HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 088F - EXHIBIT FORDINANCE NO. 101, 2017
QF THE COUNCIL 4F TI-IE CITY ~F FORT COLLINS
SUBMITTING TO A VQTE C►F THE REGISTERED ELECTORS OF
THE CITY OF FORT COLLINS A PROPOSED AMENDMENT TO
ARTICLE XII QF THE CITY CHARTER TO ADD A NEW SECTION 7
PERTAINING TD TELECOMMUNICATION FACILITIES AND SCRVICES
WHEREAS, pursuant to Article IV, Section 8 of the Charter of the City of Fart Collins
{"Charter"}, the CY►arter may be amended as provided by the laws of the State of Colorado; and
W~IEREAS, as provided in Article XX, Section 9 of the Colorado Constitution and in
Section 31-2-210(1}(b) of the Colorado Revised Statutes, the City Council may initiate a
proposed Charter amendment by adopting an ordinance to submit the amendment to the City's
electoraEe and must adapt in that ordinance a ballot title for the amendment; and
WHEREAS, Charter Article XII, titled "Municipal Public Utilities," contains various
provisions authorizing and regulating dle City's public utilities, like its water and electric
utilities, including the requirement in Section 1 of Article XII that the City's electors must give
their approval before the Council can construct, condemn, purchase, acquire or lease any ne~v
public utility; and
WHEREAS, on November 3, 2Q15, a majority of the City's electorate voted "yes" in
answer to a ballot question submitted to them asking if the City, in the exercise of its home rule
power, should have the right to provide, either directly ar indirectly through private and/or public
partnerships, to its residents, businesses, educational institu#ions and other organizations in the
City, various kind of telecommunication facilities and services, including broadband Internet
facilities and services; and
WHEF2EAS, as a result of this response from the electorate, City Council and staff' have
conducted significant research, public outreach and investigation to determine whether the City
should provide high-speed broadband InEernet service as a public utility, and
W~-IEREAS, after completing that research, public outreach and investigation, the
Council has determined that the City's electorate should be asked to amend the Charter to allow,
but not require, the Council to authorize, by future ordinance and without a vote of the electorate,
the City's electric utility ar a new telecommunications utility to acquire and provide directly or
indirectly telecommunication facilities and services, including high-speed broadband Internet
Facilities and services; and
WHEREAS, on July I8, 2017, dle Council adopted an first reading t}rdinance No. 096,
2017 ("Election Ordinance"} calling a special municipal election to be held on November 7,
2017, as a coordinated election with the Larirner` County Clerk and Recorder ("November
Election"} and the Election Urdina~ice will be considered by Council on second reading at its
August l5, 2a17', regular meeEing; and
EX~j;.~ ~~ ~'
_,~ F
D
ATE FILED: March 8, 2019 6:07 PM
FILING ID: 8864D66F6104C
CASE NUMBER: 2018CV149
WHEREAS, the Council's intent in adopting this Ordinance No. 101, 2017, is to present
to the City's electorate at the Navemher Election, through the ballot title set in Section 3 of this
Ordinance, a proposed amendment to Charter Article XII that would add a new Section 7 to
Article XII, which, if adopted, would allow the Council, by ordinance and without a vote of the
eIsctorate, to authorize the City's electric utility or a new telecommunications utility to acquire,
construct, provide, fund and contract for telecommunication facilities and services within and
outside the City's territorial limits, whether directly ar in whole or part through one or more
third-party providers; and
WHER.~AS, this new Section 7 also grants to the Council certain powers relating to
providing telecommunication facilities and services, and these include: (a) issuing securities and
other debt; (b) setting the customer charges For these facilities and services; (c) convening in
executive session to consider mat#ers pertaining to competition in providing these facilities- and
services; (d) delegating to aCouncil-appointed board or commission some or aU of the Council's
governing authority and powers granted in this Charter amendment, but not the power to issue
securities and other debt; and (S) delegating to the City lvlanager some or all of Caunci!'s
authority to set customer charges for these facilities and services.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
~'~RT COLLINS as follows:
Section I. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set Earth above.
Section 2. That the following proposed new Section 7 to Charter Article XII shall be
submitted to the registered electors of the City as "Proposed Charter Amendment No. 1" at the
November Election, provided that the Election Ordinance is adopted on second reading on
August 15, 2017, and becomes law ten (10) days thereafter as provided in the Charter:
Charter Article XII. Municinnl Public Utilities
Section 7. Telecommunication facilities and services.
(a) In addition to all the powers granted by this Chartar to the Council to acquire,
condemn, establish, construct, own, lease, operate and maintain an electric utility to
provide light, power and other electrical facilities and services, the Council may, by
ordinance and without a vote of the electors, authorize the electric utility to acquire,
construct, provide, fitnd and contract for telecommunication facilities and services within
and outside the City's territorial titnits, whether directly or in whole or part through one
or more third-party pravid~rs. Alternatively, the Council may create by ordinance, and
without a vote of the electors, a telecommunications utility to exercise these same powers
to furnish telecommunication facilities and services within and outside the City's
territorial limits. If the Council creates a telecommunications utility, it may also establish
that utility as an enterprise of the City in the same manner, with the same powers and
subject to the same requirements and limitations established under Section 19.3(b) of
Article V of this Charter for the City's other enterprises. The Council may also exercise
_~.,
with respect to the telecommunications utility the same general authority and powers
granted to Council in this Charter with respect to the City's other utilities.
(b} The Council, acting as itself, the board of the electric utility enterprise ar as the
board of the telecommunications utility enterprise, shall have the power to issue revenue-
and refunding securities and other debt obligations as authorized in Sections 19.3 and
19.4 of Article V of this Charter to fund the provision of the telecommunication facilities
and services authorized in this Section. The cumulative total principal amount of any
such securities and other debt obligations issued shalt not exceed one hundred and fifty
million dollars ($150,000,OdO), except that any refunding of such securities or aEher debt
obligations shall not be included in that cumulative total. The City's payment of and
performance of covenants under the securities and other debt abli~ations issued under
this subsection (b) and any other contract obligations of the City relating to the provision
of telecommunication facilities and services under this Section, shall not be subject to
annual appropriation sa tang as annual appropriation is not required under Article X,
Section 20 of the Colorado Constitution.
(c) The Cauncii shall set by ordinance the rates, fees and charges for furnishing the
telecommunication facilities and services authorized in this Section subject to the same
limitations in Section 6 of Article XII of this Charter far setting the rates, fees and
charges for other City utilities, except to the extent this authority is delegated by Council
pursuant to subsection (e) below. In setting such rates, fees and charges, the Council may
also include amounts payable to the City's general fund for a franchise fee, a reasonable
rate of return on any contributions from the general fund to acquire ar construct
telecommunication facilities, and the repayment of any loans from the general fund used
to support tiie provision of telecommunication Facilities grid services under this Section,
to include the payment of a reasonable rate of interest on any such loans.
(d) In addition to the authority to go into executive session as provided in Section 11
of Article Il of this Charter, the Council, and any board or commission established under
subsection (e) below, may go into executive session to consider matters pertaining to
issues of competition in providing the telecommunication facilities and services
authorized in this Section, which shalt include, without limitation, matters subject to
negotiation, strategic planning, pricing, sales and marEcetin~, development phasing and
any other matter allowed under Colorado law.
(e} As authorized in Section 1 of Article N of this Charter, the Council may, by
ordinance, establish aCouncil-appointed board or commission and delegate to it, in
whole or part, the Council's governing authority and powers granted under this 5ectian
concerning the fiirnishing of telecommunication facilities and services by the City's
electric utility ar telecommunications utility, but not the power to issue securities as
provided in subsection (b), above which shall aniy be exercised by the Council acting as
itself or as the board of the electric utility enterprise or as the board of the
telecommunications utility enterprise. The Council may also delegate by ordinance tp the
City Manager, in whole or part, its authority in subsection (c} above to set the rates, fees
and. charges. for furnishing telecommunication facilities and services. Any Council.
-3-
ordinance delegating this authority shalt set Earth the process to be used by the delegate
for the setting of these rates, fees and charges. In addition, the amount of the rates, fees
and charges so set by the delegate shall be determined under the same criteria the Council
is authorized and required to fallow in subsection (c) above.
(~ For purposes of this Section, telecarnmu~zicatio~~ facilities ar~d services shall mean
those facilities used and services provided far the transmission, between or among paints
specified by the user, of information of the user's choosing, without change in the farm or
content of the information as sent and received, to include, without limitation, any
broadband Internet facilities and services using any technology having the capacity to
transmit data to enable a subscriber to the service to originate and receive high-quality
voice, data, graphics and video, Telecon:rnirnicalion facilities and services and
"broadband Internet facilities and services" are to be interpreted under this Section in the
broadest passible way to cover the widest range of technologies and technology
infrastructure, regardless of how these terms may be defined by federal or state law,
Section 3.. That. the following ballot title, with its title and submission ,clause, is
hereby adopted far submitting tine proposed new Section 7 in Charter Article XII to the Gity's
electorate at the November Election, provided that the Election Ordinance is adopted on second
reading on August 15, 2017, and becomes law ten (1Q) days thereafter as provided in the Charter:
CITY-INITIATED
PROPOSED CHARTER AMENDMENT NO. 1
ApAING A NEW SECTi4N 7 TD CI-IART~R ARTICLE XII TO
AUTHORIZE, BUT NOT R.~QUIRE, THE CITY'S PROVISIQN 4F
TELECOMMUNICATION FACILITIES AND SERVICES AS A
PUBLIC UTILITY, INCLUDING BROt~DBAND INTERNET SERVICES
Shall Article III of the City of Fort Collins Charter be amended to allow, but not require,
City Council to authorize, by ordinance and without a vote of the electors, the City's
electric utility ar a separate telecommunications utility to provide telecommunication
facilities and services, including the transmission of voice, data, graphics and video using
broadband Internet facilities, to customers within and outside Fort Collins, whither
directly or in whale or part through one or more third-party providers, and in exercising
this authority, to: (1) issue securities and other debt, but in a total amount not to exceed
$150,~OO,OQ4; (2} set the customer charges for these facilities and services subject to the
limitations in the Charter required for setting the customer charges of other City utilities;
{3} go into- executive session to consider matters pertaining to issues of competition in
providing these facilities and services; (4) establish and delegate to a Cauneil-appointed
board or commission some ar all of tl~e Council's governing authority and powers
granted in this Charter amendment, but not the power to issue securities and other debt;
and (5} delegate to the City Manager some ar all of Council's authority to set customer
charges for telecommunication facilities and services?
YeslFor
No(Against
~~..
Section 4. That pursuant to Section 31-2-210(4} of the Colorado Revised Statutes,
the City Clerk is directed to publish in the Coloradoan a notice of the City's November 7, 2017,
special election coordinated with Latimer County and to include in that notice the full text of
proposed Section 7 of Charter Article XII as it is stated in this Ordinance. Such notice is to be
published within thirty (30) days of the adoption of this Ordinance and not less than sixty
(60) days nor mare than one hundred twenty (120) days before said election.
Introduced, considered favorably an first reading, and ordered published this 8th day of
August, A.T3.2017, .and to be presented for final passage on the 1 Sth day of August, A.D. 20I 7.
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ATTEST: ~, s~~ °
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Interim ty Clerk
Passed and adopted on final reading on the i 5th day of August, A.D. 2017.
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ATTEST: ~': ~~~~,
Interim ity Clerk