Ord 2553 - Mobilitie Franchise COUNCIL BILI. NO. 3056
ORDINANCE NO. 2553
AN ORDINANCE GRANTING A TELECOMMUNICATIONS FRANCHISE TO MOBILITIE, LLC, TO
OCCUPY CERTAIN RIGHTS-OF-WAY WITHIN THE CITY OF WOODBURN, AND DECLARING AN
EMERGENCY
WHEREAS, the City regulates the placement of telecommunications facilities
within the City rights-of-way pursuant to Ordinance 2284, which governs the
construction and franchising of telecommunications utilities operating within the City
and desiring to occupy City rights-of-way; and
WHEREAS, the City received a request from Mobilitie, LLC, a Nevada limited
liability company, to place telecommunications facilities in certain rights-of-way
within the City in order to provide service within the City, which facility locations are
shown on the attached Exhibit "A"; and
WHEREAS, the City has reviewed the request and application filed by Mobilifie,
LLC and finds that the company has the requisite authority to provide these services
from the Oregon Public Utility Commission ("OPUC") and that the level of impact on
the City's rights-of-way will be acceptable, and the City Council therefore desires to
issue a franchise; NOW THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1. Franchise Grant.
A. Subject to the terms and conditions contained herein, the City of Woodburn
does hereby grant to Mobilitie, LLC, (hereinafter ".Grantee") a telecommunications
franchise to locate its facilities within the rights-of-way of the City, as shown on Exhibit
"A" and described in Grantee's application for a franchise.
B. Such grant is subject to all of the laws and ordinances of the City of
Woodburn and to applicable state and federal law. Except as otherwise specifically
provided by this Franchise Ordinance, all requirements and conditions of Ordinance
228.4, the Telecommunications Franchise Ordinance, shall apply to Grantee.
C. The scope of this grant allows the installation of facilities by Grantee in the
City's rights-of-way as depicted in Exhibit "A." Such facilities shall be used by Grantee
to provide telecommunications services consistent with the authority granted by the
OPUC which includes the construction of a backhaul/transport network to which
commercial mobile radio service carrier customers may seek to connect. In the
event the location of Grantee's facilities or the nature of the services provided is
proposed for modification, Grantee shall be required to obtain an additional or
revised franchise from the City.
Page I - Council Bill No. 3056
Ordinance No. 2553
Section 2. Construction Standards.
A. The construction standards of the City of Woodburn, as well as any other
applicable construction standards in existence at the time of this franchise grant or
hereafter enacted, shall apply to all work performed by the Grantee in City rights-of-
way.
B, The Grantee's facilities shall not interfere in any way with any of the City's
communications or other public and city-permitted facilities, including other
franchised facilities, either as installed or during operation. The Grantee will
compensate the provider of power directly for the cost of power consumed in
support of Grantee's facilities, and shall hold the City completely harmless from any
power cost.
C. The Grantee shall locate below the surface of the ground all wiring and
physical improvements within City rights-of-way, unless it is physically impossible to do
so. Placement of any improvements above ground, or on poles shall only be with the
prior review and approval of the City.
D. Where permission is granted by the City to locate Grantee's facilities upon
poles, Grantee shall independently obtain prior written approval from the owner
and/or operator of the poles on which its facilities shall be placed. Upon request,
Grantee shall provide copies of such written approvals for City review.
E. Where permission is granted by the City to locate Grantee's facilities upon
poles, Grantee shall undertake all wiring and physical improvements required by the
owner of each pole to which its facilities are to be attached. In the case of City-
owned poles or fixtures, such work shall be performed subject to the approval of the
City Engineer or his designee.
Section 3. Franchise Fee. Subject to any restrictions imposed by federal law, the
franchise fee payable to the City shall be 7% (seven percent) of the Grantee's "Gross
Revenues" earned within the corporate limits of the City ("Franchise Fee"). "Gross
Revenues" means all revenues received by Grantee from the operation of the Grantee's
facilifies utilizing utility company poles in the rights-of-way, including, but not limited to all
rents, payments, fees and other amounts actually collected from any third party and
received by Grantee and allocable to the period within the term [or any renewal term]
pursuant to any sublease, sublicense or other agreement for telecommunications
services provided with respect to Grantee's facilities, but exclusive of: (l) any payments,
reimbursements or pass-throughs from the third party to Grantee for utility charges, taxes
and other pass-through expenses, or in connection with maintenance work performed
or equipment installed by Grantee, (2) site acquisition, construction management or
supervision fees related to the installation of Grantee's facilities, and (3) contributions of
capital by any third party to reimburse Grantee in whole or in part for the installation of
Grantee's facilities. Notwithstanding the type of telecommunications services
Page 2- Council Bill No. 3056
Ordinance No. 2553
provided, the minimum annual Franchise Fee shall be $1,000 for fhe privilege of using
the City's rights-of-way. Franchise Fees shall be payable quarterly, on or before April
30, July 31, October 31 and January 31, for the preceding calendar quarter.
Payments made more than ten calendar days beyond the due date shall bear
interest at the rate of 9% per annum. With each Franchise Fee payment, the Grantee
shall furnish a sworn statement setting forth the amount and calculation of the
payment. The statement shall detail the revenues received by the Grantee from its
operations within the City, and shall specify the nature and amount of all exclusions
and deductions from such revenues claimed by the Grantee in calculating the
Franchise Fee.
Section 4. Audit. The City shall have the right to annually audit the books and
records of the Grantee to verify compliance with the terms and conditions of Section
3 of this franchise. At the City's request, the Grantee shall provide the City's agents
access to the Grantee's books and records, as necessary, to conduct a thorough
audit.
Section 5. Term. The term of this franchise shall be five (5) years. This franchise
shall be subject to three (3) automatic renewals of five (5) years each on the same
terms and conditions unless notice is given by either party 30 days in advance of the
expiration of the franchise of its intention to terminate or renegotiate the franchise.
This franchise shall be effective upon the date of Grantee's written acceptance of
this grant.
Section 6. Indemnification. Grantee hereby agrees and covenants to
indemnify, defend and hold the City, its officers, agents, and employees, harmless
from any claim for injury, damage, loss, liability, cost or expense, including court and
appeal costs and reasonable attorney fees or expenses, arising from any casualty or
accident to person or property by reason of any construction, excavation,
installation, operation, maintenance, repair, removal, or any other act done under
this Agreement, by or for Grantee, its agents or employees, or by reason of any
neglect or omission of Grantee to keep its facilities in a safe condition, but not if arising
out of or by reason of any negligence or willful misconduct by the City, its officers,
agents or employees.
Section 7. Conflicting Provisions. To the extent that any of the terms or
provisions of this Ordinance conflict with Ordinance No. 2284, the terms and
provisions of this Ordinance shall govern.
Section 8. 'termination at Grantee's Request. Grantee may surrender permits at
any time prior to the completion of the installation of its facilities and remove its
facilities with or without cause upon 30 days' prior notice to the City.
Section 9. Limitation of Liability. Neither party will be liable for consequential,
indirect, or punitive damages (including lost revenues, loss of equipment, interruption,
Page 3- Council Bill No. 3056
Ordinance No. 2553
loss of service, or loss of data) for any cause of action, whether in contract, tart, or
otherwise, even if the City or Grantee was or should have been aware of the
possibility of these damages, whether under theory of contract, tort (including
negligence), strict liability, or otherwise
Section 10. Assignment. This franchise may be assigned by Grantee without any
approval or consent of the City to Grantee's principal, affiliates, subsidiaries of its
principal or to any entity which acquires all or substantially all of Grantee's assets in the
market defined by the FCC in which the right-of-way is located by reason of a merger,
acquisition or other business reorganization provided that such acquiring entity is
bound by all of the terms and conditions of this Ordinance. As to other parties, this
franchise may not be sold or assigned without the written consent of the City, which
shall not be unreasonably withheld. Grantee shall provide the City's representative
notice of any such merger, acquisition or other business reorganization wif h a principal,
affiliate or subsidiary of Grantee within a reasonable period of time after the
consummation thereof. No change of stock ownership, partnership interest or control
of Grantee or transfer upon partnership or corporate dissolution of Grantee shall
constitute an: assignment hereunder.
Section 11. Acceptance. The grant of franchise herein is conditioned upon
Grantee's acceptance of all terms and conditions hereof in writing in a form
acceptable to the City.
Section 12. Emergency Clause, This ordinance being necessary for the public
peace, health and safety, in that it is important that the Grantee is able to apply for
a righf-of-way permit and begin construction, an emergency is declared to exist and
this ordinance shall fake effect immediately upon passage by the Council and
approval by Mayor.
Approved as to form fo
City Attorney Date'
Approved:
K 6rynFH ley, M yo; �7
Passed by the Council
1 10
Submitted to the Mayor
Approved by the Mayor q. t9o, LF-
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Filed in the Office of the Recorder 'R�ry /Y Over
Page 4- Council Bill No. 3056
Ordinance No. 2553
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page 5- Council BM No. 3056
Ordinance No. 2553
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