HomeMy WebLinkAboutOrdinance No. 20544COUNCIL ORDINANCE NO. 20544
COUNCIL BILL 5132
AN ORDINANCE GRANTING TO MCI COMMUNICATIONS
SERVICES, INC. A NON - EXCLUSIVE FRANCHISE TO USE THE
PUBLIC WAY TO CONSTRUCT AND MAINTAIN PUBLIC
COMMUNICATION FACILITIES WITHIN THE CITY OF
EUGENE.
ADOPTED: November 24, 2014
SIGNED: November 25, 2014
PASSED: 8:0
REJECTED:
OPPOSED:
ABSENT:
EFFECTIVE: December 24, 2014
ORDINANCE NO. 20544
AN ORDINANCE GRANTING TO MCI COMMUNICATIONS
SERVICES, INC. A NON - EXCLUSIVE FRANCHISE TO USE THE
PUBLIC WAY TO CONSTRUCT AND MAINTAIN PUBLIC
COMMUNICATION FACILITIES WITHIN THE CITY OF EUGENE.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1 . As used in this Ordinance, the following words and phrases mean:
Cam: The City of Eugene, Oregon.
City Manager The City Manager of the City or his or her designee.
Communications facilities All conduits and associated structures owned by
Grantee for use by Grantee in providing telecommunication services.
Grantee MCI Communications Services, Inc., its successors and assigns.
Public way Any street, road, alley, right -of -way, pedestrian or bicycle easement
or utility easement for public use that is controlled by City.
Section 2 . Subject to the provisions and restrictions of this Ordinance and the Eugene
Code, 1971, City grants to Grantee the non - exclusive privilege to use the public way to construct
and maintain communication facilities within the corporate limits of the City.
Section 3 . It shall be Grantee's responsibility to locate and avoid all utilities located
within Grantee's construction area, and Grantee shall be liable for any costs to repair or replace
any utilities which may be damaged due to Grantee's construction or location of its
communication facilities. Subject to the City Manager's authority to prescribe which public
ways will be used and the location within the public way, it shall be lawful for Grantee to make
all necessary excavations in any public way for the purpose of constructing and maintaining its
communication facilities. Grantee's use of the public way shall comply with the standard
specifications of the City, including, but not limited to, the City of Eugene Manual on Traffic
Control Devices, Signing, etc. for Construction and Maintenance on Streets and Highways, and
the City of Eugene Policies and Procedures: Utility and Right -of -Way Cuts, Construction
Within and Use of the Public Way, and all other applicable Federal, State, and local laws, rules,
and regulations. Grantee shall do no work affecting the public way without first obtaining the
permits required by the City, which may include plan submittal, approval and the payment of
fees before work begins. Grantee shall furnish all necessary material and labor to install and
maintain its communications facilities at its own expense.
Ordinance - Page 1 of 4
Section 4 . Nothing in this Ordinance shall be construed in any way to prevent the City
from constructing and maintaining any public improvement in any public way. In its
construction and maintenance of public improvements, the City shall endeavor not to obstruct or
prevent the use by Grantee of its communication facilities.
Section 5 . Whenever any of Grantee's communications facilities shall unnecessarily
inconvenience the public or property owners, the City may require the removal or change of
location of any such communications facilities at Grantee's expense. In such event, City shall
use its best efforts to find for Grantee acceptable alternative public way space within which
Grantee may relocate its communications facilities.
Section 6 . Should it ever become necessary to temporarily rearrange or temporarily
remove Grantee's communications facilities at the request of a private person or business,
Grantee shall perform such rearrangement or removal as expeditiously as possible upon receipt
of reasonable written notice from the person or business desiring the temporary change of
location of the communications facilities_ The notice shall:
(a) Be approved by the City Manager;
(b) Detail the route of movement;
(c) Provide that the costs incurred by Grantee in making the temporary change
be borne by the person or business giving said notice,
(d) Provide that the person or business giving the notice shall indemnify and
hold harmless the Grantee of and from any and all damages or claims of
whatsoever kind or nature caused directly or indirectly from such temporary
change of the Grantee's communications facilities; and
(e) If required by Grantee, be accompanied by a cash deposit or a good and
sufficient bond to pay any and all of the Grantee's estimated costs as
estimated by Grantee.
Section 7. Grantee shall at all times maintain all of its communications facilities in a
good state of repair, and shall subscribe to a utility notification and locate service. If Grantee
ceases to make use of its communications facilities within the public way for the purposes
authorized by this franchise for a continuous period of six months or more, the facilities shall be
deemed abandoned. Upon 90 days written notice to Grantee at its address indicated in its
acceptance of this Ordinance, City may require Grantee to remove the facilities and restore the
public way at Grantee's sole cost and expense. If Grantee fails to remove the facilities and
restore the public way within the 90 -day period, City may, at its option and in its sole discretion,
remove the facilities from the public way and require Grantee to pay for the full cost of removal
and restoration of the public way, or City may assume possession and ownership of the facilities.
If Grantee removes the facilities from the public way but fails to restore the public way to its
prior condition, City may complete the repairs and bill Grantee for the full cost thereof. Grantee
must notify City if it sub - leases its facilities to a provider that is not wholly owned by Grantee.
Ordinance - Page 2 of 4
Section 8 . Grantee shall defend, indemnify and save harmless the City of and from any
and all damages of any kind or character growing out of or arising by reason of the maintenance
of the Grantee's communications facilities in the City.
Section 9 . In consideration of the privileges and franchise granted, Grantee shall pay
annually by February 28 each calendar year an amount equal to $4.00 per linear foot of public
way used. To the extent permitted by the Oregon Public Records Law, City shall protect from
public disclosure Grantee's proprietary build -out plans.
Section 10 . With each franchise fee payment, Grantee shall furnish a sworn statement
setting forth the amount and calculation of the payment. The payment of the franchise fee shall
not be credited toward the payment of property taxes or payments in lieu thereof, nor toward any
sales or income tax adopted by the City, nor toward any permit fees required by the Eugene
Code, 1971. City shall have the right to audit Grantee's records to verify that the franchise fee
has been correctly computed and paid by Grantee. Grantee shall reimburse City for the
reasonable costs of such audit if the audit discloses that Grantee has paid 95% or less of the fee
owing for the period of the audit.
Section 11 . Grantee shall not transfer or assign any of its rights, privileges or
obligations, or any parts thereof, under this franchise without the prior written approval of City.
Such consent shall not be unreasonably withheld or delayed; provided, however, that Grantee
shall have the right, without City's consent, to assign or transfer this Agreement, in whole or in
part, to any parent, subsidiary or affiliate of Grantee, or to any person, firm or corporation which
shall control, be under the control of, or be under common control with Grantee, or to any
corporation into which Grantee may be merged or consolidated or which purchases all or
substantially all of the assets or stock of Grantee, and Grantee shall provide City prompt written
notification of any such assignment or transfer.
Section 12 . Grantee shall at all times during the period of this franchise, be subject to all
lawful exercise of the police power of City, and shall comply with all applicable federal, state,
and local laws, rules, ordinances and regulations.
Section 13 . If Grantee fails to comply with or perform any of the requirements imposed
on it by this franchise and City gives written notice specifying the nature of Grantee's default
and demanding that such default be remedied within thirty (30) days from receipt of such notice,
the rights and privileges granted by this franchise may be terminated and annulled by City if
Grantee fails to remedy its default within such 30 -day period; provided, however, where a
default cannot reasonably be cured within thirty (30) days, if Grantee shall proceed promptly to
cure the same and prosecute such curing with due diligence, the time for curing such default
shall be extended for such reasonable period of time as may be necessary to complete such cure.
Section 14 . Nothing contained in this franchise shall give Grantee any credit against any
non - discriminatory business tax or ad valorem property tax now or hereafter levied against real
or personal property within City, or against any local improvement assessment imposed on
Ordinance - Page 3 of 4
Grantee, or against any permit fees or inspection fees required by the construction codes or other
ordinances of City which are or may hereafter be adopted.
Section 15 . This franchise shall be governed by and interpreted in accordance with the
laws of the State of Oregon without giving effect to its principles of conflicts of laws. Any suit
filed to resolve a controversy relating to this franchise shall be instituted in Lane County Circuit
Court or the federal District Court for Oregon, Eugene Division.
Section 16 . If any part of this franchise is determined to be invalid, illegal or
unenforceable, the remainder of this franchise shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
Section 17 . Subject to the provisions of Section 18 of this Ordinance, the privileges and
franchise herein granted shall continue and be in force for a period of twenty (20) years from and
after the date this Ordinance becomes effective; provided, however, that either City or Grantee
may, upon at least thirty (30) days written notice to the other prior to the expiration of each five
(5) year period from the effective date of this franchise, open this agreement to negotiate
provisions therein. The negotiations and dispute resolution, if any, shall be governed by the
principle that, to the extent possible, the terms of this franchise shall be consistent with local,
state and federal law in existence at the time of re- negotiation.
Section 18 . If at any time during the term of this franchise Grantee receives revenue
from the communications facilities constructed and maintained under the terms of this Ordinance
from one or more customers within the City of Eugene, the rights and privileges granted herein
shall terminate, and Grantee's use of the public way shall be subject to the provisions of Sections
3.400 through 3.430 of the Eugene Code, 1971, with which Grantee shall promptly comply.
Section 19 . This Ordinance shall take effect and be in force from and after its passage
and approval and acceptance by Grantee. Grantee shall, within thirty (30) days of the passage by
the City Council of this Ordinance, file with the City Recorder its written acceptance of a
summary of the terms and conditions of this Ordinance.
Passed by the City Council this
24 day of November, 2014
Approved by the Mayor this
Z S day of November, 2014
City Recorder
Mayor
Ordinance - Page 4 of 4
VAUTTEN ACCEffANCE OF ORDIN NO. 20544
CITY Of FUGENE, OREGON
TO THE MAYOR AND CITY COUNCIL OF THE CITY OF EUGENE, OXCGON:
On Novanber 24. 2014. t h e Qq Coundl of the City of Eqpm Oregon mx-W
OnAnance No. 241544 cadded.-
AN ORDINA�NCE GRANTING 'FO MCI COMMUNICATIONS
SERVICES, INC A NON-EXCLUSIVE FRANCHISE TO USE THE
PUBLIC WAY TO CONSTRUCT AND MAINTAIN PUBLIC
COMMUNICATION PACILITIFA WITHIN THE CITY OF VI)GENE,
Tbe Ordimwwt was dWy moved and siped on November 13, 2014, by the Nlwyor of
the aw of Evemm PW attested by the City Rea r,
The Ordhmw was gmted upon the om&km that the Sr=ee, within 30 days of ft
enactmat of the Otdinowe. fike %ith the Recorder of the Cam,' of Eugme its wrWm aacepUm
of &II the wm mid comfitions of the Ordinave.
NOW, THEREFORE. MCI Communicv iorta Swviftir4 Inc. amqb Ov&na= No,
205M and all of the umm wW condhkm of dw Ordhmu=, subject to app fedeml, swe
And local law.
IN WITNESS W1131WIF, WI Commmcadons Savien, Im. has eased this
acceptimme to be duty executed dds LT day of Decmber. 2014.
"*--W— -
MCI communicaflow Swvkm Inc
Root* of the osiginal of the duly executed acceptance by MCI Comnumicakm
Serviom Im of all the kums and vmdWom of Ordinance No. 20544 of the City of Eugene,
OmM is bavby wWwwkdpd this 0 ' - day of14w"Aw-,*i+
j2F Febroar� 2oj,5