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HomeMy WebLinkAboutOrdinance 1610ORDINANCE NO. 1.610 AN ORDINANCE GRANTING PACIFIC NORTHWEST BELL TELEPHONE COMPANY THE RIGIIT AND PRIVILEGE TO CONDUCT A GENERAL COMMUNICATION BUSINESS AND TO MAINTAIN, ERECT AND OPERATE POLES, WIRES AND OTIIER APPLIANCES WITHIN THE CITY OF CENTRAL POINT, OREGON AND REPEALING ORDINANCE NO. 1542 THE PEOPLE OF THE CITY OF CENTRAL POINT DO ORDAIN AS FOLLOWS: Section 1. Definitions and Explanations. (1) As used in this ordinance: (a) "City" means the City of Central Point, Oregon, a municipal corporation, and the area within its boundaries, including its boundaries as extended in the future. (b) "Conversion" means the removal of overhead communication facilities and the replacement of those facilities with underground communication facilities at the same or different locations. (c) "Grantee" means Pacific Northwest Bell Telephone Company and its successors and assigns. (d) "Facilities" includes all communication facilities located on, over or under any street, bridge or public place. (e) "Person" includes any individual, corporation, association, firm, partnership and joint stock company. (f) "Public place" includes any city-owned park, place or grounds within the City that is open to the public but does not include a street or bridge. (g) "Street" includes a street, alley, avenue, road, boulevard, thoroughfare, public vaay or public highway within the ORDINANCE NO. 1610 _ 1 PNBO.NEW (091988) City, but does not include a bridge. (h) "Bridge" includes a structure erected within the City to facilitate the crossing of a river, stream, ditch, ravine, street, railroad, or other public place, but does not include a culvert. (2) When not inconsistent with the context, words used in the present tense include the future, the words in the plural form include the singular number and words in the singular number include the plural number. (3) Unless otherwise specified in this ordinance, any action authorized or required to be taken by the City may be taken by the Council or by an official or agent designated by the Council. Section 2. Rights Granted. There is hereby granted by City a non-exclusive telephone franchise to Grantee, with the right and privilege to do a general communication business within the City and to place, erect, lay, maintain and operate in, upon, over and under the streets, bridges, and public places, poles, wires and other appliances and conductors for all telephone and other communication purposes. Such facilities may be strung upon poles or other fixtures above ground; provided, however, that City shall have discretion to require, where reasonable, underground installation in cases of new developments, reconstruction of streets or street improvements. The City shall require the cost of moving or undergrounding existing facilities to benefit private development to be paid for by the developer. The City shall have the right, during the life of this franchise, to ORDINANCE NO. 1610 - 2 PNBO.NEW (091988) install and maintain, where space is available, upon the poles and in the conduits of the Grantee, at reasonable charge or tariff, any facilities, wires and fixtures necessary for police, fire and emergency medical services communication systems, on the condition that such facilities, wires or fixtures do not interfere with the system operations of the Grantee. Section 3. Street Excavations. Subject to all rules, regulations, ordinances, or orders of City, Grantee, upon obtaining approval as hereinafter required, shall have the right to make all necessary excavations in any of such streets, bridges, and public places for the purpose of placing, erecting, laying and maintaining poles, or other supports or conduits for said wires and appliances and auxiliary apparatus, or repairing, renewing or replacing the same. Except in emergencies, prior to making an excavation in the traveled portions of any street, bridge or public place, and when required by City, in any untraveled portion of any street, bridge or any public place, Grantee shall obtain from City approval and necessary permits for the excavation and of its location. Section 4. Street Restoration. Whenever Grantee shall disturb any of the streets, bridges or public places for the purposes aforesaid, it shall restore the same to good order and condition as soon as practicable without unnecessary delay, and failing to do so, City shall have the right to fix a reasonable time within which such repairs and restoration of streets shall be completed, and upon failure of such repairs being made by ORDINANCE N0. 1610 _ 3 PNBO.NEW (091988) Grantee, City shall cause such repairs to be made at the expense of Grantee, and the cost of making the restoration, including the cost of inspection, supervision and administration, shall be paid by Grantee. Section 5 - Location of Facilities. The City shall have the right to require conversion of overhead communication facilities to underground communication facilities, and in such event, the parties shall comply with applicable PUC orders and regulations, including any amendments to such orders or regulations which may occur following the execution of this agreement. Section 6. Relocation of Facilities. Nothing in this ordinance shall be construed in any way to prevent the proper authorities of the City of Central Point from sewering, grading, planking, rocking, paving, repairing, altering or improving any of the streets, alleys, avenues, thoroughfares and public highways, places and grounds within the City of Central Point in or upon which the poles, wires, or other conductors of said company shall be placed, but all such work or improvements shall be done if possible so as not to obstruct or prevent the free use of said poles, wires, conductors, conduits, pipes, or other apparatus. The City shall have the right to require removal or relocation of facilities in the course of such work where necessary to facilitate such work without cost to City, but City shall not require Grantee to remove or relocate its facilities or vacate any street, alley or other public way incidental to any public housing or renewal project under ORS Chapters 456 and 457 ORDINANCE NO. 1610 _ 4 PNBO.NEW (091988) without reserving Grantee's rights therein or without requesting that Grantee be compensated for the costs thereof. Section 7. Franchise Not Exclusive. This franchise is not exclusive, and shall not be construed as a limitation on City in: (1) Granting rights, privileges and authority to other persons similar to or different from those granted by this ordinance. (2) Constructing, installing, maintaining or operating any city-owned public utility including any communication facilities. Section 8. Safety Standards and Work Specifications. (1) The facilities of Grantee shall at all times be maintained in a safe, substantial and workmanlike manner. (2) The location, construction, extension, installation, maintenance, removal and relocation of the facilities of Grantee shall conform to the requirements of state and federal statutes, and regulations adopted pursuant thereto, in force at the time of such work. Section 9. Moving of Buildings and Other Ob'ects. (1) Within a reasonable period after receipt of notice in writing from any person desiring to move a building or other object, the Grantee shall temporarily raise, lower or remove its facilities upon any street, bridge or public place when necessary to permit the person to move the building or other object across or along such street, bridge or public place. The raising, lowering or removal of the facilities of Grantee shall be in accordance with all applicable ordinances and regulations of the ORDINANCE NO. 1610 _ 5 PNBO.NEW (091988) City. If Grantee, because of conditions not within its control, is unable to perform within a reasonable period City may, on written request, extend the period of performance for such additional time as it finds to be reasonably necessary. (2) The notice required by subsection (1) of this section shall bear the approval of such official as City shall designate, shall detail the route of movement of the building or other object and shall provide that the actual expense incurred by Grantee in making the temporary rearrangement of its facilities, including the cost of Grantee of any interruption of service to its customers caused thereby, will be borne by the person giving the notice, and shall further provide that the person giving said notice will indemnify and save Grantee harmless of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly by such temporary rearrangement of Grantee's facilities. (3) Grantee, before making the temporary rearrangement of its facilities, may require the person desiring the temporary rearrangement to deposit cash or a good and sufficient bond, at the option of the person, to secure payment of the costs of rearrangement as estimated by Grantee. Section 10. Compensation. (1) In consideration of the rights, privileges, and franchise hereby granted to Grantee, Grantee shall pay City from and after the effective date of this franchise ordinance, and until its expiration, annually, five percent (5%) per annum of its gross ORDINANCE N0. 1610 _ 6 PNBO.NEW (091988) local service revenues derived from services within the corporate limits of the City of Central Point for the period covered by the payment, less net uncollectibles, revenue paid directly by the United States of America or any of its agencies, and any revenues derived from competitive services. Services that are competitive for purposes of this franchise include Grantee's Centrex and Centrex type services such as Corecom, Private Line and Private Line type services such as Digicom, Radio type services such as Mobile Communications and Bellboy, the provision of inside wiring and any service that is now or hereafter the subject of detariff- ing, regulatory forbearance or deregulation by the Oregon Public Utility Commission. Payment of said five percent (5°s) shall be made on or before the 15th day of March for the calendar year preceding. Payment for calendar 1988 until the first billing date after the effective date of this ordinance shall be at the rate of three percent (30) of gross local service. (2) Grantee shall furnish to City with each payment of compensation required by this section, a signed written statement showing the amount of Grantee's gross local service revenues derived from the operation of telephones located within the corporate limits of the City for the period covered by the payment, together with the amount of deduction for net uncollectibles, revenue paid directly by the United States of America or any of its agencies, and revenues derived from competitive services. If Grantee fails to pay the entire amount of compensation due City through error or otherwise, the ORDINANCE N0. 161.0 - 7 PNBO.NEW (091988) difference due City shall be paid by Grantee within a reasonable time from discovery of the error. Any overpayment to City through error or otherwise shall be offset against the next payment due from Grantee. (3) Acceptance by City of any payment due under this section shall not be deemed to be a waiver by City of any breach of this franchise occurring prior thereto, nor shall the acceptance by City of any such payments preclude City from later determining that a larger amount was actually due, or from collecting any balance due to City. (4) The payments made pursuant to subsection (1) of this section shall not be accepted in payment of any of the following: (a) Any and all water and sewer charges; (b) Ad valorem property tax now or hereafter levied against real or personal property of Grantee situated within the City; (c) Local improvement assessments; (d) Building permits, or permits related thereto, imposed pursuant to building, electrical or similar regulatory codes, and any land development or construction fees or charges, any of which are adopted as ordinances and of general application in the City, provided, however, no fee or charge shall be made for any permit, inspection or other service relating to the opening, or use, of a public street, bridge or public place; (e) Reimbursement or indemnity paid to City; (f) Any business tax or sales tax on services hereafter ORDINANCE N0. 1610 _ g PNBO.NEW (091988) adopted, to the extent that such tax is generally applicable within the City, provided however, such tax shall not apply to any revenues that are otherwise taxable under this ordinance. Such 5o payment made by the Grantee will be accepted by City from Grantee, also in payment of any license, privilege or occupation tax or fee for revenue or regulation, or any permit or inspection fees or similar charges for street openings, installations, construction, or for any other purpose now or hereafter to be imposed by City upon Grantee during the term of this franchise, except as provided in subsection (4) of this section. Section 11. Books of Account. Grantee shall keep accurate books of account for the purpose of determining the amounts due to City under Section 10 of this ordinance. City may inspect the books or account at any time during business hours and may audit the books from time to time. Section 12. Supplying Maps U on Request. Grantee shall maintain maps pertaining to its operations in City. If requested to do so, Grantee shall furnish to City, without charge and within a reasonable time, maps showing the location of the facilities of Grantee in specified areas of City. Section 13. Indemnification. Grantee hereby agrees and covenants to indemnify and save harmless City, its officers, agents and employees from any damages, costs and expenses arising from any injury to person or property caused in whole or in part by any negligent act or omission of Grantee, its agents or employees, in exercising the rights or privileges granted herein. ORDINANCE NO. 1610 _ g PNBO.NEW (091988) Section 14. Assignment of Franchise. This franchise shall be binding upon and inure to the benefit of the successors, legal representatives and assigns of Grantee. No transfer of this franchise by merger, consolidation, sale, assignment or otherwise shall be made unless City first consents by resolution; provided, however, that said consent shall not unreasonably be withheld. Section 15. Termination of Franchise for Cause. Upon the failure of Grantee, after ninety (90) days notice and demand in writing, to perform promptly and completely each and every term, condition or obligation imposed upon it under or pursuant to this ordinance, City may, at its option and in its sole discretion, by ordinance or resolution, terminate this franchise. Section 16. Remedies Not Exclusive• When Requirement Gdaived All remedies and penalties under this ordinance, including termination of the franchise, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or enforcement of any other such remedy or penalty. The remedies and penalties contained in this ordinance, including termination of the franchise, are not exclusive, and City reserves the right to enforce the penal provision of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon Grantee by or pursuant to this ordinance. A specific waiver of a particular breach of any term, condition or obligation imposed upon Grantee by or pursuant to this ordinance shall not be a ORDINANCE NO. 1610 - 10 PNBO.NEW (091988) waiver of any other or subsequent or future breach of the same or of any other term, condition or obligation, or as a waiver of the term, condition or obligation itsei.f. This ordinance shall be subject to any and all State or Federal legislative enactments. Section 17. Term. The within franchise shall be in effect for a period of ten (10) years from and after the date that this ordinance becomes effective, except that it is understood and agreed that either party may, at any time within the 90 day period prior to the five year anniversary of the effective date, terminate and renegotiate the terms hereof, upon notice in writing to the other party. Section 18. This ordinance shall take effect and be in force thirty (30) days from and after its passage and approval, and Grantee shall, within thirty (30) days of the passage and approval of this ordinance, file with the Administrator of City its written acceptance of all the terms and conditions of this ordinance. Section 19. Ordinance No. 1542 heretofore passed on the 18th of April, 1985, shall, upon the effective date of the within ordinance, be repealed. Passed by the Council and signed by me in authentication of its passage this 17th day of N/ouamber , ~, 1988. ATTEST ~ ~ Mayor -~- City Represent 've APPROVED by me this 17th day of November, 1988. /`// ~ ~ _ Mayor / ORDINANCE NO. 1610 - 11 PNBO.NEW (091988)