Chapter 13.35
AT&T FRANCHISE

    Legislative history: Ord. 571.

Ordinance No. 826

AN ORDINANCE RENEWING THE FRANCHISE OF AT&T CORP. (FORMERLY AMERICAN TELEPHONE AND TELEGRAPH COMPANY) THROUGH ITS INTERSTATE DIVISION FOR THE PLACEMENT OF COMMUNICATION FACILITIES WITHIN THE CITY OF MYRTLE CREEK, STATE OF OREGON, AND SUPERCEDING ORDINANCE NO. 571.

WHEREAS, the CITY OF MYRTLE CREEK has determined it appropriate and in the best interests of the public to allow AT&T CORP. the nonexclusive privilege of using the public way to construct and maintain communication facilities within the corporate limits of the City; now, therefore,

THE CITY OF MYRTLE CREEK ORDAINS AS FOLLOWS:

SECTION 1. Definition of Terms

1.1    Terms. For the purpose of this Franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. 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:

A.    “City” means the City of Myrtle Creek, Oregon, or the lawful successor, transferee, or assignee thereof.

B.    “Communication Facilities” means any and all wires, fibers, cables and associated structures owned by Grantee for use of Grantee in providing telecommunication services.

C.    “FCC” means Federal Communications Commission.

D.    “Grantee” means AT&T Corp., or the lawful successor, transferee, or assignee thereof.

E.    “Person” means an individual, partnership, association, joint stock company, trust, corporation, or governmental entity.

F.    “Public Way” shall mean any public street, highway, bridge, alley, court, sidewalk, parkway, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses now or hereafter held by the City.

G.    “Service Area” means the present boundaries of the City, and shall include any additions thereto by annexation or other legal means.

SECTION 2. Grant of Franchise

2.1    Grant. The City hereby grants to the Grantee a nonexclusive Franchise which authorizes the Grantee to use the public way to construct and maintain underground communication facilities within the corporate limits of the City.

2.2    Other Ordinances. The Grantee agrees to comply with the terms of any lawfully adopted generally applicable local ordinance, to the extent that the provisions of the ordinance do not have the effect of limiting the benefits or expanding the obligations of the Grantee that are granted by this Franchise. Neither the City nor the Grantee may unilaterally alter the material rights and obligations set forth in this Franchise.

2.3    Franchise Term. This franchise is granted for a term of ten (10) years beginning on the date on which this franchise ordinance is approved. This franchise shall automatically renew for an additional ten (10) year term so long as Grantee does not provide notice not to renew or Grantee is not in default at its expiration.

SECTION 3. Standards of Service

3.1    Conditions of Use.

A.    The communication facilities installed by the Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of Public Ways and with the rights and reasonable convenience of property that adjoins any of such Public Ways. In the event the public is unnecessarily inconvenienced by the Grantee’s communication facilities, the City may require the removal or change of location of any such facilities at Grantee’s expense.

B.    The communication facilities shall be underground, and all work shall comply with the standard specifications of the City and all other applicable federal, state and local laws and regulations.

C.    The City shall have the ability to prescribe which Public Ways will be used and the location within a Public Way.

D.    No work shall be done by the Grantee without first obtaining the permits required by the City, which may include plan approval, and the payment of any required fees.

3.2    Restoration of Public Ways. If during the course of the Grantee’s construction, operation. or maintenance of the communication facilities there occurs a disturbance of any Public Way by the Grantee, Grantee shall replace and restore such Public Way to a condition reasonably comparable to the condition of the Public Way existing immediately prior to such disturbance. In the event Grantee fails to restore the Public Way to a condition reasonably comparable to the condition existing immediately prior to such disturbance, the City may restore or cause to restore such Public Way at the expense of Grantee; provided, that the City provides Grantee with reasonable notice to restore, and Grantee fails to restore such Public Way within the time period given by the City.

3.3    Relocation at Request of the City. Within sixty (60) days following written notice from the City or such shorter time as the City may prescribe because of an emergency, a grantee shall, at no expense to the City, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public way whenever the City shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

A.    The construction, repair, maintenance or installation of any City or other public improvements in the public way.

B.    The operations of the City or other governmental entity in the public way.

C.    The public interest.

The Grantee shall in all cases have the right of abandonment of its property.

3.4    Relocation for a Third Party. The Grantee shall, on the request of any Person holding a lawful permit issued by the City, protect, support, raise, lower, relocate in or remove from the Public Way as necessary any property of Grantee, provided:

A.    The expense of the change shall be paid by the Person benefiting from the relocation, including, if required by the Grantee, making such payment in advance.

B.    The Grantee shall be given reasonable advance written notice to prepare for such changes. For purposes of this Section 3.4, “reasonable advance written notice” shall be no less than sixty (60) business days in the event of a temporary relocation, and no less than 120 days for a permanent relocation.

3.5    Trimming of Trees and Shrubbery. The Grantee shall have the authority to trim trees or other natural growth within the Public Ways in order to access and maintain the communication facilities.

3.6    Safety Requirements. Construction, operation, and maintenance of the communication facilities shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with generally applicable federal, state, and local regulations and the National Electric Safety Code. The communication facilities shall not endanger or unreasonably interfere with the safety of Persons or property in the Service Area.

3.7    System Standards. The communication facilities shall meet or exceed all applicable technical and performance standards of the FCC.

SECTION 4. Regulation by the City

4.1    Franchise Fee.

A.    The Grantee shall pay to the City a franchise fee equal to $2.00 per lineal foot of communication facilities, with the fee increasing annually by 5% each October 1st. The franchise fee payment shall be paid annually, by November 1st of each year. If there is less than a full year at the start or conclusion of the franchise agreement, the franchise fee shall be prorated during those periods.

B.    The payment of the franchise fee shall not be credited toward the payment of property taxes or payments in lieu thereof, nor any lax adopted by the City, nor credited toward any permit fees required by the Myrtle Creek Code.

C.    Limitation on Franchise Fee Actions. The period of limitation for recovery of any franchise fee payable hereunder shall be four (4) years from the date on which payment by the Grantee is due.

4.2    Transfer of Franchise. The Grantee’s right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an entity controlling, controlled by, or under common control with the Grantee, without the prior consent of the City, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, or by other hypothecation, or by assignment of any rights, title, or interest of the Grantee in the Franchise in order to secure indebtedness. Within thirty (30) days of receiving a request for transfer, the City shall notify the Grantee in writing of any additional information it reasonably requires to determine the legal, financial and technical qualifications of the transferee. If the City has not taken action on the Grantee’s request for transfer within one hundred twenty (120) days after receiving such request, consent by the City shall be deemed given, unless the requesting party and City agree to an extension of time.

SECTION 5. Books and Records

Grantee shall maintain “as built” drawings for the communication facilities at Grantee’s business office, and make them available to the City for inspection during normal business hours upon written request. “As built” drawings shall be updated as changes occur in the communication facilities serving the Service Area. Upon written request of the City, Grantee shall provide the City copies of trench maps showing the location of Grantee’s lines within the Public Ways in the Service Area.

SECTION 6. Insurance and Indemnification

6.1    Insurance Requirements. The Grantee shall maintain in full force and effect, as its own cost and expense, during the term of the Franchise, Commercial General Liability Insurance in the amount of $2,000,000 combined single limit for bodily injury and property damage. The City shall be designated as an additional insured. Such insurance shall be noncancelable except upon thirty (30) days prior written notice to the City. Upon written request, the Grantee shall provide a Certificate of Insurance showing evidence of the coverage required.

6.2    Indemnification. The Grantee agrees to indemnify, save and hold harmless, and defend the City, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of Grantee’s construction, operation, or maintenance of its communication facilities, provided that the City shall give Grantee written notice of its obligation to indemnify the City within ten (10) days of receipt of a claim or action pursuant to this Section 6.2 Notwithstanding the foregoing, Grantee shall not indemnify the City for any damages, liability, or claims resulting from the willful misconduct or gross negligence of the City.

6.3.    Limitation of Liability. Notwithstanding anything to the contrary contained herein, in no event shall a Party be liable for any indirect, incidental, consequential, special, reliance or punitive damages, including without limitation damages for lost profits, advantage, savings or revenues of any king, whether or not the Party has been advised of the possibility of such damage.

6.4    Bonds and Other Surety. No bond or other surety shall be required of Grantee at the inception of the Franchise. In the event Grantee is required by the City to obtain a bond or other surety in the future, the City agrees to give Grantee at least 60 days advance written notice thereof stating the specific reasons for such requirement. Such reasons must demonstrate a change in Grantee’s legal, financial or technical qualifications that would materially prohibit or impair Grantee’s ability to comply with the terms and conditions of this Franchise.

SECTION 7. Enforcement and Termination of Franchise

7.1    Notice of Violation. In the event that the City believes that the Grantee has not complied with the terms of the Franchise, the City shall informally discuss the matter with Grantee. If these discussions do not lead to resolution of the problem. the City shall notify the Grantee in writing of the exact nature of the alleged noncompliance.

7.2    The Grantee’s Right to Cure or Respond. The Grantee shall have thirty (30) days from receipt of the notice described in Section 7.1:(A) to respond to the City, contesting the assertion of noncompliance, or (B) to cure such default, or (C) in the event that by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed.

7.3    Public Hearing. In the event that the Grantee fails to respond to the notice described in Section 7.1 pursuant to the procedures set forth in Section 7.2, or in the event that the alleged default is not remedied within thirty (30) days or the date projected pursuant to 7.2(C) above, if it intends to continue its investigation into the fault, then the City shall schedule a public hearing. The City shall provide the Grantee at least ten (10) days prior written notice of such hearings, which specifies the time, place and purpose of such hearing and provide Grantee the opportunity to be heard.

7.4    Enforcement. Subject to applicable federal and state law, in the event the City, after the hearing set forth in Section 7.3, determines that the Grantee is in default on any provision of the Franchise, the City may:

A.    Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages; or

B.    Commence an action at law for monetary damages or seek other equitable relief; or

C.    In the case of a substantial default of a material provision of the Franchise, seek to revoke the Franchise in accordance with Section 7.5.

7.5    Revocation. Should the City seek to revoke the Franchise after following the procedures set forth in Section 7. 1-7.4 above, the City shall give written notice to the Grantee of its intent. The notice shall set forth the exact nature of the noncompliance. The Grantee shall have ninety (90) days from such notice to object in writing and to state its reasons for such objection. In the event the City has not received a satisfactory response from the Grantee, it may then seek termination of the Franchise at a public hearing. The City shall cause to be served upon the Grantee, at least thirty (30) days prior to such public hearing, a written notice specifying the time and place of such hearing and stating its intent to revoke the Franchise.

Following the hearing, the City shall determine whether or not the Franchise shall be revoked. If the City determines that the franchise shall be revoked, Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the City de novo. Grantee shall be entitled to such relief as the court finds appropriate. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the City.

The City may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City’s rights under the Franchise in lieu of revocation of the Franchise.

7.6    Force Majeure. The Grantee shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control.

SECTION 8. Miscellaneous Provisions

8.1    Actions of Parties. In any action by the City or the Grantee that is mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.

8.2    Entire Agreement. This Franchise constitutes the entire agreement between the Grantee and the City. Amendments to this Franchise shall be mutually agreed to in writing by the parties.

8.3    Notice. Unless expressly otherwise agreed between the parties, every notice or response required by this Franchise to be served upon the City or the Grantee shall be in writing, and shall be deemed to have been duly given to the required party when placed in a properly sealed and correctly addressed envelope: a) upon receipt when hand delivered with receipt/acknowledgment, b) upon receipt when sent certified, registered mail, or c) within five (5) business days after having been posted in the regular mail.

The notices or response to the City shall be addressed as follows:

City of Myrtle Creek

207 NW Pleasant Street

P.O. Box 940

Myrtle Creek, 97457

The notices or response to the Grantee shall be addressed as follows:

AT&T Corp

3450 Riverwood Parkway SE

Atlanta, GA 30339

Attention: Right of Way Manager

With a copy to:    AT&T Services, Inc.

One AT&T Way

Room 3Al05

Bedminster, NJ 07921

Attention: Legal Department – Network Services

The City and the Grantee may designate such other address or addresses from time to time by giving notice to the other in the manner provided for in this Section 8.3.

8.4.    Descriptive Headings. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein.

8.5    Severability. If any section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise.

8.6    Acceptance of Franchise. Within 30 days from the effective date of this ordinance, Grantee shall file with the City Recorder a written unconditional acceptance of this franchise and all of its terms and conditions, and if they fail to do so, this ordinance shall be void and of no effect.

Adopted by the City Council of the City of Myrtle Creek on this ___ day of ____________, 2019.

	CITY OF MYRTLE CREEK, OREGON
	Matthew Hald, Mayor
	ATTEST:
BY:
	Joanna Bilbrey, City Recorder

Accepted this ____ day of _____________, 2019.

AT&T CORP.
Signature:
Title:	Professional-Technical Process/Quality

 

State of Colorado	)
County of ____________	) ss.
City of _______________	)

This instrument was acknowledged before me this _____ day of ____________, 2019 by _____________________, Professional-Technical Process/Quality of AT&T Corp., a New York corporation, on behalf of said corporation.

Before me,

Notary Public for State of Colorado

My Commission Expires: