Chapter 13.70
ZIPLY FIBER FRANCHISE
ORDINANCE NO. 840
AN ORDINANCE GRANTING ZIPLY FIBER A FRANCHISE TO USE THE PUBLIC WAYS OF THE CITY OF MYRTLE CREEK FOR PURPOSES OF PROVIDING TELECOMMUNICATIONS SERVICES
WHEREAS, the City of Myrtle Creek, a municipal cooperation of the State of Oregon, hereinafter called “MYRTLE CREEK” or “the City”, owns and operates utility services within the community. Frontier Communications Northwest, LLC dba Ziply Fiber, hereinafter called “ZIPLY” or “the Franchisee”, is a provider of telecommunications services in Douglas County, Oregon.
WHEREAS, ZIPLY wishes to install telecommunications facilities in the public ways in MYRTLE CREEK, and the City is willing to consider granting permits to ZIPLY to do so, subject to City approval, on the terms and conditions hereafter.
NOW, THEREFORE, The City of Myrtle Creek ordains as follows:
1. Grant of Franchise. MYRTLE CREEK hereby grants ZIPLY the non-exclusive right to use and occupy all public ways within the City, solely for the purposes described herein for a period of ten (10) years beginning on the effective date of this Ordinance, following ZIPLY’s acceptance of the Franchise as provided in Section 11 of this Ordinance.
2. Definitions. As used herein:
“Gross Revenue” shall have the meaning set forth in ORS 221.515.
“Public Ways” means the space in, upon, above, along, across, over or under the public streets, roads, high- ways, lanes, courts, ways, alleys, boulevards, bridges, trails, paths, sidewalks, bicycle lanes, public utility easements and all other public ways or areas, including the subsurface under and air space over these areas within the City, but does not include parks or other City-owned property. This definition applies only to the extent of the City’s right, title, interest, and authority to grant a license or franchise to occupy and use such areas for telecommunications facilities.
“Telecommunications Provider” means: (1) any person that provides telecommunications service to any person or premises within the City, including both telecommunications carriers and non-carrier providers; (2) any person that directly or indirectly owns, leases, operates, manages, or otherwise controls telecommunications facilities which occupy public way within the City; and (3) any person that is directly or indirectly owned or controlled by any person described in this definition. For purposes of this definition, "owns" or "controls" means that one person or entity owns more than 25% of the stock or assets or has more than 25% common partners, directors, or owners with another entity. In addition, any person that leases, purchases or otherwise receives telecommunications service or use of a telecommunications facility for less than a reasonable price, so as to create a reasonable inference that the two parties did not deal at arm’s length, shall be deemed to be owned or controlled by the second party.
“Telecommunications Facilities” means the plant and equipment, other than customer premises equipment,including but not limited to line, pipe, wire, cable, fiber, pedestals, and similar facilities or equipment used, designed or intended for use by ZIPLY to provide telecommunications service. “Telecommunications Facilities” does not include facilities for the provision of wireless services, including cell phone or internet access services.
“Telecommunications Service” means exchange access service as defined in ORS 403.105.
3. Rights Granted. This Franchise authorizes and permits ZIPLY, subject to and provided ZIPLY is in compliance with the provisions of the Municipal Code and other applicable provisions of state or federal law, to construct, place, maintain and operate telecommunications facilities in the public ways for the term of the Franchise. This Franchise shall not convey equitable or legal title in the public ways and may not be assigned or transferred without the written consent of the City. Neither the issuance of the Franchise nor any provisions contained herein shall constitute a waiver or bar to the exercise of any governmental right or power, police power or regulatory power of the City as may exist at the time the Franchise is granted or thereafter obtained. This Franchise does not confer any exclusive right, privilege, license or franchise to occupy or use the public ways for delivery of telecommunications facilities or services or any other purpose. The City expressly reserves the right to grant licenses, franchises or other rights to other persons, as well as the City’s right to use the public ways, for similar or different purposes. This Franchise does not permit ZIPLY to attach to any City owned poles or other facilities of the City in the public ways. ZIPLY agrees that use of such poles or facilities will require separate agreement with and compensation to the City.
4. Placement of Facilities. ZIPLY shall apply for and receive all required permits from the City, and pay all applicable permit fees, prior to construction and placement of telecommunications facilities in the public ways. The telecommunications facilities shall be constructed, installed, operated, and maintained in accordance with the permit requirements and all applicable federal, state and local codes, rules and regulations.
5. Franchise Fees. Pursuant to authority granted the City under ORS 221.515, a privilege tax shall be based on ZIPLY’s annual use of the City’s public ways, as provided below:
a. Fee Base. For the privileges granted by this Franchise, ZIPLY shall pay seven percent (7%) of its Gross Revenue.
b. Payment. All payments due hereunder shall be paid to the City of Myrtle Creek by check or money order delivered to the address of the City for notices as set forth herein.
c. Due Date. Franchise fees shall be paid to the City on a quarterly basis, based on the revenues derived from the quarter just passed, not more than 30 days following the end of each quarter.
d. Late Fee. If ZIPLY fails to pay the Franchise fee when due, ZIPLY shall be subject to interest on the unpaid balance at the legal rate of interest established by state statute.
6. Conditions on Street Use. All telecommunications facilities erected by ZIPLY within the City shall be located in accordance with the permits granted by the City.
If ZIPLY disturbs any pavements, sidewalks, driveways or other surfacing, it shall, at its own expense, and in the time and manner provided by the City, replace and restore all such paving, sidewalks, driveways or other surfaces of any streets or alleys thus disturbed to at least that condition which existed prior to the disturbance.
If at any time during the period of this Franchise, the City shall lawfully elect to alter, or change the grade of, any public ways, or otherwise find removal or relocation of ZIPLY’s facilities to be in the public interest, ZIPLY shall upon reasonable notice by the City, remove and relocate its telecommunications facilities and other fixtures at its own expense, and in each instance comply with the requirements of the City.
7. Insurance.
a. The Franchise shall not be effective until the Franchisee secures, and shall at all times be conditioned upon the Franchisee maintaining a comprehensive liability insurance policy which shall contain the following provisions:
|
Workers’ Compensation |
Statutory Limits |
|
Commercial General Liability |
$2,000,000.00 per occurrence, Combined Single Liability C.S.L., $4,000,000.00 General Aggregate |
|
Auto Liability including coverage on all owned, non-owned and hired Autos |
$2,000,000.00 per occurrence C.S.L. |
|
Umbrella Liability |
$4,000,000.00 per occurrence C.S.L. |
b. The City shall be added as an Additional Insured to the above Commercial General Liability and Auto Liability Insurance Coverage.
c. The Franchisee shall furnish the City with current Certificates of Insurance evidencing such coverage.
8. Indemnification.
a. The Franchisee shall at all times conduct its operations under this Franchise, including installation, construction or maintenance of its facilities in a safe and workmanlike manner so as not to present a danger to the public or to the City.
b. The Franchisee shall pay, save harmless, defend, and indemnify the City for any loss or claim against the City to the extent the loss or claim is based on any activity of the Franchisee in the construction, operation or maintenance of its telecommunications facilities and the provision of services.
9. Additional Capacity. ZIPLY shall have the right, without prior MYRTLE CREEK approval, to offer or provide capacity or bandwidth to another telecommunications provider for resale or service to end-user customers.
10. Acceptance of Franchise. Upon receipt of this Ordinance, ZIPLY shall sign in the space below to indicate its unconditional acceptance of the terms and conditions upon which MYRTLE CREEK has offered the Franchise described herein, and immediately return such acceptance to the CITY. If ZIPLY fails to accept the Franchise and return acceptance to Myrtle Creek within 30 days of the adoption of this Ordinance, this Ordinance and the Franchise granted herein shall become void and have no force or effect.
PASSED BY THE CITY COUNCIL ON THE FIRST READING this 16th day of FEBRUARY, 2021
PASSED BY THE CITY COUNCIL ON THE SECOND READING this 2nd day of MARCH, 2021
APPROVED BY THE MAYOR this 2nd day of MARCH, 2021
|
|
|
Matthew Hald, Mayor |
|
ATTEST: |
|
|
|
Joanna Bilbrey |
|
City Recorder |