HomeMy WebLinkAbout2011-07TOWN OF PULASKI, VIRGINIA
ORDINANCE 2011-07
AUTHORIZING A FRANCHISE AGREEMENT
WITH
CITIZENS TELEPHONE CO-OPERATIVE, INC.
WHEREAS, the Town Council of Pulaski, Virginia has determined that it is
in the public interest and general welfare to engage in a franchise agreement
with a communication system provider; and
WHEREAS, CITIZENS TELEPHONE CO-OPERATIVE, INC. can provide
valuable services to the citizens of the Town of Pulaski, performing the services
described in the attached Agreement labeled Exhibit A; and
BE IT ORDAINED by the Council of the Town of Pulaski, Virginia, that the
Agreement (Exhibit A) attached hereto and expressly made a part hereof as if
expressly set forth herein, authorizing the construction and operation of a
communication system on land owned by the Town of Pulaski, Virginia is hereby
adopted and the appropriate Town Officials are authorized to execute same.
This ordinance is effective upon adoption and is hereby adopted this 21st
day of June, 2011, subject to proper execution by Citizens Telephone
Co-operative, Inc. and is adopted by the duly recorded vote of the Town Council
of the Town of Pulaski, as follows:
Morgan P. Welker -Aye
H.M. Kidd -Aye
David L. Clark -Aye
Robert A. Bopp -Aye
Joseph K. Goodman -Aye
THE TOWN OF PULASKI, VIRGINIA
By: w/
rey S. Worrell, Mayor
ATTEST:
_~
d~~~c;, l ^[c~y,
Patricia Cruise, Clerk of Council
Exhibit A
AN ORDINANCE OF COUNCIL GRANTING A NONEXCLUSIVE FRANCHISE
AGREEMENT TO CITIZENS TELEPHONE CO-OPERATIVE, INC., ITS SUCCESSORS,
AND ASSIGNS, TO USE THE STREETS AND OTHER PUBLIC PLACES OF THE TOWN
OF PULASKI, VIRGINIA, FOR ITS POLES, WIRES, CONDUITS, CABLES, AND
TELECOMMUNICATIONS FACILITIES.
BE IT ORDAINED by the Council of the Town of Pulaski, of Pulaski County, Virginia
that Citizens Telephone Co-operative, Inc., its successors, and assigns, for a period of ten (10)
years from the effective date hereof, with such right of renewal as provided by statute, be, and
hereby is, granted a nonexclusive franchise and is authorized and empowered to erect, maintain,
and operate its communication system and associated equipment, on, over, along, in, under, and
through the streets, alleys, highways, and other public places of the Town of Pulaski, Virginia, as
its business may, from time to time, require to use the property of other companies franchised by
the Town of Pulaski, and permit other companies to use its property upon such arrangements as
the two companies may agree.
This franchise Agreement ("Agreement") is entered into by and between the Town of
Pulaski, a Virginia municipal corporation, ("Town of Pulaski"), whose address is 42 151 Street,
NW, Pulaski, VA 24301, and CITIZENS TELEPHONE CO-OPERATIVE, INC. ("Citizens"), a
corporation authorized to do business within the State of Virginia and having its principal office
at 220 Webbs Mill Road North, Floyd, VA 24091-3679.
RECITALS
WHEREAS, Citizens is a corporation duly organized and existing under the laws of the
Commonwealth of Virginia and has been authorized by the Virginia Public Service Commission
to provide all forms of telephone service in the State of Virginia; and
WHEREAS, Citizens desires to construct, install, and maintain network facilities for
telecommunications service within the Town of Pulaski using the public rights-of--way; and
WHEREAS, the Town of Pulaski has the authority to grant access to its public rights-of-
way; and
WHEREAS, Citizens has made application for such franchise; and
WHEREAS, notice of the proposed franchise, if required by statute, has been properly
advertized once a week for two successive weeks in the Southwest Times, a newspaper of
general circulation in the Town of Pulaski.
NOW, THEREFORE, in consideration of the recitals and the mutual promises contained herein,
the Town of Pulaski and Citizens agree as follows:
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JUNE, 2011 /Page 1 of 9
ARTICLE I
DEFINITIONS
Fiber Optic Network Facilities or Facilities means fiber optic cables, conduits, converters,
splice boxes, poles, down guys/anchors, cabinets, handholds, manholes, vaults, equipment,
drains, surface location markers, appurtenances, and related facilities located or to be located by
Citizens in the Public Rights-of--Way of the Town of Pulaski and used or useful for the
transmission of Telecommunications Services.
Law means any local (municipal), state or federal legislative, judicial, or administrative
order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff,
guideline, or other requirement, as amended, now in effect or subsequently enacted or issued
during the term of this Agreement, including, but not limited to, the Communications Act of
1934, as amended by the telecommunications Act of 1996, Pub.L.No. 104-104° 101(a), 1109
Stat. 70 codified at 47 U.S.C., and all orders, rules, tariffs, guidelines, and regulations issued by
the Federal Communications Commission or the governing state authority pursuant thereto.
Public Rights-of--Way means the surface and the area across, in, over, along, upon, and
below the surface of the public streets, roads, sidewalks, lanes, courts, ways, public alleys,
boulevards, and places including, without limitation, all public utility easements and public
service easements as the same now or may thereafter exist that are under the jurisdiction of the
Town of Pulaski.
Telecommunications Services means all telecommunications services that Citizens may
provide under Law.
ARTICLE II
PERMISSION TO PLACE FACILITIES IN PUBLIC RIGHTS-OF-WAY
A. Access. Subject to the terms of this Agreement, the Town of Pulaski hereby grants to
Citizens the nonexclusive right to construct, install, maintain, locate, move, operate, place,
protect, reconstruct, reinstall, relocate, remove, and replace Fiber Optic Network Facilities in the
Public Right-of--Way of the Town of Pulaski. Citizens shall be solely responsible for obtaining
any required consents from State or County agencies, or private parties, to the extent that its
operations affect State, County, or private property.
B. No Property Interest. This Agreement is not a grant by the Town of Pulaski of any fee simple
property interest and is made subject and subordinate to the prior and continuing right of the
Town of Pulaski to use the Public Rights-of--Way as a street and for the purpose of laying,
installing, maintaining, repairing, protecting, replacing and removing sanitary sewers, water
mains, storm drains, gas mains, poles and for other municipal uses and with right of ingress and
egress, along, over, across and in said Public Rights-of Way.
C. No Interference. In the performance and exercise of its rights and obligations under this
Agreement, Citizens shall not interfere in any manner with the existence and operation of any
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JUNE, 2011 /Page 2 of 9
and all public and private rights-of--way, sanitazy sewers, water mains, storm drains, gas mains,
poles, overhead and underground electric and telephone wires, television cables, and other
telecommunications utilities and Town of Pulaski property without the approval of the owner(s)
of the affected property or properties; provided, however, that Citizens is granted the right of
ingress and egress to and from such public rights-of--way over and across the adjacent properties
of the Town of Pulaski as Citizens may need to exercise its rights under this Agreement. All
poles erected by Citizens shall be neat and symmetrical, and shall, together with fixtures, be
located so as not to interfere with the safety or convenience of persons traveling on or over the
Town's streets, alleys, highways, and other public places. In the installation and maintenance of
any underground system, Citizens shall not open or encumber more of any street, alley, highway,
or other public place than will be necessary to enable it to perform the work. The Town of
Pulaski reserves the right to establish by ordinance or resolution, and Citizens hereby agrees to
comply with, any reasonable regulation for the convenience, safety, and protection of its citizens
as now in effect or as may be adopted in the future, including, without limitation, requiring
substitution of underground cable for overhead cable or vice-versa, or requiring transfer of cable
from the front or rear of property.
D. Relocation of Facilities. Citizens shall relocate and bill the Town of Pulaski the actual- cost
of such relocation and, in cooperation with the Town of Pulaski any facilities installed, used, and
maintained under this Agreement if, and when, made necessazy by any lawful change of grade,
alignment, or width of any street, including the construction, maintenance, or operation of any
underground subway or viaduct by the Town of Pulaski and/or the construction, maintenance, or
operation of any other of the Town of Pulaski's underground or above-ground facilities or any of
the Town's capital improvement projects; provided, however, that all utilities located in the area
in which such change or alignment occurs shall also be required, if necessary, to relocate their
respective facilities. For aerial attachments, Citizens shall cooperate with the pole owners to
perform such relocation. Citizens shall accomplish any necessazy relocation of its facilities
expeditiously and so as to avoid any delay to Town of Pulaski construction activities. Upon the
termination of this franchise by expiration of the period for which it is granted and any renewals
thereof, it shall be the duty of Citizens to remove, at its own cost, all of its structures which the
Town of Pulaski at the time of such termination may require to be removed.
E. Term. The period of this Agreement shall be for an initial term of Ten (10) yeazs
commencing on the date of the signing of this Agreement. Unless either party gives ninety (90)
days written notice of its intention to terminate the Agreement prior to the end of the term, the
Agreement shall thereafter automatically renew and continue on an annual basis from year to
year. Either party may, upon giving ninety (90) days written notice prior to the end of the yeazly
renewal period, terminate the Agreement. Upon termination of this Agreement as herein
provided, Citizens shall be prohibited from further access to the Public Rights-of--Way in the
Town of Pulaski.
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JUNE, 2011 /Page 3 of 9
ARTICLE III
CONSTRUCTION OF FACILITIES
A. Permits. As required by Law, Citizens shall apply for a permit for all work and each job
within the Public Rights-of--Way, and shall comply with all terms and conditions of any such
permit. Citizens shall furnish detailed plans of the work and other such information as required
by Law, and shall pay all standard processing, field mazketing, engineering, and inspection fees
prior to issuance of a permit in accordance with the rates in effect at the time of payment.
Improvements shall be constructed and installed in accordance with the Law.
B. Undergrounding of Facilities. Citizens shall place its Facilities underground if required by
the Town of Pulaski pursuant to Law; provided, however, that all utilities located in azeas in
which the Town of Pulaski shall require the Facilities to be placed underground shall also be
required, if the Town, in its sole discretion, deems it necessary, to bury all fiber, wire or conduit
at the same time and under the same terms and conditions. Citizens may be required to install
underground service if such is in keeping with a Town approved plan of development,
resubdivision, revitalization, or redevelopment. The location of any poles erected by virtue of
this ordinance shall be subject to the supervision of the Town Manager of the Town of Pulaski,
as practicable, the Town of Pulaski may require the joint use of such poles now standing as to
avoid multiplicity of poles.
C. Restoration of Public Rights-of--Way. After the removal, relocation, or construction of the
Fiber Optic Network Facilities, Citizens shall, at its own cost, repair, and return the Public
Rights-of--Way to the same or similar condition existing before such removal, relocation, or
construction. Citizens shall be responsible for damage to the Town of Pulaski's street
pavements, existing utilities, curbs, gutters, and sidewalks due to Citizens' installation,
maintenance, repair, or removal of its Fiber Optic Network Facilities in Public Rights-of--Way,
and shall repair, replace, and restore in kind, the said damaged property at its sole expense. If
Citizens fails to restore Public Rights-of--Way after twenty (20) days notice from the Town of
Pulaski, the Town of Pulaski may repair such portions of rights-of--way that may have been
disturbed by Citizens and collect the costs so incurred from Citizens.
D. Manner of Construction. The construction, installation, operation, maintenance, and removal
of its Fiber Optic Network Facilities shall be accomplished without cost or expense to the Town
of Pulaski and in such a manner so as not to endanger persons or property, or unreasonably
obstruct travel on any road, walk, or other access thereon within the Public Rights-of--Way.
E. Reservation of Police Powers. The Town of Pulaski reserves the right, by ordinance or
resolution, to establish any reasonable regulations for the convenience, safety, and protection of
its inhabitants under its police powers. The rights herein granted aze subject to the exercise of
such police powers as the same now aze, or may hereafter be, conferred upon the Town of
Pulaski. Without limitation as to the generality of the foregoing, the Town of Pulaski reserves
the full scope of its power to require, by ordinance, substitution of underground service for
overhead service and vice-versa, or the transfer of overhead service from the front to the reaz of
property whenever reasonable in all azeas in the Town of Pulaski and with such contributions or
at such rates and chazges as may then be in effect under the procedures of the Public Service
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATNE, INC.
JUNE, 2011 /Page 4 of 9
Commission of the State of Virginia ("Public Service Commission") or its successor in function
or other appropriate regulatory body. The Town of Pulaski further reserves the full scope of its
police power to require by ordinance the location, construction, and maintenance of overhead
service at the rear of property or underground service wherever reasonable in all new service
installations in the Town of Pulaski with such contributions or at such rates and chazges as may
then be in effect under the procedures of the Public Service Commission or other appropriate
regulatory body or its successor in function.
F. Condition of Fiber Optic Network & Facilities. Citizens will maintain its poles, wires,
conduits, lines, manholes, facilities, and equipment within the Town of Pulaski in good order and
operating condition throughout the term of this franchise, and Citizens, by accepting this
franchise, agrees that the Public Service Commission or its successor in function has jurisdiction
to the full extent and in the manner now or hereafter provided by law, during the term of this
franchise, to require the Company to render efficient telephone service at reasonable rates.
G. Town of Pulaski's Use of Poles. In consideration of the rights and privileges herein granted,
Citizens shall, on demand, during the life of this franchise, where available, provide space on
each pole, or space in each conduit, on, or in which, the Town of Pulaski may desire to attach its
own network facilities and telecommunications facilities which facilities, shall be limited to use
by the Town of Pulaski for fire, police and/or emergency services, but without cost to the Town.
Should existing space not readily be available, the Town would reimburse Citizens for actual
material and labor costs to make the desired space available to the Town. All such use of
Citizens' facilities by the Town of Pulaski shall be in accordance with the National Electric
Code, National Electric Safety Code, and other federal and state regulations. Prior approval by
Citizens is required before the Town of Pulaski utilizes any of Citizens' facilities. All material
and labor used for any approved attachments and/or use must have prior approval from Citizens.
The requirements of this paragraph shall not extend to conduit, poles, or fixtures used by
Citizens but owned by others. The Town agrees to indemnify and hold harmless Citizens, its
officers, employees, and agents from, and against, any and all claims, demands, losses, damages,
liabilities, fines, and penalties, and al] costs and expenses incurred in connection therewith,
(collectively, the "Losses") arising out of the Town's use of Citizens' conduit, poles, or fixtures.
H. Preservation of Trees. In placing or maintaining its structures, upon and along the streets,
alleys, and/or public places of the Town of Pulaski or otherwise, Citizens shall not injure, or in
any manner, cut or trim the trees, branches of trees along and in such streets, alleys and/or public
places without the previous permission of the Town Manager or his designee. All such
trimmings shall be performed in a safe and orderly manner and, to the extent practicable for the
proper maintenance and use of Citizens' lines or other facilities, in compliance with the
guidelines set forth by the Public Service Commission, as in effect from time to time, and the
local tree ordinance. Citizens shall be solely responsible for obtaining any required consents
from private parties, other utilities, State or County agencies to the extent that its trimming
activities may require consent from private parties, other utilities, or State or County agencies.
I. Facilities Map. Citizens shall maintain an accurate map showing the location of its Facilities.
As-built drawings of any new construction of Facilities shall be furnished to the Town of Pulaski
within sixty (60) days of completion of such construction as requested. Said map shall be
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JUNE, 2011 /Page 5 of 9
provided in a format mutually agreed upon by the parties, which may include an acceptable GIS
format.
ARTICLE IV
COMPENSATION, INDEMNIFICATION, INSURANCE, AND SECURITY
A. Town of Pulaski's Costs in Processing this Agreement. Within ten (10) days of approval of
this Agreement, Citizens shall pay to the Town of Pulaski actual documented costs incurred by
the Town of Pulaski as reimbursement for the Town of Pulaski's administrative costs and legal
fees in processing this Agreement.
B. Franchise Fee. The parties hereto recognize that the Town of Pulaski is responsible for the
Public Rights-of--Way. Further, the parties agree that commercial use of public property for
private profit requires equitable, fair, and reasonable compensation for its use. New technologies
and competition foster more intensive use of Public Rights-of--Way by multiple users. This, in
turn, requires more intensive management of the rights-of--way to ensure orderly use,
maintenance of public safety, reliable delivery of essential services, and equitable treatment of
all users. The pazties acknowledge that the Town of Pulaski has both an obligation and a duty to
exact a fee for the private use of Public Rights-of--Way. The parties recognize that the Virginia
Supreme Court has not determined that a municipality may not charge a reasonable franchise fee
to local telecommunication service providers. The pazties understand that federal law prohibits
discrimination against competitive local exchange carriers in favor of incumbent local exchange
carriers. The parties acknowledge that when the incumbent franchise agreement expires the
Town may impose, and Citizens agrees to be bound by, a fair and reasonable franchise fee
applied on anon-discriminatory, competitively-neutral basis to all telecommunication service
providers using the Town's Public Rights-of--Way.
C. During Provision of Services. Upon commencement of service using its Facilities
constructed in the Public Rights-of--Way, Citizens shall pay to the Town of Pulaski, for its shaze
of the Town of Pulaski's costs of managing the Public Rights-of--Way, the following,
compensation for Facilities placed aerial and/or underground in the Public Rights-of--Way:
$0.05 per lineaz foot of aerial or underground fiber optic cable per annum.
D. Other Fees. Citizens shall pay all standazd, nominal permit and user fees to the Town of
Pulaski in accordance with Law.
E. Indemnification. Citizens agrees to indemnify, defend (with counsel reasonably acceptable to
the Town of Pulaski) and hold harmless the Town of Pulaski its officers, employees, and agents
from and against any and all claims, demands, losses, damages, liabilities, fines, and penalties,
and all costs and expenses incun-ed in connection therewith, including, without limitation,
reasonable attorneys' fees and costs of defense (collectively, the "Losses") azising out of any
breach by Citizens of its obligations described in this Agreement, the Town of Pulaski's approval
of this Agreement and Citizens' activities associated with the installation, operation,
maintenance, removal, or replacement of Citizens' Facilities, except to the extent any Losses
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JUNE, 2011 /Page 6 of 9
arise from the willful misconduct or negligent acts or omissions of the Town of Pulaski, its
officers, employees, or agents.
F. Insurance. Citizens shall maintain throughout the term of this Agreement, workmen's
compensation insurance and liability insurance with regard to all damages in the minimum
amounts of:
a.
b.
Commercial General Liability -including coverage for contractual liability,
public liability, including premises, products, and complete operations.
(I) Bodily injury liability
$ 500,000 each person
$1,000,000 each occurrence
(2) Property damage liability, or
(3) Bodily injury and property
Damage combined
$1,000,000 each occurrence
$1,000,000 single limit
Comprehensive -Automobile Liability Insurance, including owned, non-owned
and hired vehicles.
(1) Bodily injury liability
$ 500,000 each person
$1,000,000 each occurrence
(2) Property damage liability
$1,000,000 each occurrence
(3) In lieu of (1) and (2)
Bodily injury and property
damage combined $1,000,000 single limit
c. Workers' compensation as provided for under any workers' compensation or
similar law in the jurisdiction where any work is performed, with an employer's
liability limit of not less than $500,000 per accident.
d. Citizens agrees that with respect to the above-required insurance, that contracts
will contain the following required provisions:
(1) the Town of Pulaski and its officers, agents, employees, board members and
elected officials shall be named as additional insureds (as the interests of each
may appear) as to the general liability coverage; and
(2) thirty (30) days' notice shall be provided to the Town of Pulaski prior to
cancellation, revocation, non-renewal, or material change.
e. Citizens shall deliver to the Town of Pulaski a certificate of insurance,
satisfactory in form and content to the Town, evidencing that the above insurance
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JUNE, 2011 /Page 7 of 9
is in force and will not be canceled or materially altered without first giving the
Town prior written notice as required in item F.(d), and such additional
certificates as may be necessazy to provide the Town continuing evidence that
Citizens maintains insurance coverage as required herein.
G. Construction Bond. Upon commencement of construction of the Facilities, Citizens shall
deposit with the Town of Pulaski a surety bond naming the Town of Pulaski as an obligee in the
amount of Fifty Thousand Dollars ($50,000.00); provided, however, that the Town of Pulaski
shall require that each telecommunications provider shall deposit with the Town of Pulaski a
surety bond of equal amount. Citizens' obligation to maintain the surety bond shall terminate
thirty (30) days following completion of construction of the initial Facilities. The Town of
Pulaski may draw against the surety bond, up to its full face amount, for any loss or damage to
the Public Rights-of--Way utilized by Citizens during construction of the initial Facilities to the
extent the Town of Pulaski previously as not been otherwise compensated through a withdrawal
from the surety bond or by Citizens.
ARTICLE V
GENERAL PROVISIONS
A. Notices. Notices pursuant to this Agreement shall be in writing and addressed as follows
To the Town of Pulaski, 42 1 S` Street, NW, Pulaski, VA 24301. Attn: Town Manager
To Citizens in care of the principal office, Citizens Telephone Co-operative, Inc., 220 Webbs
Mill Road North, Floyd, Virginia 24091-3679.
Either party may change the address at which it will receive notices by providing written notice
of the change to the other party.
B. Assignment. Notwithstanding any provision of this Agreement, Citizens may assign or
collaterally assign, in whole or in part, its rights, interests, and obligations hereunder without
limitation to any of its affiliates, any party providing financing to Citizens and any successors
and assigns of the foregoing without the consent of the Town of Pulaski. Citizens will provide
the Town of Pulaski with notice of any assignment. The assignee may cure any default by
Citizens hereunder and the town of Pulaski shall not terminate this Agreement without the prior
written consent of the assignee. Any assignee or lessee shall be bound by the terms of this
Agreemenfto the same extent as Citizens.
C. Non-discrimination. Notwithstanding any provision of this Agreement to the contrazy, in no
event shall the Town of Pulaski condition Citizens' use of the Town's Public Rights-of--Ways on
any term or condition not applied by the Town to every other provider of Telecommunication
Services using the Town's Public Rights-of--Way. In the event that another provider of
Telecommunications Services has access to or accesses the Public Rights-of--Way pursuant to
terms and conditions which, if applied to Citizens, would be more favorable than those included
herein, Citizens shall have the option to incorporate any or all such terms and conditions in
substitution for or in addition to any term(s) or condition(s) included herein upon written notice
AGREEMENT: TOWN ofPULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JUNE, 2011 /Page 8 of 9
to the Town. The Town shall notify Citizens of any written Agreement with any other provider
of Telecommunications Services using the Town's Public Rights-of--Way by providing Citizens
with a copy thereof.
D. Severability. The invalidity or unenforceability of any provision of any one or more of the
provisions of this Agreement shall not impair or affect the validity or enforceability of any of the
other provisions of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
The Town of Pulaski, a municipal corporation:
By:
N John J. Hawley
Title: Town Manager
Dated:_ ~ .~~
~-
Citizens Telephone Co-Operative, Inc.:
By:
Name: ~. Lrregfl,y ~PY
Title: e EQ a„d ~ ~ r
Dated: l o /~~ JAI
I hereby certify that the above ordinance is a true and accurate copy of any ordinance duly
adopted by the Town Council of the Town of Pulaski at its regular meeting of
~ . ~+-z 7. \ 2011.
C C',.~:i~.c c ~ b ~~ ~
Clerk, Town of Pulaski
Date: '1 - 13 - ~ p ( I
AGREEMENT: TOWN of PULASKI and CITIZENS TELEPHONE CO-OPERATIVE, INC.
JANE, 2011 /Page 9 of 9