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Ordinance No. 72-57 CITY OF TIGARD, OREGON ORDINANCE No. 72-, AN ORDINANCE GRANTING TO PACIFIC NORTHWEST BELL, AN OREGON t CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO PLACE, ERECT AND l MAINTAIN POLES, WIRES AND OTHER APPLIANCES AND CONDUCTORS AND TO LAY UNDERGROUND WIRES FOR THE TRANSMISSION OF ELECTRICITY FOR TELEPHONE PURPOSES, IN, UPON, UNDER, OVER AND ACROSS THE STREETS, ALLEYS, ROADS AND OTHER PUBLIC WAYS AND PLACES WITHIN THE CORPORATE LIMITS OF SAID L.TY, AND TO CONDUCT A GENERAL TELEPHONE BUSINESS WITHIN SAID CITY OF TIGARD, FIXING THE TERMS AND CONDITIONS THEREOF AND PROVIDING FOR THE TERM AND EFFECTIVE DATE THEREOF. IT IS ORDAINED BY THE COUNCIL OF THE CITY OF TIGARD: Section 1: That Pacific Northwest Bell, an Oregon corporation, hereinafter sometimes referred to as the "Company" or the "Grantee", is hereby granted, subject to the terms and conditions hereof, the franchise right and privilege to erect, construct, maintain and operate a general telephone system and business within the corporate limits of the City of Tigard, herein sometimes referred to as the "City", as the same now exist or may be hereafter constituted, and the franchise right and privilege to erect, construct, maintain and operate poles, wires, fixtures, equipment, underground circuits and other property necessary or convenient to supply the City and the inhabitants thereof and other persons and territory with telephone service, upon, over, along, under and across the streets; alleys, roads and other public ways and places within the corporate limits of the City as the same now are or may be hereafter constituted. All poles, wires, fixtures, equipment, underground circuits and other property owned or in possession of the Company now located within the corporate limits of the City shall be deemed to be covered by the terms of this ordinance and to be located in accordance therewith, and the location and placement thereof is hereby approved. The City reserves the right to vacate, alter, or close any street, bridge or public place, but in so doing will give due regard to the presence of Company's facilities and the continued rendition by Company of service to the public. Section 2: This franchise is granted for a period of 20 years from the effective date of this ordinance unless sooner termin- ated as provided in this ordinance, but the Council of the City of Tigard may terminate this franchise at any time after 10 years from the effective date hereof upon one year's notice in writing to the Company. In the event the Company shall fail, neglect, or refuse for thirty (30) days after demand in writing by the City to perform any or all of the obligations or requirements set forth in this ordinance to be performed by the Company, then the rights and privileges herein granted may be terminated and annulled by the Council or other legislative body of the City, and the Company shall forfeit in such event all rights and privileges hereby granted. Section 3: That the Company shall file with the City Engineer, or other City official designated by the City, maps or sketches showing any proposed line construction work to be done by the Company in any street, alley, road or other public way or place prior to under- taking such work, and such construction work shall be done in a reasonably safe manner subject to the approval of the official designated by the Council of the City and in accordance with requirements of applicable State laws and City ordinances. Section 4: That the Company, under the direction of the City or its properly constituted authorities, may make all necessary excavations in any street, alley, road or other public way or place for the purpose of erecting, constructing, repairing, maintaining its underground conduits and pipes; and for placing, maintaining and operating its wires and conductors. All poles of the Company shall be erected at the outside edge of the sidewalk unless otherwise directed by the proper City authorities. Section 5: That when any excavation shall be made pursuant to the provisions of this ordinance, the Company shall restore the portion of the street, alley, road or public way or place to the same condition to which it was prior to the excavation thereof; and all work shall be done in strict compliance with the rules, regulations, ordinances or orders which may be adopted from time to time during the continuance of this franchise by the Council of the City or as r.ay (' be otherwise provided by law. The City, at its option, may require that any opening in any hard surface pavement in any street, alley, or public highway, may be filled in and the surface replaced by the City, and the cost therefore, including inspection and supervision, shall be paid by the Company, and the City may require the prior deposit with the City Treasurer of a sum estimated to be sufficient to pay the cost to be borne by the Company prior to the excavation of said street, alley, or public highway. Section 6: That the City, by its properly constituted authorities, shall have the right to cause the Company to move the location of any pole whenever the relocation thereof shall be for public necessity or convenience, and the expense thereof shall be paid by the Company. Section 7: That nothing in this ordinance shall be construed as in any way to prevent the City from sewering, grading, paving, planking, repairing, widening, altering or doing any work that may be desirable on any of the streets, alleys, roads or public ways or places; but all such work shall be done, if possible, in such manner as not to obstruct, injure or prevent free use and operation of the said telephone system of the Company. Section 8: That whenever it shall be necessary in sewering, grading, or in making any other improvement in any street, alley, road or other public way or place, to remove any pole, underground conduit or equipment belonging to the Company or on which any wire or circuit of the Company shall be stretched or fastened, the Company shall, upon twenty (20) days' written notice from the City, or its properly constituted authorities, remove such pole, underground conduit, equipment, wire or circuit; and if it fails, neglects or refuses so to do, the City, by its properly constituted authorities, may remove the same at the expense of the Company. Section 9: Whenever it becomes necessary to temporarily rearrange, remove, lower or raise the wires, cables or other plant of Grantee for the passage of buildings, machinery or other objects, Grantee shall temporarily rearrange, remove, lower or raise its wires, cables or other D ant as the necessities of the case require; provided, however, that the person or persons desiring to move any such building, machinery or other objects, shall pay the entire actual cost to Grantee of changing, altering, moving, removing or replacing its wires, cables or other plant so as to permit such passage, and shall deposit in advance with Grantee a sum equal to such cost as estimated by Grantee and shall be liable to pay for all damages incurred through his negligent acts while exercising the authority granted by any permit issued by the City. Grantee shall be given not less than ninety-six (96) hours written notice by the party desiring to move such building or other objects. Said notice spall detail the route of movement of such building or other objects over and along the streets, alleys, avenues, thoroughfares and public highways and shall bear the approval of the city. Such moving shall be with as much haste as R, possible and shall not be unnecessarily delayed or cause Grantee unnecessary expense or waste of time. Section 10: That Vie rights and privileges granted by this ordinance are granted upon the conditions herein contained and also upon the following considerations and conditions, to-wit: (a) That Pacific Northwest Sell shall, within thirty (30) days from the effective date of this ordinance, file with the City Recorder its written acceptance of this ordinance, subject to all the terms, obligations, restrictions and provisions of this ordinance; and upon the expiration of the allotted time for the acceptance of this ordinance, the same not havinty been accepted PAGE 2 ORDINANCE No. 72-, unconditionally, then this ordinance shall become wholly void, inoperative and of no effect. (b) As compensation for the rights and privileges herein grantryd, in addition to any other consideration in this ordinance expressed, the Company shall pay to the City an amount equal to three per cent (3%) of the gross revenue each year derived by ( the Company from local exchange service rendered subscribers within the corporate limits of the City of Tigard, such revenue to be determined in accordance with lawful rate and rate groupings applicable to the exchange, exclusive of extended area service, such amounts to accrue beginning January 1, 1973. (c) The compensation required by this section shall be due for each calendar half year, or fraction thereof, within 45 days after the close of such calendar half year or fraction thereof. Within 45 days after the termination of this franchise, compensation shall be paid for the period elapsing since the close of the last calendar half year fog which compensation has been paid. (d) The Grantee shall furnish to the City with each payment of compensation required by this section, a written statement, under oath, executed by an officer or general manager in charge of operations in Oregon showing the amount of gross revenue of Grantee within the City for the period covered by the payment computed on the basis sat out in subsection (b) of this section. The compensation for the period covered by the statement shall be computed on the basis of the gross revenue so reported. If the Grantee fails to pay the entire amount of compensation due the City through error or otherwise, the difference due the City shall be paid by the Grantee within 15 days from discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise shall '-.e offset against the next payment due from the Grantee. Upon receipt of such semi-annual payment, the City Recorder (Clerk) shall issue his receipt therefore, which shall be full acquittance of the Company for the sum received. If controversy arises as to the amount of gross revenue within the meaning of this ordinance, the amount of such gross revenue, as determined by the Public Utilities Commissioner of Oregon after examination of the Company's records, shall be deemed the correct amount. , 6 (e) Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the pp City of any breach of this franchise occurring prior thereto, nor shall E` the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due, or from collecting any balance due to the City. (f) That in consideration of the agreement of the Company to make such payments, the City agrees that no license, tax or charge on the business, occupation or franchise of the ; Company shall be imposed upon, exacted from or required of the Company by the City during the term of this ordinance, but this provision shall not exempt the property of the Company frim lawful ad valorem taxes or from any local improvement assessment. (g) That the Company shall permit the City to string wires on poles of the Company for municipal fire, ` police and water departments, and for municipal telephone, telegraph 4 and traffic signal systems, and to attach to the top of any pole 4; City fire alarm and police signals provided that such wires and signals , shall be strung so as to not in any way interfere with the facilities of the 'Company. The City agrees to reimburse the Company for the reasonable cost of repairs to the Company's poles and wires necessitated by, or resulting from, the use of the Cozwpany's poles by the City as in this sub-paragraph set forth. r i PAGE 3 - ORDINANCE No. 72-_ c r ( 1• (h) That the Company shall not during the term of this franchise sell, assign, transfer or convey this franchise without the consent of the Council of the City expressed by ordinance first obtained, and that upon obtaining such consent all of the provisions shall inure to and bind the successors and assigns of the Company3 and whenever Pacific Northwest Bell shall be mentioned in this ordinance, it shall be understood to include such successors .' or assigns in interest of Pscific L,orthwest Bell as shall have been so consented to by the Council. Section_ 11: That the rates to be charged by the Company for telephone service shall be such as may be fixed and/or approved by the Public Utilities Commissioner of Oregon, or any other governmental official, commission or body having jurisdication. Section 12% That the Company hereby agrees and covenants to indemnify and save harmless the City and the officers thereof against all damages, costs and expenses whatsoever to which it or they may be subjected in consequence of negligence of the Company, or its agents or servants, in any manner arising from the rights and privileges } hereby granted. i Section 13: That the franchise hereby granted shall not be exclusive and shall not be construed as any limitation on the City t to grant rights, privileges and authority to other persons or corporations f similar to or different from those herein set forth, t Section 14: The Company shall maintain facilities in the City where its customers may pay their bills for telephone service during normal business hours. Section 15: The City reserves the right to exercise, with regard to this franchise and the Grantee, all authority now or here- _ ` after granted to the City by state statutes. All rights are reserved to the City and provisions of the city charter applicable hereto shall be deemed incorporated by reference and made a part of this franchise; 4 provided, that the Company shall have the right to cancel this franchise by written notice to the City given at any time within sixty (60) days and such cancellation shall then become effective thirty (30) days after receipt of said notice by the City. Section 16: inasmuch as it is necessary for the peace, health and safety of the people of the City of Tigard that the sources and rates of revenue from public utilities within the City be maintained on a current basis, an emergency is hereby declared to exist, and this ordinance shall be effective upon its passage by the Council and approval of the Mayor. PASSED: By the Council by unanimous vote of all Council members present, after being read three times by number and title only, this _ day of Oct ' It Recorder - City of Tr and APPROVER: BY the Mayor, this _ '"day of197 . .: maybe - City of Ti and No. 72 PAGE 4 - ORDINANCE -� ) we