreement shall be defined as an insured contract. The policy shall identify the City as an additional insured, and shall have all necessary endorsements to provide coverage without exclusion for explosion, collapse and underground property damage hazards. A certificate of insurance shall be filed with the City's Director of Finance prior to commencement of installation of Facilities, which evidences compliance with the policy requirements stated above and provides for thirty (30) days prior written notice to City prior to cancellation or material change of any insurance referred to therein. In the event the certificate states that it confers no rights upon the certificate holder, the City may require Licensee to furnish a complete copy of the policy including all declarations and endorsements. ARTICLE XI - TERM The tern of this Limited License Agreement shall be for a period of five (5) years from and after the date of the Agreement. -7- ARTICLE XII - REMEDIES. TERMINATION. REMOVAL 1. In the event of any breach of the terms of this Limited License Agreement by Licensee, City shall have the right to obtain one or more of the following remedies, which are expressly agreed to be cumulative, and the exercise of any one (1) or more of them shall not be dependent upon the exercise of any other remedy, nor does the exercise of any one or more of them constitute any bar or limitation to the exercise of any other: (a) specific performance or injunctive relief, (b) monetary damages, and (c) termination. In the event City is required to commence an action to enforce its rights under this Limited License Agreement or to obtain remedies provided above and substantially prevails therein, City shall be entitled to recover its costs, including reasonable attorneys fees and expert witness fees. 2. Before terminating the Limited License Agreement for cause on account of any default by Licensee, City shall provide Licensee with written notice of the default and afford Licensee a reasonable period in which to cure the default. 3. In the event Licensee abandons the telecommunications facilities installed under the terms of this Limited License Agreement or a certain part thereof or fails to use or to lease them for a period of one (I ) year, or in the event the term of this Limited License Agreement expires, or is terminated or is canceled for any reason, then Licensee shall remove its telecommunications facilities, or the abandoned portions thereof in the case of a partial abandonment, at its expense. As an alternative to removal, if mutually agreed to by Licensee and the City, the ownership of the telecommunications facilities (or abandoned portions) may be transferred to the City, in which event, all obligations and liabilities of Licensee under this Limited License Agreement in connection with the portion of the telecommunications facilities so transferred to the City shall terminate. 4. Licensee may cancel this Limited License Agreement at any time, as described below, upon ninety (90) days' written notice to the City, subject to the indemnification requirements of this Limited License Agreement, the removal provisions set forth in Section 3 above, and any other provisions that survive the termination of this Agreement. ARTICLE XIII - NOTICES Except as otherwise provided herein, notice under this Limited License Agreement shall be deemed sufficient if provided in writing and mailed or delivered as follows: If to the City: City Manager 1 City Hall Place Pueblo, CO 81003 with a copy to: Director of Public Works 211 E. "D" Street Pueblo, CO 81003 If to Licensee: Ronald C. Reckrodt Asset Manager 105 South Victoria Pueblo, CO 81002 -8- ARTICLE XIV - EFFECT OF MORE FAVORABLE LICENSE AGREEMENTS In the event that any wireline telecommunications provider operating within the City under a Limited License Agreement authorizing use of FUTL Designated Property, is granted consent to use the City's Rights of Way pursuant to terms and conditions which, if applied to Licensee, would be more favorable than those included herein, City shall promptly advise Licensee of such terms and conditions, and upon Licensee's election, this Limited License agreement shall be amended to include such more favorable terms and conditions. ARTICLE XV - SUCCESSORS AND ASSIGNS This Limited License Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. No provision of this Limited License Agreement shall confer rights or benefits upon any person not a party hereto. ARTICLE XVI - AMENDMENT No amendment to this Limited License Agreement shall be valid unless made by written amendment signed by representatives of the parties and approved by Resolution of the City Council of City. ARTICLE XVII - SIGNATURES The persons signing this Limited License Agreement on behalf of Licensee represent and warrant that such persons and Licensee have the requisite power and authority to enter into, execute and deliver this Limited License Agreement and that this Limited License Agreement is a valid and legally binding obligation of Licensee enforceable against Licensee in accordance with its terms. IN WITNESS WHEREOF, Licensee and the City have executed this Limited License Agreement as of the date first above written and under the laws of the State of Colorado. ATTEST: City Cl [SEAL] *.' PUEBLO ipal Corp ati By nt of City Council LICENSEE: ATTEST: Title: WESTPLAINS VENTUR S, INC. By Carol J. Lang '- Vice Preside P: \CI "rY\ PUBLIC- MUTILITiE \TELECOMM' -9- D ED O D ° City of Pueblo OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 MEMORANDUM TO: Members of the City Council and the City Manager FROM: Thomas J. Florczak, Assistant City Attorney tc RE: February 2, 2000 DATE: Limited License Agreement with WestPlains Ventures, Inc. Utilicorp United, Inc. ( "Utilicorp "), doing business under the name WestPlains Energy, as the successor in interest to Centel Corporation pursuant to Ordinance No. 5703 approved August 26, 1991, holds a franchise to operate as an electric utility within the City of Pueblo under Ordinance No. 5222 approved by the registered electors of Pueblo in May 1985 (the "Franchise "). The Franchise essentially permits the company to make reasonable use of the rights of way within the City, in accordance with the terms and conditions of the Franchise, only for the purpose of providing electrical power. The franchise does not permit Utilicorp to use the rights of way for communications facilities. The Franchise contains provisions authorizing the City to use Utilicorp's poles and underground facilities for City purposes including the placement of wire and cable for communications, public safety systems and television or radio signals, without cost to the City. Utilicorp has formed a subsidiary under the name WestPlains Ventures, Inc. (the "Subsidiary ") which is a Delaware corporation. The Subsidiary desires to operate within the City as an unregulated entity for the purpose of constructing, operating and leasing communication and telecommunication facilities to telecommunications providers and other entities. The Subsidiary is not, nor does it intend to become, a telecommunications provider with operating authority granted by either the Colorado Public Utilities Commission ( "PUC ") or the Federal Communications Commission ( "FCC "). Entities which have received such PUC or FCC authority operate as competing local exchange carriers ( "CLEC's ") or interexchange carriers and provide competition to the established incumbent (monopoly) phone companies. Under state law, specifically Article 5.5 of Title 38, C.R.S., telecommunications providers who have obtained such PUC or FCC authority enjoy a right of access to public rights of ways, subject to and contingent upon the providers obtaining consent from the municipality before placing any facilities with the municipality's rights of way. Thus, the City of Pueblo has heretofore conditionally granted such consent to Touch America, Inc., McLeod USA Telecommunications Services, Inc. and ICG Telecom Group, Inc. pursuant to separate but identical License Agreements approved by City Council. The City is required to treat these CLEC's in a competitively neutral manner. The Subsidiary intends to provide its unregulated communications services by placing its facilities upon the poles or within conduit owned by Utilicorp and possibly upon or within the facilities of other franchised utilities or CLEC's who have a License Agreement with the City. It is therefore seeking permission from the City, through a limited license, to use the rights of way for placement of its wires upon the poles or conduits of such utilities or licensed telecom providers. The enclosed agreement would conditionally grant such a limited license, as well as the right to extend its wires within rights of way up to 500 feet from the designated poles and facilities of utilities and licensed telecom providers. The license granted under this agreement is more restrictive than the licenses granted to the CLEC's It is our opinion that, as an unregulated entity without PUC or FCC authority, the Subsidiary has not been granted authority under state law to utilize public rights of way, and the City Council may, in its discretion, grant or deny permission to use the public rights of way as requested. Should the Council pass a resolution granting a Limited License to the Subsidiary, how- ever, such action may create a precedent for similar requests from other similarly situated telecommunication companies in the future, which may not then be denied without justification. The advantages of granting the Limited License Agreement to Subsidiary are that (a) the City enhances further telecommunications competition within the community which may contain or reduce costs for businesses and the residents of the community, (b) the authorized facilities will, for the most part, piggyback upon existing utility infrastructure without the disruptions or inconvenience of widespread new excavations, and (c) the City will collect occupation and sales and use taxes in the same manner as applied to other telecommunications providers. The disadvantages of granting the Limited License are that (a) another class of special interests will be granted qualified interest in the use of limited rights of way and will add to the inconvenience of street excavations, (b) the City will not be collecting franchise fees for this privilege to use Pueblo's streets and alleys, and (c) some additional visual clutter may be created where wires are located above ground. This office makes no recommendation with respect to approval of the enclosed Limited License Agreement. TJF /jp xc: Don Saling Tom Cvar Dan Centa