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HomeMy WebLinkAboutPackets - Council Packets (1014) **AMENDED 3-21-06, 4:00 PM AGENDA ORO VALLEY TOWN COUNCIL SPECIAL/STUDY SESSION MARCH 22, 2006 ORO VALLEY COUNCIL CHAMBERS 11000 N. LA CANADA DRIVE SPECIAL SESSION AT OR AFTER 5:30 PM CALL TO ORDER ROLL CALL EXECUTIVE SESSION AT OR AFTER 5:30 PM Pursuant to ARS § 38-431.03(A)(3) Council may vote to go into executive session and for the purposes of consultation for and discussion of legal advice with the Town Attorney Its of the Internal Revenue Service examination of Town information concerning the results reporting and compliance, and to consider and instruct its attorneys regarding the Council's position on responding to the examination. **RESUME SPECIAL SESSION AT OR AFTER 5:30 PM 1. RESOLUTION NO. (R)06-17 DECLARING AND ADOPTING THE RESULTS OF THE BALLOT BY MAIL PRIMARY ELECTION HELD ON MARCH 14, 2006 . 2. POSSIBLE DISCUSSION AND ACTION BY COUNCIL TO DIRECT STAFF REGARDING THE TOWN'S RESPONSE TO THE INTERNAL REVENUE SERVICE EXAMINATION OF TOWN INFORMATION REPORTING AND COMPLIANCE ADJOURN SPECIAL SESSION STUDY SESSION AT OR AFTER 5:30 PM CALL TO ORDER ROLL CALL 1. Comcast Franchise Renewal Process - Discussion 2. Codification of the Oro Valley Design Guidelines — Discussion ADJOURNMENT complies The Town of Oro Valley with the Americans with Disabilities Act (ADA). If any person an with a disabilityneeds type of accommodation, please notify the Oro Valley Town Clerk at Y Yp least five prior s to the meeting, at 229-4700 or TDY#229-4900. POSTED: 03/17/06/12:00 p.m. (rg) AMENDED AGENDA POSTED: 3/21/06 4:00 p.m. (Ih) AGENDA ORO VALLEY TOWN COUNCIL SPECIAL/STUDY SESSION MARCH 22, 2006 ORO VALLEY COUNCIL CHAMBERS 11000 N. LA CANADA DRIVE SPECIAL SESSION AT OR AFTER 5:30 PM CALL TO ORDER ROLL CALL EXECUTIVE SESSION AT OR AFTER 5:30 PM Pursuant to ARS § 38-431.03(A)(3) and (A)(4), Council may vote to go into executive session for the purposes of consultation for and discussion of legal advice with the Town Attorney concerning the results of the Internal Revenue Service examination of Town information reporting and compliance, and to consider and instruct its attorneys regarding the Council's position on responding to the examination. 1. RESOLUTION NO. (R)06-17 DECLARING AND ADOPTING THE RESULTS OF THE BALLOT BY MAIL PRIMARY ELECTION HELD ON MARCH 14, 2006 2. POSSIBLE DISCUSSION AND ACTION BY COUNCIL TO DIRECT STAFF REGARDING THE TOWN'S RESPONSE TO THE INTERNAL REVENUE SERVICE EXAMINATION OF TOWN INFORMATION REPORTING AND COMPLIANCE ADJOURN SPECIAL SESSION STUDY SESSION AT OR AFTER 5:30 PM CALL TO ORDER ROLL CALL 1 . Comcast Franchise Renewal Process - Discussion 2. Codification of the Oro Valley Design Guidelines — Discussion ADJOURNMENT The Town of Oro Valley complies with the Americans with Disabilities Act (ADA). If any person with a disability needs any type of accommodation, please notify the Oro Valley Town Clerk at least five days prior to the meeting, at 229-4700 or TDY#229-4900. POSTED: 03/17/06/12:00 p.m. (rg) TOWN OF ORO VALLEY COUNCIL COMMUNICATION MEETING DATE: March 22, 2006 TO: HONORABLE MAYOR & COUNCIL FROM: Kathryn Cuvelier, Town Clerk SUBJECT: Resolution No. (R)06-17— Canvass of the Votes — Declaring and adopting the results of the Ballot By Mail Primary Election held on March 14, 2006 SUMMARY: adopts the results of the Ballot By Mail Primary Election held on March The attached resolution declares and p . byPima CountyElections dated 3/16/06 show the following results: 14, 2006. The official canvass prepared Paul Loomis 6645 (56.92%) Mayor: Nancy Young Wright 5014 (42.95%) Paul Loomis received 56.92% of the vote and is declared elected to the Office of Mayor and shall serve an additional 4 year term commencing June 7, 2006—May 2010. Council Member: Paula Abbott 5669 (46%) K C Carter 5164 (42%) Don Cox 4877 (39%) Conny Culver 3902 (31%) Al Kunisch 4560 (37%) Kathy Pastryk 4693 (38%) No candidate for council member received a majority of the ballots cast (6195). Therefore, all six candidates running for 3 council member seats shall have their names placed on the general election ballot to be held on the 16th day of May 2006. Question#1 Extension of Alternative Expenditure Limitation (Home Rule Option):Yes 8975(75.86%) No 2856 (24.14%) Question#2 Referendum on Ordinance No. (0)04-10 Yes 6999 (57.63%) No 5145 (42.37%) The total number of ballots cast was 12389, representing 53.60% of the registered voters. (23135). 2006 Oro ValleyGeneral Election will be a combined polling place election since Pima County The May 16, th will be conducting a countywide bond election on May 16 . SUGGESTED MOTION: I move to adopt Resolution No. (R)06-17. ATTACHMENTS: 1. Resolution No. (R)06-17 2. Official Canvass prepared by Pima County Elections dated 3/16/06. TOWN OF ORO VALLEY COUNCIL COMMUNICATION Page 2 of 2 kaif,Town e. Town Manager RESOLUTION NO. (R)06-17 A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF ORO VALLEY, ARIZONA, DECLARING AND ADOPTING THE RESULTS OF THE BALLOT BY MAIL PRIMARY ELECTION HELD ON MARCH 14, 2066. WHEREAS, the Town of Oro Valley, Pima County, Arizona did hold a ballot by mail election on the 14th dayof March 2006, for the election of 1 Mayoral seat and 3 primary Council Member seats, as well as Question ] Extension of Alternative Expenditure Limitation (Home Rule Option) and Question #2 Referendum on Ordinance No. (0)04- 10 and, WHEREAS, the election returns have been presented to and have been canvassed by the Town Council, NOW THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Oro Valley, Pima County, Arizona, as follows: SECTION 1. That the total number of ballots by mail received for the primary election 4 was 12,389, representing 53.60% of the registered voters. SECTION 2. That the votes cast for the candidates for Mayor and Council members were as follows: Oro Valley Mayor: Paul Loomis 6645 (56.92%) Nancy Young Wright 6014 (42.95%) Paul Loomis received 56.92% of the vote and is declared elected to the Office of Mayor and shall serve an additional 4 year term commencing June 7, 2006—May 2010. Oro Valley Council Members (3 seats open) Paula Abbott 5669 (46%) KCCarter 5164 (42%) Don Cox 4877 (39%) Conny Culver 3902 (31%) Al Kunisch 4560 (37%) Kathy Pastryk 4693 (38%) No candidate for council member received a majority of the ballots cast (6195). Therefore, all six candidates running for 3 council member seats shall have their names placed on the general election ballot to be held on the 16th day of May 2006. Question #1 Extension of Alternative Expenditure Limitation(Home Rule Option): o Yes 8975 (75.86/o) o No 2856 (24.14/0) #2 Referendum on Ordinance No. (0)04-10 Yes 6999 (57.63%) Question7� No 5145 (42.37%) SECTION 5. There being3 Council Member seats for four year terms left to be filled at the g eneral election, it is hereby found, determined and declared of record, that the following candidates shall have their names placed on the general municipal election foil � y ballot of the Town of Oro Valley, Pima County, Arizona, to be held on the 16th day of May 2006: Paula Abbott K. C. Carter Don Cox Conny Culver Al Kunisch Kathy Pastryk SECTION 5. This resolution shall be in full force and effect immediately upon its adoption. PASSED AND ADOPTED by the Mayor and Council of the Town of Oro Valley, Arizona this 22nd day of March, 2006. Paul H. Loomis, Mayor ATTEST: Kathryn E. Cuvelier, Town Clerk APPROVED AS TO FORM: Melinda Garrahan, Town Attorney ORO VALLEY VOTING AREAS PRIMARY ELECTION MARCH 14, 2006 VA PCTS 09-01 341, 384, 385 09-02 200, 359, 360 09-03 310, 381, 386, 406 4 361, 370, 373, 387, 402 0909_-005 012, 187, 346, 365 09-06 013, 029, 266, 280 . . . ________, 7 :„,.!,,,ti,„, 4 / fp,- --,-4,0,,\ ,tv,,/ 41111. /Of/ , J ‘r:0 x r � k xl � � r -,-,-, <14triot4)7, PIMA COUNTY 0),FFI CI AIL\ Vik n / n / TOW!N' OF 0R0 VALLEY P 1);IMA Py ELECTI itN MARCH 1 it, 2 if 1)6 I PIMA COUNTY DIVISION OF ELECTIONS 130 W. CONGRESS ST. 8TH FLOOR TUCSON, AZ 55701 Ilie 4111. rdilTEL. 740-4260 if 1 lig ,-8,::_ri_ ,47( ---i oc,,,, ,0,,, .,p d,., :',;21'11 -11:4/ 41.4i-I-10;Iii DIVISION OF ELECTIONS PIMA COUNTY GOVERNMENTAL CENTER 130 W. CONGRESS STREET, TUCSON, AZ 85701 (520) 740-4260 FAX (520) 620-1414 March 16, 2006 In accordance with Arizona Revised Statutes, Titlel6, I hereby certify the enclosed tabulation is a fulltrue and correct copyof the Returns of the Primary Election held pursuant to Arizona Constitution and Arizona Revised Statutes Title 9 and 16 in and for The Town of Oro Valley, 1 Pima County, Arizona on March 14, 2006. This tabulation includes all mail ballots. Respectfully submitted, ---- .17,ar7-2.._ 1 .42itt..<71,‘ Brad R. Nelson, Director Pima County Elections 4 4 CANVASS INFORMATION TOWN OF ORO VALLEY PRIMARY ELECTION MARCH 14, 2006 MAIL BALLOTS PROCESSED 12391 Ballots Processed 12389 Counted 2 Ballots Rejected from VA 9-03 . • C.) .r... 9•99, •• ,....., ;--, --- L',7„ c „„..., ,...., •,.... ,..... 7...., ,....: r.`, ,.... V, .....; ......._.* ,....-.., ..-41. • vz .... 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Puss crj 0... .:...—., .....:..., .•.4 4.0 , '.., t:4:i !,-,•?,,, .. • .• '1J w•ri.4 Cid 'NW ..... .... ..,..... . .,.... • 004' tn ,. t;"•-. / . •.'"'" ti i ..-,.''''''Zr6*1 I E \ s-- e- ...—, . en 't '4., E LECH (CN SUMMARY maReport Date:03/16/06 Election Sum Iy 1' Time:I0:46:22 Pima Consolidated 031406 Page:1 of 1 Summary For Jurisdiction Wide, All Counters, All Races Registered Voters 23135 -Cards Cast 12389 53.55% Num.Report Precinct 6-Num.Reporting 6 100.00% ORO VALLEY QUESTION TOWN OF TOWN OF ORO VALLEY MAYOR ALL MAIL) Total 2(ALL MAIL) Total ( Number of Precincts 6 Number of Precincts 6 % Precincts Reporting 6 100.0 Precincts Reporting 6 100.0 Vote For 1 Vote For 1 0 ' Counted 1 2389/23135 53.6 % Times Counted 12389/23135 53.6 /° Times l 1675 Total Votes 12144 Total Votes Times Blank Voted 707 Times Blank Voted 241 Times Over Voted 7 I Times Over Voted 4 Votes 0d Of Under ner Number Of Under Votes 0 Number L OOMIS PAUL 6645 56.92%' YES 6999 57.63% WRIGHT NANCY YOUNG 5014 42.95% NO 5145 42.37% Write-in Votes 16 0.14% ..... ........ TOWN OF ORO VALLEY COUNCIL (ALL MAIL) Total Number of Precincts 6 Precincts Reporting 6 100.0 % Vote For 3 Times Counted 12389/23135 53.6 % Total Votes 28910 Times Blank Voted 1640 Times Over Voted 7 Number Of Under Votes 3316 ABBOTT,PAULA 5669 19.61% CARTER,K C 5164 17.86% COX,DON 4877 16.87% CULVER,CONNY 3902 13.50%E KUNISCN,AL 4560 15.77%1 PASTRYK,KATHY 4693 16.23%1 Write-in Votes 45 0.16% TOWN OF ORO VALLEY QUESTION 1 (ALL MAIL) Total Number of Precincts 6 ' Precincts Reporting 6 100.0 % Vote For 1 Times Counted 12389/23135 53.6 Total Votes 11831 Times Blank Voted 555 Times Over Voted 3 Number Of Under Votes 0 YES 8975 75.86% NO 2856 24.14% . 0)11E511 INS TExT, TOWN OF ORO VALLEY PRIMARY ELECTION MARCH 14, 2006 BALLOT TEXT QUESTION#1 PROPOSAL SUBMITTED BY TOWN COUNCIL OF ORO VALLEY, ARIZONA OFFICIAL TITLE: A RESOLUTION PROPOSING AN EXTENSION OF ALTERNATIVE EXPENDITURE LIMITATION FOR THE TOWN OF ORO VALLEY,ARIZONA. DESCRIPTIVE TITLE: PURSUANT TO THE ARIZONA STATE CONSTITUTION, THIS PROPOSAL ESTABLISHES AN ALTERNATIVE EXPENDITURE LIMITATION FOR THE TOWN OF ORO VALLEY FOR THE NEXT FOUR YEARS. ANNUALLY, THE TOWN COUNCIL WILL DETERMINE THE AMOUNT OF THE ALTERNATIVE EXPENDITURE LIMITATION FOR THE FISCAL YEAR AFTER AT LEAST ONE PUBLIC HEARING. THIS ALTERNATIVE EXPENDITURE LIMITATION REPLACES THE STATE-IMPOSED EXPENDITURE LIMITATION. A"YES" vote shall have the effect of establishing an alternative expenditure limitation for the Town of Oro Valley, Arizona A "NO" vote shall have the effect of not allowing the Town of Oro Valley, Arizona to establish an alternative expenditure limitation and to require expenditures of the town to be limited by the state-imposed expenditure formula. YES NO QUESTION#2 REFERENDUM ORDERED BY PETITION OF THE PEOPLE OFFICIAL TITLE: AN ORDINANCE OF THE TOWN OF ORO VALLEY, PIMA COUNTY, ARIZONA AUTHORIZING AND APPROVING THE TOWN TO ENTER INTO AN ECONOMIC DEVELOPMENT AGREEMENT BY AND BETWEEN THE TOWN OF ORO VALLEY AND VESTAR ARIZONA XXXIX, L.L.C. TO FACILITATE THE DEVELOPMENT OF A REGIONAL LIFESTYLE/ENTERTAINMENT/POWER RETAIL SHOPPING CENTER WITHIN THE TOWN OF ORO VALLEY. DESCRIPTIVE TITLE: THIS ORDINANCE PROVIDED FOR ECONOMIC DEVELOPMENT INCENTIVES INCLUDING TAX SHARING WITH VESTAR ARIZONA XXXIX, L.L.C. TO FACILITATE THE DEVELOPMENT OF A REGIONIAL LIFESTYLE/ENTERTAINMENT/POWER RETAIL SHOPPING CENTER LOCATED ON THE SOUTHWEST CORNER OF ORACLE ROAD AND TANGERINE ROAD WITHIN THE CORPORATE LIMITS OF THE TOWN OF ORO VALLEY, ARIZONA. A"YES" vote shall have the effect of approving the adoption of Ordinance No. (0)04-10 by the Oro Valley Town Council A "NO" vote shall have the effect of not approving the adoption of Ordinance No. (0)04-10 and not providing for Economic Development Incentives including tax sharing with Vestar Arizona XXXIX, L.L.C. YES NO . • STATEMENT oDF virTE cik ,717 Statement of Votes Cast T�me:11:08:20Date:03/16/06 Pima Consolidated 031406 Pagel of 6 SOVC For Jurisdiction Wide, POL, All Races TURN OUT Reg. Cards Voters Cast Turnout Jurisdiction Wide 9-01 4287 3099 72.29% 9-02 3868 2108 54.50% 9-03 4858 2432 50.06% 9-04 4560 2203 48.31% 9-05 3197 1659 51.89% 9-06 2365 888 37.55% Total 23135 12389 53.55% Statement of Votes Cast T�me:11:08:20Date:03/16/06 Pima Consolidated 031406 Page:2 of 6 SOVC For Jurisdiction Wide, POL, All Races TOWN OF ORO VALLEY MAYOR(ALL MAIL) Reg. Vote For Times Total Times Times Number LOOMIS.PAUL WRIGHT.OUNG Write-in Votes Voters Counted Votes Blank Over Of NANCY Voted Voted Under Votes Jurisdiction Wide 9-01 4287 1 3099 2918 181 0 0 1699 58.22% 1219 41.78% 0 0.00% 9-02 3868 1 2108 1972 132 4 0 1174 59.53% 793 40.21% 121%4 0.0.25% % 9-033 4858 1 2432 2297 132 3 0 1337 58.21% 956 4 . 9-04 4560 1 2203 2092 111 0 0 1308 62.52% 782 37.38% 2 0.10% 9-05 3197 1 1659 1565 94 0 0 818 52.27% 745 47.60% 2 0.13% 9-06 2365 1 888 831 57 0 0 30937.18% 519 62.45% 3 0.36% Total 23135 6 12389 11675 707 7 0 6645 56.92% 5014 42.95% 16 0.14% Statement of Votes Cast T�me:l Date:03/l6/06 1:08:20 Pima Consolidated 031406 Page:3 of 6 SOVC For Jurisdiction Wide, POL, All Races TOWN OF ORO VALLEY COUNCIL(ALL MAIL) Reg. Vote For Times Total Times Times Number ABBOTT. CARTER.K C COX.DON Voters Counted Votes Blank Over Of PAULA Voted Voted Under Votes Jurisdiction Wide 9-01 4287 3 3099 7462 350 0 785 1406 18.84% 1466 19.65% 130865 17.90%49 99-02 3868 3 2108 4810 312 3 569 911 18.94% 790 9-03 4858 3 2432 5663 320 1 670 1138 20.1 0% 1008 17.80% 955 16.86% 9-04 4560 3 2203 5029 323 1 608 931 18.51% 823 16.37% 900 17.90% 9-05 3197 3 1659 3852 232 1 426 808 20.98% 678 17.60% 565 14.67% 9-06 2365 3 888 2094 103 1 258 475 22.68% 399 19.05% 291 13.90% Total 23135 18 12389 28910 1640 7 3316 5669 19.61% 5164 17.86% 4877 16.87% Statement of Votes Cast Time:11:08:20 Pima Consolidated 031406 Page:4 of 6 SOVC For Jurisdiction Wide, POL, All Races Date:03/16/06 TOWN OF ORO VALLEY COUNCIL(ALL MAIL) CULVER. KUNISCH.AL PASTRYK. Write-In Votes CONNY KATHY Jurisdiction Wide 9-01 951 12.74% 1233 16.52% 1095 14.67% 6 0.08% , 9-02 639 13.28% 875 18.19% 725 15.07% 9 0.19% 9-03 780 13.77% 834 14.73% 938 16.56% 10 0.18% 9-04 783 15.57% 838 16.66% 744 14.79% 10 0.20% 9-05 511 13.27% 550 14.28% 736 19.11% 4 0.10% 9-06 238 11.37% 230 10.98% 455 21.73% 6 0.29% Total 3902 13.50% 4560 15.77% 4693 16.23% 45 0.16%1 s Statement of Votes Cast Time:11:08:20 Pima Consolidated 031406 Page:5 of 6 SOVC For Jurisdiction Wide, POL, All Races Date:03/16/06 TOWN OF ORO VALLEY QUESTION l(ALL MAIL) Reg. Vote For Times Total Times Times Number YES NO Voters Counted Votes Blank Over Of Voted Voted Under Votes Jurisdiction Wide 9-01 4287 1 3099 2946 152 1 0 2343 79.53% 603 20.47% 9-02 3868 1 2108 2016 92 0 0 1519 75.35% 497 24.65% 9-03 4858 1 2432 2346 85 1 0 1836 78.26% 510 21.74% 9-04 4560 1 2203 2108 95 0 0 1614 76.57% 494 23.43% 9-05 3197 1 1659 1574 84 1 0 1132 71.92% 442 28.08% 9-06 2365 1 888 841 47 0 0 531 63.14% 310 36.86% Total 23135 6 12389 11831 555 3 0 8975 75.86% 2856 24.14% Statement of Votes Cast Time:11:08:21 Pima Consolidated 031406 Page:6 of 6 SOVC For Jurisdiction Wide, POL, All Races Date:03/16/06 TOWN OF ORO VALLEY QUESTION 2(ALL MAIL) Reg. Vote For Times Total Times Times Number YES NO Voters Counted Votes Blank Over Of Voted Voted Under Votes Jurisdiction Wide 9-01 4287 1 3099 3028 70 1 0 1886 62.29% 1142 37.71% 9-02 3868 1 2108 2080 28 0 0 1366 65.67% 714 34.33% 9-03 4858 1 2432 2401 30 l 0 1321 55.02% 1080 44.98% 9-04 4560 1 2203 2166 36 1 0 1314 60.66% 852 39.34% 9-05 3197 1 1659 1612 47 0 0 783 48.57% 829 51.43% 9-06 2365 1 888 857 30 1 0 329 38.39% 528 61.61 ° 5145 42.37% Total 23135 6 12389 12144 241 4 0 6999 57.63% TOWN OF ORO VALLEY Page 1 of 2 COUNCIL COMMUNICATION STUDY SESSION MEETING DATE: 03/22/06 TO: HONORABLE MAYOR AND COUNCIL FROM: Melinda Garrahan, Town Attorney SUBJECT: Cable Franchise Renewal ' cable franchise agreement expires on May 21, 2007. That SUMMARY: The Town's existing �'provisions and the associated town code could be characterized as "plain vanilla" in comparison to more recent municipal regulatory al re ulator efforts. Consequently, the question arose as to the appropriate approach to franchise renewal Valley.byOro Valle . Near the end of the attachments you will find articles justles which describe how complex the renewal process can be. the cable franchise renewal process has been in a state of flux the last few years. For all municipalities That has been due aggressiveby to efforts the industry, at the state and federal level, to have enacted ntl cut back municipal authority to regulate service providers, to seek legislation that would significantly p Increased fees, and to seek technological ical andlor service concessions. This complicated the question of Oro the appropriate approach to renewal byValleybecause the more elaborate approaches to renewal are very expensive and time-consuming. The federal legislation pending Congress,in Con ess, for now, appears to be stalled. For that reason the information relating to it is found at the back of the attachments. It should be noted, however, that have advised that federal legislation limiting knowledgeable peoplemunicipal authority might break free. n time. If somethingis passed, it will not be in favor of municipalities. at any g In this Arizona State legislative session, on the other hand, legislation has already been adopted and signed by the Governor. engrossedcopy An of House Bill 2812 and a summary of the legislation are Included in the attachments. For the study session, close attention should be paid to this new law. ATTACHMENTS: • OV Cable Franchise Agreement • OV Town Code Cable Provisions • Discu ssion Outline for Alternative Approaches to Cable Franchise Renewal g • Information on New State Legislation Limiting Municipal Authority Over Cable Franchise Process—House Bill 2812 (signed into law by Governor) • Information on Cable Franchise Renewal Process TOWN OF ORO VALLEY Page 2 of 2 COUNCIL COMMUNICATION STUDY SESSION MEETING DATE: 03/22/06 • Information on Federal Efforts to Limit Municipal Authority Over Cable Franchise Process FISCAL IMPACT. • To be determined based on direction provided by Council. SUGGESTED MOTIONS: N/A / v � 1 (T5• At rney I Town Manager i Oro Valley Cable Franchise Agreement r, RESOLUTION NO. (R) 97- 25 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF ORO VALLEY, ARIZONA, APPROVING AND AUTHORIZING THE ADOPTION OF A FRANCHISE AGREEMENT WITH JONES COMMUNICATIONS OF ARIZONA AND THE TOWN OF ORO VALLEY WHEREAS, the Town of Oro Valley has determined that the operation or"Community Antenna television Systems" (CATV systems) are in the public interest and are necessary to improve and promote the public welfare of the citizens; and WHEREAS, the adoption of the attached franchise agreement with Jones Communications of Arizona is found to be in the best interests of the citizens of Oro Valley; and WHEREAS, the attached agreement is found to be in compliance with current Federal Law; NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF ORO VALLEY, ARIZONA AS FOLLOWS: 1. That the attached franchise agreement with Jones Communications of Arizona be adopted in its entirety, finding this document to be necessary for the continued improvement of the public health, safety and welfare. 2) That if any portion of these policies is found to not be enforceable by a court of competent jurisdiction, that portion shall be declared severable, and the remainder of the policies will remain in full force and effect. PASSED AND ADOPTED by the Mayor and Town Council of the Town of Oro Valley, Arizona this c ! day of Mi. , 1997. TOWN OF ORO VALLEY, ARIZONA i 1 Cheryl Skal:k , Mayor Y � ATTEST: KathrytY E. Cuvelier, Town Clerk APPROVED •S-TO F•R - Tobin Sidles, Town Attorney FRANCHISE AGREEMENT 1. Definitions: a. "Basic Service" means those audio and visual signals carried on the service tier of the CATV System which includes local off=air television signals and any public, educational, or governmental channels. Basic Service shall not include any other tier of service or any premium or pay-per-view channels or services. b. "Cable Act" means the Cable Communications Policy Act of 1984, P.L. 98-549, 47 U.S.C. §521 Supp., as it may be amended or superseded, including the Cable Television Consumer Protection and Competition Act of 1992, P.L. 102-385 and the 1996 Telecommunications Act. c. "Town" mans the Town of Oro Valley, Arizona. d. "Community Antenna Television System" ("CATV System") a system stem of antennas, cables, wires, lines, towers, microwaves, Y waveguides, laser beams or any other conductors, converters, equipment or facilities designed, constructed, or operated for the purpose of producing, receiving, amplifying, modifying and distributing audio, video, and other forms of communication or electronic signals to and from residential and business subscribers and locations within the jurisdictional limits of the Town. e. "Council" means the governing body of the Town. f. "Franchise" means the authorization granted hereunder of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a CAN System within the jurisdictional limits of the Town, according to the Town's adopted Telecommunications Ordinance. g. "Grantee" means Jones Communications of Arizona, Inc. a Colorado corporation, and its permitted successors and assigns. h. "Gross Receipts" means any and all compensation received by Grantee from residential subscribers to the CATV System who are located within the jurisdictional limits of the Town. In computing said sum, however, franchise fees shall not be included and any sales, service, rent, occupational or other excise tax or fee shall not be included to the extent such taxes or fees are charged separately in addition to the regular monthly service charge and are remitted by Grantee to the taxing authority. i. "Streets and dedicated easements" means the public streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, alleys, all other public rights-of-way and easements, and the public grounds, places or water within the Town. j. "Subscriber" means a purchaser of any service delivered over the CAW System. 2. Granting of Franchise. The Town hereby grants to Grantee a non-exclusive Franchise for the use of the streets and dedicated easements within 2 the Town for the construction, operation and maintenance of the CATV System, upon the terms and conditions set forth herein. 3. Term. The Franchise shall be for a term of ten (10) years, commencing on the effective date of this Ordinance. Subsequent renewals shall be pursuant to the renewal provisions of the Cable Act as it shall provide. 4. Use of the Streets and Dedicated Easements. a. Grantee shall have the right to use the streets and dedicated easements of the Town for construction, operation and maintenance of the CAN System. b. Grantee, at its own cost, shall have the right pursuant to the provisions of this Ordinance to construct, erect, suspend, install, renew, maintain and otherwise own and operate throughout the streets and dedicated easements of the Town, as now laid out or dedicated and all extensions thereof and additions thereto in the Town, the CATV System, either separately or in conjunction with any operating public utilityo eratin within the Town. The Franchise shall further include the right, privilege, easement and authority to construct, erect, suspended, install, 9 lay, renew, repair, maintain and operate such poles, wires, cables, underground conduits, manholes, ducts, trenches, fixtures, appliances and appurtenances for the purpose of distribution to inhabitants within the jurisdictional limits of the Town. Without limiting the generality of the foregoing, the Franchise shall and does hereby include the right to repair, replace and enlarge and extend the CAN System, provided that Grantee shall utilize the facilities of utilities whenever practicable. 3 The Grantee shall notify the Town of any planned construction projects, other than routine cable installation, and furnish the Town with a summary of the planned construction, including maps and drawings. c. Grantee may, at no cost to the Town, erect, install and maintain on any part of the CATV System such reasonable devices to apprise or warn persons using the streets and dedicated easements of the Town of the existence of such CATV System. Upon at least sixty (60) days' prior notice from the Town, Grantee agrees to relocate the CATV System at its own expense in the event • that the Town or other public entities should improve or widen streets. d. Grantee shall have the right to remove, trim, cut and keep clear of the CATV System, the trees in and along the streets and dedicated easements of the Town, provided that in the exercise of such right, the Grantee shall not cut, remove, trim or otherwise injure such trees to any greater extent than is necessary for the installation, maintenance and use of the CAN System; Grantee will notify provided, however, that the the Town of planned tree trimming priorbeginning to be innin such trimming. The Grantee must have the approval of the Town before it removes any tree. e. Grantee in the exercise of any right granted to it by the Franchise shall, at no cost to the Town, promptly repair or replace any facility or service of the Town which Grantee damages, including but not limited to any street or dedicated easement or sewer, electric facility, water main, fire alarm, police communication or traffic control. 4 f ■ f. Within thirty (30) days after the effective date of this provide to the Town a performance bond to guarantee the Ordinance, Grantee shall Grantee's performance faithful of its obligation under this Agreement. This bond shall be in a principal sum of Fifty Thousand Dollars ($50,000). performance 5. Maintenance of the System. a. Grantee shall at all times employ ordinary care in the maintenance and operation of the CAN System so as not to endanger the life, health or property of citizen of the Town or the property of the Town. p Y any b. Grantee shall install and maintain the CAN System so as not to interfere with the equipment of any utility of the Town or any other entity lawfully rightfully and ri htfull using the streets and dedicated easements of the Town. c. The CAN System shall at all times be kept in good repair and in a safe and acceptable condition. d. All conductors, cables, towers, poles and other components of the CAN System shall be located and constructed by Grantee so as to provide minimum interference with access by adjoining property owners to the and dedicated easements. No pole or other fixtures of Grantee placed in the streets streets and dedicated easements shall interfere with the usual travel on such public way. e. The Town hereby expressly acknowledges and agrees that Grantee will have the right allowed by law to regularly audit the improper usage of "tappingon" the CAN System. The Town agrees to assist 5 protecting Grantee's rights so far as allowed by law to audit its feeder Grantee by pr 9 9 lines and connection lines to prevent improper usage of the CATV System. 6. Service. a. Grantee shall provide to all residents within the current Town limits of Oro Valley cable television service so long as there are at least fifty (50) homes er underground mile of cable. Newly annexed areas of the p all also be built out subject to a minimum shall density requirement of fifty (50) g homes per underground mile. The system as constructed will have the capacity to, offer a minimum of sixty-two (62) channels. b. Grantee shall provide Basic Service and one free outlet to each of the following public facilities located within one hundred (100) feet limits of thejurisdictional the Grantee and within the of existing service lines of Town: Town Hall, Public Works Facility, Police Department, water utilities, public public and schools. No monthly service fee shall be charged for any such outlet. Grantee shallprovide rovide Basic Service to new construction hereafter for similar publicprovidedthey facilities; are within one hundred (100) feet of the existing service lines of Grantee. 7. Franchise Fee. a. Grantee shall pay to the Town, within forty-five (45) days after eachquarter calendar ends, an amount equal to five (5%) percent of the quarter.Receipts for such calendar There will be a ten (10%) percent balance for late payments after the forty-five (45) day period. Penalty on any unpaid P Y 6 b. Each year during which the Franchise is in force, Grantee shall file with the Town Finance Director no later than ninety (90) days after the end of each calendar quarter a financial statement showing total Gross Receipts derived from the CATV System during such quarter. The Town shall have the right, books of the Grantee to ensure proper payment of the audit the p p Y at its expense, to p fees payable hereunder. 8. Insurance/Indemnity. a. From and after the effective date of this Ordinance, Grantee shall maintain in full force and effect at all times for the full term of the Franchise, at the expense of the Grantee, a comprehensive general liability insurancep olicy, written by a company authorized to do business in the state of Arizona, protecting againstliability for loss or bodily injury and property damage occasioned by the installation, removal, maintenance or operation of the CATV System by Grantee in the following minimum amounts: One Million Dollars ($1,000,000) for property damage in any one occurrence. One Million Dollars ($1,000,000) per person, One Million Dollars ($1,000,000) per occurrence, for bodily injuries. Worker's compensation coverage in accordance with Arizona law. The Town shall be notified at least thirty (30) days prior to the expiration or cancellation of such insurance policy or policies. 7 b. Grantee hereby agrees to indemnify and hold the claims or damages resulting harmless from any g from the actions of Grantee in constructing, operating or maintaining the CATV System. 9. Pledge, Assignment of Assets. a. Grantee may mortgage or pledge the Franchise for financing purposes. mortgage or Such mort a e pledge should not operate to circumvent the p 9 provision of subsection b of this section. b. Grantee may not assign or transfer control of the Franchise without first obtaining the expressed written consent of the Town Council. 10. Cancellation and Expiration. a. Unless earlier terminated in accordance with this Ordinance, the Franchise shall expire ten (10) years after the effective date of this Ordinance. b. The Town shall have the right to cancel and terminate the Franchise if Grantee fails to comply in any material respect with the material provisions of this Ordinance. Cancellation shall be according to the Town's Telecommunications Ordinance as listed below: 1. The Town Council shall notify Grantee in writing of the alleged failure to comply and shall give Grantee thirty (30) days to correct such failure, or to present facts to refute the alleged failure or persistent failure to comply with this Ordinance. 8 2. At the end of said thirty (30) days, as listed above, the Town Council shall hold a public hearing within another thirty (30) days to decide if sufficient grounds exist to repeal this Ordinance and terminate the Franchise. Grantee may appear at said presenttestimony hearing and such and evidence as it deems appropriate ro riate with respect to the alleged failure to comply. After such hearing the Town Council may take such action as it deems appropriate ro riate to enforce the terms and conditions of this Ordinance, or it may repeal this Ordinance thereby terminating the Franchise, and p the decision of the Council shall be binding in all respects upon Grantee. c. Upon expiration or termination of the Franchise, remove• the CATV System from the streets and dedicated Grantee agrees to Y easements of the Town. 11. Enforcement of Terms and Conditions. Either the Town or Grantee may institute proceedings in a court of competent jurisdiction to enforce the terms and conditions of this Ordinance, in which event the prevailing party permitted art shall be to recover from the adverse party all reasonable attorneys' fees and costs necessitated by the bringing of such action. 12. Notices, Miscellaneous. a. Every notice served upon the Town shall be delivered or sent by certified mail, return receipt requested, to: 9 Town Clerk 1100 N. La Canada Town of Oro Valley, Arizona 85737 and every notice served upon Grantee shall be delivered or sent by certified mail, return receipt requested, to: Jones Communications of Arizona, Inc. 8251 N Cortaro Road Tucson, Arizona 85743-9599 Attn: General Manager Jones Communications of Arizona, Inc. P.O. Box 3309 9697 East Mineral Avenue Englewood, Colorado 80155-3309 Attn: Legal Department b. All provisions of this Ordinance shall apply to the respective parties, their successors and assigns. c. The rights granted by this Ordinance are subject to all franchisespermits and heretofore granted by the Town Board of the Town to other public utility or public service operations to use the streets and dedicated easements of the Town. This Ordinance and the Franchise granted herein are not intended to abridge the exercise of the police power heretofore or hereafter granted to the Town bythe State of Arizona. The grant of the Franchise is subject to all ordinances inances and resolutions of the Council as the same now exist and the lawful exercise of any power granted to the Town. 10 d. If any particular section of this Ordinance shall be held invalid, the remaining provisions rovisions and their applications shall not be affected thereby. 13. Effective Date. This Ordinance shall take effect on the date adopted . bythe Town Council. APPROVED bythe Town Council of the Town of Oro Valley, Arizona, Y on the 21sT da of MAY , 1997. AYE: 5 NAY: 0 ABSENT: 0 awftL Town lerk of the Town of • Oro Valley, Pima County, Arizona APPROVED Mayor bythe Ma or of the Town of Oro Valley, Pima County, Arizona, this 21ST day of MAY , 1997. C611- ° Mayor of e Town of r a o Valley, Pima County, Arizona ATTEST: Town Clerk of the Town of Oro Valley, 11 Pima County, Arizona APPROVED AS TO FORM: /Town Attorney, Town of Oro Valley, Pima County, Arizona 12 Oro Valley Town Code Cable Provisions Oro Valley Town Code Chapter 12 CABLE COMMUNICATIONS Articles: 12-1 PURPOSE 12-2 DEFINITIONS 12-3 REGISTRATION 12-4 TELECOMMUNICATIONS LICENSE 12-5 TELECOMMUNICATIONS FRANCHISE 12-6 CABLE TELEVISION FRANCHISE 12-7 APPLICATION TO EXISTING FRANCHISE ORDINANCES AND AGREEMENTS 12-8 PENALTIES 12-9 OTHER REMEDIES 12-10 SEVERABILITY 12-11 REGISTRATION OF TELECOMMUNICATIONS CARRIERS AND PROVIDERS 12-12 RESERVED 12-13 PURPOSE OF REGISTRATION 12-14 COMMUNICATIONS LICENSE 12-15 LOCATION OF FACILITIES 12-16 TELECOMMUNICATIONS FRANCHISE 12-17 CABLE FRANCHISE 12-18 FEES AND COMPENSATION 12-19 CHANGE OF CONTROL 12-20 CONSTRUCTION STANDARDS 12-21 RESPONSIBILITY OF OWNER Page 1 of 25 Oro Valley Town Code Article 12-1 PURPOSE Sections: 12-1-1 Purpose Section 12-1-1 Purpose The Purpose and intent of this Chapter is to: A. Establish a local policy concerning telecommunicationsroviders and services. ces. B. Establish clear local guidelines, standards and time frames for the exercise respect to the regulation of telecommunications � of local authority with g elecommunications providers and services. C. Promote competition in telecommunications. D. Minimize unnecessary local regulation of telecommunicationsroviders and d services. E. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the Town. F. Permit and manage reasonable access to the public ways of the Town for telecommunications purposes on a competitively neutral basis. G. Conserve the limited physical capacity of the public waysheld inpublic trust by the Town. H. Assure that the Town's current and ongoing costs of granting and regulating private access to anduse of the public ways are fully paid by the persons seeking such access and causing such costs. I. Secure fair and reasonable compensation to the Town and the residents of the Town for permitting private use of the public ways. J. Assure that all telecommunications carriers providing facilities or services within the Town comply with the ordinances,rules and regulations of the Town. K. Assure that the owner can continue to fairly and responsiblyprotect the public health, safety and welfare. L. Enable the Town to discharge its public trust consistent with rapidly evolving federal and state regulatory policies; industry competition and technological development. (97-03,Enacted,02/05/1997) p Page 2 of 25 Oro Valley Town Code Article 12-2 DEFINITIONS Sections: 12-2-1 Definitions Section 12-2-1 Definitions For the purpose of this title, and the interpretation and enforcement thereof,the following words and phrases shall have the following meanings,unless the context of the sentence in which they are used shall indicate otherwise: Affiliate means a person that (directly or indirectly) owns or controls, is owned, or controlled by, or is under common ownership or control with another person. Annual gross revenue means all cash, credits, property of any kind or nature, or other consideration received directly or indirectly by the licensee or franchisee, its affiliates, subsidiaries, parent and any person in which the licensee or franchisee has a financial interest, arising from or attributable to the sale or exchange of long distance competitive access or competitive telecommunications services by the licensee within the Town or in any way derived from the operation of its system, including, but not limited to: a) All telecommunications service revenues charged on a flat rate basis b) All telecommunications services charged on a usage sensitive or mileage basis; c) All revenues from installation service charges; d) All revenues from connection or disconnection fees; e) All revenues from penalties or charges to customers for checks returned from banks, net of bank costs paid; f) All revenues from equipment sold or rented to customer upon customer premises; g) All revenues from local and long distance full rate service; h) All revenues from authorized rental of conduit space; i) All revenues from charges for access to local and long distance networks; j) All revenues from any leases or subleases of any portion of licensee\franchisee's network, including plant, facilities, or capacity leased to others for any purpose; k) All recoveries of bad debts previously written off and revenues from the sale or assignment of bad debts. This sum shall be the basis for computing the fees listed in this chapter. ACC or the Arizona Corporation Commission means the State administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers in the State of Arizona. Applicant means a person, as defined in this chapter, who submits a written proposal or response to the town's request for proposals to provide competitive telecommunications service to the city. Cable Act means the Cable Communications Policy Act of 1984,47 U.S.C. §532, et seq., as now and hereafter amended, including the Telecommunications Act of 1996;. Competitive telecommunications service means the provision of long distance competitive access and/or any telecommunications service where customers of the service within the town have or likely to have reasonable available alternatives, as determined by the mayor and council after public notice and opportunity to comment, or when so classified by the Arizona Corporation Commission by rule or order duly adopted and published. Competitive telecommunications service does not include cable service, as defined in Section 602(6) of the Federal cable Act, or the distribution of video programming directly to one or more of a Page 3 of 25 Oro Valley Town Code multiplicity of subscribers to a cable system as defined in Section 602(7)( ) of the federal act, 47 USC Sections 522(6),(7)which is subject to local governmental regulation under the Act. Corporate Authorities means the Mayor and Council of the Town. Excess capacity means the volume or capacity in any existingor future duct, conduit,uit, manhole, handhold, or other utility facility within the public way that is or will be available for use for additional telecommunications facilities. FCC or Federal Communications Commission means the Federal administrative agency,g y, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers national level. P rs on a Franchise means a grant of authority to a telecommunications company toplace facilities Y in the public streets and other municipally owned right-of-way for theu ose ofproviding competitive telecommunications services. P rP Grantee means the person or company receiving a License or Franchise agreement. License means that ordinance or resolution which contains the right, authority or grant, given by a licensing authority enabling the license holder to provide long distance competitive access or competitive telecommunications services. P Licensee means a person who, in accordance with the provisions of this chapter and thetown's town s request for proposals, executes a license agreement with the town for the nonexclusiverivil p ege to provide long distance competitive access service in the Town. Long distance competitive access service means the instantaneous transmission for hire of voice or data signals by digital high speed fiber optic (or other) transmission capacity to carryinterstate voice and data signals only to (a)carry interexchange carrier traffic between interexchange carrier g points of presence, or(b)to connect customer locations to interexhange carrier points of presence. Other ways means the highways, streets, alleys, utility easements or other rights ofwithin g way the Town, but under the jurisdiction and control of a governmental entity other than the Town. See "public ways" in this section. p blic Overhead facilities means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities. Person means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors trustees and receivers. ' Proposal means an applicant's formal written response to the city's request for ro osals to provide P P long distance competitive services or telecommunications services to the town, t ursuant to this chapter. per. Upon award by the town of a license or franchise, the proposal shall become apart of the license or franchise agreement. P Public street means any highway, street, alley or any other public right of waywhich mayor maynot o be for motor vehicle travel under the jurisdiction and control of the Town which has been acquired, established, dedicated or devoted to highway purposes not inconsistent with telecommunications facilities. A "street" means the surface, the air space above the surface and the area below the surface of any public streets, roadways, highways, avenues, lanes, alleys, courts, places, curbs, sidewalks, easements, rights-of-way, or other public ways in the town which have been or may hereafter be dedicated to or otherwise acquired by the Town. Public ways means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the Town, but only to the extent of the Town's right, title, interest st or authority to grant a license or franchise to occupy and use such streets and easements for telecommunications facilities. State means the State of Arizona. Surplus space means that portion of the usable space on a utilityole which has the necessary ry clearance from other pole users, as required by the orders and regulations of the Arizona Corporation rp on Page 4 of 25 Oro Valley Town Code Commission, to allow its use by a telecommunications carrier for a pole attachment. Telecommunications carrier means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the Town, uses or to be used for the purpose of offering telecommunications service. Telecommunications facilities means the plant, equipment and property, including but not limited, cables, wires conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit,receive, distribute,provide or offer telecommunications services. Telecommunications provider means and includes every person who provides telecommunications service over telecommunications facilities without any ownership or management control of the facilities. Telecommunications service means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities,with or without benefit of any closed transmission medium. Telecommunications system See "Telecommunications facilities". Town means the Town of Oro Valley,Arizona. Town property means and includes all real property owned by the Town, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the Town, which are not subject to right-of-way licensing and franchising. Underground facilities means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for Overhead Facilities. Usable space means the total distance between the top of a utility pole and the lowest possible attachment.point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the Arizona Corporation Commission or any other regulatory agency. Utility easement means any easement owned by the Town and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities. Utility facilities means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the Town and used or to be used for the purpose of providing utility or telecommunications services. (97-03,Enacted,02/05/1997) Page 5 of 25 Oro Valley Town Code Article 12-3 REGISTRATION Sections: 12-3-1 Registration Section 12-3-1 Registration Except as otherwise provided herein, all telecommunications carriers androviders engaged P g ged in the business of transmitting, supplying or furnishing of telecommunications originating terminating g or in the Town shall register with the Town pursuant to Article 12.13 of this Title. (97-03,Enacted,02/05/1997) Page 6 of 25 I Oro Valley Town Code Article 12-4 TELECOMMUNICATIONS LICENSE Sections: 12-4-1 Telecommunications License Section 12-4-1 Telecommunications License Except as otherwise provided therein, any telecommunications carriers who desire to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the Town for the sole purpose of providing telecommunications service to persons and areas outside the Town shall first obtain a license granting the use of such public ways from the Town pursuant to Article 12.14 of this Title. (97-03,Enacted,02/05/1997) I a Page 7 of 25 • Oro Valley Town Code Article 12-5 TELECOMMUNICATIONS FRANCHISE Sections: 12-5-1 Telecommunications Franchise Section 12-5-1 Telecommunications Franchise Except as otherwise provided herein, any telecommunications carriers who desire to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the Town, and to also provide telecommunications service toersons or areas in the Town, own, shall first obtain a franchise granting the use of such public ways from the Townursuant to Article12-1 of this Title. p (97-03,Enacted,02/05/1997) • Page 8 of 25 Oro Valley Town Code Article 12-6 CABLE TELEVISION FRANCHISE Sections: 12-6-1 Cable Television Franchise Section 12-6-1 Cable Television Franchise Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or locate telecommunications facilities in any public way of the Town for the purpose of providing cable service to persons in the Town shall first obtain a cable franchise or license from the Town as provided in this Title. (97-03,Enacted,02/05/1997) Page 9 of 25 Oro Valley Town Code Article 12-7 APPLICATION TO EXISTING FRANCHISE ORDINANCES AND AGREEMENTS Sections: 12-7-1 Application to Existing Franchise Ordinances and Agreements Section 12-7-1 Application to Existing Franchise Ordinances and Agreements This Title shall have no effect on any existing franchise ordinance or franchise agreement gr ment until. 1. The expiration of said franchise ordinance or agreement, or; 2. An amendment to an unexpired p franchise ordinance or franchise agreement, unless both parties agree to defer full compliance to a specific date not later than thepresent (97-03,Enacted,02/05/1997) expiration date. • Page 10 of 25 Oro Valley Town Code Article 12-8 PENALTIES Sections: 12-8-1 Penalties Section 12-8-1 Penalties Any person found guilty of violating disobeying, omitting,neglecting or refusing to comply with any of the provisions of this Title shall be fined not less than One Hundred Dollars ($100.00) nor more than twenty five hundred dollars ($2500)) for each offense. Such an offense will be a class one misdemeanor. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues. (97-03,Enacted,02/05/1997) Page 11 of 25 Oro Valley Town Code Article 12-9 OTHER REMEDIES Sections: 12-9-1 Other Remedies Section 12-9-1 Other Remedies Nothing in this ordinance shall be construed as limiting any judicial remedies that the Town may have, at law or in equity, for enforcement of this Title. (97-03,Enacted,02/05/1997) Page 12 of 25 Oro Valley Town Code Article 12-10 SEVERABILITY Sections: 12-10-1 Severability Section 12-10-1 Severability If any section, subsection, sentence, clause, phrase, or other portion of this Title, or its application to any person, is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. (97-03,Enacted,02/05/1997) 4 0 Page 13 of 25 Oro Valley Town Code Article 12-11 REGISTRATION OF TELECOMMUNICATIONS CARRIERS AND PROVIDERS Sections: 12-11-1 Registration of Telecommunications Carriers and Providers Section 12-11-1 Registration of Telecommunications Carriers and Providers All telecommunications carriers and providers that offer or provide anytelecommunications s service for a fee directly to the public, either within the Town, or outside the corporate rp e limits from telecommunications facilities within the Town, shall register with the Townursuant to this s Article on forms to be provided by the Town Clerk, which shall include the following: g 1. The identity and legal status of the registrant, including any affiliates. 2. The name, address and telephone number of the officer, agent or employee res responsible for the accuracy of the registration statement. p 3. A description of registrant's existing or proposed telecommunications s facilities within the Town. 4. A description of the telecommunications service that the registrant intends to offer orrov� p i d e, or is currently offering or providing, to persons, firms,businesses or institutions within the Town. 5. Information sufficient to determine whether the registrant is subject toublic waylicensing or franchising under this Title. p 6. Information sufficient to determine whether the transmission, origination or receipt pt of the telecommunications services provided or to be provided by the registrant constitutes an occupation or privilege subject to any municipal telecommunications tax, utility message tax or other occupation patron tax imposed by the Town. 7. Information sufficient to determine that the applicant has applied for an received anycertificate ate of authority required by the Arizona Corporation Commission, the Federal Communications Commission, or another other necessary government or regulatory agency to provide telecommunications services or facilities within the Town. 8. Information sufficient to determine that the applicant has applied for and received ed any construction permit, operating license or other approvals required by the Federal Communications Commission to provide telecommunications services or facilities within the Town. 9. Such other information as the Town or Town Clerk may reasonably require. (97-03,Enacted,02/05/1997) q Page 14 of 25 Oro Valley Town Code Article 12-12 RESERVED Sections: 12-12-1 Reserved Section 12-12-1 Reserved (97-03,Enacted,02/05/1997) Page 15 of 25 Oro Valley Town Code Article 12-13 PURPOSE OF REGISTRATION Sections: 12-13-1 Purpose of Registration Section 12-13-1 Purpose of Registration The purpose of registration under this Article is to: 1. Provide the Town with accurate and current information concerning the telecommunications carriers and providers who offer or provide telecommunications services within the Town, or that own or operate telecommunication facilities within the Town. 2. Assist the town in enforcement of this Title. 3. Assist the Town in the collection and enforcement of any municipal taxes, franchise fees, license fees or charges that may be due the Town. 4. Assist the Town in monitoring compliance with local, State and Federal laws. (97-03,Enacted,02/05/1997) Page 16 of 25 Oro Valley Town Code Article 12-14 COMMUNICATIONS LICENSE Sections: 12-14-1 Telecommunications License Section 12-14-1 Telecommunications License A telecommunications license shall be required of any telecommunications carrier who desires to occupy specific public ways of the Town for the sole purpose of providing telecommunications services to persons or areas inside or outside the Town. (97-03,Enacted,02/05/1997) I n Page 17 of 25 Oro Valley Town Code Article 12-15 LOCATION OF FACILITIES Sections: 12-15-1 Location of Facilities Section 12-15-1 Location of Facilities Unless otherwise specified in a license agreement, all facilities shall be constructed, installed and located in accordance with the following terms and conditions: I. Telecommunications facilities shall be installed within an existingunderground duct gr or conduit whenever excess capacity exists within such utility facility. 2. A licensee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then onlyif surplus spaceis available. rp 3. Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the Town, a licensee withermission to occupy py the same public way must also locate its telecommunications facilities underground. 4. Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way of the Town, aantee that currently y o ccuples the same public way shall relocate its facilities underground within a reasonableeriod of time,me, which shall be not later than the end of the grant term. Absent extraordinary circumstances or undue hardship as determined by the Town Engineer, such relocation shall be made concurrently to minimize the disruption of the public ways. 5. Whenever new telecommunications facilities will exhaust the capacity of aublic street or utility ty easement to reasonably accommodate future telecommunications carriers or facilities, the grantee shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatoryto access future telecommunications carriers. (97-03,Enacted,02/05/1997) Page 18 of 25 Oro Valley Town Code Article 12-16 TELECOMMUNICATIONS FRANCHISE Sections: 12-16-1 Telecommunications Franchise Section 12-16-1 Telecommunications Franchise A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public ways of the Town and to provide telecommunications services to any person or area in the Town. (97-03,Enacted,02/05/1997) 41 Page 19 of 25 Oro Valley Town Code Article 12-17 CABLE FRANCHISE Sections: 12-17-1 General requirements Section 12-17-1 General requirements A grantee shall conform to the following minimum standards relative to the construction, operation and maintenance of a cable communications system in the town. It is not the intent of this section to prevent any licensee from providing more than the required minimum to meet the standards listed below. A. System capability. The cable communications systems shall be equipped to provide: 1)Two way capability 2)Emergency override of all channels during a declared emergency or disaster. B. Construction method. All basic trunk lines, associated feeder lines and single drops shall be placed by aerial or underground methods similar to the electric and telephone utility lines in the same area. Underground methods are preferred in order to preserve the scenic view shed within the Town. The grantee may, with the consent of the owner, use the poles and other equipment of utilities serving the Town. The cable communications system shall be installed and maintained in accordance with standard good engineering practices and shall conform when applicable with the "National Electrical SafetyCode" and the "Federal Communications RulesRegulation" and Regulation as they apply. The Grantee shall have at all times up-to-date route maps showing trunk and distribution lines. Grantee shall make all such maps available for review by the appropriate town personnel. C. Service schedule. No grantee shall be required to provide service to any site in his area where such service is available from another grantee. A grantee need not provide service to an area having less density than thirty-five dwelling units per system cable mile. D. Removal of Grantee Property. In the even that grantee property has been installed in a street or other dedicated public right-of-way without complying with the requirements of this chapter, or the license or franchise has been terminated, revoked or expired, or the use of any granteeroe is P P �Y discontinued for any reason grantee shall at its own sole expense on the demand of the town remove promptly from the streets all grantee property other than that which the town may permit to be abandoned in place. Upon such removal of grantee property, grantee shall promptly restore the street or otherP ublic places from which the grantee property was removed to a condition as near as possible to itsP rior condition. Grantee property no longer in service may be left in place with the approval of and in a manner proscribed by the town. Upon such abandonment of grantees property in place, grantee shall deliver to the town an instrument transferring ownership of such abandoned grantee property to the town. P Any cost arising from compliance with this provision shall be borne by the grantee. E. Local office. Maintain a local office within ten miles, accessible during all usual business hours and have a listed telephone and operate so that complaints and requests for repairs and adjustments may y be received. Grantee shall maintain a written record listing the date of customer complaints, identifying �' g the subscriber, describing the nature of the complaint and when and what action has been taken by the grantee in response thereto; such record shall be kept at grantee's office and shall be available during regular business hours without further notice or demand of the town. The grantee shall notify each subscriber at the time of initial subscription to service of the procedure for reporting and resolving complaints. F. Service provisions. Grantee shall: 1) Render efficient service, make repairs promptly and interrupt service only for good cause and the shortest time possible. 2) Be able to demonstrate by instruments and otherwise to subscribers that a signal of adequate Page 20 of 25 Oro Valley Town Code strength and quality is being delivered to the subscriber's terminal. G. Local Channel. Each system shall carry as part of the basic service local channels broadcast in its area as required and defined in FCC and other governmental regulations. In this regard, those parts of 47 CFR Part 76 relating to carriage of local channel signals as existing, or as may be amended, shall apply and are incorporated herein by reference. In the event the FCC deletes the above referred requirement or ceases to exercise jurisdiction in this area, said requirement shall continue to apply as they existed on the date immediately proceeding such federal action. H. Interconnection. The system shall be designed and operated so as to facilitate interconnection to any or all other systems within Pima County, The City of Tucson, the Town of Marana or other nearby municipalities, and the town. The cost of interconnection links shall be shared equally by the connecting systems. Grantee shall interconnect such channels and at such time as the town may direct. I. Privacy-monitoring. Grantee shall strictly observe and protect the rights of privacy and property rights of subscribers and users at all times. Individual subscriber preferences of any kinds, viewing habits, political, social or economic philosophies, beliefs, creeds, religions or names, addresses or telephone or E-mail addresses shall not be revealed to any person, governmental unit, police department or investigating agency unless upon the authority of a court of law or upon prior voluntary valid authorization of the subscriber. Such authorization shall not in any event be required as a condition of receiving service. Exclusive of signals useful only for the control or measurement of systems performance, grantees shall not permit the transmission of any signal, including "polling" or monitoring of channel selection from the subscribers premises without first obtaining written permission from the subscriber, J. Service to public buildings. Grantee shall make available, at a cost not to exceed direct cost(Time and Material), a minimum of one or more service outlet(s) to a conveniently accessible point in each public, private and parochial school, non-profit college or university, police station or sub-station, fire station,town hall or other facility or building located within the license area and used for public purposes as may be designated by the town. There shall be a minimum monthly service charge at the above locations. K. Maintenance. The system shall be maintained in accordance with the highest accepted standards of the industry. Each system shall be maintained so as to comply with all applicable technical standards and regulations promulgated by the F.C.C. In this regard, 47 CFR Section 76.601 et. seq as existing or as may be amended, shall apply in full and are incorporated herein by this reference. In the event that the FCC deletes the above referenced technical standards or eases to exercise jurisdiction in this area, such standards shall continue to apply to this chapter as they existed on the date immediately proceeding such federal action. (97-03,Enacted,02/05/1997) Page 21 of 25 Oro Valley Town Code Article 12-18 FEES AND COMPENSATION Sections: 12-18-1 Purpose Section 12-18-1 Purpose It is the purpose of this Section to provide for the payment and recoveryof all direct and indirect ect costs and expenses of the Town related to the enforcement and administration of this Title. (97-03,Enacted,02/05/1997) Page 22 of 25 Oro Valley Town Code Article 12-19 CHANGE OF CONTROL Sections: 12-19-1 Reserved Section 12-19-1 Reserved (97-03,Enacted,02/05/1997) Page 23 of 25 Oro Valley Town Code Article 12-20 CONSTRUCTION STANDARDS Sections: 12-20-1 General Section 12-20-1 General No person shall commence or continue with the construction, installation or operation p n of telecommunications facilities within the Town except as provided in this Article and other Town Codes and ordinances. (97-03,Enacted,02/05/1997) Page 24 of 25 Oro Valley Town Code Article 12-21 RESPONSIBILITY OF OWNER Sections: 12-21-1 Responsibility of Owner Section 12-21-1 Responsibility of Owner The owner of the facilities to be constructed and, if different, the license or franchise grantee, are responsible for performance of and compliance with all provisions of this Article. (97-03,Enacted,02/05/1997) Page 25 of 25 Discussion Outline for Alternative Approaches to Cable Franchise Renewal • .6A., 4.,\, eto-i l ifz 54-ertuiw-u igaioava- .?k- hAL: of e.,6,t( C7k p r- ez.c col Cable Franchise Renewal Process—Possible Alternatives 1. "Renewal Light": OV uses the Marana Cable Code and Agreement as the basis for its efforts; and contracts with Dave Evertsen for$10,000-$15,000 to • review the Code and Agreement and propose a few significant changes or additions for the Town to seek in negotiations, • meets with key town staff as to a few other negotiation points to be pursued, • assist in negotiations based on his general background knowledge and experience. The Town seeks the best financial return and a few "extras" for a 5-year renewal and both parties wait to see what happens at the state and federal levels. One of the extras that will be important to negotiate for is that the next franchisee will reimburse to the Town the costs of the next renewal process, including consultant fees. Pros: Cons: 2. "Middle of the Road": OV contracts with Dave Evertsen to do a full work-up which will result in a new Code and Agreement for 10 years plus. The cost will be about $75,000 based on the experience of Florence and information from Evertsen's proposal. (The cost of an audit will be about $15,000-$20,000, which is likely to be recovered by the Town based on Van Eaton's experience with underpayment issues.) The work will include a survey as to what OV users want out of their system, an evaluation of the system itself (what service can be expected, what more can be asked for), an audit, assistance drafting a cable code and assistance in negotiating and drafting a new agreement. Pros: Cons: 3. "Complete Process": OV contracts with Miller & Van Eaton who arranges for and directs the support services of a community survey, an audit and an evaluation of the system itself. The total cost is likely to be in the range of $130,000 - $150,000 with a very possible return of$20,000 from the audit. Joe Van Eaton will explain the process to Council, direct the process, assist in negotiations and provide the agreement and code documents. Pros: Cons: 2 Information on New State Legislation Limiting Municipal Authority over Cable Franchise Process - House Bill 2812 (signed into law by Governor) HB2812 - 472R - House Bill Summary Page 1 of 2 ;HOUSE OF REPRESENTATIVES HB 2812 licensing procedures; cable television Sponsor: Representative Nelson DPA Committee on Counties, Municipalities and Military Affairs DPA Caucus and COW X As Engrossed and As Passed the House HB 2812 modifies the requirements for municipalities and cable operators to negotiate franchise agreements. History Section 622 of the Federal Cable Act allows local franchising authorities to charge the cable operator a fee for the right to operate a cable system in that franchise area; however, the franchise fee paid by the cable system cannot be more than five percent of its annual gross revenue. A franchising authority may use the money collected from this fee for any purpose. A cable operator must list any applicable franchise fee as a separate item on the subscriber's bill. Cities, towns and counties are not required to collect these license fees, but, according to the Arizona Cable Telecommunications Association, the vast majority of cities, towns and counties collect the full five percent. The franchise or license fee is calculated using the total gross revenues of the cable operator on cable services only (Internet and telephone services are not included). The fee is passed through directly to customers and appears as a line item on their bill. It is paid quarterly by the cable operator to the city, town or county. In addition to franchise or license fees and taxes, cable operators are sometimes required to collect additional fees from customers, known as subscriber fees or public, education or governmental (PEG) fees to support PEG access channels, which are channels provided by the cable operator to the city, town or county for their use and programming. The federal Telecommunications Act of 1996 exempts a provider of direct-to-home satellite service, also known as direct broadcast satellite service (DBS), from the collection or remittance of any tax or fee imposed by a local taxing jurisdiction. Provisions • Defines gross revenue to include all cash, credits, property of any kind or nature or other consideration, and all subscriber revenues and to exclude any non-subscriber revenues. • Clarifies that license fee agreements are subject to limits established by the Communications Act of 1934 as amended and the Federal Communications Commissions in addition to any statutory limitations. • Prohibits a licensing authority from levying a tax, rent, fee or charge on a cable operator for the use of public streets, roads or alleys to provide cable service. • Limits the total rates of the license fee and any TPT taxes on gross revenue levied or assessed by a licensing authority to a maximum rate of 5%. • Requires any reduction in the amount of fees, taxes or other charges paid to be passed on to subscribers. • Prohibits a licensing authority from requiring a cable operator to provide in-kind services, make in- kind payments or pay a fee in addition to the license fee except that a licensing authority may require a cable operator to provide: http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/legtext/471eg/2r/summary/h.hb... 3/15/2006 HB2812 - 472R- House Bill Summary Page 2 of 2 • Channel capacity limited to: • Two channels of public, educational or government access (PEG) programming in the basic tier of the cable television system, and • Two channels of noncommercial governmental programming, at least one of which may be programmed by the federal government, in the digital programming tier of the cable television system. • Basic service tier of cable service at no monthly charge to offices and facilities of the licensing authority. • The value of any channel capacity provided and of basic services provided may not be offset against the licensing fee levied. • Allows for in-kind payments to be negotiated outside of the license agreement. If in-kind payments are agreed to they must be less than or equal to and offset against the license fee levied. • Clarifies that a licensing authority may require a cable operator to: • Bear reasonable costs associated with damage caused to public streets, roads and alleys by construction, maintenance and operation of its facilities in the highways and that are imposed on other telecommunications corporations. • Pay fines, fees, charges or damages for breach of terms and conditions of the license. • Exempts any licenses in effect before July 1, 2007 from the limitations. • If a license is extended or renewed and the license term begins before January 1, 2008 the limitations of TPT on gross revenue is as follows: • 5% if the gross effective rate is 5% or less. • If the gross effective rate is greater than 5% a formula by year of the extension or renewal is outlined. • Defines gross revenue, gross effective rate, cable operator, cable service, other programming service and video programming and modifies the definition of cable television provider. • Contains a legislative intent clause. • Makes technical and conforming changes. DOCUMENT FOOTER Forty-seventh Legislature Second Regular Session 2 March 9, 2006 DOCUMENT FOOTER http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/legtext/471eg/2r/summary/h.hb... 3/15/2006 Chapter 0003 - 472R- H Ver of HB2812 Page 1 of 6 House Engrossed State of Arizona House of Representatives Forty-seventh Legislature Second Regular Session 2006 CHAPTER 3 HOUSE BILL 2812 AN ACT AMENDING SECTIONS 9-505 AND 9-506, ARIZONA REVISED STATUTES; RELATING TO CABLE TELEVISION SYSTEMS. (TEXT OF BILL BEGINS ON NEXT PAGE) Be it enacted by the Legislature of the State of Arizona: Section 1. Section 9-505, Arizona Revised Statutes, is amended to read: 9-505. Definitions In this article, unless the context otherwise requires: 1. "Area of jurisdiction" means that part of a city or town, or that part of the unincorporated area of a county, or both when applied to a cable television system within parts of more than one jurisdiction, for which a license is issued. 2. "CABLE OPERATOR" MEANS A PERSON THAT IS ISSUED A LICENSE BY THE LICENSING AUTHORITY TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN PUBLIC STREETS, ROADS AND ALLEYS. 3. "CABLE SERVICE" MEANS THE TRANSMISSION TO SUBSCRIBERS OF VIDEO PROGRAMMING OR OTHER PROGRAMMING SERVICE AND SUBSCRIBER INTERACTION, IF ANY, THAT IS REQUIRED FOR THE SELECTION OR USE OF THE VIDEO PROGRAMMING OR OTHER PROGRAMMING SERVICE. 4. "Cable television system" means any facility that, in whole or in part, receives directly, or indirectly over the air, and amplific3 or othcrwisc modifies thc signals transmitting programs broadca3t by one or morc tcicvi3ion or radio stations and distributes such signals togcthcr with such othcr signals as authorized by the federal communications commission and thc licensing authority, by wire or cable to Subscribing members of the public who pay for such service, but thc tcrm shall not include: CONSISTING OF A SET OF CLOSED TRANSMISSION PATHS AND ASSOCIATED SIGNAL GENERATION, RECEPTION AND CONTROL EQUIPMENT THAT IS DESIGNED TO PROVIDE CABLE SERVICE THAT INCLUDES VIDEO PROGRAMMING AND THAT IS PROVIDED TO http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/471eg/2r/laws/0003.htm 3/15/2006 Chapter 0003 - 472R- H Ver of HB2812 Page 2 of 6 MULTIPLE SUBSCRIBERS WITHIN A COMMUNITY. CABLE TELEVISION SYSTEM DOES NOT INCLUDE: (a) Any Such A facility that serves fewer than fifty subscribers. (b) Any such A facility that serves only the residents of one or more apartment dwellings under common ownership, and commercial ctablishments located on the premises of such apartment dwellings SUBSCRIBERS WITHOUT USING ANY PUBLIC STREET, ROAD OR ALLEY. (c) A FACILITY THAT SERVES ONLY TO RETRANSMIT THE TELEVISION SIGNALS OF ONE OR MORE TELEVISION BROADCAST STATIONS. (d) A FACILITY OF A COMMON CARRIER THAT IS SUBJECT, IN WHOLE OR IN PART, TO 47 UNITED STATES CODE SECTIONS 201 THROUGH 276, EXCEPT THAT THE FACILITY IS CONSIDERED A CABLE TELEVISION SYSTEM, OTHER THAN FOR PURPOSES OF 47 UNITED STATES CODE SECTION 541(c), TO THE EXTENT THE FACILITY IS USED IN THE TRANSMISSION OF VIDEO PROGRAMMING DIRECTLY TO SUBSCRIBERS, UNLESS THE EXTENT OF THE USE IS SOLELY TO PROVIDE INTERACTIVE ON-DEMAND SERVICES. (e) AN OPEN VIDEO SYSTEM THAT COMPLIES WITH 47 UNITED STATES CODE SECTION 573. (f) A FACILITY OF AN ELECTRIC UTILITY THAT IS USED SOLELY FOR OPERATING ITS ELECTRIC UTILITY SYSTEM. 475. "Existing cable television SYSTEM" means a cable television system in operation on April 1, 1974, a cable television system under construction on April 1, 1974-or a cable television system which had received authorization for construction as of April 1, 1974. 6. "GROSS REVENUES" MEANS ALL CASH, CREDITS, PROPERTY OF ANY KIND OR NATURE, OR OTHER CONSIDERATION, LESS RELATED BAD DEBT NOT TO EXCEED ONE AND ONE-HALF PER CENT ANNUALLY, THAT IS RECEIVED DIRECTLY OR INDIRECTLY BY THE CABLE OPERATOR, ITS AFFILIATES, SUBSIDIARIES OR PARENT OR ANY PERSON, FIRM OR CORPORATION IN WHICH THE CABLE OPERATOR HAS A FINANCIAL INTEREST OR THAT HAS A FINANCIAL INTEREST IN THE CABLE OPERATOR AND THAT IS DERIVED FROM THE CABLE OPERATOR'S OPERATION OF ITS CABLE SYSTEM TO PROVIDE CABLE SERVICE IN THE AREA OF JURISDICTION. GROSS REVENUES INCLUDE ALL REVENUE FROM CHARGES FOR CABLE SERVICE TO SUBSCRIBERS AND ALL CHARGES FOR INSTALLATION, REMOVAL, CONNECTION OR REINSTATEMENT OF EQUIPMENT NECESSARY FOR A SUBSCRIBER TO RECEIVE CABLE SERVICE, AND ANY OTHER RECEIPTS FROM SUBSCRIBERS DERIVED FROM OPERATING THE CABLE SYSTEM TO PROVIDE CABLE SERVICE, INCLUDING RECEIPTS FROM FORFEITED DEPOSITS, SALE OR RENTAL OF EQUIPMENT TO PROVIDE CABLE SERVICE, LATE CHARGES, INTEREST AND SALE OF PROGRAM GUIDES. GROSS REVENUES ALSO INCLUDE ALL INCOME THE CABLE OPERATOR RECEIVES FROM THE LEASE OF ITS FACILITIES LOCATED IN THE PUBLIC STREETS, ROADS AND ALLEYS, UNLESS SERVICES THAT THE LESSEE PROVIDES OVER THE LEASED FACILITIES ARE SUBJECT TO A TRANSACTION PRIVILEGE TAX OF THE LICENSING AUTHORITY. GROSS REVENUES DO NOT INCLUDE REVENUES FROM COMMERCIAL ADVERTISING ON THE CABLE SYSTEM, THE USE OR LEASE OF STUDIO FACILITIES OF THE CABLE SYSTEM, THE USE OR LEASE OF LEASED ACCESS CHANNELS http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/471eg/2r/laws/0003.htm 3/15/2006 Chapter 0003 - 472R- H Ver of HB2812 Page 3 of 6 OR BANDWIDTH, THE PRODUCTION OF VIDEO PROGRAMMING BY THE CABLE OPERATOR, THE SALE, EXCHANGE, USE OR CABLECAST OF ANY PROGRAMMING BY THE CABLE OPERATOR IN THE AREA OF JURISDICTION, SALES TO THE CABLE OPERATOR'S SUBSCRIBERS BY PROGRAMMERS OF HOME SHOPPING SERVICES, REIMBURSEMENTS PAID BY PROGRAMMERS FOR LAUNCH FEES OR MARKETING EXPENSE, LICENSE FEES, TAXES OR OTHER FEES OR CHARGES THAT THE CABLE OPERATOR COLLECTS AND PAYS TO ANY GOVERNMENTAL AUTHORITY, ANY INCREASE IN THE VALUE OF ANY STOCK, SECURITY OR ASSET, OR ANY DIVIDENDS OR OTHER DISTRIBUTIONS MADE IN RESPECT OF ANY STOCK OR SECURITIES. .4-7. "Intergovernmental contract" means the joint exercise of powers authorized by title 11, chapter 7, article 3. 5? 8. "License" means that ordinance or resolution which contains the right, authority or grant, given by a licensing authority enabling the license holder A PERSON to construct, operate and maintain a cable television system. 67 9. "Licensing authority" means the board of supervisors of a county or the governing body of an incorporated city, INCLUDING A CHARTER CITY, or town. 10. "OTHER PROGRAMMING SERVICE" MEANS INFORMATION THAT A CABLE OPERATOR MAKES AVAILABLE TO ALL SUBSCRIBERS GENERALLY. 11. "VIDEO PROGRAMMING" MEANS PROGRAMMING THAT IS PROVIDED BY, OR GENERALLY COMPARABLE TO PROGRAMMING PROVIDED BY, A BROADCAST TELEVISION STATION. Sec. 2. Section 9-506, Arizona Revised Statutes, is amended to read: 9-506. Authority to issue license; limitations A. For the purpose of authorizing and regulating the construction, operation and maintenance of cable television systems, the licensing authority of a city, INCLUDING A CHARTER CITY, or town for an incorporated area, or the licensing authority of the county for unincorporated areas, either individually or jointly by intergovernmental contract, may issue a license to any person to use public streets, roads and alleys-and shall impose conditions, restrictions and limitations upon the use of siete+t public streets, roads and alleys-and upon the construction, operation and maintenance of cable television systems. B. SUBJECT TO THE LIMITATIONS OF THIS SECTION, any Such A licensing authority may adopt resolutions or ordinances implementing and controlling the license or joint license, ISSUE A LICENSE CONTAINING OTHER TERMS AND CONDITIONS AND IMPOSE A LICENSE FEE ON GROSS REVENUES. The license issued by a licensing authority may contain provisions, and may establish a permit fcc, not to-exceed the limits cstatlylishcd by the €cderai c nrc . IN ADDITION TO THE LIMITATIONS OF THIS SECTION, THE LICENSE IS SUBJECT TO THE LIMITS ESTABLISHED BY THE COMMUNICATIONS ACT OF 1934, AS AMENDED (47 UNITED STATES CODE SECTIONS 151 THROUGH 615b) AND THE FEDERAL COMMUNICATIONS COMMISSION. C. OTHER THAN THE LICENSE FEE ON GROSS REVENUES AUTHORIZED BY THIS ARTICLE AND TRANSACTION PRIVILEGE TAXES AS PROVIDED IN THIS SUBSECTION, A http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/471eg/2r/laws/0003.htm 3/15/2006 Chapter 0003 - 472R- H Ver of HB2812 Page 4 of 6 LICENSING AUTHORITY MAY NOT LEVY A TAX, RENT, FEE OR CHARGE, HOWEVER DENOMINATED, ON A CABLE OPERATOR FOR THE USE OF THE PUBLIC STREETS, ROADS OR ALLEYS TO PROVIDE CABLE SERVICE OR LEVY A TAX, FEE OR CHARGE ON THE PRIVILEGE OF ENGAGING IN THE BUSINESS OF PROVIDING CABLE SERVICE IN THE AREA OF JURISDICTION. TAXES, RENTS, FEES AND CHARGES INCLUDE ALL ACCESS CHANNEL SUPPORT EXCEPT AS PROVIDED IN SUBSECTION D OF THIS SECTION, RENTAL, APPLICATION, CONSTRUCTION, PERMIT, INSPECTION, INCONVENIENCE AND OTHER FEES AND CHARGES RELATED TO A CABLE OPERATOR'S USE OF THE PUBLIC STREETS, ROADS AND ALLEYS. IN ADDITION, THE FOLLOWING APPLY: 1. ANY TRANSACTION PRIVILEGE TAXES OTHERWISE AUTHORIZED BY LAW TO BE LEVIED ON THE BUSINESS OF PROVIDING CABLE SERVICE OR IN RELATION TO USE OF THE PUBLIC STREETS, ROADS OR ALLEYS TO PROVIDE CABLE SERVICE MAY BE LEVIED ON A CABLE OPERATOR IF THE TAXES ARE LEVIED ONLY ON GROSS REVENUES AND THE RATE OF THE TAXES IS SUBJECT TO PARAGRAPH 3 OF THIS SUBSECTION. THIS SUBSECTION DOES NOT AUTHORIZE THE IMPOSITION OF TRANSACTION PRIVILEGE TAXES ON INTERSTATE TELECOMMUNICATIONS SERVICES. 2. THE LICENSE FEE AND ANY TRANSACTION PRIVILEGE TAXES LEVIED ON GROSS REVENUES CONSTITUTE A FRANCHISE FEE WITHIN THE MEANING OF 47 UNITED STATES CODE SECTION 542(g)(1). 3. UNDER NO CIRCUMSTANCES MAY THE TOTAL OF THE RATES OF THE LICENSE FEE AND OF ANY TRANSACTION PRIVILEGE TAXES ON GROSS REVENUES LEVIED OR ASSESSED BY A LICENSING AUTHORITY FOR THE PRIVILEGE OF PROVIDING CABLE SERVICE AND RELATED USE OF THE PUBLIC STREETS, ROADS OR ALLEYS TO PROVIDE CABLE SERVICE EXCEED A RATE OF FIVE PER CENT, EXCEPT DURING THE TRANSITION PERIOD FOR CERTAIN LICENSES AS PROVIDED IN SUBSECTION H OF THIS SECTION. 4. A CABLE OPERATOR SHALL PASS ON TO SUBSCRIBERS ANY REDUCTION IN THE AMOUNT OF FEES, TAXES OR OTHER CHARGES PAID BY A CABLE OPERATOR AND ITEMIZED TO SUBSCRIBERS THAT RESULTS FROM THE IMPLEMENTATION OF THIS AMENDMENT TO THIS SECTION. D. A LICENSING AUTHORITY MAY NOT REQUIRE A CABLE OPERATOR TO PROVIDE IN- KIND SERVICES, MAKE IN-KIND PAYMENTS OR PAY A FEE IN ADDITION TO THE MONETARY LICENSE FEE LEVIED OR ASSESSED AS PROVIDED IN THIS SECTION AS PART OF OR AS A CONDITION OF ISSUING A LICENSE TO PROVIDE CABLE SERVICE, EXCEPT THAT: 1. A LICENSING AUTHORITY MAY REQUIRE A CABLE OPERATOR TO PROVIDE CHANNEL CAPACITY TO TRANSMIT PROGRAMMING OVER WHICH THE CABLE OPERATOR EXERCISES NO EDITORIAL CONTROL EXCEPT AS AUTHORIZED BY 47 UNITED STATES CODE SECTION 531(e). THE CHANNEL CAPACITY SHALL BE LIMITED TO NOT MORE THAN TWO CHANNELS OF PUBLIC, EDUCATIONAL OR GOVERNMENTAL ACCESS PROGRAMMING IN THE BASIC SERVICE TIER OF THE CABLE TELEVISION SYSTEM AND NOT MORE THAN TWO CHANNELS OF NONCOMMERCIAL GOVERNMENTAL PROGRAMMING, AT LEAST ONE OF WHICH MAY BE PROGRAMMED BY THE FEDERAL GOVERNMENT, IN THE DIGITAL PROGRAMMING TIER OF THE CABLE TELEVISION SYSTEM. IF CHANNEL CAPACITY IS REQUIRED, THE PROGRAMMING SHALL BE SPECIFIED IN THE LICENSE AND THE CABLE OPERATOR MAY REQUIRE THAT THE http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/471eg/2r/laws/0003.htm 3/15/2006 Chapter 0003 - 472R- H Ver of HB2812 Page 5 of 6 CHANNELS REGULARLY DISPLAY AN UNOBTRUSIVE LOGO OR OTHER SUITABLE IDENTIFIER OF THE CABLE OPERATOR AS SET FORTH IN THE LICENSE. 2. A LICENSING AUTHORITY MAY REQUIRE A CABLE OPERATOR TO PROVIDE THE BASIC SERVICE TIER OF CABLE SERVICE AT NO MONTHLY SERVICE CHARGE TO OFFICES AND FACILITIES OF THE LICENSING AUTHORITY. 3. THE VALUE OF ANY CHANNEL CAPACITY PROVIDED PURSUANT TO PARAGRAPH 1 OF THIS SUBSECTION, INCLUDING ANY CAPITAL COSTS AND CHARGES FOR OR IN SUPPORT OF ITS USE, AND OF BASIC SERVICE PROVIDED PURSUANT TO PARAGRAPH 2 OF THIS SUBSECTION MAY NOT BE OFFSET AGAINST THE LICENSE FEE LEVIED OR ASSESSED UNDER THIS SECTION. E. THIS SECTION DOES NOT PROHIBIT A CABLE OPERATOR FROM AGREEING TO PROVIDE IN-KIND SERVICES OR MAKE IN-KIND PAYMENTS IN THE AREA OF JURISDICTION THAT ARE PROHIBITED BY SUBSECTION D OF THIS SECTION IF THE AGREEMENT WITH THE LICENSING AUTHORITY IS NOT PART OF, OR ENTERED INTO AS A CONDITION OF BEING ISSUED, A NEW, RENEWED OR AMENDED LICENSE TO PROVIDE CABLE SERVICE. AN AGREEMENT THAT REQUIRES IN-KIND CABLE SERVICE OR PAYMENTS SHALL SET FORTH THE TOTAL ANNUAL FAIR MARKET VALUE OF THE IN- KIND CABLE SERVICE AND PAYMENTS, WHICH SHALL BE LESS THAN OR EQUAL TO AND OFFSET AGAINST THE LICENSE FEE LEVIED OR ASSESSED ANNUALLY PURSUANT TO THIS SECTION. THE LICENSE SHALL AUTHORIZE THE CABLE OPERATOR TO RETAIN LICENSE FEES AND TAXES COLLECTED FROM ITS SUBSCRIBERS IN THE AMOUNT OF THIS OFFSET. IN-KIND CABLE SERVICES AND PAYMENTS INCLUDE ANY CHANNEL CAPACITY AND ALL CAPITAL COSTS AND CHARGES FOR OR IN SUPPORT OF THE USE OF ANY CHANNEL CAPACITY THAT THE CABLE OPERATOR AGREES TO PROVIDE UNDER THIS SUBSECTION. F. NOTWITHSTANDING SUBSECTION C OF THIS SECTION, A LICENSING AUTHORITY MAY REQUIRE THAT A CABLE OPERATOR: 1. BEAR REASONABLE COSTS THAT ARE ASSOCIATED WITH DAMAGE CAUSED TO PUBLIC STREETS, ROADS AND ALLEYS BY CONSTRUCTION, MAINTENANCE AND OPERATION OF ITS FACILITIES IN THE PUBLIC STREETS, ROADS AND ALLEYS AND THAT ARE IMPOSED ON A COMPETITIVELY NEUTRAL AND NONDISCRIMINATORY BASIS IN RELATION TO COSTS BORNE BY TELECOMMUNICATIONS CORPORATIONS UNDER SECTION 9-582, SUBSECTION C. 2. PAY FINES, FEES, CHARGES OR DAMAGES FOR BREACH OF THE TERMS AND CONDITIONS OF THE LICENSE. G. THIS SECTION DOES NOT AFFECT THE AUTHORITY OF A LICENSING AUTHORITY TO MANAGE THE PUBLIC STREETS, ROADS AND ALLEYS WITHIN ITS BOUNDARIES OR TO EXERCISE ITS POLICE POWERS. H. A LICENSE THAT IS IN EFFECT ON THE EFFECTIVE DATE OF THIS AMENDMENT TO THIS SECTION, INCLUDING ONE THAT IS LATER RENEWED OR EXTENDED FOR A TERM THAT BEGINS BEFORE JULY 1, 2007, IS ENFORCEABLE IN ACCORDANCE WITH ITS TERMS AND CONDITIONS AS OF JULY 1, 2007 AND IS NOT SUBJECT TO THE PROVISIONS http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/471eg/2r/laws/0003.htm 3/15/2006 Chapter 0003 - 472R- H Ver of HB2812 Page 6 of 6 OF THIS AMENDMENT TO THIS SECTION. IF A LICENSE THAT IS IN EFFECT ON THE EFFECTIVE DATE OF THIS AMENDMENT TO THIS SECTION IS LATER EXTENDED OR RENEWED FOR A TERM THAT BEGINS AFTER JUNE 30, 2007, THE EXTENDED OR RENEWED LICENSE IS SUBJECT TO THE PROVISIONS OF THIS AMENDMENT TO THIS SECTION, EFFECTIVE ON THE FIRST DAY OF THE RENEWAL OR EXTENSION TERM, UNLESS THE TERM BEGINS BEFORE JANUARY 1, 2008, IN WHICH CASE THE LIMITATION IN SUBSECTION C, PARAGRAPH 3 OF THIS SECTION ON THE RATES OF THE LICENSE FEE AND OF ANY TRANSACTION PRIVILEGE TAXES ON GROSS REVENUES IS: 1. FIVE PER CENT, IF THE GROSS EFFECTIVE RATE IS FIVE PER CENT OR LESS. 2. IF THE GROSS EFFECTIVE RATE IS MORE THAN FIVE PER CENT, FIVE PER CENT PLUS THE FOLLOWING PERCENTAGE: (a) IN THE FIRST YEAR OF THE EXTENSION OR RENEWAL TERM, THE GROSS EFFECTIVE RATE MINUS FIVE PER CENT, MULTIPLIED BY TWO-THIRDS. (b) IN THE SECOND YEAR OF THE TERM, THE GROSS EFFECTIVE RATE MINUS FIVE PER CENT, MULTIPLIED BY ONE-THIRD. (c) IN THE THIRD YEAR OF THE TERM, AND THEREAFTER, ZERO PER CENT. I. FOR PURPOSES OF SUBSECTION H OF THIS SECTION, "GROSS EFFECTIVE RATE" MEANS ONE HUNDRED PER CENT MULTIPLIED BY THE FRACTION IN WHICH THE NUMERATOR IS THE SUM OF ALL TAXES, FEES AND CHARGES OF THE LICENSING AUTHORITY THAT THE CABLE OPERATOR ITEMIZED TO SUBSCRIBERS AND PAID TO THE LICENSING AUTHORITY UNDER THE LICENSE FOR THE TWELVE CALENDAR MONTHS IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS AMENDMENT TO THIS SECTION AND THE DENOMINATOR IS THE CABLE OPERATOR'S GROSS REVENUES FOR THAT PERIOD IN THE AREA OF JURISDICTION. Sec. 3. Legislative findings The legislature finds and determines that this act is necessary as a matter of statewide concern to ensure that counties, cities, including charter cities, and towns issue licenses to cable operators to use the public streets, roads and alleys on terms and conditions, including fees, taxes and other charges levied and assessed for use of the public streets, roads and alleys, that are equitable. The public policy of this state is that this act be enforced to the fullest extent permitted by federal law. APPROVED BY THE GOVERNOR MARCH 3, 2006. FILED IN THE OFFICE OF THE SECRETARY OF STATE MARCH 3, 2006. http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/471eg/2r/laws/0003.htm 3/15/2006 HB2812 - 472R- Status - Title: licensing procedures; cable television Page 1 of 1 BILL STATUS OVERVIEW HB2812 (Substitute Bill - SB 1421) SPONSORS: NELSON P TITLE: licensing procedures; cable television HOUSE FIRST READ: 02/07/06 COMMITTEES: ASSIGNED COMMITTEES ACTION Vote Detail 02/07/06 CMMA 02/14/06 (7-2-3-0-0) DPA Vote Detail 02/07/06 RULES 02/23/06 (5-0-0-4-0) C&P SECOND READ: 02/08/06 MAJORITY CAUCUS 02/28/06 Y MINORITY CAUCUS: 02/28/06 Y COW ACTION 1: DATE ACTION AYES NAYS NV EXC 02/28/06 DPA 0 0 0 0 AMENDMENTS CMMA Nelson sub flr am to CMMA passed Downing flr am to bill failed see motion MOTION TO AMEND 1: DATE AYES NAYS NV EXC Vote Detail 02/28/06 17 33 10 0 COW MOTION Downing to incl Downing flr am to bill failed by RCV THIRD READ: DATE AYES NAYS NV EXC EMER AMEND RFE 2/3 VOTE RESULT Vote Detail 02/28/06 32 19 9 0 Y PASSED TRANSMIT TO SENATE: 02/28/06 SENATE FIRST READ: 03/01/06 THIRD READ: DATE AYES NAYS NV EXC EMER AMEND RFE 2/3 VOTE RESULT Vote Detail 03/01/06 23 5 2 0 PASSED TRANSMIT TO HOUSE: 03/01/06 SENATE MISC. MOTION: DATE AYES NAYS NV EXC 03/01/06 0 0 0 0 MISCELLANEOUS MOTION HB 2812 substituted for SB 1421 on Third Reading TRANSMITTED TO: GOVERNOR 03/02/06 ACTION: SIGNED 03/03/06 CHAPTER: 3 CHAPTERED VERSION: House Engrossed Version http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/legtext/471eg/2r/bills/hb2812o.... 3/15/2006 Information on Cable Franchise Renewal Process CABLE TtLEVISION FRANCHISE ncNEWAL Overview: The Role of a Cable Communications Consultant Throughout a cable franchise renewal project, the cable communications consultant works closely with designated City representatives, including the Cable Administrator and Cable Communications Commission (if applicable), the City Manager, the City Attorney, and other City staff as appropriate. The time period typically needed to undertake all tasks involved in a franchise renewal process is between 6 and 9 months (shorter in smaller communities), if informal negotiations are successful. Should informal negotiations prove to be unsuccessful, 9 to 18 months may be required to complete the formal renewal process. As a first step, the consultant reviews all available City documents relating to the cable franchise, including the franchise agreement between the City and cable company, the City Code and/or any enabling ordinance, modifications (if any) to the franchise agreement, any requests filed with the City by the cable company regarding the initiation of the franchise renewal process, and any other documents or files reflecting performance reviews or audits that were undertaken by the City during the term of the franchise. The consultant also meets with the City staff and legal staff to clarify certain preliminary matters. In particular, agreement should be reached on any necessary changes to the renewal strategy, including an identification of the tasks to be performed by City staff, local counsel, and the consulting team. Membership and roles for the refranchising team must be established, general franchise renewal goals must be clarified, logistics for meetings and other communications must be arranged, any resolutions or ordinances required to permit the franchising process to move forward must be developed, and a detailed short-term schedule must be set. As part of this initial work, the consultant's view as to the applicability of the formal renewal provisions of the Cable Act to this process would be explained, and, if the City agrees, a course would be devised to keep the City's options open with respect to its Cable Act rights. Municipal Solutions Ilc, 2005 10/2012005 CABLE TELEVISION FRANCHISE IICNEWAL An outline of the tasks that are performed by a consultant is provided on the next page. A. Develop a detailed plan for franchise renewal as well as strategies for the implementation of that plan. I. Devise reasonable and cost-effective renewal procedures consistent with federal, state and local law. 2. Work with the City Attorney to identify requirements of state and local laws that must be satisfied and any ordinance amendments required to enable the franchise process to move forward smoothly. B. Conduct Technical Audit of Cable System. I. Review Technical Reports from the Cable Company. 2. Physical Plant Assessment (technical capabilities). 3. Electrical Plant Tests (technical capabilities). 4. Headend Evaluation (technical capabilities). C. Evaluate the Past Performance of the Cable Company. I. Review the Operator's Compliance with the Existing Franchise. 2. Determine Operator's Compliance With Franchise Fee Provisions. 3. Perform Financial Review of the Existing System. 4. Review Customer Service Standards and Consumer Complaints. 5. Review Current PEG Access Channels, Equipment, Facilities and Services. D. Identify Future Community Cable-Related Needs and Interests. I. Conduct a Needs Assessment 2. Ascertainment Workshops (optional). 3. Identify System Design Needs. E. Develop / Update Cable or Telecommunication Ordinance F. Develop Draft Franchise Agreement, and participate in Franchise Negotiations. `v einicipa joiul.ions iic, 20051 012012005 CABLE TiLEVISION FRANCHISE r.cNE\IVAL I. Assist the City in Developing the Substance of Proposed Franchise Provisions to be Pursued through Negotiations. a. Assist the City in Developing Proposed Franchise Provisions. b. Develop Franchise Monitoring and Enforcement Procedures. c. Recommend Franchise Provisions that Ensure the System Will be Upgraded in the Future. 2. Assist in Development of Negotiation Strategy and Conduct of Negotiations. 3. Provide Advice During Negotiation Process. G. Prepare a Request for Proposal(s) (if necessary). I. Draft and Distribute Request for Proposal(s). 2. Evaluate the Submitted Proposal(s). 3. Prepare Report for City Staff. H. Conduct Administrative Hearings (if necessary). I. Assist City Clerk in ensuring all public hearings and public notice dates are met. Municipal Solutions llc, 2005 1012012005 CABLE 1 LEVISION FRANCHISE tiENEWAL Introduction A cable refranchising or franchise renewal process involves numerous tasks and the coordinated efforts of a team of persons expert in the field of cable, City staff, elected officials, and local residents. The process involves an examination of the past performance of the current cable service provider, an exploration of future community telecommunication needs and interests, and a negotiation process. The outline which follows is intended to serve as a broad overview of what is typically involved in the franchise renewal process. I. Preparing for the Franchise Renewal Process ❑ Develop an Understanding of the Authority of the City and Basic Federal and State Laws that Apply ❑ Understand the Formal and Informal Renewal Process ❑ Develop a Renewal Plan and Timeline ❑ Educate Key City Staff, Elected Officials, and Community Leaders ❑ Understand the Current Regulatory Environment (state statute, impact of and amendments to the 1996 Cable Act, legal decisions [Supreme or Circuit Courts] ❑ Review all related ordinances, resolutions and formal communication to develop a clear understanding of where this request is in the renewal process. II. Ascertainment I: Review of the Cable Operator's Past Performance ❑ Contract Compliance Audit (Performance standards, annual report submittals, other) ❑ Update the Enabling Ordinance ❑ Technical Evaluation of the Cable Plant, Headend / Central Office, and Quality of Past Plant Maintenance ❑ Local Customer Service and Satisfaction Survey (option) ❑ Financial Review (audit to ensure all gross revenue receipts; customer and service level information necessary) ❑ PEG Access Review (channels, use, equipment upgrades?) ❑ Public Hearings (formal or informal process) Municipal Solutions 11c, 2005 1012012005 CABLE TEVISION FRANCHISE k.g:INEWAL III.Ascertainment II: Identifying Future Community Cable Related Needs and Interests El Conduct Focus Group Workshops ❑ Conduct Telephone or Mail Survey El PEG (Public, Educational, And Government) Access Usage and Community Communications Planning ❑ Public Hearing(s) IV.Negotiations: Preparing for and Conducting El Consolidate Information Gathered Into Goals and Priorities for Renewal ❑ Determine Next Step in Renewal Process -- Exploration of Process Options ❑ Prepare the Initial Draft of the New Franchise Agreement, with key terms based on findings, current standards or future needs. ❑ Conduct Formal and Informal Negotiations El Consider Various Strategies ❑ Prepare the RFRP and Evaluate the Proposal(s) (under formal Cable Act process) ❑ Final Franchise Agreement Preparation and Public Hearings Municipal Solutions l/c, 2005 10/20/2005 Cable TV License Agreements: Considering the Community's Interests Municipal Solutions 11c, 1012012005 Cable TV Licenses I Franchises How does the proposed license ("proposal") agreement (provider) address the following issues? I. Application Process: Does the municipality have a formal application process? a. What items are contained in the application? Fees? b. What level of detail does it require? Are those requirements contained in your existing Cable Communications ordinance? 2. Growth and Coverage. Most providers want to serve new areas, but not the existing. a. How will the provider address both new and existing areas of the community? b. Does the provider have experience in a community with your demographic characteristics and growth? c. How will the provider anticipate its needs and the community's for infrastructure construction, operation and maintenance? d. Has the applicant provided coverage maps of the areas to be served? 3. Revenues. Federal law allows communities to receive up to 5% of the provider's gross revenues to use the public right of way and for operating in the community. a. What are the % of Gross revenues proposed? b. Is the proposed definition of gross revenues narrow or broad? Does the definition favor the community or the provider? c. What other residual, tangible or non-tangible benefits does the community receive from this provider? (Information and system access for educational and government entities; broadband services, etc.) d. Does the proposed license and services promote or improve economic development, redevelopment, and quality of life. e. Does this agreement provide the community with alternatives to the standard License Fee? f. Are these alternatives important enough to sacrifice a % of the license fee to gain other services? 4. Bundled Services. Most providers offer a variant of bundled services including VoIP, Cable TV, Telephone, and Internet. a. Does this license (provider) only address Cable TV, or do they provide the means for other services for the community? 5. Technical Capability & Service Record. A demonstrable track record in delivering such services or operating a system is important. a. What is the technology to be implemented (i.e. microwave hop?, etc). b. How is the network to be designed? c. What is the provider's service record in this or other communities? Municipal Solutions, 11c©2004 Cable TV License Agreements: Considering the Community's Interests Municipal Solutions lic, 1012012005 d. Is the provider solid in services, customer service and problem resolution? e. If renewal, how has the provider complied with established performance standards 6. Legal Status. Many companies are parent, sister or related companies to another. a. What is the Legal relationship of this company? Is it a subsidiary? b. If so, what is the structure of the relationship of all companies? 7. Financial Capability. As the community is banking on the provider to carry out the terms for at least 15 years, the provider needs to be successful to do so. a. Is the company in good financial condition? b. If not, are remedies in place? c. Are there any issues in which the community should be concerned about? d. Can the community help to remove restrictive barriers and improve conditions for the success of one or more providers? 8. Bonding, Liability, Warranty. Communities must be protected, but providers must have the ability to assure protection of community property. a. Does the provider meet the minimum required by Ordinance or Code? 9. Emergency Broadcast Capability. Every community should have the ability to interrupt the entire system in the event of various emergency scenarios. a. Does this proposal address local interrupt-ability by municipal officials? b. Is the network capable, as designed or proposed, to do so? c. If so, does the proposal address procedure? 10. Service Obligations. Every provider has a margin of profitability. a. What are the proposed service obligations to local residents? i. What it the distance limit to which the provider is required to provide service a customer? ii. What it the density limit to which the provider is required to provide service an area? iii. Does the provider propose to only service a specific area / development or does the provider offer services broadly in preexisting developed areas? I I. Reporting: Accountability Provisions. Many agreements put the responsibility of accountability audits, including costs, on the community. a. How does the proposal address Audits and Inspections of documents? b. What are the necessary notification timelines and permissible frequency for inspection of documents and records? c. Who is responsible for associated audit costs? Municipal Solutions, lic©2004 Cable TV License Agreements: Considering the Community's Interests Municipal Solutions 1k. 10/20/2005 12. Audit. Each proposal generally contains opportunities for the community to periodically and formally audit the provider. a. Are the costs associated with any such audit to be borne by the community or the provider? b. What is the frequency permitted (suggested) for such community audits? c. Do the audit provisions rest solely on the community or are there shared responsibilities? 13. Monthly / Quarterly Reports. a. Does the agreement require a monthly or quarterly report for regular accounting? Are the community's expectations and required information clearly articulated? b. Does the proposal include an 'up front' accounting? 14. Construction Standards. Does the agreement protect the community byclearly stating or referencing the community's construction standards including penalties for failure to comply? 15. Breach & Remedies. Every legal agreement should contain language which protects the community from a provider's failure to deliver per the terms of the agreement. a. Does the agreement contain fines or fees for non-compliance? Are those fees appropriately applied or excessive? b. Does the community state its objectives and needs clearly? Have they been identified prior to this negotiation? c. Does the proposed agreement include appropriate levels and proof of Insurance, Performance and Surety Bonding and Warranty of work? Are these standards appropriate with Code and professional standards or are they excessive? d. Does the proposal contain provisions for breach? Penalties? e. Is the proposal's language strong enough to permit the community to enforce its terms in a manner suitable to incident (i.e.: signal or service problems, repairs, etc)? 16. Community Information. The Cable Act empowers communities to require local government and educational access to the system for community education and related purposes. a. What is the provider willing to provide to the town? Channels? Equipment? Does this include regular service at no cost? 17. Definitions & Terminology. a. Do the definitions concur with Code? b. Are they appropriate? Too liberal? Too literal? c. Do they appropriately reference the associated Act, Code or Ordinance? Municipal Solutions, lic © 2004 Cable TV License Agreements: Considering the Community's Interests Municipal Solutions 11c, 1012012005 18. Parental Control Devices. a. Does the proposal include them — particular in areas of adult programming? b. Do these controls include audio and video? 19. Co-location and Joint Trench Construction. Does the provider pursue negotiations with individual developers / developments? Does the nature or language of such negotiations and agreements with developers create an exclusive agreement? Does the language in the proposal work to avoid areas of single provider coverage? 20. Purpose Statement Proposal I license should have the intended purposes to be achieved. 21. Table of Contents. Every License should have one. 22. Attachments: As referenced in the license body. a. Are they included? Municipal Solutions, llc C 2004 Information on Federal Efforts to Limit Municipal Authority over Cable Franchise Process RECEIVED VRIARNUMDDER[NG SCHMIDT HOWLETT`l� OE 14 2005 ATTORNEYS AT LAW MOM BRIDGEWATER PLACE•POST OFFICE Box 352 Per_ GRAND RAPIDS,MICHIGAN 49501-0352 TELEPHONE 616/336-6000•FAX 616/336-7000•WWW.VARNUMLAW.COM/CABLE JAMES N.DEBOER,JR. TERESA S.DECKER DAVID E.PRESTON PAMELA EMENHEISER TIMOTHY J.LUNDGREN COUNSEL DONALD L.JOHNSON LAWRENCE P.BURNS JEFFREY W.BESWICK RICHARD A.SAMDAL AARON M.PHELPS TERRANCE R.BACON DANIEL C.MOLHOEK MATTHEW D.ZIMMERMAN ELIZABETH JOY FOSSEL SCOTT D.ALFREE BRETT A.RENDEIRO STEVEN T.BUQUICCHIO TIMOTHY J.CURTIN WILLIAM E.ROHN JOAN SCHLEEF ANNETTE D.NICKEL JEFFREY].CANFIELD JULIA D.DARLOW DIRK HOFFIUS JOHN PATRICK WHITE SCOTT A.HUIZENGA STEPHANIE R.SETTERINGTON ALLISON C.REUTER RANDALL J.GROENDYK WILLIAM A.DORNBOS CHARLES M.DENTON KATHLEEN P.MAINE BRYAN R.WALTERS CHRISTOPHER J.CALDWELL BRUCE R.GRUBB THOMAS J.BARNES JEFFREY D.SMITH JEFFREY J.FRASER DEAN F.REISNER ERIC W.BREDEMEIER ELIZABETH A.JAMIESON RICHARD A.KAY MARK L.COWNS RICHARD D.FRIES PAUL M.MORGAN SCOTT J.HILL KEVIN C.O`MALLEY LARRY J.TITLEY JONATHAN W.ANDERSON JAMES R.STADLER KIMBERLY A.CLARKE KRISTA A.HOEKSTRA RICHARD D.RATHBURN FREDRIC A.SYTSMA CARLOOSTERHOUSE,P.C. RICHARD R.SYMONS CHRISTOPHER M.FOWLER BARBRA EVANS HOMIER JOLENE C.SHELLMAN JOHN W.ALLEN WILLIAM J.LAWRENCE III RONALD G.DEWAARD CHARLES N.ASH,JR. KELLEY E.STOPPELS ELIZABETH WELLS SKAGGS JACK D.SAGE SUSAN M.WYNGAARDEN ANDREW J.KOK MARK E.HILLS COLLEEN K.HEIBECK DONALD SNIDE JEFFREY L.SCHAD KAPLIN S.JONES,P.C. PATRICK A.MILES,JR. JOSHUA M.WALUSH BRION B.DOYLE SUSAN L.VOGEL-VANDERSON JOHN W.PESTLE STEPHEN P.AFENDOULIS ERIC].GUERIN CHRISTOPHER M.BROWN KATHRYN D.SODUER JOHN A.WATERS FRANK G.DUNTEN,P.C. DAVID E.KHOREY STEVEN J.MORREN PETER G.ROTH JEFFREY T.GRAY OF COUNSEL NYAL D.DEEMS MICHAEL G.WOOLDRIDGE KEVIN ABRAHAM RYNBRANDT MARY KAY SHAVER MICHAEL P.KLING EUGENE ALKEMA RICHARD A.HOOKER TIMOTHY J.TORNGA THOMAS G.KYROS,P.C. JUDE W.PEREIRA SETH W.ASHBY PETER ARMSTRONG RANDALL W.KRAKER PERRIN RYNDERS ALFRED L.SCHUBKEGEL,JR. KIMBERLY BABER BRANDON J.STEWART PETER A.SMIT MARK S.ALLARD PAMELA J.TYLER ADAM J.BRODY KRISTA M.TAYLOR BRUCE A.BARNHART MARILYN A.LANKFER TIMOTHY E.EAGLE JON M.BYLSMA KURT M.GRAHAM PAUL J.GREENWALD JOHN C.CARLYLE G.MARK MCALEENAN,]R. DAVID A.RHEM JOSEPH B.LEVAN STEVE S.KLUTING THOMAS G.DEMUNG THOMAS L.LOCKHART JENNIFER J.STOCKER DALE R.RIETBERG CHRISTOPHER J.DUBA JON F.DEWITT BRUCE GOODMAN DONALD P.LAWLESS HARVEY KONING DARREN MALEK ROBERT D.KULLGREN JOSEPH J.VOGAN MICHAEL S.MCELWEE ANTHONY R.COMDEN MATTHEW B.EUGSTER J.TERRY MORAN ERIC J.SCHNEIDEWIND N.STEVENSON JENNETTE III BEVERLY HOIADAY KEVIN R.SCHAAF H.EDWARD PAUL LAWRENCE A.MURPHY PETER J.LIVINGSTON ERIC C.FLEETHAM MELISSA B.PAPKE HILARY F.SNELL KENT].VANA CARL E.VER BEEK JOHN W.PESTLE DIRECT DIAL 616/336-6725 WEB SITE www.varnumlaw.com/cable E-MAIL jwpestle@varnumlaw.com MEMORANDUM TO: Municipalities, Municipal Attorneys FROM: John Pestle, Pat Miles, Tim Lundgren RE: Federal Threat to Cable and Telephone Franchises, Fees, Rights of Way, Zoning DATE: November 29, 2005 There are two major threats in Washington legislation and a rulemaking to cable and telephone franchising, fees, control of the rights of way and requiring cable and broadband service to be provided to ALL residents of a community. Current cable franchises are placed at risk. This memo provides a brief summary of the legislation and rulemaking, and indicates what you can do in response (write Congress, sign up for our email alerts, oppose the rulemaking). Information on the model cable franchises and cellular tower leases and ordinances we provide is attached as well. Threat Background: The threat to cable and telephone franchising, cable and telephone franchise fees, control of the rights of way and the like comes from the phone companies. They find they need to enter the cable business (due to competition, the cable companies are entering the phone business) but DON'T want to get local cable franchises as is required by current law. Instead, they simply want the law changed so that the Federal government will grant them a nationwide cable franchise, or take steps with a similar effect. They have asked Congress to do this in legislation that will aid the rollout of Internet based GRAND HAVEN•GRAND RAPIDS•KALAMAZOO•LANSING•MILWAUKEE•NOVI I DDERING SCHMIDT HOWLETTur ATTORNEYS AT LAW Letters to Congress: Municipalities need to write Congress immediately—a sample letter is attached. Please check our web site for an electronic version we update such letters frequently to reflect changing developments, and to tailor them to specific states, such as Michigan and Texas. Cell Tower Zoning Preemption: Cellular industry publications state that if there is telecommunications legislation this year, the cellular industry will push for restrictions or preemption of local zoning of cellular towers. Municipalities were largely successful in preserving local zoning over cell towers ten years ago, in the 1996 Federal Telecommunications Act. As indicated above, the current draft legislation may allow cellular companies to challenge the need for cellular towers to comply with local zoning regulations. FCC Rulemaking Preempting Franchising: On November 18 the FCC started a rulemaking which places municipalities' cable franchising authority at risk, along with the requirement that ALL residents be served. The rulemaking is to preempt municipal authority regarding cable franchises for phone companies (or others) which want to provide cable service in competition with the incumbent cable company. Among other things, the FCC: • Questions whether it should preempt any requirement that a cable company provide service to ALL the residents of a municipality (or at least those in areas with a certain population density) • Questions the ability of municipalities to tailor cable franchises to meet local needs, as they do now • Opens the way for phone companies to argue that they effectively should not have to get a local cable franchise, such as due to their already having lines in the rights of way and the time it would take to get a franchise in other words that a national cable franchise should be issued by the FCC. The notice of proposed rulemaking is on our website, www.varnumlaw.com/legislation, as is information on how you can affect the rulemaking. A more detailed memo on the rulemaking is attached. Email Alert/Newsletter: Please return the attached form or sign up on our website at www.varnumlaw.com/cable/newsletter to receive our email alert about the legislation, rulemaking or other developments (and our occasional newsletter). The Federal actions are moving so quickly that email is the only effective means of communication. Model Cable Franchises, Cell Tower Leases: For years we have provided municipalities with model cable franchises and model leases for cellular towers (such as an antenna on a water tower or a cellular antenna in a park). An information sheet about the model documents is enclosed. If you have any questions, please call John Pestle,Pat Miles, or Tim Lundgren at (616) 336-6000. 1188549_I.DOC 3 I ARN TiDERING SCHN IDT HOWLETT'• .ATToltritIts AT LAW IMMO BRIDGEWATER PLACE•Posr Oma Box 352 GRAND RAPIDS,MICHIGAN 49501-0352 TELEPHONE 616/336-6000•FAx 616/336-7000•WWW.VARNUMLAW.COM JOHN W.PESTLE DIRECT DIAL 616/336-6725 E-MAIL jwpesde@varnumlaw.com Federal Telecommunications Bill Shifts Cable Franchising to FCC, Removes Requirement to Serve Whole Municipality, Reduces Cable & Phone Company Franchise Fees, Places Current Cable Franchises At Risk Introduction: On November 3, 2005, a draft proposed House Bill on telecommunications was released that is harmful to municipal interests in cable franchising, telecommunications, and control of rights of way. The bill is backed by phone companies wishing to ease their entry into the cable-type business, and in doing so to replace existing cable and telephone regulation with very limited regulation, generally by the Federal Communications Commission("FCC"). The bill is on a fast track for House action, with a Subcommittee hearing scheduled for November 9 and likely to be sent to the full House around Thanksgiving. Immediate action by municipalities (see recommendations below)is needed to stop or correct the bill. Because cable companies contend that they have to be treated in the same manner as phone companies providing video service, municipalities' current cable franchises are at risk. The bill in general would do the following: • Have the FCC, not municipalities, grant franchises to phone companies to provide cable-type service in a municipality • Remove any requirement for phone companies to provide cable service throughout a municipality (or wherever there is adequate population density the companies can pick and choose neighborhoods to serve) • Reduce their cable franchise fees (perhaps around 10%),by excluding advertising and other non-subscriber revenues from franchise fees • Eliminate funding or in-kind support from phone companies for local government, school or public channels shown on the cable system • Restrict or eliminate such channels, institutional networks, and the use by municipalities of cable systems for local emergency alerts • Reduce municipal control of phone companies'use of rights of way • Limit telephone franchise fees or right of way fees (such as per access line fees in Texas, or Metro Act fees in Michigan)to cost reimbursement • Prohibit all regulation (Federal, state and local) of internet-based phone companies which is not expressly allowed by the bill. Action Needed: You need to immediately: • Call and fax your U.S. Representative. Ask them to: o OPPOSE the Broadband bill as unfair to municipalities and the public, and GRAND HAVEN•GRAND RAPIDS•KALAMAZOO•LANSING•MILWAUKEE•NOVI ARN RIDDER1NG SC HI►iIDT HOWLETT';,.. -aTTr?RNE3'S M EININIM Page 2 o Contact Reps Upton and Barton immediately to relay their opposition and concerns • Call and Fax Representatives Upton and Barton • Copies of a sample letter are on our web site, www.varnumlaw.com/cable under the "Federal Legislation" link o Use the letter and this paper for talking points for calls Bill in General: The bill is a draft of a proposed federal telecommunication act (the "Act")that would place under exclusive federal jurisdiction, and nearly exclusive federal control, all telecommunications services, whether phone, video, or internet, which are based on a "broadband internet transmission" (what the bill calls "BIT") platform. It is backed by phone companies to ease their way into the cable-type business, and in doing so would replace all existing cable and telephone regulation Federal, state and local--with very limited regulation, generally by the Federal Communications Commission ("FCC"). For municipalities, this Act would mean a significant shift in franchising responsibility and oversight from the local level to the federal level, because most cable and telecommunications providers are expected to shift to BIT technology. The bill is on a fast track for House action, with a Subcommittee hearing scheduled for November 9 and likely to be sent to the full House around Thanksgiving. Immediate action by municipalities is needed to stop or correct the bill. The bill is 70 pages long. As a result, the following is only a highlight of some of the major deficiencies in the bill. Existing Cable Franchises: It will likely affect existing cable franchises, either directly, because cable companies will attempt to switch to this new regulatory regime and avoid obligations under their existing cable franchises, or indirectly because they will contend based on discrimination-like claims that they have to be treated the same as the new providers. BIT Services: The Act addresses BIT services, which are primarily broadband internet services, voice over internet protocol ("VOIP") phone services, and video services based on internet technology. Local municipalities have little or no ability to regulate internet service providers under the current telecommunications regulation, so this Act, by providing for exclusive federal jurisdiction, would not significantly affect existing municipal franchising authority with regard to the BIT services. Similarly, VOIP services, which are provided over the internet, are not customarily regulated locally in the way that traditional land-line phone services often are. Therefore, it is in the area of video services that this proposed legislation would impact local government most significantly. With regard to video services, the draft House bill only applies to "broadband video service" as defined in the bill. The definition requires a "two-way service" that enables subscribers to integrate the video programming package with "customizable, interactive voice and data features, functions, or capabilities, which may include caller identification, call management, and the ability to access information derived from the Internet." If the video ARNUM RIMMING SCHMIDT HOS IETT MINIM ATXDRNEYs LAW Page 3 provider's service does not meet this definition, the proposed Act would not affect the ability of a local franchising authority ("municipality" or "LFA" in the language of the Act) to regulate it. Thus, traditional cable on the existing platforms would not be directly affected by the proposed Act. However, cable companies are expected to move in the direction of internet-based technologies in the near future, and this would bring them within the coverage area of the proposed Act. Covered video services are referred to in the proposed Act as "broadband video services." Municipal Authority: With regard to municipal authority over broadband video service, the Act does the following: • Preempts FCC, state, and local regulation of rates, charges, terms or conditions for entry into provision of any broadband video service, and provides for exclusive federal jurisdiction over such services except as otherwise noted in the Bill. • Before providing service in a locality, the service provider must register with the FCC. • The provider is considered under the Act to have a franchise once it has registered, given notice to the municipality, and established a designated agent for the franchise area. • The FCC will establish a uniform length for franchises under the Act, and these will be automatically renewed upon expiration unless the Commission revokes the provider's registration. • Existing franchises would not be grandfathered, but, except to the extent noted below, will be superseded by the new franchises under the Act, once the provider has met the above requirements. With regard to franchise fees, the Act would do the following: • Allow the municipality to collect a franchise fee of up to 5% of the provider's gross revenues derived from subscribers for provision of broadband video service in the local area. • However, in contrast to current cable franchises, advertising revenues and other"non- subscriber" revenues are excluded from the revenue base to which the preceding percentage is applied. This will reduce franchise fees by roughly 10% from current levels. The Act requires the FCC to promulgate technical and franchising regulations similar to those for multichannel video programming distributors, and then to review those regulations every four years and eliminate any not necessary due to meaningful economic competition. PEG: The Act would allow the municipality to require capacity for public, educational, and governmental ("PEG") channels, so long as the requirements are comparable to those obligations applied to any cable operator and other broadband video service provider. If the local area does not have any existing PEG capacity by means of a cable operator or broadband video service provider, the FCC shall provide by regulation for designating required PEG ARNUM RIMERING SCHMIDT HOWLETT"' S ATIVfir.t.a's.Al I.AwMN= Page 4 capacity. The production of any programming for PEG channels are the responsibility of the municipality or its designee. The provider would be responsible for transmission of the programming between the primary signal origination point and the subscribers. The proposed Act would eliminate funding or in-kind support from phone companies for PEG channels or shown on the cable system or their facilities. Institutional Networks: The Act would allow a municipality to use designated PEG capacity on an institutional network; however, the municipality may not require a broadband video service provider to construct an institutional network. A cable operator who becomes a broadband video service provider, and whose cable franchise required provision of and support for an institutional network may be required to continue such support as a broadband video service provider. Redlining: The Act provides protection only against discrimination on the basis of income. Other categories of concern, such as race or age, are not covered. The Act would also remove any requirement for phone companies to provide cable service throughout a municipality (or wherever there was adequate population density the companies can pick and choose neighborhoods to serve). Customer Service/Protection: The proposed Act would require the FCC to establish national consumer protection standards for BITS, VOIP, and broadband video services. The Act gives enforcement authority to the state commission rather than to the municipality, and allows it to enforce the federal standards, but does not give it or the municipality the ability to establish stricter standards. The most detailed customer requirements under the proposed Act are reserved for privacy and information restrictions. Local Emergency Alerts: The proposed Act would eliminate the ability of local government to require access to a local emergency alert system for use in notifying residents of local emergencies which are not carried on the federal Emergency Alert System. Many current cable franchises have such requirements. Management of Rights of Way: The proposed Act would set federal requirements for management of the rights of way, including requiring the provider or its subscribers to pay for costs of installation, construction, operation, relocation or removal of facilities in the rights of way. The municipality may enforce the requirements of the Act with regard to rights or way management, and may place "reasonable restrictions" as necessary on the "time, place, and manner"by which the provider constructs, alters, or maintains facilities in the rights of way. Right-of-Way Fees: The proposed Act would limit telephone franchise fees or right of way fees (such as per access line fees in Texas, or Metro Act fees in Michigan) to cost reimbursement. Bonds & Insurance Requirements: A state or local government may require a provider to obtain bonds, security funds, letters of credit, insurance, or indemnification, or to pay penalties or liquidated damages to ensure compliance with the rights of way requirements. ItIDD£RING SCHMIDT HOWLET i' illIMM aTTORNLYS Al LAW Page 5 Government-owned Telecommunications Services: The proposed Act would preempt any state law which prohibited government entities from providing BITS, VOIP, or broadband video services to any person or entity. The Act would require, however, that such a government provider be treated in the same competitively neutral manner as other providers. Enforcement of the Act: Finally, the Act provides that it is to be enforced by the FCC, which shall have the authority, among other tools, to revoke the registration. Questions: Please contact Tim Lundgren, Pat Miles or John Pestle at 616-336-6000 if you have questions. 1182831_I.DOC 12 NATION'S CITIES WEEKLY JANUARY 2, 2006 • r Local oreTelecom ax 1 s « elecommunica- bvAlexander Ponder We cannot allow t _, . dig Two bills introduced late last year to :Ytions companies to up city ,w-,-- pave the way for collecting sales and use tax .;caw- . • streets and disrup t thelives ofour on Internet sales have drawn fear from local government groups because they contain x~E2 constituents and their customers ,:--,-provisions that would severely limit the Ty e _ • - telecom without�ust compensation• ability of local governments to tax j_ ~ munications services. R'K ,, �..,, their actions. Sens.Michael Enzi(R-Wyo.)and Byron `' N.D.)introduced separate legis- �, Dorgan(D- °° - V —NLC President James Hunt, lation, S.2152 and S.2153,respectively,that - would provide Congressional assent to the :i councilmember, Clarksburg, W.Va. Streamlined Sales and Use Tax Agreement (SSUTA). working with Congress and the telecommu- paries to dig up city streets and disrupt the Though the National League of Cities nications industry to simplify telecommuni- lives of our constituents and their cus- andcations taxes so that all providers can oper- tourers without just compensation for other local government partners have local jurisdictions," their actions." longadvocated for federal legislation in ate efficiently within - said NLC President James Hunt, coun- SSUTA is a multi sate agreement support of the agreement,NLC opposes the current bills. cilmember, Clarksburg, 'W.Va.. "However, designed to simplify tax laws. Simplification "Localg overnments strongly support we cannot allow telecommunications com- see page 12,column 1 Telecom Tax Bills, from page 1 measures provide for such components untold administrative dollars, local gov- as the uniform definitions of goods ernments would receive Congressional every collecting jurisdiction would authorization to collect revenue on defineP eanut butter the same for remote sales from sources such as the example as well as other standardiza- Internet and catalogue purchases. This tion measures such as uniform sourcing will recapture for local governments pre- provisions, codifying destination-based viously lost general revenue in fiscally dif- sourcing as the standard, meaning that ficult times. local government taxes are calculated at Revenue loss estimates from Internet the destination of the product as purchases have been calculated in one opposed to the location from which the study done for the National Governors product was purchased. Association to be between $21-33 billion In exchange for these simplification dollars per year by 2008 for state and measures designed to save industry local governments. SSUTA is primarily designed to simpli- has led NLC,along with the Government fy and broaden the base for tax collection Finance Officers Association and the U.S. and it is the policy of NLC that these pro- Conference of Mayors,to oppose the leg- visions should stand alone. islation as introduced. The additional telecommunications NLC and its partner local government language in the Senate bills imposes organizations will continue to work with requirements on local governments Enzi's and Dorgan's staffs and other beyond those agreed to in the multistate Congressional offices on efforts to agreement that would limit the ability of achieve Congressional approval of the local governments to impose and collect Streamlined Sales and Use Tax agree- franchise fees,right-of-way fees and other ment without the telecommunication lan- local telecommunications taxes. guage that would both strip local govern- The inclusion of the telecommunica- ment of taxing authority and control of tinny nrnvisions to the SSUTA lecislation important local resources. VOLUME 29, NUMBER 7 FEBRUARY 13, 2006 Senators Affirm - • _ Local FranchiseNationic, Authority _ • _ r by Christina Fletcher Loftus Senators Conrad Burns (R- Mont.) and Daniel Inouye (D- Hawa ) last week released a state- ment affirming the central role of localities in cable and video franchis - WEEKLY - ing. _ Currently,state and local authori- ties have responsibility for adminis- tering franchising within certain fed- eral limits. ed-erallimits.However,several federal bills introduced in. .2005 would nationalize the franchisingprocess, Franchise Authority, from page 1 removing local authority to manage streets and sidewalks, provide for competition in their communities and public safety, enhance competition , committed to treating all competitors and collect compensation for private fairly." use of public land. The National Association of Counties The statements of Burns and (NACo),the U.S. Conference of Mayors Inouye, both members of the U.S. and the National Association of Senate Committee on Commerce, Telecommunications Officers and Science, and Transportation, recog- Advisors also released statements in nize and reaffirm the role of states support of the senators'release. and localities in the video franchising "These principles reflect many of the process. keyingredients g s w e have been advocating "As you recognize,each commu- during discussions with many members nity is unique,and local elected lead- of Congress and nd their staff," said Bill ers are in the best position to ensure Hansell, president of - NACo and com that each community's needs are missioner from Umatilla County,Ore.,in met," said NLC President James response to the Burns ns and Inouye Hunt, councilmember from release. Clarksburg, W.Va., in a letter to The Senate Committee on Burns and Inouye."We are gratified Commerce, Science, and Transportation that you recognize the limited feder- P will hold a hearing discussing video fran- al role in managing streets and side- chising on February 15. Burns and walks around the country." Inouye stated that the principles out- The senators'statements also rec- lined in their statement should be essen- ognize the need for promoting com- tial for anylegislation that the commit- petition in video services and corn- tee g tee might consider on video franchising petitive neutrality and a level playing reform. field. In other telecommunication develop- "Local government strongly President Bush has chosen endorses promoting competition for ments, all consumers and treatinglike serv- Robert M. McDowell, a Washington, D.C.,telecommunications lawyer,to fill a ices alike,"Hunt stated in the letter. vacancy on the Federal Communications "The elected leaders of our nation's The was created in cities and towns stand with you, Commission. vacanc y ready and willin to welcome video 2005 by the departure of Kathleen Q. g Abernathy. If confirmed,McDowell will see page 8,column 1 be the third Republican commissioner on the five-member commission. International Municipal Lawyers Association Page 1 of 2 Garrahan, Melinda From: IMLA [info©imla.org] Sent: Wednesday, March 22, 2006 2:21 PM To: Garrahan, Melinda Subject: Telecom Legislation Call to Action -•. 11,r,!;,:illAitfrfr.i, S:ry'k�.• x x Y 1 ,13 S..R i r�r{/ � hJ\ wllf' AY \ �? 110 x 2 Y S 3>A t $t r r 3 r * a 'l l f a X40 ' �.woY <. �, i✓S ` LESS THAN A LITTLE BIT" Provisions in a proposed house bill that are favorable to local governments are in jeopardy. We are getting reports that Congressman Barton may be planning to introduce a bill which strips local governments of franchise authority, eliminates all current cable franchises, and does not protect us or our interests. It is imperative that all members and their elected officials call their House Members as soon as possible to express local governments' position. Below you will find three main topics on which to focus on when speaking to Members. In addition, working with our local government partner at the National Association of Counties, we are using the following link to assist you in quickly locating the phone numbers you will need for this call. Please use this link, and please share the information and spread the word! And, don't forget, if your House member is home for the week (Congress is in recess), you should also call their local offices! Thanks and remember — Keep it Local! http://capwiz.com/naco/callalert/index.tt?alertid=8610841 Recognize and Reaffirm the Role of States and Localities in the Video Franchising Process. • The regulation of video services under Title VI relies upon a type of"deliberately structured dualism"where state and local authorities have primary responsibility for administration of the franchising process within certain federal limits. Because each community may be unique, this framework recognizes that the local franchising authority is uniquely positioned to ensure that video providers meet each community's needs and interests in a fair and equitable manner, and are most effective in seeing that provider obligations are enforced. The Federal government has neither the resources nor the expertise to address such issues. • Consistent with existing law, state or local franchise authorities should retain the authority to supervise rights-of-way use and recover the associated costs, to require the payment of a reasonable franchise fee, and to require sufficient outlets for local expression and appropriate institutional network obligations. Promote Competition by Facilitating Speedy Entry on Fair Terms. 3/22/2006 ry, International Municipal Lawyers Association Page 2 of 2 • Video Franchise Reform should promote competition in video services. Obstacles to reform that result in unnecessary procedural delay should be eliminated. If the current process results in unnecessary delay, procedural timetables could be established to ensure a decision by the relevant franchising authority by a date certain. • Nevertheless, the desire for a process facilitating swift entry should not result in a blank check for would-be competitors. Instead, franchising authorities must ensure that similar (though not necessarily identical) responsibilities attend to any would-be franchisee, so that consumers throughout the franchise area can enjoy the benefits of such services on a non-discriminatory basis. Promote Competitive Neutrality and a Level Playing Field. • The regulatory regime should be the same for providers of video services where the operator, and not the consumer, controls the video content offering. Definitional arbitrage on the basis of a particular technology should not be permitted. • The franchising process should be designed to promote fairness for consumers in local communities and to promote a level playing field for providers. If a competitive entrant negotiates better terms and conditions for a franchise, other providers in that community should be entitled to adopt those same terms and conditions. International Municipal Lawyers Association (IMLA) 1110 Vermont Avenue,NW Suite 200 Washington, DC 20005 Phone: (202) 466-5424 Fax:(202) 785-0152 To unsubscribe send email to webmaster@imla.org This E-mail has been scanned by McAfee WebShield. Any infected attachments associated with this E-mail have either been deleted or cleaned. --Town of Oro Valley Information Technology Division 3/22/2006 a i TOWN OF ORO VALLEY 2 COUNCIL COMMUNICATION MEETING DATE MARCH 22, 2006 TO: HONORABLE MAYOR & COUNCIL FROM: Sarah S. More, AICP, Planning and Zoning Administrator SUBJECT: Codification of the Oro Valley Design Guidelines—Study Session Discussion BACKGROUND: The Mayor and Council have requested that this study session discussion be scheduled to review the concept of codifying the designguidelines. The design guidelines were established by ordinance in April 1999 to goals of ensuringa built environment that is aesthetically pleasing and compatible with the natural further the surroundings, maintaining scenic and natural resources, promoting the Town's quality of life and minimizing disturbance to the natural environment. REVIEW OF DESIGN GUIDELINES: The designguidelines are published as an appendix to the Oro Valley Zoning Code and help provide guidance to developers, staff, and review and decision making bodies on proposed developments. The DRB, in particular, is directed to promote harmonious, safe, attractive and compatible development for the Town of Oro Valley. These are broadly stated objectives that are subject to varying perspectives. A copy of the designguidelines is attached. There are six major sections in the guidelines: Site Planning; Architectural Design;; Landscape Design; Signage; Residential and Infill Projects; and Commercial/Office p Projects. There are code sections already in place that address development regulations for each of these elements. And during the process of Zoning Code update for Commercial Uses, some of the design guidelines were codified. Chapter 26, Subdivision and Development Plans, is a good example of design standards that are codified as is Chapter 27, General Development Standards that includes cultural resource preservation, public are, native plant preservation, lighting, landscaping, parking, loading, and grading standards. In addition, each zone has established setbacks and height limits which are design standards. Overlay zones, such as the Oracle Road Scenic Corridor District, add an additional layer of design standards. DEVELOPMENT PLAN REVIEW PROCESS: plan review process in Oro Valley is both comprehensive and thorough. Staff first reviews The development submittals to assure that they are complete and certify that they may proceed through the development review process. Plan submittals must be complete. Once accepted, development plans are carefully analyzed by professional staff to assure compliance with all codes and standards and they are reviewed for conformance with the dgnguidelines. Development The Develo ment Review Board (DRB) then holds a public meeting on the proposed development and has broad latitude to review the development and make recommendations to the Town Council. In addition to consideringall code requirements, the DRB is required to take into consideration all master g plans, and further a large range of subjective criteria, such as harmony and compatibility, as well as the design g p process Public in ut in the is assured in the review process. (DRB Criteria are attached.) TOWN OF ORO VALLEY COUNCIL COMMUNICATION Page 2 DISCUSSION OF CODIFICATION OF DESIGN GUIDELINES: One of theg oals of codification of design guidelines is usually to provide greater certainty in the development process, so that everyone - the community, staff, developer, Town Council - is aware of what the rules are. Another goal is to improve the quality of development in the community. One issue related to codification of design standards is that it is difficult to translate subjective criteria into absolutes and often an attempt to do so does not achieve the objective. Codes are typically minimums, while design guidelines encourage better development than the minimum codified standards. The design guidelines are worded in such a way as to allow for appropriate application based on the property and design under review. Rather than provide an absolute required setback, like that which might be found in a code, the guidelines will suggest that "transitions should be provided between land uses that are not compatible, (by providing) increased setbacks and landscaping between non-residential and residential land uses. One of the key differences in guidelines is the use of the word "should" rather than "shall" and the use of the words "minimize"or"enhance"rather than a specific standard. The Planning and Zoning Commission debated this very matter when considering the Zoning Code amendment for Commercial Uses. They considered adoption of a wide range of design guidelines into the Code at that time. Some of them were incorporated into the code, many of the General Requirements for All Non-Residential Uses, Sec. 25.1.A, include design considerations. But, the Commission did not recommend fully including all of the design guidelines, recognizing that some guidelines are best not codified so that they can be applied in appropriate ways to specific developments and sites. Varying rooflines is one example of a guideline that may appear easy to codify, but in practical application a set distance for a required variation in a roofline would have to be established and it would have no relationship to the architecture of the building, perhaps resulting in an unsuitable design. As referred to above, there are several elements of the guidelines that have been codified. One good example of a codified guideline is the Courtyard and Pedestrian Mall requirement for Nonresidential Districts, Sec. 23.8.A.3. This section establishes a rule — provide a landscaped courtyard or mall, with public art, that is a minimum of 2% of the net site area. The key to this provision working well is that an alternate design solution may be approved by the Town Council. This provides a "relief valve" from the code if the uniform application pp of the rule is not desired in a particular case. The value of this is that variances from code standards are rightfully difficult to get, zoning is enabled out of health, safety and welfare provisions and early zoning codes g y did not relate to aesthetics. In effect, the DRB and Town Council are able to consider such design modifications in a public process that is focused on specific goals, objectives and criteria. STAFF RECOMMENDATION: Staff recommends that the Mayor and Council consider leaving the design guidelines and design review process in their established form. TOWN OF ORO VALLEY COUNCIL COMMUNICATION Page 3 .<, r ' ,.,i,--16211/\_ Planning and Zoning Administrator , -) ,77,,- \\,),, Community Development Director d ) ' � s Assistant Town Mana:er / tAd ,4 Town Manager ATTACHMENTS: Town of Oro Valley Design Guidelines DRB Review Criteria F:\SSM/Design Guidelines TC 032206 ATTACHMENT#1 ADDENDUM A: - DESIGN GUIDELINES A. Purpose Design guidelines seek to implement the adopted planning goals of the community with regard to community design, public safety, health and welfare. The purpose is: To ensure that the built environment is aesthetically pleasing and compatible with the natural surroundings. To maintain the value of the Town's scenic and natural resources. To promote the Town's quality of life. To minimize disturbance to the natural environment. B. Design Review & Approval Procedures The Development Review Board (DRB) is directed to promote harmonious, safe, attractive and compatible development for the Town of Oro Valley. Its role is to review development proposals to ensure a quality of life for the residents of Oro Valley. Section 22.5 of Oro Valley Zoning Code Revised specifies the role of the Development Review Board in reviewing subdivision plats, development plans, architectural design, landscape plans, signs, and other matters as provided by the Zoning Ordinance. The Development Review Board will use these guidelines in evaluating the project submittals. Guidelines are not intended as strict rules. Rather, they are intended to describe conditions to be achieved. Guiding principles have been established for Site Planning, Architectural Design, Landscape Design and Signage in Sections A, B, C, and D. The principles defined in these sections apply to all types of projects subject to design review. Sections E and F contain guidelines that are specific to the type of project. Guidelines in Section E apply to Residential and Infill Projects and the guidelines Section F apply to Commercial/Office Projects. Guidelines are not intended as strict rules, they are intended to describe conditions to be achieved. C. Design Guidelines 1. Site Planning Intent: Individual projects should relate to the overall context of Oro Valley by incorporating natural terrain and features and promoting pedestrian usability. a. De-emphasize visual impacts of grading. i. Use "land form" grading that reflects and blends with natural grades, contours and existing site conditions. (Figure 1) ii. Locate and design buildings in a manner that is harmonious with the natural contours of the land. (Figure 2) iii. Design driveways and roads that complement the natural contours. iv. Minimize impacts of cut and fill slopes by meeting the following conditions: (a) All disturbed areas should be re-vegetated with natural rock and plant material. (b) Tops and toes of slopes should be rounded to blend with the natural grades. (c) Retaining walls may be used to reduce excessive amount of slope vegetation. area and/or preserve existing p v. Encourage retaining walls that meet the following conditions: (a) Color and texture should be consistent with associated architecture and/or character of surrounding natural areas. (b) Utilize multiple walls (terracing) with 5' wide minimum planting areas between terraces. (Figure )Fi ure 3 b. Natural features (drainage corridors, vegetation, habitat, etc.) should be preserved. (Figure 4) Design projects to preserve washes and substantial vegetation stands. ii. Incorporate natural features as open space during master planning. iii. Maintain integrity of hillsides and ridgelines. (Figure 5) c. Vistas of surrounding natural terrain should be preserved. Plot vistas during master planning to identify significant visual resources. ii. Consider vistas when designing sites and locating buildings. (Figure 6) d. Open spaces should be designed to be meaningful and useable. Provide pedestrian trails within new communities. ii. Connect with the town's overall trails and parks. iii. Distribute usable open space to encourage pedestrian access. vi. Location and design of open space should take advantage of views, existing vegetation and land compatibility. e. Transitions should be provided between land uses that are not compatible. Provide increased setbacks and landscaping between non-residential and residential land uses. (Figure 7) ii. Design buildings so that orientation and height are sensitive to adjacent land uses. 2 iii. Site design should also be sensitive to adjacent land uses. Where possible avoid traditional back-to-back relationship of uses. Design uses for positive interaction. Figure 1 Land Form Grading Discouraged _ 41211707111ailar IrAralln�._-inal ------- harsh transition Encouraged 5 2 �HorairAWr 3 417/1010,� vary slope ratios ' 4- smooth transition Figure 2 Natural Land Form Discouraged g \ \iv , \ie 4 , Pe Encouraged to buildridgeinglinconfore ms 3 Figure 3 Retaining Walls 161 er-4411,4.. :67,16 prig . extensive retaining wall -�1 •• 711};- ` existing slope over 5% Discouraged 1II1J ..,.... ....a.i 0 -lzuG 1111='"►=yi1.1--�I1ll='Il li1�I 11 l= ►l!,,.,.,• .11114. Ai 9j • :�`� terracing withr ' 111 w_ ,gillia44 plantings 0 rz;iirt,,..;;;;..‘:\....... lik. i 4 - ' ---firil, ‘i, ;4. Encouraged :_..� e+dra!"t. .:�I r ► itio,„4-. y • I. . III-'-i •;11,.„..,..444t., ITi Figure 4 Drainage Corridors • ',I • • • tii_•:1".1-_-,< • ,,... • , •,-• S s, .. Oeth '---. ---- - t, 4114'ite I., ....,...,„„atb;_-.....--ii, . 1---,!r. • r-•it,�/�. T / . "T. A I let*Air , - ----,., ri;:d.,, w-- , .7:. .. ..‘ 71.4, .. ./ `‘11 11 - . . .......-- • • -'''‘%if . c 1.1/ •••••,—...., 40 .... Discouraged Encouraged 4 Figure 5 Maintain Integrity of HillsiderL Discouraged 1441k Encouraged •ArriN471ar' _amt. Figure 6 Consideration of Vistas in Design and Placement of Buildings Section vista t limit height Plan I .. view corridor vista • view corridor 5 Figure 7 Open Space and Landscape Plantings Separates Different Land Uses cer') MM. . •' ...��;.r :-Et 'kJ 4.it-V.;I . Residential _ Plant Commercial Area Buffer Area 2. Architectural Design Intent: The intent is to create design excellence based upon a common set of design principles which include consideration of the climate and historic context and design that is sensitive to human scale and the natural setting of Oro Valley. a. Architectural design should consider the climate and energy conservation. Design solutions include: Provide shade for exterior walls. ii. Use roof overhangs, exterior shading devices or inset windows. iii. Design outdoor spaces so they are protected. iv. Use materials and colors that minimize heat absorption without reflecting. b. Design should consider the historic context. The history is closely related to the climate; therefore, southwest themes are consistent with the character of the area, but are not intended to limit the architectural vocabulary (Figure 8). Historic styles include: Southwest Traditional: One and two story structures with pitched roofs, including hip or gable roofs with less steep portions over porches or loggias; smooth textured stucco; standing seam metal roof; doors and windows flush with the wall surface and wood trim. Territorial: One and two story structures with flat roofs of varying heights; parapet coping (typically brickwork or masonry); portals and loggias; smooth finish stucco or brick or masonry; delicate wood mouldings or accents; doors and windows flush with the wall surface; divided pane windows and wood trim defining major openings. Pueblo: One and two story structures with softly rounded corners; flat roofs with parapets and canales to drain; exposed viga beam ends; deep set windows and doors; simple courtyard walls; walkway texture and feature entry gates. 6 Spanish Colonial: One and two story structures; roofs with 4 or 5 in 12 pitches; courtyards and patios; wainscoting; smooth finish stucco, clay barrel tiles; timber framed accents; limited use of arches and deep set doors and windows. 7 Figure 8 Historic Context r--7-ir �`�l oh-,. N �� ,r{t A.. I. T w i", ."(t'I'' 'lli!,'r 7:14 ra'''?-e. .1, ....—.—�y� 1 r 7TiVl7pllAil�/1�Ti.'.(��J, .'w'• ',Z• •; ..�` tom_ .- ;,--- -• -•- — .y_2y-..,y .. Territorial t W- -..',. *44'.., --;;4:. -:,.„#..g(""; --• , ...;.;,-0,, 4J- � 111 . _ 7wli • i�[w-s ..r ,"- ri_ j� , .,.., ,,'". „ ` =- _ _ Southwest Traditional MI i 111 • I 111"1� L;y t.i1 'fir u�igtV ii ,�F tr' ,' �. ...,—,Ati' .. - ,.44,?..„1,• , •• .7.1 is a:!:: ..�C,:f,;--,...,..1_,-___?...11'.Ix -Aizigf-iiii ..,.‘.$:rt::.. .4..c i+1�Y1= ME"; __ �;s w'��. '. . Spanish Colonial • ,,`"11. 1-- 4-/.. 4i : — AN ��:';iy`+r;v�'� .•i.'"-f.:. -,-,.' ,, , --:-.---'.. .,-;r4Cel ---.', .,�,. : - "' Pueblo �� ,,,_..,_411.W__ �_,.r •.9.-, .+.; '—r .fir • _•4' t.' rn While a single style or combination of the above styles is not required, the use of or a contemporary interpretation of historic styles is strongly encouraged. Design elements should be considered along with the following design principles. 8 c. The scale of Oro Valley is low profile and oriented to human scale. This can be maintained by: Design buildings at the ground or pedestrian level that express human scale. This can be done by using the appropriate sizing of openings, level of detail, articulation and use of textures. ii. Design buildings to be compatible with appropriately scaled surrounding or adjacent structures. iii Compatibility with the natural environment is encouraged. Building should not dominate the land, but conform to the natural landscape. iv. integrate building design with the design of street, hardscape and landscape elements, so that the building and grounds present a natural, integrated appearance. d. Reduce the apparent size and mass of larger buildings. Break up mass of large buildings by dividing into basic geometric components (one story at pedestrian entrances), with intersecting wall planes. (Figure 9) ii. Emphasize the horizontal, but break up long continuous building surfaces with off-sets or contrasting forms. iii. Vary roof line silhouettes. (Figure 10) iv. Encourage wall mass over glass area. (Figure 11) v. Utilize pedestrian scale features at the ground level, such as planters, benches and textures. (Figure 12) e. Project design should consider and integrate all elements. Design buildings with consideration given to all sides of a building. ii. Coordinate accessory structures (structures other than the primary building/s, such as, screen walls, gas station canopies, signage structures) so that they reflect the character of the primary buildings in terms of scale, materials, colors and style. The color of carports should be coordinated with primary structures. iii. Coordinate similar project types on adjoining parcels, e.g. commercial at an intersection. Coordinated means that certain design elements, such as site walls, open space, colors or landscape elements can be similar. Compatibility and visual coherence is desired, not necessarily sameness. iv. Rooftop mechanical equipment, vents and ducts should be screened or installed in a manner that prevents obstruction or distraction of other views. Screening should be consistent with building design. Low reflectivity materials are preferred. (Figure 13) f. Substantial earth-tone materials should be used. 9 i. Use exterior materials such as stucco, brick, adobe, natural stone, textured concrete or textured and split face concrete masonry units. ii. Discourage undesirable materials such as pre-fabricated metal wall panels and smooth-faced concrete. g. Variations in roof lines should be used to add interest and to reduce the scale of larger buildings. Roofs should consist of one or a combination of the following: i. Low sloping roofs ii. Parapets to conceal flat roofs and roof-top equipment. iii. Overhanging eaves. Figure 9 Buildings Based Upon Combinations of Basic Geometric Forms • ,_ 4i • , 4 ,10 a ,401 ‘ r•>_.dio ' / �1 10 Figure 10 Vary Rooflines (Nei\ Jo. 111111111111111 • f v.� Jy Figure 11 Wall Mass Should Predominate, Not Glass') • I- HEIM .- Discouraged • NI*MOW Encouraged 11 Figure 12 Ground Level Pedestrian Scale awning/overhang n '�... , 'Las /9Cik Citt440141,1" . t 1111.1111111111111111110.111111 .•. • leap :11111111L .4041:' 11111 ..4'.� �,„ ! 1(" seating t a 1. 1 i:, _._..i....„,,_7 to.- : ...,sr--7 ii ,. :: _ ___ .7.... j I •..- Z., . t ,alPIP .... ......7a_ ''*. Al111111111111 . . details and c . t , building textures . r courtyard t, . , ti Figure 13 Screen Roof Top Mechanical Equipment screen view from above 7:1 i.♦:4:4i ;� 12 3. Landscape Design Intent: The primary intent of the landscape portion of the Oro Valley Design Guidelines is the preservation, re-vegetation and enhancement of the naturally occurring landscape for new or redeveloped landscape improvements. The design should encourage a sense of place and landscaping should be well-adapted to the site. In doing so, scenic qualities should remain, local and regional character should be revealed, impacts from the built environment should be mitigated, and the efficient use of site should be improved. a. Existing landscaping and habitat should be preserved where possible. vii. Preserve significant/salvageable native plant material. ii. Encourage clustering of buildings to preserve sensitive areas (landscaping and habitat) and maximize open space. (Figure 14) iii. Design open spaces that include washes to preserve habitat, landscape and natural flows. iv. Identify specimen* plants and incorporate into landscape plans. Figure 14 Preserve Existing Vegetation With New Development 71\ Existing Vegetation • � X1 .( Undeveloped Site Developed Site *"Specimen" should mean a plant which is relatively free of disease and physical deformations and is representative of the form and character of the species. b. Landscaping should be provided to enhance visual character and provide amenities for pedestrians. Consider landscaping as an integral element of the project when site planning. 13 ii. Provide landscaping to highlight the built environment. iii. Use landscaping to help define pedestrian circulation. iv. Announce building entrances with landscaping. v. Provide accent landscaping and hardscaping at strategic key intersections and at major residential entries. vi. Place plant materials on a site to maximize shade for pedestrians. vii. Provide landscape perimeter treatments that transition between urban and open/rural space to reduce harsh edges. viii. Intensify visual qualities by using a variety of plants with different color, form and texture. ix. Visual access for public safety should be provided. x. Plant trees to provide shade for pedestrians, automobiles and western facing structural elements. xi. Screen parking areas. (Figure 15) xii. Screen undesirable views with plant materials and berms. xiii. Create a sense of enclosure in seating and gathering areas, such as plazas and courtyards by using landscaping. xiv. Provide plantings to accent and enhance aesthetic appeal as well as to add local character to a site. c. Landscaping should be limited to native and desert plants. Design of landscaping should enhance local character, minimize water usage, and provide amenities for pedestrians. Plant materials such as grass and palms are discouraged. ii. Use of indigenous plant materials is encouraged. iii. Plants having similar water use should be grouped together in district hydrozones. iv. Plants should be selected appropriately based upon their adaptability to the climatic, geological and topographical conditions of the site. 14 Figure 15 Parking Areas -:;-t-Zy.,= :. /772., .-g-t'Kg'',, ,--., 4. "\-, '.. --,''' ;_,<.'‘.-. ';:if _.1„:1 . - ---7.: ----,,, \ - _- ----,:, 3'-0"high parking screen wall / .„—....„ ._d___Ti C,iiik flA____,S-T---tcr street landscape buffer parking .7.: ,';‘, . (,r;-%">, �.rrF-4. s V� � �,-� '�-`1fi-4 �-- � -' minimum 3'-0"high berm � 4:1 slope maximum r a_ri _i 1`. street landscape buffer parking - --.. r?;'/"--2 y .�. , I. -IZ P::-4\ ,-__!---r,_ 3'-0"high vegetative screen _ _ at end of first year i' .1.4 ii street landscape buffer parking d. Existing archaeological and historic sites and structures should be preserved and maintained. i. Incorporate historic elements into design schemes. e. Drainage swales should be treated as a landscape element and integrated into the overall site and planting designs. i. Use local rock and indigenous planting materials within drainage swales. ii. Design swales to appear as natural land forms by varying widths and flowing with the natural contours when possible. f. Detention areas should appear natural looking by using the following design standards: i. Blend detention areas with existing landforms by using freeform designs. (Figure 16) ii. Construct spillways with local rock and natural materials. iii. Create interest by using local rocks and boulders in varying sizes. iv. Design slopes that are gentle and rounded, not abrupt. 15 v. Use indigenous riparian planting materials. Figure 16 Detention Areas Discouraged 1 I I ON I IS rall 44. 1 I 1 I WV* Encouraged a B1 IR. vi. Integrate retention areas into the Open Space plan whenever possible and/or utilize as a wetland habitat. vii. Consider signage, safety and accessibility to detention areas to accommodate public use. viii. Integrate detention into water harvesting feature when possible. ix. Rainwater collection may be an ancillary use of on-site retention. g. To minimize water consumption, Hydrazone irrigation is recommended. Use drip irrigation to maintain trees, shrubs, accents, and native grasses. ii. Use bubblers or drip irrigation to maintain annuals and groundcovers. iii. Maintain turf using spray irrigation. 16 g iv. Irrigation is not required on undisturbed native vegetation. v. Irrigation may be cut off gradually after establishment of native plant materials. vi. Install alternative irrigation systems for larger turf areas. 9 vii. Use of turf is discouraged, except as needed for active play and recreation areas. viii. For longevity, the use of PVC drip irrigation lines is encouraged in stead of the more ore commonlyused polytube to reduce clogging of emitters due to root intrusion or damage by rodents. (a) Installation of master valves, flow sensors and automatic shutoffs is encouraged to minimize water loss due to main line breaks or leaks. g h. Site lighting (size, height and location) should be appropriate for the use and site conditions. (Figure 17) 17 Figure 17 Lighting Fixtures No Direct Light Above HorizontalLe_.z_ �f t -- N � N n1 :t • Pedestrian Areas Parking Lots 4. Signage Intent: To provide an effective form of communication while preserving the scenic beauty of the desert environment. Ensure that the signage is clear, compatible with the character of the architecture and adjacent neighborhoods and provide the essential identity of, direction to, facilities in the Community. Designs of signage should consider the following: a. Municipal Entry points to the Town of Oro Valley (entry monuments with landscaped features). ii. Traffic control program (stop signs, street name signs, etc.). b. Residential Wayfinding system within communities. ii. Entry points to communities. c. Commercial Integration of signage with corresponding architecture. ii. Comprehensive Sign Programs and/or Sign Criteria. iii. Presentation of signs for the Development, including landscaping, topography, uses and overall design. 18 d. Signage should be integrated into the design of a building. Designing a sign package with the intent and purpose of relating the signs to the architecture and overall design of the property, along with the surrounding neighborhoods. ii. That each sign is related to all other signs maintained on the site by the incorporation of similar or identical elements, such as materials, sign copy, letter styles, color, illumination, method of attachment and overall presentation. iii. Promote the effectiveness of signs by utilizing materials that appear natural to the surroundings, colors that correspond with the buildings, ensure that the size, number and location is aesthetically pleasing and compatible as it relates to other signs and the surrounding neighborhoods. e. Signage should help to enhance the potential economic value and encourage quality development within the community, as well as, promote and aid tourist industry, which is an important part of the economy of the Town. It should also help to safeguard and preserve the unique character of the Town in creating an attractive and appealing community environment in which to live,work and visit. 5. Residential and Infill Projects a. Street character should be diverse in residential areas. Diverse is defined as providing safety, interest and variety while maintaining a harmonious context. Vary individual street character through the use of street trees or landscape themes, setbacks, or architectural treatment. (a) Provide additional setbacks for buildings larger than 1-story. (b) Vary lot widths. ii. Limit the length of straight streets in developments with small lots. Create an overall design that incorporates focal points. (Figure 20) iii. A variety of garage placements is encouraged. b. The residential roadway network should be appropriate for a residential neighborhood. Flexibility should be built into the standards to allow narrower street widths, where appropriate, such as local residential streets. Street width should reflect adjacent land use. ii. Provide a bikeway that ties into a community wide bikeway network. iii. Encourage local streets that are non-circuitous. iv. Wayfinding with directional signage, theme areas, and visual coherence should be provided. v. Limited detention may be located adjacent to major roadways. Creative design is required (no bathtub type basins). 19 vi. Encourage connections between neighborhoods. c. Diversity in the design of homes and neighborhoods is encouraged for residential subdivisions and planned communities. Create a design theme identified by materials, colors, roof types, etc. for larger projects/neighbohoods. ii. De-emphasize garages on street frontages. (Figure 21) Techniques for varying garage treatments include: (a) The garage should consist of not more that 50% of the total building frontage. (b) At least 50% of garage doors should be flush with or recessed from the front of the house. (c) Garages may project no more than five (5) feet in front of a house (unless side-entry) and must have an entry feature or porch to moderate the visual impact of the garage. (d) Garages for three cars should have the third portion offset from the other two. (e) Side entry garages should have articulation (e.g. windows) on the side facing the street. (f) Recess garages from living areas. (g) Placement of garage at rear of lot. (h) Type of garage door(door with windows,vary styles). iii. Vary the street appearance by providing different roof lines and shapes. There should be no visible rooftop mechanical equipment. Solar panels must be integrated into the design of the building and conform to roof slope. 20 Figure 20 Residential Streets Discouraged avoid excessively long straight strai ht local streets. Encouraged provide both curvilinear and shorter streets or Encouraged ----....<%:..z,. -:::- ---- 21 Figure 21 Garage Treatments Varying roof lines I I I I I I I I I I I I I I I I ' ad ter® j i I --tom I /—® 1 j I Narrow separation between driveways maximizes front yard area. iv. Provide multiple floor plans and at least two elevations for each plan. Elevations should vary in use of accent materials or accent colors. At least two color schemes should be provided for building and roof colors. v. Encourage the use of porches. vi. Articulate windows (pop-outs, recessed and/or accented sills or lintels) on elevations visible from a street or pathway. This is optional on other elevations. vii. Vary second story treatments: (a) The second story should have less area than the first so as to provide some setbacks from the first to the second story in order to reduce building mass. (b) Second story setbacks and articulation are required for corner lots and for lots with exposure to arterial and collector streets. d. Building projects that are proposed within an existing context of buildings will be compatible with the existing structures, where a consistent context exists. This does not apply when there is an intended change of character due to redevelopment or rehabilitation. Compatibility will consider the following: Roof Shape: The intent is not that all roof shapes will be the same, but if there is a predominant shape existing, then the new building should have a similar shape. This also applies to type and pitch. 22 ii. Proportion and Scale: Proportion deals with the relationship of the hP1ght to the width and the relationship of each part to the whole. Scale is the relation of each building to other buildings in the area. Proportion and scale will be considered in the evaluation of compatibility. iii. Rhythm of Openings: The number, size and spacing of windows and doors in a façade should be similar to other buildings in the area. iv. Massing: Massing deals with volume created by sections of a building. The massing of existing buildings should be respected. v. Materials, colors and detailing: Sameness is not required, but similarity should be considered in determining compatibility. e. Open Space should be used to enhance and organize the community. Place open space elements to be visible from roadways within residential areas. ii. Encourage clustering of structures as a means of preserving open space. (Figure 22) iii. Locate open space adjacent to collectors to serve as a "focal point" for community. (Figure 23) iv. Provide open space at project entries. v. Encourage pedestrian/bicycle circulation that connects neighborhoods with schools and commercial centers. vi. Design major planned communit1eC to address a wide variety of activities for all ages, active and passive, i.e. Walking, sport, neighborhood events, etc. f. Walls should be used as an element in the community to provide project identity, security, and noise attenuation. Establish a "theme" for subdivisions/communities that includes wall design. Methods to define walls include: ii. Use colors and materials that blend with the surrounding elements. iii. Comprehensively design walls and fences within a project using materials and colors coordinated with architectural and signage elements. iv. Combine with other design elements. 23 Figure 22 Cluster Design Increases Potential to Preserve Open Space r- ' "- �� ' `\ Q tp, 4 Q \ -N -.1) ,1 Open Space ,j I: ji `, Q I, ___,_ .., ..o it ,------,-- ------,,. _,-/ Figure 23 Open Space in Residential Projects • • Open space as a focal point i _ (\i'l!ill7"frjo \ALY •i /entry road ` ---- , ' ' open space corridor view qm-: \park open space ..e. ...... 6 -, Open space for visual relief and •III, variety along roadways. coal .: • .aL"... ..a.„ 24 vi. Avoid the severe appearance of long, solid walls (more than 40 feet) by using at least two of the following techniques: (Figure 24) (a) Decorative features: caps, patterns, and variation in textures or materials. (b) Use of swales, berms and landscaping. (c) Undulations or offset areas. (d) Vary setbacks. vi. Encourage alternatives to solid walls including berms, dense landscaping, view walls (walls with wrought iron or a combination of wrought iron and solid wall) and decorative fencing. 6. Commercial/Office Projects a. Non-residential areas should have coordinated streetscapes. Provide consistent setbacks for structures. (a) Require "context plan" to show relationship of proposed building to existing buildings on neighboring sites. (b) Limit building mass along street frontages and sensitive edges. ii. Encourage parking setbacks that provide consistently landscaped areas. iii. Encourage locating a portion of the parking to sides and/or rear of buildings. iv. Encourage plans that cluster the buildings. b. Mechanical equipment should be screened from public view. Encourage ground mounted mechanical equipment. (Figure 26) ii. Use landscaping, walls, undergrounding and rear placements to screen equipment. c. Loading and service areas should be screened from public view. (Figure 27) i. Design loading and service so entire operation is on-site. No loading vehicles may extend beyond site boundaries. ii. Screen loading and service areas from the street and design as an integral part of the building architecture. iii. Screen all outdoor refuse areas. No refuse areas permitted between a building and the street. d. In commercial developments, parking areas should be de-emphasized. Provide screened walls, berms or landscaping between parking areas and streets. 25 ii. Design a site so that parking is located internally within a site. iii. Provide plant materials that are vertical (trees and shrubs)to help screen vehicles. iv. Locate parking at the rear of a building for corner locations. v. Maintain sight triangles within parking areas. vi. On larger projects, the parking should be separated into multiple areas. vii. Encourage appropriate spacing for shopping cart bays. e. Drive-throughs should not be the dominant feature viewed from adjacent roadways. i. Use landscaping, screen walls or berms to screen from adjacent roadways. ii. Design buildings and canopies so that drive-throughs are a harmonious element of a building. iii. Discourage drive-throughs adjacent to the roadway. Figure 24 Preferred Wall Treatments Undulating Wall rirr‘S7,.. ..P4/ ) / ts i.,. .frk.'"r L, .?-1/4 ikitit . •• Offset j , ' 1 ; ` - �• -• H !1 .it .- • •.. •.- . ...100 ,. % . • offset allows for plantings AL j wall follows terrain ,..2::\T.,-.., . ir...12.1.P 74....(--ft.' ,• • .. `'•=snratrti. o 41'64—71 • . *: • *,A‘.,.:„.4. ►ter~ �• .,-_ ..._:, r ��_ FAL _:±_-...... - Stepping with Slope Varied Heights 26 Fet4E2g 5 Scree§ filiWaPEfent Plan setback upper level utility cabinet -roof terraces -patio alii c>"''' S_ (L ' yr 1111l141t 141 1114111144444•'••", ,:1 . • • /4. o 0- ; r ci-v- . , tea . . eA6,51 . r/ 5 I r,k4.: a • - 1 cc • . 2nd i loos. or to,...• — - ..x.1..„_„ ,. . 1,• um /. .0.0kgekk. v . , of 4 -," '4." . : 1/411-111trAf(6.10 1 I. .. .. —40: :.(' • i • °- -. '0 ao, ___ ... o d 1 at . 1,1 ileveg plante. - I - r Elevation ...n \ , 1/ ,i/ - .1,11P, ti.1, 4 --, ' ... \%, i,--1' ilii.c:ill.4, .../tr., ..,_._ ,,, - - .....--.0.... ..„.... . .,.. , i - 'Am. ... ' • 27 Figure 27 Loading and Service Screens . r •• service area -= building 1 0.!7(r 10[�"�0Y(0)- Color and texture to compliment primary Section building. Plan _ • - �" I /`` refuse enclosure O� - . - v , ('3) 0, y o \refuse enclosure • landscape landscape buffer buffer /" f. Pedestrian and vehicular circulation should be designed to complement each other as well as adjacent buildings. i. Establish a circulation and pedestrian master plan for large commercial, employment and industrial sites. ii. Design all parking areas to allow safe and attractive pedestrian circulation. iii. Provide clearly delineated crosswalks. Use of differing colors and textures is encouraged. iv. Establish a hierarchy of primary and secondary drives to provide safe and efficient circulation throughout the site. g. Commercial developments should have amenities geared towards the pedestrian. Design multiple building projects with courtyards created by building placement, or otherwise define usable outdoor spaces ii. Encourage the following in courtyards: (a) Sculptures or fountains as focal points (b) Choice of sunny and shaded seating areas (c) Multiple points of access (d) Variety of colors and textures (e) Visibility from street or open areas 28 iii. Provide covered arcades in areas of high pedestrian activity (shopping areas, public facilities). iv. Plan for pedestrian connections at corners, public rights-of-ways and adjacent land uses via trails and/or sidewalks. v. Provide pedestrian connections to trail networks, parks and public amenities. vi. Provide shade trees. vii. Encourage seating, overhead structures, fountains, etc. viii. Integrate hardscape components of a site plan. ix. Design security features and lighting into a project. h. The visual impact of large scale commercial buildings ("big box") and commercial complexes should be moderated to reduce the apparent scale and mass of such projects. Articulate facades (exterior walls) to reduce scale and mass and provide visual interest. (Figure 28) This is to be accomplished by: (a) Ground level facades that face public streets and/or primary parking areas should have one-story pedestrian scale features for at least 2/3 of the horizontal length of the side of a building. Features may include windows, entry areas, arcades and/or overhangs (awnings, trellis, etc.) (b) Facades greater than 100-feet in horizontal length should be broken by recesses or off-sets. Alternatively, the horizontal length may be broken by vertical elements. Off-sets or vertical elements should be of sufficient size to effectively mitigate the visual impact of the horizontal line and mass. Vary roof lines to reduce the visual impact of building mass. iii. Add variety and interest of a human scale by using color or textures. iv. Increase textures at the pedestrian level. 29 Figure 28 Commercial Facades recess or off-set every 100-feet windows awnings or trellis,\ entryareas . arcades • hi Mil ij Techniques to reduce the apparent size and scale of large buildings v. Coordinate the design of retail complexes that involve multiple buildings to achieve visual compatibility. The relationships of buildings should be considered to create open spaces and pedestrian continuity. Drive- throughs and service areas should be oriented to face away or be adequately screened from public streets. The scale and massing of multiple story office buildings should be broken up to retain visual interest. Clearly articulate building entries. Entries should be clearly articulated and a pedestrian scale maintained by the use of low level detail, textures, covered or recessed areas. ii. Use a combination of geometric forms for building design, not just a single block. Expanses of glass, especially curtain wall, and unfinished surfaces are not desired. Window area should not dominate the surface area, except as may be desired on the ground level, Facades should be broken up by recesses, off-sets or other articulation. Varying roof lines or heights are encouraged. iii. Design parking structures to be similar in scale, materials, colors and articulation as primary structures. 30 ATTACHMENT#2 CHAPTER 22: REVIEW AND APPROVAL PROCEDURES Section 22.6 Development Review review process. Minor/common sense changes or alterations include those that: a. Are reasonably similar to the approved plan; b. Are not already completed c. Benefit the town or the environment d. Are not controversial e. Are consistent with similarly situated property f. Do not effect mass or streetscape g. Do not affect pre-approved plats; and h. Are approved by the neighborhood association, if necessary. B. Criteria In considering any application for development review, the Development - - —- - - — - —- -Review Board-shall be-guided by the following criteria: - -— --- - --- - -— - — -- - ---- — - — ---- -- 1. The Development Review Board shall examine the application to insure that all provisions of this Code and all other Codes, master plans, general plans and standards of the Town shall be complied with where applicable. 2. The proposed development shall not have a detrimental effect upon the general health, welfare, safety and convenience of persons residing or working in the neighborhood, nor shall it be detrimental or injurious to the neighborhood. 3. The proposed development shall promote a desirable relationship of structures to one another, to open spaces and topography both on the site and in the surrounding neighborhood. 4. The height, area, setbacks and overall mass as well as parts of any structure (buildings, walls, signs, lighting, etc.) and landscaping shall be appropriate to the development, the neighborhood and the community. 5. Signs, ingress, egress, internal traffic circulation, off-street parking facilities, loading and service areas and pedestrian ways shall be so designed as to promote safety and convenience. 6. The character of the proposed design shall be in harmony with, and compatible to, those structures in the neighboring 34 May 2005 Zoning Code/Oro Valley AZ CHAPTER 22: REVIEW AND APPROVAL PROCEDURES Section 22.6 Development Review environment and the design character adopted for any given area avoiding excessive variety or monotonous repetition. 7. Mechanical equipment, appurtenances and utilities shall be concealed from view and integral to the building design. 8. All components of a development shall take cognizance of the unique desert, climate and other environmental factors of this region and promote an indigenous architectural feeling. 9. All signs, buildings, structures and parts of any buildings such as walls and fences shall be designed to be compatible with the surrounding desert and mountains in the background. 10. All exterior materials and colors including roofs, walls and fences shall be predominantly muted earth and plant tones and shall minimize contrast and glare. 11. In order to protect the visual serenity of the Town, design of signage should be based on trying to get the information across with the least signage possible. 12. Sign designs shall be in compliance with the purpose statements established in Chapter 28. 13_ All components of a development shall be in compliance with Addendum A Design Guidelines. 14. Consideration shall be given to the possibility that the development may not be completed. In order to assure a minimum degree of destruction of existing vegetation and contours, phased development shall be required. Grading and all site improvements shall not be permitted until the proper assurances have been received and approved by the Town. C. Administration Administrative procedures tive for review of subdivision plat and development plans shall be as provided in Section 22.9 of this Code. Procedures for architectural review, signs and other such matters that require development review shall be according to the provision of this Section herein below. 1. Application a. The Development Review Board shall prescribe the form and content of applications and necessary accompanying data. The application shall be filed with the Town Clerk. b. Applications shall be made by the owner of the property or his authorized agent. If the applicant is not the Zoning Code/Oro Valley AZ May 2005 35