HomeMy WebLinkAboutOrdinance No. 20167gRDINANCE NU. 2o1G7
AN ORDINANCE GRANTING TO ADVANCED TELECOMMUNICATIONS
GROUP (ATG), ANON-EXCLUSIVE FRANCFIISE TO USE THE PUBLIC
WAY TO CONSTRUCT AND MAINTAIN PUBLIC COMMUNICATION
FACILITIES WITHIN THE CITY OF EUGENE.
THE CITY OF EUGENE DUES gRDAIN AS FULLUwS:
Section 1. As used in this Grdinance, the following words and phrases mean:
C...~: 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: Advanced Telecommunications Group ~ATG}, its successors and assigns.
Gross revenue: All revenue of any kind and in any form, without deduction for
expenses.
Public wav: 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 Grdinance 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. rt 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 cammunication facilities.
Subject to the City Manager's authority to prescribe which public ways wi11 be used and the location
within the public way, it shall be lawful for Grantee to make all necessary excavations in any public
way far 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 Traf~"~c 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.
Grdinance -1
Section 4. Nothing in this Qrdinance 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 shad endeavor not to obstruct or prevent the free 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.
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,
fib} 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
fie} 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 15 days written notice to Grantee at its address indicated in its acceptance of this Qrdinance,
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 15 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 itsub-leases its facilities to a provider
that is not owned by Grantee.
Section S. Grantee shall 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 firanchise granted, Grantee shall pay to City
an amount equal to seven percent ~7%} of Grantee's gross revenues from telecommunications
Qrdinance - 2
services rendered to customers within the Eugene city limits, including Grantee's revenues received
from resellers based on resellers' services to customers within the Eugene city limits.
Telecommunications services includes voice and data services, including Internet-enabling
transmission services. Revenue from equipment sales is exempt. In the event Grantee becomes a
reseller to customers within the Eugene city limits, Grantee may deduct the cost of leasing lines from
another provider for that purpose before calculation of gross revenues. Grantee shall make quarterly
payments to City on or before the 15th of each April, July, Goober, and January for the immediately
preceding quarter. within thirty ~30~ days of the termination of this franchise, Grantee shall pay a
pro rata fee for the period from the end of the prior calendar year to the date of termination in
addition to any other sums due the City, In its sale discretion and with Grantee's concurrence, City
may accept voluntary in-kind services by Grantee in lieu of all or a portion of the franchise fee. To
the extent permitted by the Qregon Public Records Law, City shall protect from public disclosure
Grantee's revenue information on which payments hereunder are based, and Grantee's proprietary
buildWout 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. The privileges and franchise herein granted shall continue and be in force for
a period of twenty X20} years from and after the date this Grdinance becomes effective; provided,
however, that either City or Grantee may, upon at least thirty X30} days written notice to the other
prior to the expiration of each fve ~5}year period from the effective date of this franchise, or upon
the final court decision in the litigation involving Grdinance No. 20053, open this agreement to
negotiate provisions therein including the right-ofwway useloccupancy fee. 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
renegotiation. The timing of negotiation shall be such as allows City sufficient time to adopt an
ordinance in response to the final court decision.
Section 1Z. This Grdinance shall take effect and be in force from and after its passage and
approval and acceptance by Grantee. Grantee shall, within thirty X30) days of the passage of this
Ordinance, f le with the City Recorder its written acceptance of all the terms and conditions of this
Grdinance.
Passed by the City Council this
Z7th day of September,1999
V /-~
~1~
V t
City Recorder
Approved by the Mayor this
Z7th day of September, 1999
Mayo
Grdinance - 3
ACCEPTANCE QF ORDINANCE NQ. ZOI67
TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF
EUGENE, OREGON:
Advanced ~ TelCom Group, Inc. ~ATG}, hereby unconditionally accepts Ordinance No.
20167 of the City of Eugene and all of the terms, provisions, and conditions thereof, said
Ordinance No. 20167 being entitled:
~~C~
AN ORDINANCE GRANTING TD ADVANCED
GROUP ~ATG},ANON-E~CLUSNE FRANCHISE TO USE THE PUBLIC
VL~AY T4 CONSTRUCT .AND MAINTAIN PUBLIC COMMUNICATION
FACILITIES WITHIN THE CITY OF EUGENE.
and having been duly passed and adopted by the City Council and approved by the Mayor of said
City of Eugene on the 27th day of September,1999.
IN tiVITNESS WHEREOF, Advanced TelCom Group, Inc. ~ATG}, has caused the
acceptance of Ordinance No. 20167 to be signed by its VP-Regulatory & Public Policy, Kathryn
L. Thomas, and its corporate seal to be affixed hereto and attested by its VP-Finance an d
Treasurer, Charlene Curry, this 22nd day of October,1999.
.ATT ~ .
B Charlene Curry
Title: V~-Finance and Treasurer
STATE OF CALIFORNIA )
ss
County of Sonoma )
AD CED TELCOM GROUP, INC.
Kathry L. Tho s
Title: VP-Regulatory & Public Policy
On this 22nd day of October, 1999, personally appeared Charlene Curry, who being duly
sworn, did say that she is the VP-Finance and Treasurer of Advanced TelCom Group, Inc.
~ATG}, and that the seal off xed to the foregoing instrument is the corporate seal of said
corporation and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors; and acknowledged said instrument to be its voluntary act and
deed.
0
n~ -
-- mmt
p
otary Public for ~,zc~
My Commission expires: ~~, ~aea~-
Acceptance of Ordinance No. 20167 -1