Chapter 13.45
MCI FRANCHISE
Ordinance No. 674
AN ORDINANCE GRANTING MCI A FRANCHISE FOR THE PURPOSE OF OPERATING AS A CARRIER OF LONG DISTANCE TELECOMMUNICATIONS TRAFFIC AND FOR PLACEMENT OF FIBER OPTIC CABLES WITHIN CITY RIGHT-OF-WAY AND DECLARING AN EMERGENCY
The City of Myrtle Creek ordains as follows:
SECTION 1. DEFINITIONS
1.1 Where used in this ordinance, the following terms shall mean:
1.1.1 “MCI” means MCI Telecommunications Corporation, and its respective successors and assigns.
1.1.2 “CITY” means the City of Myrtle Creek, a municipal corporation of the State of Oregon, and its respective successors and assigns.
1.1.3 “FRANCHISE AREA” means any, every and all of the roads, streets, avenues, alleys, highways, grounds and public places of the City as now laid out, platted, dedicated or improved; and any, every and all roads, streets, avenues, alleys, highways, grounds and public places that may hereafter by laid out, platted, dedicated or improved within the present limits of the City and as such limits may be hereafter extended.
1.1.4 “FACILITIES” means poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, braces, guys, anchors, vaults and all necessary or convenient facilities and appurtenances thereto, whether the same be located over or underground.
1.1.5 “ORDINANCE” means Ordinance No 674 which sets forth the terms and conditions of this franchise.
SECTION 2. FACILITIES WITHIN FRANCHISE AREA
2.1 The City does hereby grant to MCI the right, privilege, authority and franchise to:
2.1.1 Set, erect, bury, construct, support, attach, connect and stretch facilities between, maintain, repair, replace, operate and use facilities, in, upon, over, under, along, across and through the franchise area for purposes of all operations as may be required to operate as a carrier of long distance telecommunications traffic.
SECTION 3. NONINTERFERENCE OF FACILITIES
3.1 MCI’s facilities shall be maintained within the franchise area so as not to unreasonably interfere with the free passage of traffic and in accordance with the laws of the State of Oregon. Whenever it shall be necessary for MCI, in the exercise of its rights under this franchise, to make any excavation in the franchise area, MCI shall, upon completion of such excavation, restore the surface of the franchise area, as nearly as practicable, to the same condition it was in prior to such excavation.
SECTION 4. RELOCATION OF FACILITIES
4.1 Whenever any person or entity, other than the City, requires the relocation of MCI’s facilities to accommodate the work of such person or entity within the franchise area; or whenever the City requires the relocation of MCI’s facilities within the franchise area for the benefit of any person or entity other than the City, then MCI shall have the right as a condition of such relocation to require such person or entity to:
4.1.1 Make payment to MCI, at a time and upon terms acceptable to MCI, for any and all costs and expenses incurred by MCI in the relocation of MCI’s facilities; and
4.1.2 Indemnify and save MCI harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or in conjunction with the relocation of MCI’s facilities, to the extent such injury or damage is caused by the negligence of the person or entity requesting the relocation of MCI’s facilities or the negligence of the agents, servants or employees of the person or entity requesting the relocation of MCI’s facilities.
4.2 Whenever the City causes the grading or widening of the franchise area (for purposes other than those described in Section 4.1) and such grading or widening requires the relocation of MCI’s then existing facilities within the franchise area, the City shall:
4.2.1 Provide MCI, within a reasonable time prior to the commencement of such grading or widening, written notice requesting such relocation; and
4.2.2 Provide MCI with reasonable plans and specifications for such grading or widening.
After receipt of such notice and such plans and specifications, MCI shall relocate such facilities within the franchise area at no charge to the City. If the City requires the subsequent relocation of any facilities within five (5) years from the date of relocation of such facilities pursuant to this Section 4.2, the City shall bear one-half the cost of subsequent relocation.
4.3 Any condition or requirement imposed by the City upon any person or entity, other than MCI (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, construction or development) which requires the relocation of MCI’s facilities shall be a required relocation for purposes of Section 4.1.
4.4 Nothing in this Section 4 “Relocation of Facilities” shall require MCI to bear any cost or expense in connection with the location or relocation of any facilities then existing under benefit of easement or such other prior rights.
SECTION 5. INDEMNIFICATION
5.1 MCI shall indemnify and save the City harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence of MCI or its agents, servants or employees in exercising the rights granted MCI in this franchise; provided, however, that in the event any such claim or demand be presented to or filed with the City, the City shall promptly notify MCI thereof, and MCI shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand, provided further, that in the event any suit or action is begun against the City based upon any such claim or demand, the City shall likewise promptly notify MCI thereof, and MCI shall have the right, at its election and its sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own election.
5.1.1 MCI shall save the City harmless from any losses, expenses or lost revenues incurred by MCI, other than the reasonable cost of repair as a result of negligent injury or damage to MCI’s property by the City.
SECTION 6. INSURANCE AND INDEMNITY
6.1 MCI shall comply with all regulations of the City regarding insurance and indemnification for contracts with the City as they may apply, providing however that MCI may self-insure for any or all matter thereunder upon adequate proof of such self-insurance to the City.
SECTION 7. DEFAULT
7.1 If MCI shall fail to comply with the provisions of this franchise, the City may serve upon MCI a written order to so comply within sixty (60) days from the date such order is received by MCI. If MCI is not in compliance with this franchise after expiration of said sixty (60) day period, the City may, by ordinance, declare an immediate forfeiture of this franchise, provided, however, if any failure to comply with this franchise cannot be corrected with due diligence within said sixty (60) day period (MCI’s obligation to comply and to proceed with due diligence being subject to unavoidable delays and events beyond its control), then the time within which MCI may so comply shall be extended for such time as may be reasonably necessary and so long as MCI commences promptly and diligently to effect such compliance.
SECTION 8. NONEXCLUSIVE FRANCHISE
8.1 This franchise is not and shall not be deemed to be an exclusive franchise. This franchise shall not in any manner prohibit the City from granting other and further franchises over, upon and along the franchise area which do not interfere with MCI’s rights under this franchise. This franchise shall not prohibit or prevent the City from using the franchise area or affect the jurisdiction of the City over the same or any part thereof.
SECTION 9. FRANCHISE TERM
9.1 This franchise is and shall remain in full force and effect for a period of thirty (30) years from and after the effective date of this Ordinance, provided, however, MCI shall have no rights under this franchise nor shall MCI be bound by the terms and conditions of this franchise unless MCI shall, within sixty (60) days after the effective date of the Ordinance, file with the City its written acceptance of the Ordinance
SECTION 10. FRANCHISE FEE
10.1 MCI, as grantee of this franchise, shall during the term thereof, pay to the City of Myrtle Creek, grantor, an annual sum of One Dollar ($1.00) per linear foot of facilities with the franchise area and increase each year an amount equal to the CPI-W.
10.2 Initial payment of the franchise fee described in Section 10.1 shall be made by MCI within thirty (30) days after passage of the Ordinance by the City Council. MCI shall then be given the right to place their facilities within the City right-of-way as described on the attached map (Exhibit A).
10.3 Conditions regarding construction materials, methods, inspection fees and other details are described in the attached Exhibit “B” and are hereby made a part of this ordinance.
SECTION 11. ASSIGNMENT
11.1 MCI shall have the right to assign its rights, benefits and privileges in and under this franchise. Any assignee shall, within thirty (30) days of the date of any assignment, file written notice of the assignment with the City together with its written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, MCI shall have the right, without such notice or such written acceptance, to mortgage its rights, benefits and privileges in and under this franchise to the Trustee for its bondholders.
SECTION 12. MISCELLANEOUS
12.1 If any term, provision, condition or portion of this franchise shall be held to be invalid such invalidity shall not affect the validity of the remaining portions of this franchise which shall continue in full force and effect. The headings of sections and paragraphs of this franchise are for convenience of reference only and are not intended to restrict, affect or be or provisions of such sections or paragraphs.
12.2 This franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this Franchise and is approved and executed in accordance with the laws of the State of Oregon. Without limiting the generality of the foregoing, this franchise (including, without limitation, Section 5.1 above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise) by MCI of any and all rights, benefits, privileges, obligations or duties in and under this franchise, unless such permit, approval, license, agreement or other document specifically:
12.2.1 References this franchise; and
12.2.2 States that it supersedes this franchise to the extent that it contains terms and conditions which change, modify, delete, add to, supplement or otherwise amend the terms and conditions of this franchise.
12.3 In the event of any conflict or inconsistency between the provisions of this franchise and the provisions of any such permit, approval, license, agreement or other document, the provisions of this franchise shall control.
SECTION 13. EMERGENCY CLAUSE
Whereas this Ordinance is necessary for the Health, Safety and Well-being of the City of Myrtle Creek, an emergency is hereby declared to exist and this Ordinance shall be in full force and effect immediately upon its passage by the Common Council and approval by the Mayor.
Passed by the City Council and approved by the Mayor July 18, 1995.
EXHIBIT “A” ORDINANCE NO 674
EXHIBIT “B” ORDINANCE NO 674
CONDITIONS OF FRANCHISE AGREEMENT:
1. MCI will pay to the City of Myrtle Creek $120.00 per day for City’s inspection of the work proposed, from date of commencement of work inside City Limits until all work is completed.
2. MCI contractor’s representative will participate with City’s personnel in pre-construction conference no less than three working days before beginning any work within the City Limits.
3. MCI’s representative furnish evidence of general liability insurance of not less than five hundred thousand dollars ($500,000) total personal injury and property damage, which shall be in effect during the time of contract performance. The certifications shall state that the policy shall not be canceled without thirty (30) days written notice sent to the City of Myrtle Creek.
4. MCI’s representative shall provide evidence of Workmen’s Compensation Insurance as required by the State of Oregon. Everyone working at the project site shall be covered by Workmen’s Compensation Insurance. Coverage shall include principles of the contracting firm.
5. Evidence of insurance shall be in the form of a certificate, issued by the insurer or his agent, addressed specifically to the City of Myrtle Creek.
6. MCI or its contractor will sign all work areas according to the Oregon State Manual of Uniform Traffic Control Devices.
7. No trench or excavation shall be left open for more than 36 hours.
8. No driveway shall be left inaccessible for more than six (6) hours without written consent of the affected property owners.
9. Sidewalks will be installed or replaced anywhere that the MCI line is placed behind a curb. Concrete shall be class 3300 - 1. 5" Maximum size and be installed according to City of Myrtle Creek Standards.
10. MCI will pay to the City the cost to prepare and pave each parking space and the road around the Millsite RV Park. In addition, MCI will pay to the City the cost to install storm drainage with excavation and fill along the southeastern side 4th Street near Millsite Park.
11. “C” or “D” grade asphalt shall be placed in the top 2" layer of any trench cut in the asphalt no longer than five (5) working days after original asphalt has been removed. Asphalt shall be no less than 290 degrees Fahrenheit temperature at time of placement and shall be compacted to no less than 90% maximum density.
12. After one (1) year, all asphalt to asphalt trench edges shall be sealed with a hot applied asphalt crack sealer by a person or contractor approved by the City.
13. MCI’s contractor will backfill all trenches and excavations according to City and/or County standards. All trenches shall be backfilled to a minimum compaction of 90%.