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03-04-2002 Regular MeetingMarch 4, 2002 The regular scheduled meeting- of Mayor and Council was held at Smyrna City Hall. The meeting was called to order by presiding officer Mayor A. Max Bacon at 7:30 o'clock p.m. All council members were present. Also present were City Administrator Chris Corey, Deputy City Clerk Lee Miller, City Attorney Scott Cochran, Community Development Director Chris Miller and representatives of the press. Invocation was given by Pastor Steven Kimmel of First Baptist Church of Smyrna, followed by the pledge to the flag. CITIZENS INPUT/SPECIAL RECOGNITION: School Board Member Curt Johnston announced his campaign for re-election and introduced faculty members and students from Brown Elementary School who did a presentation of the month's character words, which included poetry reading and a song. Mr. Bill Lnenicka and COL Ron Davis, U.S. Army, retired, presented the Mayor and Council Members with specially marked shovels commemorating the Veterans' Memorial. Mr. Lnenicka stated the construction should be complete by September 19 at the latest. Mr. Lnenicka reported that Barnes and Noble had compiled a list of 2,610 books pertaining to the political and military history of the twentieth century and that there are plans to acquire these books and present them to the Smyrna Library. Mayor Bacon advised that the old oak tree near the Memorial was struck by lightning and will have to be removed. PUBLIC HEARINGS: (A) Approval of Resolution Authorizing Submittal of the Short Term Work Program (STWP) to the State Mr. Corey advised the State requires local governments to prepare and submit an update to the adopted STWP every five years and that this update is required to include a new STWP covering the subsequent five-year period and a report of plan accomplishments (ROA). Mr. Corey stated the ROA is required to identify the current status of each activity in the previous STWP and that a resolution is needed to formally submit the STWP to the State for review. Council Member Newcomb stated that the Department of Community Affairs has implemented reporting programs to differentiate those cities who actually provide services so that they get the appropriate recognition. Mr. Chris Miller reported that the STWP is a "measuring stick" to evaluate accomplishments on an annual basis. Mayor Bacon stated this is a public hearing and asked for comment. There was none. Council Member Newcomb made a motion to approve the Resolution authorizing submittal of the STWP to the State and the motion was seconded by Council Member Pritchett. The motion was passed 7 — 0. (B) Rezoning Request - .959 Acre Tract from R-15 (Single Family Residential) and OI (Office- Institutional) to RAD Conditional — Hatcher Homes, Inc. (HHI)- Roswell Street Commons/Roswell Street Mr. Corey stated HHI is proposing to rezone a .959 acre tract from R-15 and Oi to RAD Conditional and that, if approved, the subject parcel would be incorporated into the previously approved Roswell Street Commons (RSC) subdivision via a zoning amendment. Mr. Corey reported that the subject parcel is located on the south side of Roswell Street and includes two existing buildings and that, if approved, the four proposed residences would result in a net density of 4.17 units per acre. Mr. Corey continued that, when added to the first phase of RSC, the overall density of RSC would increase from 3.39 units per acre to 3.70 units per acre. Mayor Bacon asked for public comment, and several persons wishing to present testimony were administered the oath by Mr. Cochran. Mr. Ed Hatcher of HHI reported that the proposed changes would be a continuation of the project approved last September 25 using two tracts, one currently zoned R-15 and the other OI, and that the existing dwellings would be removed and replaced with the same style structure March 4, 2002 2 found at RSC. Mr. Hatcher stated he would like to have the same stipulations apply to the changed area and used some small maps of the subject area for illustration. Mr. Hatcher stated the property owned by Mr. Freeman is presently used for storage and requested that, if the property is rezoned, Mr. Freeman be allowed to temporarily retain that use for the property. Mayor Bacon asked if this proposed change would be an extension of the previously approved project and Mr. Hatcher answered in the affirmative. Council Member Hawkins asked if the new houses will be two-story structures and Mr. Hatcher answered yes. Council Member Hawkins asked what the square footage of the houses would be and Mr. Hatcher advised the average size is 2,150 square feet and that they will be three -bedroom structures. Council Member Scoggins asked if the property line dispute with Mr. Hamby had been resolved and Mr. Hatcher answered in the affirmative. Council Member Scoggins stated that the original plan called for a driveway that adjoined a curve, which was potentially a hazard. Council Member Scoggins stated he had received a recent request for Mr. Hatcher to consider moving the driveway by one space to the area between houses 6 and 7, and Mr. Hatcher advised he would ask his consulting engineer about the possible change. Council Member Scoggins complimented Mr. Hatcher on the positive impact of the development on the community and thanked him for for his cooperation. Mr. Sam Hamby, 1312 Roswell Street, commented favorably about Mr. Hatcher and the subject construction, and thanked the Mayor and Council for the concern they have shown. COL Ron Davis, 1351 Roswell Street, requested that the driveway be moved by one more house lot out of the curve and north of the Freeman property. Mrs. Sandra Hamby, 1312 Roswell Street, expressed the view that the plan for the driveway to be between lots 5 and 6 would be satisfactory. Mayor Bacon noted that the current plan calls for a driveway on a 20' easement between lots 5 and 6 and asked where that is in relation to the Gilbert Street and Mr. Hatcher advised it is slightly north of Gilbert Street. Mayor Bacon asked Mr. Chris Miller if the driveway should be centered with Gilbert Street and Mr. Miller answered that it should, if possible, in order to avoid awkward turning movements by vehicles entering the street. Council Member Scoggins asked Mr. Hatcher to confirm that he is willing to consider moving the driveway to the area between lots 6 and 7 and Mr. Hatcher answered in the affirmative. Council Member Lnenicka asked Mr. Hatcher when sales would begin and when construction was expected to be complete and Mr. Hatcher advised sales would start in about two weeks and that construction should be complete around August. Council Member Newcomb asked if firewalls would be required because of the relatively close spacing of the homes and Mr. Hatcher advised codes required a fire resistance rating. Council Member Scoggins asked Mr. Cochran if it is necessary to read the stipulations and Mr. Cochran advised a copy should be attached to the minutes. Council Member Scoggins made a motion to approve a rezoning request from HHI for a .959 acre tract from R-15 Single Family Residential and Office - Institutional to RAD Conditional at Roswell Street Commons and Roswell Street and the motion was seconded by Council Member Pritchett. Motion was approved 7-0. (C) Land Use Change Request - .959 Acre Tract from Low Density Residential and Central Business District to Medium Density Residential - Hatcher Homes, Inc. (HHI) - Roswell Street Commons and Roswell Street Mayor Bacon stated this is a public hearing and asked for comment. There was none. Council Member Scoggins made a motion to approve a land use change request for a .959 acre tract from Low Density Residential and Central Business District to Medium Density Residential for HHI at Roswell Street Commons and Roswell Street and the motion was seconded by Council Member Pritchett. Motion was approved 7-0. (D) Variance Request - Reduction of Rear Yard setback from 50' to 10' - International Gospel Outreach (IGO) Family Church - Windy Hill Road and Dixie Avenue Mr. Corey stated the subject property contains the IGO Family Church and is located at the northwest corner of Windy Hill Road and Dixie Avenue and that the parcel is zoned General Commercial (GC). Mr. Corey advised the applicant is proposing to add a new 1,750 square foot open-air pavilion and that the applicant has requested a variance to reduce the rear yard ' setback from 50' to 10' to accommodate the proposed pavilion. March 4, 2002 3 Mayor Bacon stated this is a public hearing and asked for comment. There was none. Council Member Scoggins recognized Mr. Calvin Tibbs, who explained that the owner of the adjoining rear property, Mr. Monroe Dunn, has been contacted and has no objections to the setback variance being approved. Mr. Tibbs advised the variance is for a pavilion that would be used mostly during the spring and summer and would be painted to match the main building in colors that would blend in with the area. Council Member Hawkins asked if there were plans to have music in the subject location and Mr. Tibbs answered no. Council Member Wood asked if there would be no traffic in the area and Mr. Tibbs answered yes. Council Member Wood asked if there was a private driveway in the area and if the variance was for a setback only and Mr. Tibbs answered in the affirmative. Council Member Scoggins made a motion to approve a variance request for a reduction of rear yard setback requirements from 50' to 10' for IGO Family Church at Windy Hill Road and Dixie Avenue and the motion was seconded by Council Member Pritchett. Motion was approved 7-0. (E) Privileged License Request — Retail Package (Liquor, Beer and Wine) — Beverage Masters, Inc. D/B/A Doc's Wine and Spirits — 2350 Spring Road — Ownership and Agent Change Mr. Corey stated Doc's Wine & Spirits has submitted an application for a retail package license (liquor, beer and wine) and that Kenneth William Peet will be the registered agent for this establishment located at 2350 Spring Road. Mr. Corey advised Mr. Peet has been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the guidelines with him. Mr. Corey stated that Mr. Peet has indicated that he will follow the City's ordinances if he is granted the license. Mayor Bacon stated this a public hearing and asked for comment. There was none. Council Member Newcomb recognized Mr. Kenneth Peet, who advised Doc's has been at the current location since 1988. Council Member Newcomb stated that Doc's has a good record of compliance with alcoholic beverage ordinances and Mr. Peet advised Doc's has received a commendation from the City to that effect. Mayor Bacon asked Mr. Peet to continue to be mindful of the ordinances. Council Member Newcomb made a motion to approve the privileged license request for retail package sales of liquor, beer and wine for Beverage Masters, Inc. D/B/A Doc's Wine & Spirits at 2350 Spring Road with Kenneth Peet as the registered agent, and the motion was seconded by Council Member Pritchett. Motion was passed 7-0. (F) Privileged License Request — Retail Package (Beer and Wine) — SaveRite Grocery Warehouse, Inc., D/B/A SaveRite #2708 — 2350 Spring Road — Agent Change Mr. Corey stated that SaveRite #2708 has submitted an application for a retail package license for beer and wine sales. Mr. Corey advised that Roy L. Dennis will be the registered agent for this establishment located at 2350 Spring Road in Smyrna. Mr. Corey advised Mr. Dennis has been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the guidelines with him. Mr. Corey stated that Mr.Dennis has indicated that he will follow the City's ordinances if he is granted the license. Mayor Bacon stated this is a public hearing and asked for comment. There was none. Council Member Newcomb asked Mr.. Dennis if Winn -Dixie Co. owns SaveRite and Mr. Dennis answered in the affirmative. Mr. Dennis advised he has been with the company for twenty-nine years and is a district manager. Mr. Dennis advised SaveRite has a comprehensive training program for alcohol sales and that the company's policy is to ask all purchasers for identification. Council Member Newcomb asked Mr. Dennis why the on -site manager (Mr. Jones) does not apply for the license in his name and Mr. Dennis advised that Mr. Jones does not yet meet the residency requirements for the license, but has extensive experience with the company. Council Member Newcomb made a motion to approve the privileged license request for retail package sales of beer and wine for SaveRite # 2708 at 2350 Spring Road with Roy Dennis as March 4, 2002 4 the registered agent, and the motion was seconded by Council Member Hawkins. Motion was approved 7-0. (G) Privileged License Request - Retail Package (Beer Only) - Farida, Inc. D/B/A Windy. Hill Texaco - 875 Windy Hill Road - New Application Mr. Corey stated that Windy Hill Texaco has submitted an application for a retail package license for beer sales, and that Ayaz Sutaria will be the registered agent for this establishment located at 875 Windy Hill Road in Smyrna. Mr. Corey advised Mr. Sutaria has been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the guidelines with him. Mr. Corey stated that Mr. Sutaria has indicated that he will follow the City's ordinances if he is granted the license. Mayor Bacon stated this is a public hearing and asked for comment. There was none. Council Member Cramer asked Mr. Sutaria about previous complaints at the subject location regarding music and "infomercials" and Mr. Sutaria advised the problem has been corrected. Council Member Cramer asked Mr. Sutaria about his training policies, and Mr. Sutaria advised his employees are trained not to sell alcohol to anyone without proper identification and that he uses mystery shoppers to help check compliance. Council Member Cramer made a motion to approve the privileged license request for retail package sales of beer only at Windy Hill Texaco at 875 Windy Hill Road with Ayaz Sutaria as the registered agent, and the motion was seconded by Council Member Wood. Motion was approved 7-0. (H) Privileged License Request - Retail Pouring (Liquor, Beer and Wine) - American Legion Post 160 - 160 Legion Drive - Agent Change Mr. Corey stated the American Legion Post 160 has submitted an application for a retail pouring license for liquor, beer and wine. Mr. Corey advised Mr. Charles W. Barrett will be the registered agent for this establishment located at 160 Legion Drive in Smyrna. Mr. Corey advised Mr. Barrett has been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the guidelines with him. Mr. Corey stated that Mr. Barrett has indicated that he will follow the City's ordinances if he is granted the license. Mayor Bacon stated this is a public hearing and asked for comment. There was none. Council Member Hawkins asked Mr. Barrett who the previous agent was and Mr. Barrett stated it was Don Fagan, and that Mr. Fagan is no longer an officer with the Legion. Council Member Hawkins stated the Legion's privileged license is the oldest one in the City. Mayor Bacon asked Mr. Barrett what his capacity at the Legion is and Mr. Barrett advised he is the manager there. Council Member Hawkins made a motion to approve the privileged license request for a retail pouring license for liquor, beer and wine for American Legion Post 160 at 160 Legion Drive with Charles Barrett as the registered agent, and the motion was seconded by Council Member Lnenicka. Motion was approved 7-0. (I)_ Privileged License Request - Retail Package (Beer and Wine) - The Kroger Company D/B/A Kroger Store #299 - 3315-1 South Cobb Drive - Agent Change Mr. Corey stated that Kroger Store #299 has submitted an application for a retail package license for beer and wine sales. Mr. Corey reported that Ms. Brenda McCrae will be- the registered agent for this establishment located at 3315-1 South Cobb Drive in Smyrna. Mr. Corey advised Ms. McCrae has been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the guidelines with her. Mr. Corey stated that Ms. McCrae has indicated that she will follow the City's ordinances if she is granted the license. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. Council Member Hawkins asked Ms. McCrae if she is an employee of The Kroger Company and Ms. McCrae answered yes, since 1978. Council Member Hawkins asked Ms. McCrae if she has held an alcohol sales license before and she answered no. Council Member Hawkins asked Ms. McCrae about company training and Ms. McCrae advised all employees are trained March 4, 2002 5 in alcohol sales procedures and that it is a policy of the company to ask all purchasers to show proper identification. Ms. McCrae stated that all employees who'sell alcoholic beverages must have a permit. Council Member Hawkins advised Ms. McCrae that, as a license holder, she is responsible for compliance, and asked her if she worked at Kroger Store #299 full-time and she advised she is in contact with that location about two or three times per week. Mayor Bacon asked who currently has the license for Kroger Store #299 and Ms. McCrae advised it was Lavern Cook, who is no longer employed there. Council Member Hawkins made a motion to approve the privileged license request for retail package sales of beer and wine at Kroger Store # 299 at 3315-1 South Cobb Drive with Brenda McCrae as the registered agent, and the motion was seconded by Council Member Pritchett. Motion was approved 7-0. (J) Privileged License Request — Retail Package (Beer and Wine) — Rendhawa Enterprises D/B/A Value Mart — 3280 South Cobb Drive — New Application Mr. Corey stated Value Mart has submitted an application for retail package sales of beer and wine. Mr. Corey advised Mr. Ravinder S. Randhawa will be the registered agent for this establishment located at 3280 South Cobb Drive in Smyrna. Mr. Corey advised Mr. Randhawa has been given a copy of the Alcohol Beverage Ordinance, and the Business License Officer has gone over the guidelines with him. Mr. Corey stated that Mr. Randhawa has indicated that he will follow the City's ordinances if lie is granted the license. Mayor Bacon stated this is a public hearing and asked for comment. There was none. Council Member Hawkins asked Mr. Randhawa if he is the owner of the business and what type of store is planned, and Mr. Randhawa answered that he is the owner and that the operation will be a convenience store. Council Member Hawkins asked Mr. Randhawa if he has had a license of this type before, and Mr. Randhawa advised he currently has an alcoholic beverage sales license in the City of Morrow. Council Member Hawkins asked Mr. Randhawa if he has had any problems in connection with his license in Morrow, and Mr. Randhawa answered in the negative. Council Member Hawkins advised Mr. Randhawa that checks for compliance are periodically made, and Mr. Randhawa explained he has experience in the convenience store business and his company has a policy of requiring identification from all purchasers. Council Member Wood asked Mr. Randhawa if he is leasing the business location from Partners Petroleum and Mr. Randhawa answered in the affirmative. Council Member Wood asked when the business will open and Mr. Randhawa stated the opening is scheduled for March 15. Council Member Cramer asked Mr. Randhawa who owns the collection box near the business and Mr. Randhawa advised it belongs to the church. Council Member Cramer advised the collection box should not be in the right-of-way and that the City Marshal will be sent to check into this matter. Council Member Hawkins made a motion to approve the privileged license request for retail package sales of beer and wine for Rendhawa Enterprises D/B/A as Value Mart at 3280 South Cobb Drive with Ravinder Rendhawa as the registererd agent, and the motion was seconded by Council Member Scoggins. Motion was approved 7 — 0. FORMAL BUSINESS: (A) Approval of Replacement Telecommunications Ordinance Mr. Corey stated the City has contracted with the Georgia Municipal Association (GMA) for telecommunications management services. Mr. Corey stated GMA has recommended the City adopt a' Cable Services Only ordinance and a Telecommunications Only ordinance, based on their model ordinances, in response to state and federal court decisions and FCC pronouncements since the combined ordinance was adopted. Mr. Corey advised the current City ordinance is a combined Procedural Ordinance. Council Member Hawkins stated that in 1994 the Telecommunications Act was passed in response to industry expansion and changes. Council Member Hawkins advised the purpose of the Act is to limit the authority of local governments to regulate the industry. Council Member Hawkins stated there have been questions about what exactly constitutes regulation, and some court decisions have been made making some changes advisable. Council Member Hawkins stated that, because the two services are treated differently, GMA has recommended that March 4, 2002 6 separate ordinances for the two services be in place. Council Member Hawkins stated the ordinances set forth the standards the City will use to award franchise contracts. Council Member Hawkins made a motion to adopt the new Telecommunications Ordinance, and the motion was seconded by Council Member Wood. Motion was approved 7 - 0. (B) Approval of Replacement Cable Services Ordinance Mr. Corey stated the City has contracted with the Georgia Municipal Association (GMA) for telecommunications management services. Mr. Corey stated GMA has recommended the City adopt a Cable Services Only ordinance and a Telecommunications Only ordinance, based on their model ordinances, in response to state and federal court decisions and FCC pronouncements since the combined ordinance was adopted. Mr. Corey advised the current City ordinance is a combined Procedural Ordinance. Council Member Hawkins stated that GMA has recommended that a separate Cable Services Ordinance be adopted. Council Member Hawkins advised the ordinance has provisions for non-exclusive franchises, and that, although one provider may predominate in an area, it is possible for people to obtain service from other sources. Council Member Hawkins made a motion to approve the new Cable Services Ordinance, and the motion was seconded by Council Member Scoggins. Motion was approved 7 - 0. COMMERCIAL BUILDING PERM (A) UCB, Inc - 2100 Windy Hill Road - Office Building Council Member Scoggins and Council Member Wood commented favorably on UCB, Inc., and provided details on the expected benefits of having a main office of the company in the City. Council Member Scoggins made a motion to approve the building permit for UCB, Inc. for an office building at 2100 Windy Hill Road, and the motion was seconded by Council Member Wood. Motion was approved'? - 0. BID AWARDS: (A) Award of Bid for Pipeburst Replacement - Burbank Circle, Glendale Circle and Glendale Place Council Member Scoggins made a motion to approve the award of the bid for pipeburst replacement for Burbank Circle, Glendale Circle and Glendale Place to Southeast Pipe Survey and the motion was seconded by Council Member Cramer. Council Member Scoggins advised the method to be used is a new non -intrusive technique using water pressure and that the affected pipe is about 1,553' in length. Mayor Bacon stated the bid is for $120,275.00 Motion was approved 7 - 0. (B) Award of Bid for Pipeburst Replacement - Creatwood Trail, Cimmeron Court and Mohawk Place Mayor Bacon advised the bid was for replacement of 290' of sewer main and rehabilitation of two manholes. Council Member Scoggins advised the bid is from K. M. Davis Contracting for $40,940. Council Member Scoggins made a motion to approve award of the bid for pipeburst replacement at Creatwood Trail, Cimmeron Court and Mohawk Place to K. M. ; Davis Contracting, and the motion was seconded by Council Member Lnenicka. Motion was approved 7 - 0. CONSENT AGENDA: (A) Approval of February 18, 2002, Minutes March 4, 2002 7 (A) Request for Contingency Funding to Make Necessary Repairs at Tolleson Pool (B) Request to Bid the Replacement of an Existing Dump Truck (C) Request to Reject all Bids, IFB 2-012 (D) Request to Re -bid Replacement of Sanitary Sewer Main (E) Request to Bid Resurfacing of the Public Works Complex Facility (F) Request to Bid Replacement of Existing Multi -Use Landscape Dump Truck Council Member Scoggins made a motion to approve the consent agenda, and the motion was seconded by Council Member Lnenicka. Motion was approved 7 — 0. COMMITTEE REPORTS: Council Member Pritchett expressed appreciation to Mr. Bill Lnenicka and COL Ron Davis for the commemorative shovel. Council Member Scoggins stated that the new office of UCB, Inc. being built in the City is a positive development and an indication the City is on the right track. Council Member Hawkins asked those present to remember the U.S. military personnel in Afghanistan in their prayers. Council Member Cramer commented favorably on the progress being made on the Veterans' Memorial. Council Member Cramer stated there are now three City Marshals and reminded everyone of the upcoming Jonquil City Jog. Council Member Lnenicka read from a Public Works Department report details of the efforts made by that Department to investigate sewer complaints in the area of Creatwood Trail. Council Member Lnenicka stated the efforts to try to detect leakage in the sanitary sewer included use of a camera, dye and smoke, and that no leakage was found. Council Member Lnenicka reiterated his commitment to ensuring the safety of the citizens. With no further business, the meeting was adjourned at 9:28 p.m. L A. MAX BACON, MAYOR LEE MILLER, DEPUTY CITY CLERK BILLS OGGIN RD 3 CRAMER, WARD 5 " P-O, & � CHARLES PETE WOOD, WARD 7 RON NEWCOMB, WARD 2 JAMES M. HAWKINS, WARD 4 Council may also establish and appoint one or more advisory boards, with such duration and such number of members as the City Council shall determine, to advise it on such of the matters which are the subject of this Ordinance. Section 3.3 Retroactivity This Ordinance shall not be retroactively applied to franchises for Cable Services existing on the effective date of this Ordinance, but shall apply to any renewal or extension of such Franchises. Section 3.4 Applicability of Other Ordinances All ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 3.5 Effective Date This Ordinance shall become effective upon passage and approval by the City Council. PASSED PPROVED this 4th day of March , 2002 ✓C MAYOR, City of Smyrna, Georgia Attest: t:C -"" 2 a. yu� City Clerk Approved as to Legal Form: Attorney, City of Smyrna, Borgia vA CITY OF SMYRNA CABLE AND OPEN VIDEO SYSTEM FRANCHISE APPLICATION Submittal instructions: Applications for a franchise may be submitted to: ATTN: City Clerk City of Smyrna 2800 King Street P. O. Box 1226 Smyrna, GA 30081 Submit eight copies of the application and all supporting documentation in typed form. Application responses must be completed using the letter and number format as indicated on the application. Each applicant must furnish with submittal of the application a non-refundable application fee in the amount of Ten Thousand Dollars ($10,000) by certified check or cashier's check made payable to the City of Smyrna. For further information or clarification regarding this process, please refer to the accompanying document: Instructions To Franchise Applicants. Responses to the following questions should be submitted in writing to the above address: 1. Applicant's name, address, telephone number, and federal employer identification number or social security number; copy of applicant's corporate charter or partnership agreement as applicable; and any trade names (and registrations) used by applicant; 2. A detailed statement of the corporation or business entity organization of the applicant, including but not limited to the following, and to whatever extent required by the City: (a) the names and the residence and business addresses of all officers and directors of the applicant; (b) the names, residence, and business addresses of all persons and entities having any share of the ownership of the applicant and the respective ownership share of each person or entity; (c) the names and address of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable systems and open video systems owned or controlled by the applicant, its parent, and subsidiary, and the areas served thereby; (d) a detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year immediately preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the City Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed system in the City, or a statement from an independent certified public accountant certifying that the applicant has available sufficient free, net, and uncommitted cash resources to construct and operate the proposed system in the City; (e) a detailed financial plan (pro forma) describing for each year of the franchise, projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and a sources and uses of funds statement; and (f) a statement identifying, by place and date, any other cable system and open video system franchise(s) or authorization(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) or authorization(s) with respect to completion thereof; the total cost of completion of such franchised or authorized cable system(s) or open video system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof; 3. A detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following: (a) a description of the cable services proposed to be provided; (b) a detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be serviced; (c) a statement or schedule setting forth all proposed classifications or rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges, cable service charges, and any other service charges; (d) a detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant; (e) a copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber to cable services; and (f) a detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm, or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise; 4. A copy of any agreement covering the franchise area, if existing between the applicant and any utility providing for the use of any facilities of the utility, including but not limited to, poles, lines, or conduits; and 5. Any other details, statements, supplementary information, or references pertinent to the subject matter of such application which shall be required or requested by the City, or by any other provision of law. 6. The signature and official title of the applicant and the date of the submittal of the application. INSTRUCTIONS TO CABLE AND OPEN VIDEO SYSTEM FRANCHISE APPLICANTS Submittal Instructions: Applications for a franchise may be submitted to: ATTN: City Clerk City of Smyrna 2800 King Street P. O. Box 1226 Smyrna, GA 30081 Eight copies of the application and all supporting documentation are to be submitted in typed form. Application responses will be completed using the letter and number format as indicated on the application. At the time the application is submitted, each applicant must furnish a non- refundable application fee in the amount of Ten thousand Dollars ($10,000) by certified check or cashier's check made payable to the City of Smyrna. For further information or clarification regarding this process, all questions should be submitted in writing to the above address. Responsibility of Applicants It shall be the responsibility of each applicant for a franchise to comply with all applicable laws, ordinances, resolutions, rules regulations and other directives of the City and any Federal, State or local government authority having jurisdiction. Public Availability of Applications To the extent determined by the City Council, applications for Franchises, including any additions, modifications or amendments thereto, shall be available for public inspection at a designated City office during normal business hours. Evaluation Criteria In making a determination as to any application for a franchise, the City may consider such factors as it deems appropriate and in the public interest, including, without limitation: A: The adequacy of proposed compensation to be paid to the City, including the value of any facilities and services offered by the applicant to the City. B: The legal, financial, technical and other appropriate qualifications of the applicant. C: The ability of the applicant to maintain the property of the City in good condition throughout the term of the franchise. D: The value and efficiency to the City and its residents of cable services to be provided, including the type and diversity of cable services to be provided, as well as alternatives to those services and services that may be precluded by the grant of this franchise. E: The willingness and the ability of the applicant to meet construction and physical requirements and to abide by all purpose and policy conditions, limitations and requirements with respect to the franchise. F: Any other public interest factors or considerations deemed pertinent to the City for safeguarding the interest of the City and the public. Procedure for Consideration of and Action on Applications: The City may make such investigations and take or authorize the taking of such steps as is deemed necessary or appropriate to consider and act on the application for franchise. The applicant may be required to furnish additional information and data for this purpose. In evaluating the application, the City may seek advice from other city officials or bodies, from such other advisory bodies as it may establish or determine appropriate, or from the public, and may request the preparation of one or more reports to be submitted to the City which may include recommendations with respect to such applications. If the City, after considering such information as it determines to be appropriate, elects to further consider any application(s), the City Council may set one or more public hearings for consideration of the applications. Copies of the application will be made available for public inspection prior to the hearing. A public hearing announcement will set forth a day, hour and place when and where any persons having interest in the franchise(s) under consideration or objections thereto may file written comments and appear before the City and be heard. Notification of the hearing will be presented to the applicant company and attendance by a representative of the company will be required at the hearing. The City may institute negotiations between City officials and the applicant company to determine whether or not and under what terms and conditions a franchise may be granted. Upon completion of the steps outlined, the City Council will decide whether or not to grant a franchise, and will specify the conditions under which the franchise is granted. Alternatively, the City may reject any and all applications from whatever source and whenever received except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise. The City also reserves the right to waive any and all requirements when it determines that the best interests of the City may be served thereby and may, if it so desires, request new or additional proposals. An unsuccessful applicant for a cable franchise shall have the right to appeal the decision of the franchising authority pursuant to federal cable regulations (Section 635 Federal Cable Act). Terms and Conditions of Franchise: The terms and conditions applicable to any franchise granted pursuant to this application process shall be set forth in a separate ordinance granting the franchise. Such agreement shall address the following subjects: A: The term of the franchise. B: The franchise area and the cable services which are the subject of the franchise. C: The compensation to be paid to the City, which may include the payment of fees or the provision of facilities or services, or both. D: The circumstances upon which the franchise may be terminated or cancelled. E: The mechanisms, such as performance bonds, security funds, or letters of credit, to be put in place to ensure the performance of the grantee's obligations under the franchise. F: The City's right to inspect the facilities and records of the grantee. G: The insurance and indemnification requirements applicable to the grantee. H: The obligation of the grantee to maintain complete and accurate books of account and records, and the City's inspection rights with respect thereto. I: Provisions to ensure quality workmanship and construction methods. J: Provisions to ensure that the grantee will comply with all applicable City, state and federal laws, regulations, rules and policies, including without limitation, those related to employment, purchasing and investigations. K: Provisions to ensure adequate oversight and regulation of the grantee by the City. L: Provisions to restrict the assignment or other transfer of the franchise without the prior written consent of the City. M: Remedies available to the City to protect the City's interest in the event of the grantee's failure to comply with the terms and conditions of the franchise. N: Provisions to ensure that the grantee will obtain all necessary licenses and permits from, and comply with, all laws, regulations, rules and policies of any governmental body having jurisdiction over the grantee, including, but not limited to, the Federal Communications Commission. O: Provisions to ensure that the grantee will protect the property of the City and the delivery of public services from damage or interruption of operations resulting from the construction, operation, maintenance, repair or removal of improvements related to the franchise. P: Provisions designed to minimize the extent to which the public use of the streets of the City are disrupted in connection with the construction of improvements relating to the franchise; and, Q: Such other provisions as the City determines are necessary or appropriate in furtherance of the public interest. TELECOMMUNICATIONS -ONLY ORDINANCE ORDINANCE NUMBER 020304B AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SMYRNA TO PROVIDE FOR THE GRANTING OF ONE OR MORE NONEXCLUSIVE FRANCHISES AND REVOCABLE LICENSES FOR TELECOMMUNICATIONS SYSTEMS WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY OF SMYRNA AND TO PROVIDE FOR THE PROCESS UNDER WHICH SAID GRANTING OF FRANCHISES AND REVOCABLE LICENSES SHALL TAKE PLACE THE COUNCIL OF THE CITY OF SMYRNA HEREBY ORDAINS THAT: WHEREAS, the Mayor and City Council have determined that it is in the best interests of and consistent with the convenience and necessity of the City to grant Franchises or Revocable Licenses (as hereinafter defined) to companies desiring to construct, operate or maintain Telecommunications Systems over which Telecommunications Services or Private Telecommunications Services (as hereinafter defined) are provided, or to companies desiring to provide Facility Services (as hereinafter defined), within the territorial boundaries of the City and on the terms and conditions herein, and as may be further described in each franchise or license agreement; and WHEREAS, the City has the authority to regulate the occupation and use of the Streets (as hereinafter defined) to the maximum extent permitted under applicable law, including, but not limited to, Section 253 of the Telecommunications Act of 1996, 47 U.S.C. § 253 ("1996 Act"); and WHEREAS, in an effort to comply with applicable law, including the 1996 Act, the City has determined that a Person (as hereinafter defined) must obtain separate Franchises to provide Cable Services and Telecommunications Services; and WHEREAS, the City desires to structure and implement a fair and orderly process for the grant of Franchises and Revocable Licenses (and renewals of such Franchises or Revocable Licenses) to occupy and use the Streets to provide Telecommunications Services, Private Telecommunications Services, or Facility Services in the City, including the negotiation of franchise and license provisions to protect the public interest, to the maximum extent permitted by applicable law, including the 1996 Act; and WHEREAS, the City intends to exercise, to the fullest extent permitted by applicable law, including the 1996 Act, its authority with respect to the regulation of the occupation and use of the Streets in connection with the provision of Telecommunications Services, Private Telecommunications Services, and Facility Services; and WHEREAS, Section 253 prohibits a local government from imposing a requirement that "may prohibit or have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunications service"; and WHEREAS, "telecommunications service" as defined by 47 U.S.C. § 153(46) of the Communications Act of 1934 means "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used"; and WHEREAS, Private Telecommunications Service as defined in this Ordinance does not include the provision of "telecommunications service" as defined by federal law, and, thus, Persons providing Private Telecommunications Services are not entitled to the protections of Section 253 of the Communications Act; and WHEREAS, Facility Service as defined in this Ordinance does not include the provision of "telecommunications service" as defined by federal law, and, thus, Persons providing Facility Services are not entitled to the protections of Section 253 of the Communications Act; NOW, THEREFORE BE IT RESOLVED THAT: SF.C'TION T The Code of Ordinances of the City of Smyrna is hereby amended by creating a new Chapter 95, Articles 1-3, entitled "Telecommunications Services Franchises and Licenses," and shall hereafter read as follows: Article 1 DEFINITIONS Section 1.1 Definitions For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings set forth in this Section, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number and words used in the singular number include the plural number. 1.1.01 "Affiliated Person" means each Person who falls into one or more of the following categories: (1) each Person having, directly or indirectly, a Controlling Interest in the applicant; (2) each Person in which the applicant has, directly or indirectly, a Controlling Interest; (3) each officer, director, joint venturer or joint venture partner, of the applicant; and (4) each Person, directly or indirectly, controlling, controlled by, or under common Control with, the applicant; provided that "Affiliated Person" shall in no event mean the City or any creditor of the applicant solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or being under common ownership, common management or common Control with, the applicant. 1.1.02 "Cable Services" means "cable services" as defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, and as may be further amended from time to time (the "Cable Act"), but does not include Telecommunications Services or Private Telecommunications Services. In the event that "cable services" is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, "Cable Services" shall mean "cable services" as defined in the Cable Act immediately prior to such term no longer being defined in the Cable Act or such definition otherwise becoming inapplicable. 1.1.03 "Cable System" means any "Cable System" as defined in the Cable Act. 1.1.04 "City" means the City of Smyrna. 1.1.05 "City Council" means the City Council of the City and its designee or any successor thereto. 1.1.06 "Control" or "Controlling Interest" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, including, but not limited to, a person's compliance with a Franchise or Revocable License, whether through the ownership of voting securities, by contract, or otherwise, and the beneficial ownership of shares representing 10 percent or more of the votes entitled to be cast by a corporation's voting shares shall create a rebuttable presumption of control. 1.1.07 "Facility Services" means the installation, construction, operation or maintenance of conduit or related facilities in the Streets by a Person for sale or lease to third parties, other than Affiliated Persons, that use such conduit or related facilities for the transmission of Telecommunication Services, but such Person does not itself provide Telecommunications Service or Cable Service to such third parties or any locations or other Persons in the license area. 1.1.08 "Franchise" means an initial authorization, or renewal thereof, issued by the City in accordance with the provisions of this Ordinance, which authorizes the occupation and use of the Streets by a Telecommunications System to provide Telecommunications Services. 1.1.09 "Grantee" means the legal entity to which is granted the right, authority and responsibility to provide Facility Services along licensed routes pursuant to a license, or to construct, install, operate and maintain a Telecommunications System as necessary to: (a) furnish, supply and distribute Telecommunications Services to any locations or Persons in the franchise or license area; (b) provide Private Telecommunications Services along licensed routes pursuant to a license; or (c) transport Telecommunications Services across the City along licensed routes pursuant to a license without terminating or originating any Telecommunications Services at or from any Person or location in the City. 1.1.10 "may" is permissive. 1.1.11 "Ordinance" means this Ordinance and all modifications and amendments thereto. 1.1.12 "Person" means any individual or any association, firm, partnership, joint venture, corporation or other legally recognized entity, whether for profit or not for profit, but shall not mean the City. 1.1.13 "Private Telecommunications Services" means the transmission of Telecommunications by a Person, regardless of the facilities used, for or in connection with the internal operations of such Person's business, residence or employment and not for or in connection with the provision or offering of Telecommunications Services for sale or resale to any Person, and shall not mean Cable Services. 1.1.14 "Revocable License" means an initial authorization or renewal thereof, issued by the City in accordance with the provisions of this Ordinance, which authorizes the occupation and use of specifically identified Streets, provided that a Revocable License shall be issued only in the limited circumstances set forth in Section 2.1.02 of this Ordinance. 1.1.15 "shall" is mandatory, not merely directive. 1.1.16 "Streets" means the surface of, as well as the spaces above and below, any and all streets, alleyways, avenues, highways, boulevards, driveways, bridges, tunnels, parks, parkways, public grounds or waters, and other public rights -of -way within or belonging to the City. 1.1.17. "Telecommunications" means "telecommunications" as defined by 47 U.S.C. § 153(43) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, but shall not include Cable Services. 1.1.18 "Telecommunications Service" means "telecommunications service" as defined by 47 U.S.C. § 153(46) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, but shall not include Cable Services. In the event that "telecommunications service" is no longer defined in the Communications Act or the definition in the Communications Act otherwise becomes inapplicable, "Telecommunications Service" shall mean "telecommunications service" as defined in the Communications Act immediately prior to such term no longer being defined in the Communications Act or such definition otherwise becoming inapplicable. 1.1.19 "Telecommunications System" means the system, plant, equipment or property within the Streets in the franchise or license area over which Telecommunications Service or Private Telecommunications Service is provided, and to be constructed, operated and maintained by a Grantee pursuant to a franchise or license ordinance or agreement. Article 2 GRANTING AUTHORITY AND FRANCHISING PROCEDURE Section 2.1 Granting Authority 2.1.01 No Person shall use or occupy the Streets to construct, operate or maintain a Telecommunications System over which Telecommunications Services or Private Telecommunications Services are provided, or use or occupy the Streets to provide Facility Services, without a Franchise or Revocable License granted in accordance with the provisions of this Ordinance. The City intends to exercise its authority to franchise or license Persons pursuant to this Ordinance to the maximum extent permitted by applicable law, including the 1996 Act. 2.1.02 A Person shall not use or occupy the Streets to operate a Telecommunications System over which Telecommunications Services or Private Telecommunications Services are provided without a Franchise, except that such Person may use or occupy specific Streets without a Franchise if the Person obtains a Revocable License in accordance with the terms of this Ordinance. A Revocable License is intended to be a limited grant of authority to use and occupy specifically identified Streets and: (a) may be granted only if the use or occupation of such Streets is for the sole purpose of providing Private Telecommunications Services or Facility Services; or (b) shall be granted to provide Telecommunications Services only if the use or occupation of such Streets, together with the use or occupation of any Streets pursuant to Revocable Licenses previously granted to such Person and Affiliated Persons, shall not exceed five hundred (500) linear feet; or (c) shall be granted only if the use or occupation of such Streets is by a Telecommunications System that is not used by the Grantee or any other Person to sell, resell or otherwise provide Telecommunications Services to any Person in the City. In the event an application for a Revocable License would cause a Person to exceed or fail to comply with the limits specified in this Section 2.1.02, then such Person must apply for a Franchise in accordance with the provisions of this Ordinance, and the use of specifically identified Streets pursuant to all previously granted Revocable Licenses shall thereafter be pursuant to and in accordance with any such Franchise that may be granted. 2.1.03 The City Council may grant one or more Franchises or Revocable Licenses in accordance with this Ordinance, provided that the City Council reserves the right to modify any provision of this Ordinance by amendment hereof. 2.1.04 The grant of any Franchise or Revocable License shall be made by adoption of a separate ordinance by the City Council and shall be on such terms and conditions as may be specified in said separate ordinance and/or a franchise or license agreement between the City and the Grantee. 2.1.05 Any Franchise or Revocable License granted shall be nonexclusive. The City specifically reserves the right to grant, at any time, such additional Franchises or Revocable Licenses as it deems appropriate, and/or itself engage in the provision of Telecommunications Services, Private Telecommunications Services or Facility Services. 2.1.06 A Franchise may be granted for all or any defined portion of the City. A Revocable License may only be granted for use of specifically identified Streets. 2.1.07 The grant of Franchises and Revocable Licenses by the City to Persons constructing, operating or maintaining a Telecommunications System shall be subject to the provisions of applicable law, such as the provisions in the 1996 Act, as amended, governing telecommunications franchises and renewals thereof. Section 2.2 Franchise Applications 2.2.01 Applications for Franchises and Revocable Licenses shall be submitted in such form and be issued on such terms and conditions as the City Council may determine, subject to applicable law. 2.2.02 Any Application for a Franchise or Revocable License shall contain and/or require the following information with respect to the proposed Franchise or Revocable License: (i) applicant's name, address, telephone number, and federal employer identification number or social security number; copy of applicant's corporate charter or partnership agreement as applicable; and any trade names (and registrations) used by applicant; (ii) for the purpose of determining who Controls applicant, a detailed statement of the corporation or business entity organization of the applicant, including the following: (a) the names and business addresses of all officers and directors of the applicant; (b) the names and business addresses of all Persons having Control over the applicant; (c) financial information sufficient to demonstrate that the applicant has the financial ability to construct and maintain the Telecommunications System, or to provide Facility Services, in a safe manner and in accordance with the City's management policies, rules and regulations with respect to the Streets and to the extent not prohibited by law; and (d) for purposes of determining whether the applicant will construct, maintain, operate, and repair the Telecommunications System, or provide Facility Services, in compliance with the City's management policies, rules and regulations with respect to the Streets and in a manner protective of the public health, safety and welfare with respect to the applicant's use of the Streets, the names and addresses for telecommunications systems owned or controlled by the applicant and the areas served by such systems. (iii) in order to permit the City to manage its Streets, a description of the proposed plan of construction and maintenance of the Telecommunications System or Facility Services to be constructed in the Streets, which shall include the following: (a) a map indicating the location of the System or Facility Services in the Streets, and an estimated construction schedule, if known; and (b) a statement describing the proposed and actual location of facilities and equipment to be used in the Streets by the applicant; (iv) to the extent not prohibited by law, any other details, statements, supplementary information, or references reasonably pertinent to the City's management of the Streets or the compensation to be paid to the City, which shall be required or requested by the Council or by any other provision of law. Section 2.2.04 Non-refundable Application Fees for New Franchises and Revocable Licenses No application for a new Franchise or Revocable License shall be considered without payment by the applicant of application fees as provided in this Section. If a Franchise or Revocable License is granted, application fees will not be deemed a credit towards any other fees or sums due by the Grantee. If an application is denied, the application fee will not be refunded, except if required by law. (a) Purpose of Application Fees. The application fees provided by this section will serve to cover the direct and indirect costs incurred by the City in processing the application, evaluating the applicant, and granting a franchise, and shall include, but not be limited to, administrative, engineering, publication, legal, and consultant's expenses. (b) Application Fee. The applicant will be expected to pay the reasonable costs of the City in evaluating the application. Notwithstanding any other requirement of this ordinance, each applicant for a Franchise must furnish with its proposal a nonrefundable application fee in the amount of Ten Thousand Dollars ($10,000.00) by certified check or cashier's check made payable to the City of Smyrna, and each applicant for a Revocable License must furnish with its proposal a nonrefundable application fee in the amount of Ten Thousand Dollars ($10,000.00) by certified check or cashier's check made payable to the City of Smyrna. In the event the City's reasonable costs exceed such amount, the applicant may be required by the City to pay any additional amount to cover such costs. In the event the City's reasonable costs are less than the application amount, the City shall reimburse to the applicant the amount in excess of the City's actual cost if required by applicable law. Section 2.3 Responsibilities of Applicants It shall be the responsibility of each applicant for a Franchise or Revocable License to comply with all applicable laws, ordinances, resolutions, rules, regulations and other directives of the City and any federal, state or local governmental authority having jurisdiction. Section 2.4 Public Availabili!y of Applications To the extent determined by the City Council, applications for Franchises or Revocable Licenses, including any additions, modifications or amendments thereto, shall be available for public inspection at a designated City office during normal business hours. Section 2.5 Evaluation Criteria An applicant shall be granted a Franchise or Revocable License to construct, operate or maintain a Telecommunications System over which Telecommunications Services are provided, provided the City Council reasonably determines that the applicant has agreed to or meets the following factors: (i) the adequacy of the proposed compensation to be paid to the City; (ii) demonstration of adequate financial and technical ability to construct and maintain a Telecommunications System in the Streets, which such demonstration may be made by an adequate bond, security fund, and/or such other demonstration that is reasonably acceptable to the City, and a certificate of public convenience or other authorization from the State or Federal Communications Commission permitting the applicant to provide Telecommunications Services in the City; (iii) the ability of the applicant to maintain the property of the City in good condition throughout the term of the Franchise; (iv) the willingness and the ability of the applicant to meet construction requirements and to abide by all conditions, limitations and requirements with respect to the Franchise (including any terms or conditions imposed pursuant to Section 2.7 of this Ordinance), any public, health, safety and welfare requirements reasonably related to the applicant's use of the Streets, and the City's management of Streets; and (v) to the extent not prohibited by law, any other factors or considerations reasonably deemed pertinent by the City for managing the Streets and safeguarding the interests of the City and the public in the Streets, and for ensuring the City receives fair and reasonable compensation for use of the Streets. In making any determination hereunder as to any application for a Revocable License to provide Private Telecommunications Services or Facility Services and in accordance with applicable law, other than Section 253 of the Communications Act which is not applicable to Persons providing only Private Telecommunications Services or Facility Services, the City Council may consider such factors as it deems appropriate and in the public interest, including, without limitation, the foregoing factors to the extent applicable. Section 2.6 Procedure for Consideration of and Action on Applications 2.6.01 The City may make such investigations and take or authorize the taking of such other steps as the City Council deems necessary or appropriate to consider and act on applications for Franchises or Revocable Licenses. In considering applications, the City Council may seek advice from other city officials or bodies, from such other advisory bodies as it may establish or determine appropriate, or from the public, and may request the preparation of one or more reports to be submitted to the City Council, which may include recommendations with respect to such applications. 2.6.02 After considering such information provided pursuant to this Ordinance as it determines to be appropriate, the City Council shall set one or more public hearings for consideration of the application(s), fixing and setting forth a day, hour and place certain at which such application(s) shall be heard, and providing notice of such public hearing in accordance with applicable law. 2.6.03 The City Council may authorize negotiations between City officials and applicants on the terms of the proposed Franchise or Revocable License. 2.6.04 The City Council shall consider the application for a Franchise or Revocable License to provide Telecommunications Services in accordance with this Ordinance and applicable law, including 47 U.S.C. § 253, and shall grant the Franchise or Revocable License, provided that the applicant has agreed to the terms on which the Franchise or Revocable License is to be granted and meets the evaluation criteria set forth in Section 2.5 of this Ordinance. The City also reserves the right to waive any or all requirements in order to grant a Franchise or Revocable License to an applicant when it determines that the best interests of the City may be served thereby or that such waiver is required by applicable law. 2.6.05 Upon completion of the steps deemed appropriate by the City Council, the City Council may grant the Revocable License to provide Private Telecommunications Services or Facility Services, and may specify the conditions under which the Revocable License is granted. Alternatively, the City may reject any and all applications for a Revocable License to provide 10 Private Telecommunications Services or Facility Services. The City also reserves the right to waive any or all requirements when it determines that the best interests of the City may be served thereby. Section 2.7 Terms and Conditions of Franchise and Revocable License 2.7.01 The terms and conditions applicable to any Franchise or Revocable License granted pursuant to this Ordinance shall be set forth in the separate ordinance granting the Franchise or Revocable License or in a separate written agreement. Such separate ordinance or written agreement, among other things, may address the following subjects, to the extent not prohibited by law: (i) the term of the Franchise or Revocable License, provided, however, that the initial tem of the Revocable License shall not exceed five years and shall not be renewed for terms exceeding five years; (ii) the franchise area authorized by the Franchise, or the Streets that may be used pursuant to the Revocable License; (iii) the compensation to be paid to the City; (iv) the circumstances upon which the Franchise or Revocable License may be terminated or cancelled; (v) the mechanisms, such as performance bonds, security funds or letters of credit, to be put in place to ensure the performance of the Grantee's obligations under the Franchise or Revocable License; (vi) for the limited purpose of ensuring that the Grantee is complying with the terms of the Franchise or Revocable License, including, but not limited to, any compensation or Street management provisions, the City's right to inspect the facilities and records of the Grantee; (vii) insurance and indemnification requirements applicable to the Grantee; (viii) the obligation of the Grantee to maintain complete and accurate books of account and records with respect to its obligations under the Franchise or Revocable License, including, but not limited to, any compensation or Street management provisions, and the City's inspection rights with respect thereto; (ix) provisions to ensure quality workmanship and construction methods in the Streets; 11 (x) provisions to ensure that the Grantee will comply with all applicable City, state and federal laws, regulations, rules and policies; (xi) provisions to ensure adequate oversight by the City of the Grantee's use of Streets and compliance with the Franchise or Revocable License; (xii) provisions relating to an assignment or other transfer of the Franchise or Revocable License or the Telecommunications System that results in a change in Control; (xiii) remedies available to the City to protect the City's interest in the event of the Grantee's failure to comply with terms and conditions of the Franchise or Revocable License; (xiv) provisions to ensure that the Grantee will obtain all licenses and permits necessary to provide Telecommunications Services by use of the City's Streets from any governmental body having jurisdiction over the Grantee, including, but not limited to, the Federal Communications Commission; (xv) provisions to ensure that the Grantee will protect the property of the City from damage or interruption of City operations resulting from the construction, operation, maintenance, repair or removal of improvements of the Telecommunications System, or from the provision of Facility Services; (xvi) provisions designed to minimize the extent to which the public use of the Streets of the City are disrupted in connection with the construction of improvements relating to the Telecommunications System, or the provision of Facility Services; and (xvii) such other provisions as the City reasonably determines are necessary or appropriate to permit the City to manage its Streets or ensure compliance with the Franchise or Revocable License, to the extent not prohibited by law. 2.7.01 The City Clerk shall make available to an applicant a model Franchise or Revocable License, as applicable, containing the terms and conditions the City seeks to impose pursuant to Section 2.7.01. The City Council shall have the right to modify from time to time such model Franchise or Revocable License, so long as such modifications are consistent with this Ordinance and applicable law. Section 2.8 Revocation of Revocable License The Revocable License shall be revocable at any time by the City for cause or, if the Revocable License is for the provision of Private Telecommunications Services or Facility Services, for the City's convenience. The Revocable License, together with all Revocable 12 Licenses granted to the applicant or Affiliated Persons, shall not authorize the occupation and use of more than five hundred (500) linear feet of specifically identified Streets, unless the use or occupation of the Streets does not involve the offering or provision of Telecommunications Services by the Grantee, any Affiliated Persons or any other Persons to or from any Person or location in the City, or unless the use or occupation of the Streets is for the provision of Facility Services. Article 3 GENERAL PROVISIONS Section 3.1 Severability If any section, subsection, sentence, clause, phrase or other portion of this Ordinance is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect. Section 3.2 Delegation Consistent with applicable law, the City Council shall have the right to delegate and redelegate, and to revoke any such delegation or redelegation, from time to time, any of its rights or obligations under this Ordinance to any body, organization or official. Any such delegation, redelegation or revocation, no matter how often made, shall not be deemed an amendment to this Ordinance or to require the consent of any applicant for a Franchise or Revocable License or Grantee. The City Council may also establish and appoint one or more advisory boards, with such duration and such number of members as the City Council shall determine, to advise it on such of the matters which are the subject of this Ordinance. Section 3.3 Application to Existing Telecommunications Systems and Providers of Telecommunications Services and Private Telecommunications Services. This Ordinance shall not be retroactively applied to franchises for the operation of Telecommunications Systems used to provide Telecommunications Services existing on the effective date of this Ordinance, but shall apply to any renewal or extension of such franchises. Section 3.4 Applicability of Other Ordinances. All ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 3.5 Effective Date. 13 This Ordinance shall become effective upon passage and approval by the City Council. PASS D APPROVED this 4th day of March , 2002. ✓C' MAYOR, City of Smyrna Attest: I Approved as to Legal Form: Attorney, City of Smyrna 14 CITY OF SMYRNA TELECOMMUNICATIONS FRANCHISE OR LICENSE APPLICATION Submittal instructions: Applications for a franchise or revocable license may be submitted to: City of Smyrna Attn: City Clerk 2800 King Street P. O. Box 1226 Smyrna, GA 30081 Submit eight copies of the application and all supporting documentation in typed form. Application responses must be completed using the letter and number format as indicated on the application. Each applicant for a franchise must furnish with submittal of the application an application fee in the amount of Ten Thousand Dollars ($10,000.00) by certified check or cashier's check made payable to the City of Smyrna. Each applicant for a revocable license must furnish with submittal of the application an application fee in the amount of Ten Thousand Dollars ($10,000.00) by certified check or cashier's check made payable to the City of Smyrna. For further information or clarification regarding this process, please refer to the accompanying document: Instructions To Franchise and License Applicants. Responses to the following questions should be submitted in writing to the above address: 1. Applicant's name, address, telephone number, and federal employer identification number or social security number; copy of applicant's corporate charter or partnership agreement as applicable; and any trade names (and registrations) used by applicant; 2. For the purpose of determining who controls applicant, a detailed statement of the corporation or business entity organization of the applicant, including the following: (a) the names and business addresses of all officers and directors of the applicant; 15 (b) the names and business addresses of all Persons having Control over the applicant; (c) financial information sufficient to demonstrate that the applicant has the financial ability to construct and maintain the Telecommunications System, or to provide Facility Services, in a safe manner and in accordance with the City's management policies, rules and regulations with respect to the Streets and to the extent not prohibited by law; and (d) for purposes of determining whether the applicant will construct, maintain, operate, and repair the Telecommunications System, or provide Facility Services, in compliance with the City's management policies, rules and regulations with respect to the Streets and in a manner protective of the public health, safety and welfare with respect to the applicant's use of the Streets, the names and addresses for telecommunications systems owned or controlled by the applicant and the areas served by such systems. 3. In order to permit the City to manage its Streets, a description of the proposed plan of construction and maintenance of the Telecommunications System or Facility Services to be constructed in the Streets, which shall include the following: (a) a map indicating the location of the System or Facility Services in the Streets, and an estimated construction schedule, if known; and (b) a statement describing the proposed and actual location of facilities and equipment to be used in the Streets by the applicant. 4. To the extent not prohibited by law, any other details, statements, supplementary information, or references reasonably pertinent to the City's management of the Streets or the compensation to be paid to the City, which shall be required or requested by the City or by any other provision of law. 5. The signature and official title of the applicant and the date of the submittal of the application. 16 INSTRUCTIONS TO TELECOMMUNICATIONS FRANCHISE AND LICENSE APPLICANTS Submittal Instructions: Applications for a franchise or revocable license may be submitted to: City of Smyrna Attn: City Clerk 2800 King Street P. O. Box 1226 Smyrna, GA 30081 Eight copies of the application and all supporting documentation are to be submitted in typed form. Application responses will be completed using the letter and number format as indicated on the application. At the time the application is submitted, each applicant for a franchise must furnish an application fee in the amount of Ten Thousand Dollars ($10 0, 00.00) by certified check or cashier's check made payable to the City of Smyrna, and each applicant for a revocable license must furnish an application fee in the amount of Ten Thousand Dollars ($ 10,000.00) by certified check or cashier's check made payable to the City of Smyrna. For further information or clarification regarding this process, all questions should be submitted in writing to the above address. ResponsibilitY of Applicants It shall be the responsibility of each applicant for a franchise or revocable license to comply with all applicable laws, ordinances, resolutions, rules regulations and other directives of the City and any Federal, State or local government authority having jurisdiction. Public Availability of Applications To the extent determined by the City Council, applications for Franchises and Revocable Licenses, including any additions, modifications or amendments thereto, shall be available for public inspection at a designated City office during normal business hours. 18 Evaluation Criteria An applicant shall be granted a Franchise or Revocable License to operate a Telecommunications System over which Telecommunications Services are provided, provided the City Council reasonably determines that the applicant has agreed to or meets the following factors: A: The adequacy of proposed compensation to be paid to the City. B. Demonstration of adequate financial and technical ability to construct and maintain a Telecommunications System in the Streets, which such demonstration may be made by an adequate bond, security fund, and/or such other demonstration that is reasonably acceptable to the City, and a certificate of public convenience or other authorization from the State or Federal Communications Commission permitting the applicant to provide Telecommunications Services in the City. C: The ability of the applicant to maintain the property of the City in good condition throughout the term of the franchise. D: The willingness and the ability of the applicant to meet construction requirements and to abide by all conditions, limitations and requirements with respect to the franchise, any public, health, safety and welfare requirements reasonably related to the applicant's use of the Streets, and the City's management of Streets. E: Any other factors or considerations reasonably deemed pertinent by the City for managing the Streets and safeguarding the interests of the City and the public in the Streets, and for ensuring the City receives fair and reasonable compensation for use of the Streets, to the extent not prohibited by law. In making any determination hereunder as to any application for a Revocable License to provide Private Telecommunications Services or Facility Services, the City Council may consider such factors as it deems appropriate and in the public interest, including, without limitation, the foregoing factors to the extent applicable. Procedure for Consideration of and Action on Applications: The City may make such investigations and take or authorize the taking of such other steps as is deemed necessary or appropriate to consider and act on application for franchise or revocable license. In evaluating the application, the City may seek advice from other city officials or bodies, from such other advisory bodies as it may establish or determine appropriate, or from the public, and may request the preparation of one or more reports to be submitted to the City, which may include recommendations with respect to such applications. 19 After considering such information provided pursuant to the Telecommunications Ordinance as it determines to be appropriate, the City Council shall may set one or more public hearings for consideration of the application(s), fixing and setting forth a day, hour and place at which such application(s) shall be heard, and providing notice of such public hearing(s) in accordance with applicable law. Notification of the hearing will be presented to the applicant company and attendance by a representative of the company will be required at the hearing. Copies of the application will be made available for public inspection prior to the hearing. The City may institute negotiations between City officials and the applicant on the terms of the proposed Franchise or Revocable License. The City Council shall consider the application for a Franchise or Revocable License to provide Telecommunications Services in accordance with applicable law, including 47 U.S.C. § 253 as applicable to the provision of Telecommunications Services, and shall grant the Franchise or Revocable License, provided that the applicant has agreed to the terms and conditions on which the Franchise or Revocable license is to be granted and meets the evaluation criteria set forth above. Upon completion of the steps deemed appropriate by the City Council, the City Council may grant the Revocable License to provide Private Telecommunications Services or Facility Services, and may specify the conditions under which the Revocable License is granted. Alternatively, the City may reject any and all applications for a Revocable License to provide Private Telecommunications Services or Facility Services. The City also reserves the right to waive any or all requirements in order to grant a Franchise or Revocable License to provide Telecommunications Services to an applicant when it determines that the best interests of the City may be served thereby or that such waiver is required by applicable law. The City also reserves the right to waive any or all requirements for the grant of a Revocable License to provide Private Telecommunications Services or Facility Services when it determines that the best interests of the City may be served thereby or that such waiver is required by applicable law. Terms and Conditions of Franchise or Revocable License: The terms and conditions applicable to any franchise or revocable license granted pursuant to this application process shall be set forth in a separate ordinance granting the franchise or in a separate written agreement. Such an ordinance or written agreement, among other things, may address the following subjects, to the extent not prohibited by law: A: The term of the franchise or revocable license; provided, however, that the initial term of the revocable license shall not exceed five years and shall not have options to renew exceeding five years. B: The franchise area or, if a revocable license, the streets that may be used. 20 C: The compensation to be paid to the City. D: The circumstances upon which the franchise or revocable license may be terminated or cancelled. E: The mechanisms, such as performance bonds, security funds, or letters of credit, to be put in place to ensure the performance of the grantee's obligations under the franchise or revocable license. F: For the limited purpose of ensuring that the Grantee is complying with the terms of the Franchise or Revocable License, including, but not limited to, any compensation or Street management provisions, the City's right to inspect the facilities and records of the grantee. G: The insurance and indemnification requirements applicable to the grantee. H: The obligation of the grantee to maintain complete and accurate books of account and records with respect to its obligations under the Franchise or Revocable License, including, but not limited to, any compensation or Street management provisions, and the City's inspection rights with respect thereto. I: Provisions to ensure quality workmanship and construction methods in the Streets. J: Provisions to ensure that the grantee will comply with all applicable City, state and federal laws, regulations, rules and policies. K: Provisions to ensure adequate oversight by the City of the Grantee's use of Streets and compliance with the Franchise or Revocable License. L: Provisions relating to an assignment or other transfer of the Franchise or Revocable License or the Telecommunications System that results in a change in Control. M: Remedies available to the City to protect the City's interest in the event of the grantee's failure to comply with the terms and conditions of the franchise or revocable license. N: Provisions to ensure that the Grantee will obtain all licenses and permits necessary to provide Telecommunications Services by use of the City's Streets from any governmental body having jurisdiction over the Grantee, including, but not limited to, the Federal Communications Commission. O: Provisions to ensure that the grantee will protect the property of the City from damage or interruption of City operations resulting from the construction, 21 operation, maintenance, repair or removal of improvements of the Telecommunications System or from the provision of Facility Services. P: Provisions designed to minimize the extent to which the public use of the streets of the City are disrupted in connection with the construction of improvements relating to Telecommunications System or to the Facility Services; and, Q: Such other provisions as the City reasonably determines are necessary or appropriate to permit the City to manage its Streets or ensure compliance with the Franchise or Revocable License, to the extent not prohibited by law. 22 RESOLUTION Whereas: The City of Smyrna has completed a Five Year Short Term Work Program for the Period 2001 to 2005, and Whereas: The Committee of the Whole has recommended the City transmit the Short Term Work Program to the Atlanta Regional Commission for review, and Whereas: The Five Year Short Term Work Program was prepared in accordance with the Minimum Planning Standards and Procedures of Local Comprehensive Planning established by the Georgia Planning Act of 1989, and a Public Hearing was held on March 4, 2002 at 7:30 pm at City Hall. Therefore: The Mayor and City Council further authorizes the Community Development Director to hereby proceed with the transmission of the Short Term Work Program to the Atlanta Regional Commission as per the requirements of the Minimum Standards and Procedures for Local Comprehensive Planning. A. Max Bacon, Mayor Attest: /L Lee Miller, Deputy City Clerk CITY OF SMYRNA COMMUNITY DEVELOPMENT DEPARTMENT MEMORANDUM To: Mayor and Council From: Christopher S. Miller, AICP, Director Date: February 25, 2002 CC: Chris Corey, Interim City Administrator RE: REZONING CASE Z02-002 — Zoning Amendment Roswell Street Commons BACKROUND Hatcher Homes, Inc. is proposing to rezone a .959 acre tract from R-15 (Single Family Residential) and. OI (Office -Institutional) to RAD Conditional. If approved, the subject parcel would be incorporated into the previously approved Roswell Street Commons subdivision via a zoning amendment. The subject parcel is located on the south side of Roswell Street and includes two existing buildings. If approved, the four proposed residences on the .959 acre site would result in a net density of 4.17 units per acre. When added to the first phase of Roswell Street Commons, the overall density of Roswell Street Commons would increase from 3.39 unit per acre to 3.70 units per acre. Because of this, a land use change from Low Density residential and Central Business District to Medium Density Residential is required for the subject parcel. ANALYSIS The neighboring contiguous properties to the subject parcel are zoned 0-1 and RAID Conditional. This portion of Roswell Street is predominantly single-family residential. The development proposal would provide for the construction of four single-family homes which when added to the first phase of Roswell Street Commons would result in nine single-family homes. The density for the overall site would be 3.70 units per acre. If approved, the subject parcel would be developed as four fee -simple separate lots which will be accessed via a common drive between the rear of each residence and the rear lot line. To minimize the impact to the existing residence to the southwest, the common drive has been relocated to the interior of the development. The proposed homes will be designed in a bungalow style with detached and semi-detached garages behind each residence. The existing zoning classifications on the subject parcel are R-15 and O-I. The R-15 zoning designation is intended for single-family developments with a minimum lot size of 15,000 square feet. The proposed rezoning would change the designation to RAID Conditional which is Roswell Street Commons — Z02-002 February 25, 2002 Page 2 of 5 site plan specific. The proposed development would be required to consistent with the following setbacks approved in conjunction with the first phase of Roswell Street Commons: Front — 30', Rear — 30', Side — 10' and Between Buildings — 10'. The average lot size is approximately 117500 square feet in area. STAFF COMMENTS Section 1508 of the Smyrna Zoning Code details nine zoning review factors which must be evaluated by the Planning and Zoning Board and the Mayor and Council when considering a rezoning request. The following provides the nine factors followed by an analysis of each factor in italics: Whether the zoning proposal will permit a use that is suitable in view of the use and development of adjacent and nearby property. The proposed rezoning would result in a development zoned RAD Conditional which would be generally compatible with the adjacent residences zoned R-15. The major differences between the existing and proposed development would be the increased density of the subject development and the reduced front and side yard setbacks. Specifically, the overall density for the first phase of the Roswell Street Commons is 3.39 units per acre while the density for the subject parcel is proposed to be 4.17 units per acre resulting in a total net density of 3.70 units per acre. While the density for the development would be increased, the overall average lot size would be decreased from an average of approximately 12,000 square feet to 11,800 square feet. 2. Whether the zoning proposal or the use proposed will adversely affect the existing use or usability of adjacent or nearby property. The proposed rezoning would result in a single-family subdivision generally compatible with adjacent residences. The proposed building type (detached single-family) and style (bungalow) would be compatible with adjacent residences. 3. Whether the property to be affected by the zoning proposal has a reasonable economic use as currently zoned. The subject parcel has a reasonable economic use as single-family residences or commercial development consistent with the existing zoning designations. Roswell Street Commons — Z02-002 February 25, 2002 Page 3of5 4. Whether the zoning proposal will result in a use which will or could cause an excessive or burdensome use of existing streets, transportation facilities, utilities or schools. The proposed rezoning would result in an increase of two dwelling units. Additional information from the School Board related to the impact upon the school system will need to be provided prior to the City Council Meeting. 5. Whether the zoning proposal is in conformity with the policy and intent of the land use plan. The rezoning is not in conformity with the land use plan because a land use change is required. The land use change from Low -Density Residential/Central Business District to Medium -Density Residential would be compatible with the first phase of Roswell Commons but not the other surrounding land use designations which are either Low -Density Residential or Central Business District. 6. Whether there are other existing or changing conditions affecting the use and development of the property which give supporting grounds for either approval or disapproval of the zoning proposal. The City of Smyrna's downtown core is going through a major transformation with the addition of the new mixed -use Village Market. This development, together with new developments such as Whitfield Commons, will continue to improve this portion of the City. 7. Whether the development of the property under the zoning proposal will conform to, be a detriment to or enhance the architectural standards, open space requirements and aesthetics of the general neighborhood, considering the current, historical and planned uses in the area. The proposed development employing traditional bungalow designs would enhance the area in comparison to the present use. 8. Under any proposed zoning classification, whether the use proposed may create a nuisance or is incompatible with existing uses in the area. The proposed use (single-family residences) will not create a nuisance to adjacent properties. Roswell Street Commons — Z02-002 February 25, 2002 Page 4 of 5 9. Whether due to the size of the proposed use, in either land area or building height, the proposed use would affect the adjoining property, general neighborhood and other uses in the area positively or negatively. Factors associated with the use, land area or building height will not have an impact upon the adjacent properties. The proposed rezoning will provide for the development of four single-family residences which, when added to the first phase of Roswell Street Commons, would result in a subdivision with nine single-family residences. Due to the density associated with the rezoning, a land use change from Low -Density Residential/Central Business District to Medium -Density Residential will be required. While the proposed land use change will not be consistent with the adjacent properties (excluding the remainder of Roswell Commons), it will have a positive impact upon the neighborhood by eliminating an existing non-residential use. Additionally, the type and style of residences proposed would be an upgrade in comparison to the existing buildings. Staff supports the rezoning and land use change with the following conditions of approval drawn from Section 1201 for Conditional Developments. These standards were drawn from those approved by the City Council on October 1, 2001 in conjunction with the rezoning for the first phase of Roswell Street Commons: The development will maintain the following setbacks: Front-30', Side-10', between buildings-10' and rear-30'. 2. Each residence will be a minimum of 1,950 square feet in area and conform to the architectural renderings provided to the City Council at its October 1, 2001 rezoning hearing for the first phase of Roswell Street Commons. 3. There shall be protective covenants on all lots and there shall be a mandatory homeowners association. 4. The storm water detention plan shall be designed to create at least a 10% reduction in a 100-year storm event. The City Engineer shall approve all plans. 5. All retention ponds shall be placed and screened appropriately to be unobtrusive to homes inside and outside the development. 6. All utilities within the development shall be underground. 7. The developer will comply with the City's current tree ordinance and plans shall be submitted to the City Arborist for review and comment prior to construction. 8. The protective covenants will require all non-resident property owners to keep the Homeowners Association advised of the current address and phone numbers where they can be reached. 9. No debris may be buried on any lot or common area. Roswell Street Commons — Z02-002 February 25, 2002 Page 5 of 5 10. All yards and common areas are to be sodded and landscaped. Irrigate as appropriate. 11. All landscape plans must be prepared, stamped and signed by a Georgia Registered Landscape Architect or a degreed horticulturist for common areas and entrances. 12. Each lot shall have the following trees replanted per lot either: four 3" caliper trees or two 2" caliper and two 4" caliper trees. The following species of trees may be used: Nuttall Oak, Swamp Chestnut Oak, Allee Elm and Village Green Zelkova. Other species may be used if approved by the City. In the event that a 12" caliper or larger hardwood tree is saved on a given lot; the replanting requirements for that given lot may be waived. If for any reason, development and use of property approved in accordance with the procedure outlined above cannot be accomplished, such plans shall not be altered, changed, or varied, except after approval by the mayor and council. When conditional zoning has been granted, but no affirmative action to perform said conditions, or to obtain a building permit subject to such conditions [has been taken], and such status continues for 12 months after mayor and council approval of such conditional zoning, the property shall revert to its original status prior to such conditional zoning. CABLE SYSTEI\1 AND OPEN VIDEO SYSTEM ENABLING ORDINANCE ORDINANCE NUMBER 020304A AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SMYRNA, GEORGIA TO PROVIDE FOR THE GRANTING OF ONE OR MORE NONEXCLUSIVE FRANCHISES FOR CABLE SERVICES WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY OF SMYRNA, GEORGIA AND TO PROVIDE FOR THE PROCESS UNDER WHICH SAID GRANTING OF FRANCHISES SHALL TAKE PLACE THE COUNCIL OF THE CITY OF SMYRNA, GEORGIA HEREBY ORDAINS THAT: WHEREAS, the Mayor and City Council have determined that it is in the best interests of and consistent with the convenience and necessity of the City to grant Franchises (as hereinafter defined) to companies desiring to provide Cable Services (as hereinafter defined) through a Cable System (as hereinafter defined) or Open Video System (as hereinafter defined) within the territorial boundaries of the City and on the terms and conditions herein, and as may be further described in each franchise agreement for Cable Services; WHEREAS, the City has the authority to regulate the occupation and use of the Streets (as hereinafter defined) to the maximum extent permitted under applicable law, including, but not limited to, the federal Telecommunications Act of 1996 ("1996 Act"); and WHEREAS, in an effort to comply with applicable law, including the 1996 Act, the City has determined that a Person (as hereinafter defined) must obtain separate Franchises to provide Cable Services and Telecommunications Services; and WHEREAS, the 1996 Act permits the provision of Cable Service over an Open Video System, subject to the City's right to franchise such Open Video System; WHEREAS, the City has determined that the grant of franchises to use and occupy the Streets for the provision of Cable Services would promote the health, safety and welfare of the public, stimulate commerce and otherwise serve the public interest; and WHEREAS, the City desires to structure and implement a fair and orderly process for the grant of franchises (and renewals of such franchises) to occupy and use the Streets to provide Cable Services in the City, including the negotiation of franchise provisions to protect the public interest; and WHEREAS, the City intends to exercise, to the fullest extent permitted by applicable law, its authority with respect to the regulation of the occupation and use of the Streets in connection with the provision of Cable Services, NOW, THEREFORE BE IT RESOLVED THAT: SECTION I The Code of Ordinances of the City of Smyrna is hereby amended by creating a new Chapter _, Articles 1-3, entitled "Cable Services Franchising," and shall hereafter read as follows: Article 1 DEFINITIONS Section 1.1 Definitions For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings set forth in this Section, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number and words used in the singular number include the plural number. 1.1.01 "Cable Services" means "cable services" as defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, and as may be further amended from time to time (the "Cable Act"), but does not include Telecommunications Services. In the event that "cable services" is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, "Cable Services" shall mean "cable services" as defined in the Cable Act immediately prior to such term no longer being defined in the Cable Act or such definition otherwise becoming inapplicable. 1.1.02 "Cable System" means any "Cable System" as defined in the Cable Act. 1.1.03 "City" means the City of Smyrna. 1.1.04 "City Council" means the City Council of the City and its designee or any successor thereto. 1.1.05 "Franchise" means an initial authorization, or renewal thereof, issued by the City, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the occupation and use of the Streets to provide Cable Services through a Cable System or Open Video System. 1.1.06 "Grantee" means the legal entity to which is granted the right, authority and responsibility to construct, install, operate and maintain a system of equipment as necessary to furnish, supply and distribute Cable Services to inhabitants within the franchise area. 1.1.07 "may" is permissive. 1.1.08 "Open Video System" means "open video system" as defined by section 76.1500(a) of Part 76 of the Code of Federal Regulations. 1.1.09 "Ordinance" means this Ordinance and all modifications and amendments thereto. 1.1.10 "Person" means any individual or any association, firm, partnership, joint venture, corporation or other legally recognized entity, whether for profit or not for profit, but shall not mean the City. 1.1.11 "shall" is mandatory, not merely directive. 1.1.12 "Streets" means the surface of, as well as the spaces above and below, any and all streets, alleyways, avenues, highways, boulevards, driveways, bridges, tunnels, parks, parkways, public grounds or waters, and other public rights -of -way within or belonging to the City. 1.1.13 "Telecommunications Services" means "telecommunications service" as defined by 47 U.S.C. § 153(46) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, but does not include Cable Services. In the event that "telecommunications service" is no longer defined in the Communications Act or the definition in the Communications Act otherwise becomes inapplicable, "Telecommunications Service" shall mean "telecommunications service" as defined in the Communications Act immediately prior to such term no longer being defined in the Communications Act or such definition otherwise becoming inapplicable.. Article 2 GRANTING AUTHORITY AND FRANCHISING PROCEDURE Section 2.1 Granting Authority 2.1.01 No Person shall use or occupy the Streets to provide any Cable Services or operate a Cable System or Open Video System without a Franchise granted in accordance with the provisions of this Ordinance. 2.1.02 The City Council may grant one or more Franchises in accordance with this Ordinance, provided that the City Council reserves the right to modify any provision of this Ordinance by amendment hereof. 2.1.03 The grant of any Franchise shall be made by adoption of a separate ordinance by the City Council and shall be on such terms and conditions as may be specified in said separate ordinance and/or a franchise agreement between the City and the Grantee. 2.1.04 Any Franchise granted shall be nonexclusive. The City specifically reserves the right to grant, at any time, such additional Franchises as it deems appropriate and/or itself engage in the provision of Cable Services. 2.1.05 A Franchise may be granted for all or any defined portion of the City. 2.1.06 The grant of Franchises by the City shall be subject to the provisions of applicable law, such as the provisions in the Cable Act, as amended, governing cable television system and open video system franchises and the renewals of cable television system franchises. Section 2.2 Franchise Applications 2.2.01 Applications for Franchises shall be submitted in such form and be issued on such terms and conditions as the City Council may determine, subject to applicable law. 2.2.02 Any Application for a Franchise shall contain and/or require the following information with respect to the proposed Franchise and such other information as the City Council shall deem necessary or appropriate: (i) applicant's name, address, telephone number, and federal employer identification number or social security number; copy of applicant's corporate charter or partnership agreement as applicable; and any trade names (and registrations) used by applicant; (ii) a detailed statement of the corporation or business entity organization of the applicant, including but not limited to the following, and to whatever extent required by the City: (a) the names and the residence and business addresses of all officers and directors of the applicant; (b) the names, residence, and business addresses of all persons and entities having any share of the ownership of the applicant and the respective ownership share of each person or entity; (c) the names and address of any parent or subsidiary of the applicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to cable systems and open video systems owned or controlled by the applicant, its parent, and subsidiary, and the areas served thereby; (d) a detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year immediately preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the Council, setting forth the basis for a study performed by such lending institution or funding source, and a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed cable system or open video system in the City, or a statement from an independent certified public accountant certifying that the applicant has available sufficient free, net, and uncommitted cash resources to construct and operate the proposed cable system or open video system in the City; (e) a detailed financial plan (pro forma) describing for each year of the franchise, projected number of subscribers, rates, all revenues, operating expenses, capital expenditures, depreciation schedules, income statements, and a sources and uses of funds statement; and (f) a statement identifying, by place and date, any other cable television franchise(s) awarded to the applicant, its parent or subsidiary; the status of said franchise(s) with respect to completion thereof; the total cost of completion of such franchised cable system(s) and open video system(s); and the amount of applicant's and its parent's or subsidiary's resources committed to the completion thereof; (iii) a detailed description of the proposed plan of operation of the applicant which shall include, but not be limited to, the following: (a) a description of the Cable Services proposed to be provided; (b) a detailed map indicating all areas proposed to be served, and a proposed time schedule for the installation of all equipment necessary to become operational throughout the entire area to be serviced; (c) a statement or schedule setting forth all proposed classifications or rates and charges to be made against subscribers and all rates and charges as to each of said classifications, including installation charges, cable service charges, and any other service charges; (d) a detailed, informative, and referenced statement describing the actual equipment and operational standards proposed by the applicant; (e) a copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any subscriber to Cable Services; and (f) a detailed statement setting forth in its entirety any and all agreements and undertakings, whether formal or informal, written, oral, or implied, existing or proposed to exist between the applicant and any person, firm, or corporation which materially relate or pertain to or depend upon the application and the granting of the franchise; (iv) a copy of any agreement covering the franchise area, if existing between the applicant and any utility providing for the use of any facilities of the utility, including but not limited to, poles, lines, or conduits; and (v) any other details, statements, supplementary information, or references pertinent to the subject matter of such application which shall be required or requested by the Council, or by any other provision of law. Section 2.2.03 Non-refundable Application Fees for New Franchises No application for a new franchise shall be considered without payment by the applicant of application fees as provided in this Section. If a franchise is granted, application fees will not be deemed a credit towards any other fees or sums due by the Grantee. If an application is denied, the application fee will not be refunded. (a) Purpose of Application Fees. The application fees provided by this section will serve to cover the direct and indirect costs incurred by the City in processing the application, evaluating the applicant, and granting a franchise, and shall include, but not be limited to, administrative, engineering, publication, legal, and consultant's expenses. (b) Application Fee. The applicant will be expected to pay the reasonable costs of the City in evaluating the application. Notwithstanding any other requirement of this ordinance, each applicant must furnish with its proposal a non-refundable application fee in the amount of Ten Thousand Dollars ($10,000) by certified check or cashier's check made payable to the City of Smryna. In the event that the City's reasonable costs exceed such amount, the applicant may be required by the City to pay any additional amount to cover such costs. Section 2.3 Responsibilities of Applicants It shall be the responsibility of each applicant for a Franchise to comply with all applicable laws, ordinances, resolutions, rules, regulations and other directives of the City and any federal, state or local governmental authority having jurisdiction. Section 2.4 Public Availability of Applications To the extent determined by the City Council, applications for Franchises, including any additions, modifications or amendments thereto, shall be available for public inspection at a designated City office during normal business hours. Section 2.5 Evaluation Criteria In making any determination hereunder as to any application for a Franchise, the City Council may consider such factors as it deems appropriate and in the public interest, including, without limitation: (i) the adequacy of the proposed compensation to be paid to the City, including the value of any facilities and Cable Services offered by the applicant to the City; (ii) the legal, financial, technical and other appropriate qualifications of the applicant; (iii) the ability of the applicant to maintain the property of the City in good condition throughout the term of the Franchise; (iv) the value and efficiency to the City and its residents of the Cable Services to be provided, including the type of Cable Services to be provided, as well as alternatives to those Services and services that may be precluded by the grant of the Franchise; (v) the willingness and ability of the applicant to meet construction and physical requirements and to abide by all purpose and policy conditions, limitations and requirements with respect to the Franchise; and (vi) any other public interest factors or considerations deemed pertinent by the City for safeguarding the interests of the City and the public. Section 2.6 Procedure for Consideration of and Action on Applications 2.6.01 The City may make such investigations and take or authorize the taking of such other steps as the City Council deems necessary or appropriate to consider and act on applications for Franchises and determine whether a Franchise should be granted to an applicant, and may require the applicant to furnish additional information and data for this purpose. In considering applications, the City Council may seek advice from other city officials or bodies, from such other advisory bodies as it may establish or determine appropriate, or from the public, and may request the preparation of one or more reports to be submitted to the City Council, which may include recommendations with respect to such applications. 2.6.02 If the City Council, after considering such information as it determines to be appropriate, elects to further consider any application(s), the City Council shall set one or more public hearings for consideration of the application(s), fixing and setting forth a day, hour and place certain when and where any Persons having any interest therein or objections thereto may file written comments and appear before the City Council and be heard, and providing notice of such public hearing(s) in accordance with applicable law. 2.6.03 The City Council may authorize negotiations between City officials and applicants to determine whether the City and such applicants are able to reach agreement on the terms of the proposed Franchise. 2.6.04 Upon completion of the steps deemed appropriate by the City Council, the City Council may grant the Franchise, and may specify the conditions under which the Franchise is granted. Alternatively, the City may reject any and all applications from whatever source and whenever received except that a franchising authority may not grant an exclusive franchise and may not unreasonably refuse to award an additional competitive franchise. The City also reserves the right to waive any or all requirements when it determines that the best interests of the City may be served thereby and may, if it so desires, request new or additional proposals. Section 2.7 Terms and Conditions of Franchise 2.7.01 The terms and conditions applicable to any Franchise granted pursuant to this Ordinance shall be set forth in the separate ordinance granting the Franchise or in a separate written agreement. Such separate ordinance or written agreement, among other things, shall address the following subjects: (i) the term of the Franchise; (ii) the Franchise area and the Cable Services which are the subject of the Franchise; (iii) the compensation to be paid to the City, which may include the payment of fees or the provision of facilities or services, or both; (iv) the circumstances upon which the Franchise may be terminated or cancelled; (v) the mechanisms, such as performance bonds, security funds or letters of credit, to be put in place to ensure the performance of the Grantee's obligations under the Franchise; (vi) the City's right to inspect the facilities and records of the Grantee; (vii) insurance and indemnification requirements applicable to the Grantee; (viii) the obligation of the Grantee to maintain complete and accurate books of account and records, and the City's inspection rights with respect thereto; (ix) provisions to ensure quality workmanship and construction methods; (x) provisions to ensure that the Grantee will comply with all applicable City, state and federal laws, regulations, rules and policies, including, without limitation, those related to employment, purchasing and investigations; (xi) provisions to ensure adequate oversight and regulation of the Grantee by the City; (xii) provisions to restrict the assignment or other transfer of the Franchise without the prior written consent of the City; (xiii) remedies available to the City to protect the City's interest in the event of the Grantee's failure to comply with terms and conditions of the Franchise; (xiv) provisions to ensure that the Grantee will obtain all necessary licenses and permits from, and comply with, all laws, regulations, rules and policies of any governmental body having jurisdiction over the Grantee, including, but not limited to, the Federal Communications Commission; (xv) provisions to ensure that the Grantee will protect the property of the City and the delivery of public services from damage or interruption of operations resulting from the construction, operation, maintenance, repair or removal of improvements related to the Franchise; (xvi) provisions designed to minimize the extent to which the public use of the Streets of the City are disrupted in connection with the construction of improvements relating to the Franchise; and (xvii) such other provisions as the City determines are necessary or appropriate in furtherance of the public interest. Article 3 GENERAL PROVISIONS Section 3.1 Severability If any section, subsection, sentence, clause, phrase or other portion of this Ordinance is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect. Section 3.2 Delegation Consistent with applicable law, the City Council shall have the right to delegate and redelegate, and to revoke any such delegation or redelegation, from time to time, any of its rights or obligations under this Ordinance to any body, organization or official. Any such delegation, redelegation or revocation, no matter how often made, shall not be deemed an amendment to this Ordinance or to require the consent of any applicant for a Franchise or Grantee. The City