WHEREAS, BellSouth Telecommunications, Incorporated (the Company) proposes to continue to construct, operate, and maintain a telephone communication utility system including all appurtenances and necessary means for operating such system within the Town of Chapel Hill, North Carolina (the Town);
NOW, THEREFORE, BE IT ORDAINED by the Town Council of Chapel Hill that the Council hereby grants a franchise to the Company to operate a telephone system in the Town subject to the following conditions:
Scope of Services
The Company may provide the following services:
Telephone and Personal Communications Services, including cellular telephone services pursuant to authority granted by the Federal Communications Commission.
The right, power and authority is hereby granted and vested in the Company to lay, install, and operate wires, cables, conduit, other equipment and services on, along, across, and under the streets, alleys, bridges, rights-of-way, and other public ways of the Town; and to use those facilities to conduct a telecommunications business. This grant of authority by the Town to the Company is for all street, alleys, bridges, rights-of-way and other public ways over which the Town, as of the applicable time, has jurisdiction or exercises control. Use of Town-owned property other than public ways is subject to a separate lease or easement or encroachment agreement that contains terms and conditions normally found in leases, easements and/or encroachment agreements between the Company and private landowners. In addition, antennae and utility poles proposed to be located within Town controlled right of way which would exceed 40 feet in height are subject to review and approval by the Town Council on a case by case basis.
This franchise does not authorize the Company to provide cable television or video services, for which a separate franchise could be requested. This franchise does not authorize placement of public use telephones on Town property or public rights-of-way.
(This franchise supersedes any franchise that may have been granted by the Town of Chapel Hill to Southern Bell Telephone and Telegraph Company or its predecessors in interest including, but not limited to, the franchise issued on January 23rd, 1902 for the installation of lines to provide long distance service .)
Relocation Of Equipment
If at any time during the period of this Agreement the Town determines that the Company’s facilities and/or equipment are in conflict with or can reasonably be expected to conflict with existing or new public streets or other Town facilities, or any modifications thereof; the Company, upon a minimum of 180 calendar days’ written notice by the Town, shall remove and/or relocate as necessary the Company’s facilities and/or equipment. The Company will bear the cost of such removal or relocation unless the Company has a prior right of occupancy in its existing location by reason of holding the fee, an easement, whether acquired expressly, impliedly, or by prescription, or other real property interest, the damaging or taking of which is compensable in eminent domain.
The Town shall cooperate with the Company, to the extent practicable, to identify alternative locations for the relocated facilities and/or equipment. Where and to the extent that funds are made available to the Town by third parties in connection with the removal and/or relocation of the Company’s facilities and/or equipment from Town-owned right of way, then the Town shall ensure that the Company receives a pro rata share of those funds, relative to the costs of relocation of other facilities owned by the Town and/or other franchised utilities, to the extent allowed by law.
Subject to the time frames referenced in the preceding paragraph, removal or relocation may also be required by the Town due to street or utility improvements in general, due to public health and safety problems upon a determination by the Town or for other just and reasonable cause as may be determined by the Town.
Upon the Town’s determination of an emergency need to remove or relocate Company facilities and/or equipment, such removal shall occur within the time period determined reasonably necessary by the Town after consultation with the Company. Emergency needs are not subject to the time frames stated above.
Disturbance of Property within a Right-of-Way; Inspections
No street, alley, bridge, right-of-way or other public place used by the Company shall be obstructed longer than necessary during its work of construction or repair, and shall be restored to the same good order and condition as when said work was commenced. No part of any street, alley, bridge, right-of-way, or other public place of the Town, including any public drain, sewer, catch basin, water pipe, pavement or other public improvement, shall be damaged. However, should any such damage occur due to the Company’s failure to use due care that arises out of the Company’s, the Company’s agents’, or contractors’ omissions or negligence, the Company shall repair the same as promptly as possible to the same good order and condition that existed prior to the work, and, in default thereof, the Town, after written notice to the Company, may make such repairs and charge the reasonable cost thereof and collect the same from the Company. The Company shall indemnify, defend and save the Town harmless from all liability or damage (including judgment, decrees, and legal court costs) resulting from the Company’s failure to use due care in the exercise of the privileges hereby granted or of its rights under this Agreement. This indemnity provision shall extend to cover the Town should the Company’s agents and contractors fail to use due care.
Any disturbance (other than emergency response) of property within or affecting public ways, as may be necessary for the installation and/or connection of services by the Company, or its agents or contractors must receive prior approval of the Town Manager or Manager’s designee and shall be subject to inspection and street cut fees as provided by the Town Code of Ordinances, including amendments thereto. The Company shall notify the Town Manager’s office at least 24 hours in advance of the start of construction (other than emergencies) that may damage or otherwise disrupt the normal function of any existing public infrastructure, including but not limited to the obstruction of the normal flow of traffic and/or storm water runoff.
Placement of Pedestrian and Non-Motorized Vehicular Facilities
The Company and the Town agree to cooperate with each other regarding the placement of public pedestrian and non-motorized vehicular facilities within Company utility easements, whether located on public property or private property. Subject to the Town’s acquiring easements from the owners of the underlying fee interests in property, such public access facilities shall be permitted within existing Company utility easements provided the Town’s design, location, installation and maintenance of such facilities receive prior Company approval as conforming to Company policy.
Term of Franchise; Franchise Nonexclusive
The term of the franchise shall be 20 years from acceptance by the franchisee, with the possibility of renewal subject to filing of a renewal application at least one year before the franchise expiration.
The franchise granted by this ordinance is not exclusive. The Town may grant the same or similar rights and privileges to other certified persons or companies at any time, provided that any such grants shall be made under terms and conditions which do not materially impair the exercise of the rights and privileges granted to the Company under this franchise.
State Franchise; No Local Franchise Fees and Taxes
So long as the Company is subject to and does pay the State franchise tax imposed pursuant to N.C.G.S. §105-120, the Town shall not, and does not currently, charge a license, privilege or franchise tax on the Company. Should the Town seek to impose a fee or tax on the Company in the future, the Company shall have not less than 120 days’ notice prior to the effective date of such fee or tax, and shall have the right to terminate the franchise provided that it shall remove its equipment from the Town property or public right-of-way within 180 days of termination.
Indemnification of the Town
The Company hereby agrees to indemnify, defend and hold harmless the Town, its officers, boards, commissions and employees against any and all claims and liabilities arising from the Company’s activities, including reasonable attorneys’ fees and court costs.
Company Liaison
The Company shall identify and maintain a person employed by the Company who will serve as the Company’s liaison with the Town, and who shall be readily accessible to Town personnel.
Compliance with All Applicable Laws, Ordinances and Regulations
The Company shall comply with Town ordinances, construction codes, other policies adopted by the Town Council, administrative regulations issued pursuant to Town Council action and/or policy, and with directives of the Town that may be issued under the franchise ordinance terms or general law, provided that such policies, directives, codes, and regulations are consistent with State and Federal laws and regulations, including any requirement for State right-of-way encroachment agreements, etc. Failure to comply shall be grounds for revoking the franchise.
Acceptance of Franchise Terms
The Company shall, within 60 days of adoption of this franchise ordinance on second reading, accept all terms and conditions of the franchise ordinance.
Revocation Procedure
In the event the Company violates or fails to comply with the provisions of this ordinance and within sixty (60) days after receipt of written notice from the Town, the Company fails to cure or remedy, or to begin reasonable measures to cure or remedy any such violation, failure or default, then the Town Council may cause the Company to appear at a hearing before the Town Council in thirty (30) days. If at such hearing the Town Council should determine that the Company’s violation, failure or default has been substantial, repeated or flagrant, then upon such determination the Chapel Hill Town Council may revoke and terminate this franchise; provided, however, that the Company may file with the Town within ten (10) days after such determination the Company’s election to appeal to the proper North Carolina court, and in that event the Town and Company agree that such court shall hear and determine de novo whether there has been substantial, repeated or flagrant violation, failure, or default by the Company of the terms, conditions, or obligations of this Ordinance. Violation or default which cannot be corrected by the Company shall not be grounds for revocation and termination, unless such violation or default shall be determined to be material and continuing.
If the franchise is revoked by the Town Council for failure to comply with any term or condition of this franchise, the Company shall cease utilizing its facilities located on Town property or public rights-of-way within 120 days of receiving notice of revocation and remove its facilities and equipment from public rights-of-way within 180 days. Upon the Company’s failure to do so, the Town shall have the right to remove the equipment and to draw funds from the letter of credit or to call upon the guarantee to cover such costs.
Effective Date, Term, Adoption
This Ordinance shall be effective from and after the ___ day of ______ , 2006, provided the Company shall have executed the written acceptance hereof at the end of this Ordinance, and shall exist in force for a period of twenty (20) years hereafter and continue in force. Thereafter, the franchise shall be subject to renewal in accordance with its terms.
This the 20th day of November, 2006. (FIRST READING)
This the ____ day of ________, 2006. (SECOND READING)
Acceptance by Company
BellSouth Telecommunications, Incorporated, does hereby accept and approve the foregoing Ordinance and all its terms and conditions, and in consideration of the benefits and privileges granted to it does hereby agree to abide by, carry out, observe and perform all the obligations and undertakings therein provided to be carried out and performed by it.
This the _______ day of ___________, 2006.
|
|
BELLSOUTH TELECOMMUNICATIONS, INC. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title: _________________________________ |
_______________________________ Its:
(Corporate Seal)
The Town Clerk shall deliver to the Company an executed or conformed copy of this Ordinance and the Company’s written acceptance of the agreement thereof, certified as follows:
“Certified to be a true and exact copy of an ordinance duly enacted by the Town Council of the Town of Chapel Hill, North Carolina, on the __ day of ________, 2006, and the acceptance thereof by BellSouth Telecommunications, Incorporated the ______ day of _________, 2006.”
|
(Town Seal) |
|
|
|
_______________________________ |
|
|
Town Clerk |
|
|
Town of Chapel Hill, North Carolina |