APPENDIX E. TELECOMMUNICATIONS FRANCHISE – CENTURYTEL

ORDINANCE NO. 712

AN ORDINANCE GRANTING A FRANCHISE BY THE CITY OF BROWNSVILLE TO CENTURYTEL OF OREGON, INC. DBA CENTURYTEL, ITS SUCCESSORS AND ASSIGNS, TO OFFER AND PROVIDE TELECOMMUNICATIONS SERVICES TO THE CITY AND TO ALL PERSONS, BUSINESSES AND INDUSTRIES WITHIN THE CITY, AND TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH THE CITY ALL FACILITIES REASONABLY NECESSARY FOR SUCH PURPOSES, AND TO MAKE REASONABLE USE OF ALL STREETS AND OTHER PUBLIC PLACES AS MAY BE NECESSARY FOR SUCH PURPOSES, AND FIXING THE TERMS AND CONDITIONS THEREOF.

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BROWNSVILLE, LINN COUNTY, OREGON:

ARTICLE I – Definitions

For the purpose of this Ordinance, the following words and phrases shall have the meaning given in this Article. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined in this Article shall be given their common and ordinary meaning.

“City” means the City of Brownsville, Linn County, Oregon, and includes the territory as currently is or may in the future be included within the boundaries of the City of Brownsville.

“City Council” means the governing body of the City.

“Company” means CenturyTel of Oregon, Inc. d.b.a. CenturyTel and its successors and assigns.

“Facilities” means all underground, surface and/or aerial facilities necessary to provide telecommunications services into, within and through the City, including without limitation wires, cables, ducts, poles, guys, anchors, vaults, pedestals, cabinets, supports, radios, antennas, fixtures, buildings and related equipment.

“Public Utility Commission” means the Public Utility Commission of the State of Oregon or other authority succeeding to the regulatory powers of the Public Utility Commission of the State of Oregon.

“Revenues” means those amounts of money which the Company receives from its customers within the City for the sale of exchange access services by the Company, as authorized by and in accordance with ORS 221.515 and 401.710, adjusted for refunds, the net write-off of uncollectible accounts, corrections or other regulatory adjustments.

The phrase “streets and other public places” means the streets, alleys, viaducts, bridges, roads, lanes, easements, public ways and other public places in the City.

ARTICLE II – Grant of Franchise

Section 1. Grant of Franchise. The City hereby grants to the Company, for the period specified in Section 2. of this Article and subject to the conditions, terms and provisions contained in this Ordinance,

(i) the right to offer, furnish, sell and distribute telecommunications services to the City and to all persons, businesses and industries within the City,

(ii) a nonexclusive right to acquire, construct, install, locate, maintain, operate and extend into, within and through the streets and other public places in the City, all Facilities reasonably necessary to provide telecommunications services to the City and to all persons, businesses and industries within the City and in the territory adjacent thereto, and

(iii) a nonexclusive right to make reasonable use of all streets and other public places as may be necessary to exercise the rights herein granted to the Company.

Section 2. Term of Franchise. The term of this Franchise shall be for ten (10) years, beginning September 17, 2007 and expiring September 30, 2017.

ARTICLE III – Franchise Fee

Section 1. Franchise Fee. In consideration for the grant of this Franchise, the Company shall collect and remit to the City a sum equal to seven percent (7%) of Revenues.

Section 2. Payment Schedule. For the franchise fee owed on revenue received after the effective date of this Ordinance, payment shall be made in quarterly installments due on or before the last day of the month following the end of each calendar year quarter. Payments at the beginning and end of the term of this Ordinance shall be prorated. All payments shall be made to the City at the following address: 255 N. Main Street, P.O. Box 188, Brownsville, Oregon 97327. The City shall have reasonable access to applicable records of the Company for the purpose of auditing or checking to ensure that the franchise fee has been correctly computed and paid.

Section 3. Franchise Fee Payment in Lieu of Other Fees. Payment of the franchise fee by the Company is accepted by the City in lieu of any occupancy tax, license tax, permit charge, inspection fee or similar tax, assessment or excise upon the privilege of doing business or in connection therewith, but does not exempt the Company from any lawful taxation or local improvement assessment upon its real property.

ARTICLE IV – Conduct of Business

Section 1. Conduct of Business. The Company may establish, from time to time, such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this Franchise; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with this franchise or with the laws of the City, the State of Oregon or the United States.

Section 2. Tariffs available online. The Company shall make available at its corporate website all tariffs currently in effect and on file with the Public Utilities Commission.

Section 3. Compliance with Law. The Company shall comply with all applicable laws and regulations in the conduct of its business within the City, including without limitation all applicable rules and regulations adopted by the Public Utility Commission.

Section 4. Compliance with Company Tariffs. The Company shall furnish Services to the City and to all persons, businesses and industries within the City at the rates and under the terms and conditions set forth in its tariffs on file with the Public Utility Commission.

Section 5. Applicability of Company Tariffs. The City and Company acknowledge and agree that provisions of the Company’s tariffs on file and in effect with the Public Utility Commission are controlling over any inconsistent provision in this Franchise dealing with the same subject matter.

ARTICLE V – Construction, Installation and Operation of Facilities

Section 1. Location of Facilities. The Facilities shall not interfere with the City’s water mains, sewer mains, gas mains or other municipal use of streets and other public places. The Facilities shall be located so as to cause minimum interference with public use of streets and other public places and shall be maintained in good repair and condition.

Section 2. Excavation and Construction. All construction, excavation, maintenance and repair work done by the Company shall be done in a timely and expeditious manner, which minimizes the inconvenience to the public and individuals. Any street or other public place disturbed by Company construction or excavation activities shall be restored as soon as practicable by the Company at its expense to substantially its former condition. The City reserves the right to restore property and remedy damage to streets and other public places caused by Company activities at the expense of the Company in the event the Company fails to perform such work within a reasonable time after notice from the City. All work in the City right-of-way or publicly controlled land shall require a permit from City Hall and Public Works. Construction methods may be determined by the City based on the conditions of the permit.

Section 3. Relocation of Company Facilities.

(i) In the event the City decides to change street grades or modify pavements, sewers, water mains or other City works or to require all telecommunications, electrical and cable television wires or cables to be placed underground, and relocation of certain Company Facilities in streets or other public places is necessary in order to perform such change or modification, such relocation of such Facilities shall be made by the Company at its expense.

(ii) The Company is not obligated hereunder to relocate any Facilities at its expense, if such Facilities were installed in private easements obtained by the Company, the underlying fee of which was, at some point subsequent to installation, transferred to the City.

(iii) The Company shall relocate Facilities in streets and other public places, on a temporary basis, to allow for movement of structures and other purposes authorized by the City, provided (a) the Company is provided reasonable advance notice of the date such temporary relocation will be required, and (b) the person or entity requesting such temporary relocation pays the cost thereof. The Company may require a cash deposit of the estimated amount of such cost from the person or entity requesting the temporary relocation prior to performing such temporary relocation.

Section 4. Service to New Areas. If during the term of this Franchise the boundaries of the City are extended, the Company shall extend service to areas not served by any other telecommunications company in accordance with the Company’s tariffs and applicable law.

Section 5. Rules and Regulations. All Facilities shall be constructed in accordance with applicable safety, electrical and structural codes as well as rules and regulations of the Public Utility Commission. The rights and privileges herein granted in streets and other public places shall be subject at all times to such ordinances and reasonable regulations as are now or shall hereafter be ordained or passed by said City concerning similar uses.

Section 6. Safety Regulations by the City. The City reserves the right to adopt, from time to time, reasonable regulations in the exercise of its police power which are necessary to ensure the health, safety and welfare of the public, provided that such regulations are not destructive of the rights granted herein and not in violation of any state or federal laws. The Company agrees to comply with all such regulations, now existing or duly adopted, in the construction, maintenance and operation of Facilities and in the provision of Services within the City.

Section 7. Maps. The Company shall prepare and submit to the City a map showing the location of Facilities within the City, insofar as such Facilities can reasonably be determined. The map shall be revised no more frequently than annually by the addition of the information hereby required as the system is extended or revised. To the extent permitted by the Oregon Public Records Law, ORS 192.410 to 192.505, City agrees that any such maps shall be kept confidential and not disclosed to the public or any third party.

Section 8. Inspection and Audit. The City or its designee shall have the right to inspect, at all reasonable times, any portion of the Company’s system located in any street or other public place that is used to serve the City and its residents for the purpose of determining compliance with the requirements of the applicable City permit. The City or its designee shall have the right to inspect, copy and audit Company records relevant to compliance with any terms of this Ordinance at all reasonable times. The Company agrees to cooperate with the City in conducting the inspection and/or audit and to correct any discrepancies affecting the City’s interest in a prompt and efficient manner. The cost of all audits shall be paid by the City unless:

(i) a franchise fee payment shortfall equal to or exceeding 5% in the aggregate is found and, in that event, the City and the Company shall each pay one-half of the reasonable cost of the audit, or

(ii) a franchise fee payment shortfall equal to or exceeding 10% in the aggregate is found and, in that event, the Company shall pay the reasonable cost of the audit.

ARTICLE VI – Indemnification of the City

Section 1. City Indemnified by Company. The Company shall indemnify and defend the City, its officers, employees and agents from all claims by third parties against the City arising out of the exercise by the Company of the rights and privileges hereby granted, provided such claim or related liability or damage was not caused by the City.

Section 2. Notice to Company. The City shall provide prompt notice to the Company of any claim or action against the City for which the City seeks or may seek indemnification.

ARTICLE VII – Assignment; Saving Clause; Amendment

Section 1. Assignment. The Company shall not transfer or assign any rights under this Franchise to a third party, excepting only corporate reorganizations of the Company not including a third party, unless the City approves such transfer or assignment in writing. Company shall provide such reasonable information as City may request concerning the transferee or assignee and the terms of the transfer or assignment. City shall have a reasonable time, not exceeding 90 days, to approve or reject the transfer or assignment. Approval of any such transfer or assignment shall not be unreasonably withheld.

Section 2. Saving Clause. If any portion of this Ordinance is declared illegal or void by a court of competent jurisdiction, the remainder of the Ordinance shall survive and not be affected thereby. In such case, the parties shall proceed with due diligence to attempt to draft provisions that will achieve the original intent.

Section 3. Attorney Fees. In the event of any suit or action to enforce or interpret this Ordinance or any provision hereof, the prevailing party in such suit or action shall be entitled to recover its costs, expenses and reasonable attorney fees, both at trial and on appeal, in addition to such other sums as may be allowed by law.

Section 4. Payment of Expenses. The Company shall pay for all expenses relating to the publication of notice and ordinances arising out of the process for obtaining this Franchise.

Section 5. Emergency. Inasmuch as it is necessary for the peace, health and safety of the citizens of the City, an emergency is hereby declared and this Ordinance is put in full force and effect immediately upon Company’s acceptance, as indicated by its authorized signature below, following its passage by the City Council and approval by the Mayor.

PASSED BY COUNCIL AND APPROVED

BY THE MAYOR THE 15th DAY OF OCTOBER, 2007.

CITY OF BROWNSVILLE

_____________/s/____________	_____________/s/____________
DON WARE	S. SCOTT MCDOWELL
Mayor	Attest

CENTURYTEL OF OREGON, INC. d.b.a. CENTURYTEL

_____________/s/____________

TIMOTHY J. GRIGAR

General Manager