HomeMy WebLinkAboutItem 26 Small Cell Pole Attachment Agreement AGENDA ITEM SUMMARY Meeting Date: 6/25/2018
Meeting Type: Regular Meeting Staff Contact/Dept.: Neil Obringer/DPW
Staff Phone No: 541-736-1032
Estimated Time: 20 min. S P R I N G F I E L D
C I T Y C O U N C I L
Council Goals: Provide Financially
Responsible and Innovative Government
Services ITEM TITLE: SMALL CELL POLE ATTACHMENT AGREEMENT
ACTION REQUESTED:
Authorize the City Manager to execute city contract #2093, a Pole Attachment/Public Right of Way Use (PROW) Agreement with AT&T, or a
substantially similar agreement.
ISSUE
STATEMENT:
On May 21, 2018 the Council provided feedback to staff regarding negotiations
with AT&T for a Pole Attachment/PROW Use Agreement which would allow the installation of small cell fixtures in the public right of way. Staff has
integrated the feedback from Council into a draft agreement (Attachment 1).
Staff is requesting that Council authorize the City Manager to execute a substantially similar agreement.
ATTACHMENTS: ATT1 Pole Attachment/PROW Use Agreement
ATT2 Memo from AT&T ATT3 CBM Response to AT&T Letter
DISCUSSION/ FINANCIAL
IMPACT:
Included below are a summary of the items which Council provided feedback
on during the May 21 Council meeting and a description of the specific terms
as they are currently represented in the complete draft agreement (Attachment 1). In addition, AT&T has provided a memo for Council consideration
regarding certain of the provisions in the draft agreement (Attachment 2).
Joint Pole Attachment/PROW Use Agreement: Per recommendation of the City Attorney’s Office, the agreement functions as both a pole attachment and PROW use agreement.
Fee Structure – Attachment 1, Sections 3(A)(1)&(2):
Following guidance from Council, the draft agreement contains a PROW use fee of $1,550/pole/year plus a pole attachment fee of
$250/pole/year. The fees referenced here will be included as part of the Master Fees & Charges adoption scheduled during tonight’s (6/25/18) Regular Session.
Term/Duration - Attachment 1, Section 2(C): The duration of the draft agreement includes a 10 year initial term with
the option to extend for two additional 5 year terms.
Equity Language - Attachment 1, Sections 3(A)(3) & 3(H):
Section 3(A)(3) allows future fee adjustments to be made by Council Resolution. Section 3(H) states that if the City provides more favorable
fees/rates to another entity, then AT&T will get the same fees/rates. This agreement will be used as a template for negotiations with other providers
who approach the City regarding deployment of small cell fixtures in the
PROW. Staff will be available to answer questions related to these and any other provision included within the draft agreement (Attachment 1).
POLE ATTACHMENT AGREEMENT - PAGE 1 OF 22
CITY OF SPRINGFIELD
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT
City Contract # 2093
WHERAS, this Pole Attachment and Public Right of Way Agreement (hereinafter
“Agreement”) is entered into by and between the City of Springfield, an Oregon
municipal corporation (hereinafter “City”) and New Cingular Wireless PCS, LLC, a
Delaware limited liability company qualified to do business in the State of Oregon
(hereinafter “Grantee”), collectively referred to herein as the “Parties.”
WHEREAS, Grantee desires to place its facilities within the public rights of way and to
attach its facilities to City-owned poles;
WHEREAS, Springfield Municipal Code (SMC) Section 3.224 prohibits placing any
structures or devices within the public right of way without the owner of such structure
or device obtaining a placement permit from the City;
WHEREAS, the City has the authority under federal, state, and local laws to acquire,
construct, maintain, abandon, and regulate the use and occupancy of streets, right-of-
way, and other city property; to grant access to the rights of way and other City
property upon certain terms and conditions; and to require fair and reasonable
compensation, on a competitively neutral basis, for the use of city rights of way;
WHEREAS, the City Council has adopted Resolution ____ imposing right of use fees
and pole attachment fees for the placement of wireless telecommunications systems in
the public right of way; and
WHEREAS, the purpose of this Agreement is to grant Grantee the right to occupy the
public rights of way subject to the requirements of the Springfield Municipal Code and
the right to occupy City property other than public ways, namely City-owned poles, and
to fix the compensation for such occupancy and use which is separate from and does
not offset any other taxes and fees to which Grantee is subject;
NOW THEREFORE, in consideration of the foregoing recitals, which are expressly
made a part of this Agreement, the parties agree as follows:
SECTION 1. DEFINITIONS
For the purpose of this Agreement, the following terms, phrases, and their derivations
have the meanings given below. When not inconsistent with the context, words used in
the present tense include the future tense, words in the plural number include the
singular number, and words in the singular include the plural number.
A. "City" means the City of Springfield, Oregon, a municipal corporation, and all of the
territory within its corporate boundaries, as such may change from time to time.
Attachment 1, Page 1 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 2 of 22
B. "City Council" means the Common Council of the City of Springfield.
C. “Cost” means any actual, reasonable, and documented costs, fees, or expenses,
including but not limited to attorneys’ fees.
D. "Facility" or “Facilities” means capital, equipment and property affixed to a Structure
in accordance with the terms of this Agreement, including but not limited to optical
fiber, wires (including, without limitation, electrical and telephone utility wires, lines
and cables), pipes, mains, conduits, ducts, pedestals, antennas, power boxes,
cabinets and electronic equipment owned or operated by Grantee and used for
transmitting, receiving, distributing, providing or offering Wireless
Telecommunications Services over the spectrum of radio frequencies licensed by the
Federal Communications Commission and unlicensed spectrum, unless context
indicates otherwise.
E. “Fees” means all fees payable by Grantee to the City pursuant to this Agreement.
F. “Guy Pole” or "Support Pole" means a pole that is used primarily to structurally
support an electrical or telephone distribution or transmission pole but has no
energized conductors or telephone wires or Facilities attached.
G. “Hazardous Substance” means hazardous materials as defined in Springfield
Development Code Section 6.1-110 and hazardous substances as defined in ORS
465.200(16).
H. "Wireless Telecommunications Service(s)" means commercial mobile radio service,
as defined in Section 20.9 of title 47 of the Code of Federal Regulations as in effect
on October 1, 2017.
I. “Wireless Telecommunications System” means all Facilities owned or used by
Grantee for the purpose of providing Wireless Telecommunications Services and
located in, under and/or above Public Right of Way, excluding ducts, conduits and
vaults that are leased from another City franchisee, licensee, lessee or grantee.
J. "Person" means any individual, sole proprietorship, partnership, association,
corporation, or other form of organization authorized to do business in the State of
Oregon and includes any natural person.
K. "Public Right of Way" means the surface of, and the space above and below, any
land acquired by the City by purchase, reservation, dedication, forced dedication,
prescription or condemnation that is occupied by or is intended to be occupied by
any street, crosswalk, railroad, electric transmission lines, oil or gas pipeline, water
line, sanitary/storm sewer, or other similar facility, to the extent the City has the
right to allow Grantee to use them.
Attachment 1, Page 2 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 3 of 22
L. "Structure" means any utility pole, Guy Pole or Support Pole, utility pole extension,
light standard or other similar pole in the Public Right of Way but excluding any
decorative streetlight, that is suitable for the installation of Facilities as determined
by the City in its sole discretion.
SECTION 2. NATURE AND TERM OF GRANT
A. Grant of Authority. The City does hereby grant to Grantee, and Grantee’s
successors and assigns, as approved by the City of Springfield under Section 11 of
this Agreement, the privilege and authority to access the Public Right of Way and
City-owned Structures located in the Public Right of Way to install, construct, repair,
replace, maintain, and operate Facilities for a Wireless Telecommunications System
in, under and over the surface of the Public Right of Way subject to the terms of this
Agreement. Access to any City-owned Structure is subject to receipt of written
authorization from the City. Grantee shall use its Wireless Telecommunications
System solely to provide services as defined in this Agreement. Grantee represents
that it has applied for and received any and all regulatory authority that is required
to provide Wireless Telecommunications Services, including but not limited to a City
of Springfield Utility License.
1. This Agreement does not have the effect of authorizing Grantee to:
a. Operate a cable system as defined by 47 U.S.C. §522(7);
b. Provide video programming, as defined by 47 U.S.C. §522 (20);
c. Provide telecommunications service as defined in Oregon Revised Statutes
(“ORS”) 759.005(8);
d. Operate a telecommunications facility within the City of Springfield or provide
telecommunications services within the City of Springfield without a valid
Utility License granted by the City under Springfield Municipal Code (“SMC”)
4.604; and
e. Operate any facility in a manner that contravenes any federal, state, or local
regulatory authority required to provide wireless telecommunications services.
2. Nothing in this Agreement precludes the Grantee from executing a contract for
the use of any portion of its Wireless Telecommunications System with any
Person or other entity for any services, whether specified herein or not, provided
that said Person or entity is another franchisee, licensee, or grantee of the City
with authority to operate a wireless telecommunication system in the Public Right
of Way.
B. Effective Date. The Effective Date of this Agreement is the first day of the full
calendar month following the date on which both Parties sign this Agreement. If
both Parties sign on the first day of any calendar month, that date is the Effective
Date. (e.g. if both Parties sign on June 1, June 1 is the Effective Date, however if
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POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 4 of 22
one party signs on June 1 and the other party signs on June 15, July 1 is the
Effective Date.)
C. Duration. This Agreement, and all rights and obligations pertaining thereto, is
effective for a period of ten (10) years, as measured from its Effective Date, unless
terminated sooner as provided in Section 12. This Agreement shall be renewed for
two (2) additional terms of five (5) years each (the “Renewal Terms”), unless either
Party provides the other written notification of its intent not to renew this
Agreement not less than one hundred and eighty (180) days prior to the scheduled
termination of the Initial Term or the First Renewal Term, as the case may be.
D. Agreement Not Exclusive. This Agreement is not exclusive. The City expressly
reserves the right to grant rights to other Persons, as well as the right in its own
name as a municipality, to use the Public Right of Way and its Structures for similar
or different purposes allowed Grantee hereunder, by lease, franchise, permit or
otherwise. Notwithstanding the foregoing, City will not grant after the date of this
Agreement a permit, license or any other right to any third party, if at the time such
third party applies for access to a pole, the City knows that such third party’s use
will adversely affect or interfere with the Grantee’s existing Attachments, the
Grantee’s use and operation of its Facilities, or Grantee’s ability to comply with the
terms and conditions of this Agreement.
E. Charter and Ordinances to Apply. To the extent authorized by law, this Agreement
is subject to the Charter of the City of Springfield, the Springfield Municipal Code,
Springfield Development Code, and all ordinances and resolutions of the City of
Springfield, affecting matters of general City concern and not merely existing
contractual rights of Grantee, now in effect or hereafter made effective. Nothing in
this Agreement waives the requirements of the various codes, ordinances,
resolutions, and administrative rules of the City regarding permits, fees to be paid,
or the manner of construction.
SECTION 3. COMPENSATION AND AUDITING
A. Amount. As compensation for the benefits and privileges granted under this
Agreement, and in consideration of permission to use the Public Right of Way of the
City and City-owned Structures, Grantee will pay the following Fees to the City
through the duration of this Agreement for the right to install, construct, repair,
replace, maintain, and/or operate any Facilities within the Public Right of Way:
1. Right of Way Use Fee. Grantee shall pay as a Right of Way Use Fee $1,550 per
year per Structure within the Public Right of Way that has any Attached Facilities
as of the Payment Date (as defined hereinafter), without regard to whether such
Structure is City-owned or is owned by another entity. If Grantee installs any
Attached Facilities after the Payment Date, the amount of this portion of the
Attachment 1, Page 4 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 5 of 22
Right of Way Use Fee for that year shall be prorated at $129.16 per month for
each month that the Attached Facilities were present. Grantee shall owe the
Right of Way Use Fee for the full month regardless of the day of the month that
the Attached Facilities were installed.
2. Facility Rental Fee. In addition to the Right of Way Use fee, Grantee will pay a
Facility Rental Fee $250 per year per City-owned Structure that has any Facilities
as of the Payment Date (as defined hereinafter). If Grantee installs any Facilities
after the Payment Date, the amount of Facility Rental Fee for that Structure for
that year will be prorated at $20.83 per month for each month that the Facilities
were present. Grantee owes the rental fee for the full month regardless of the
day of the month that the Facilities were installed.
3. The Right of Way Use Fee in Section 3.A.1 and the Facility Rental Fee in Section
3.A.2 may be increased as determined by City Council Resolution. Any increase
adopted by Council will take effect immediately upon the date specified by
Resolution.
B. Previous Occupancy Fee. This fee applies only if Grantee has had any Facilities
attached to Structures within the Public Right of Way prior to the effective date of
this Agreement. In that case, Grantee will pay for such prior periods the applicable
Fees as stated in Section 3.A.1 through 3.A.3.
C. Remittance Dates. Grantee will pay the Right of Way Use Fee and any Facility
Rental Fee quarterly, on or before the 45th day following the end of the calendar
quarter. With each payment, Grantee must furnish a statement setting forth the
amount and calculation of payment.
D. Late Payments. Any payment not paid in full when due is subject to a delinquency
charge of ten percent (10%) of the unpaid amount. Failure to make full payment
and penalty charges within sixty (60) days of the applicable payment date
constitutes a material breach of this Agreement. In addition, all overdue amounts,
including penalty charges, bears interest, until paid, at the rate of one and one-half
percent (1.5%) per month commencing the 15th day after the payment was due.
E. Acceptance of Payment.
1. No acceptance of any payment made by Grantee is an accord that the amount
paid is, in fact, the correct amount, nor does any acceptance of payments
release any claim that the City may have for further or additional sums payable.
2. No acceptance of payment of Fees under this Agreement exempts Grantee from
the payment of any other license, tax, or surcharge on the business, occupation,
property, or income of Grantee that may be lawfully imposed by the City or any
Attachment 1, Page 5 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 6 of 22
other taxing authority, except as may otherwise be provided in the ordinance or
laws imposing such other license fee, tax, or charge.
3. The City and its officers, agents, employees, and representatives has authority to
arrange for and conduct reviews of Grantee’s relevant financial obligations
payable hereunder. The City may determine the scope of review in each
instance. All amounts paid by Grantee are subject to review by the City, provided
that such review is requested within three (3) years from the date payment was
due. City requests to Grantee for review will be in writing. Grantee will provide
or cause to be provided to the City, within the Eugene-Springfield metropolitan
region and during normal business hours, copies of all information reasonably
within the scope of the review within thirty (30) days from the date of the
written request. If the City requests in writing that Grantee provide, or cause to
be provided, copies of any information reasonably within the scope of the
review, and Grantee fails within thirty (30) days of receipt of the request to
provide, or cause to be provided, such information, then the three (3) year
period will be extended by one day for each day or part thereof beyond thirty
(30) days that Grantee fails to provide, or fails to cause to be provided, such
requested information.
F. Audit and Fee Review. The city may examine the books and records of the Grantee
to verify the amounts due under this Agreement. The Grantee will maintain such
books and records at a location within the state of Oregon and will provide them to
the City when requested, at no expense to the City, within 30 days of a written
demand from the City to examine the books and records.
1. In the event that an audit or review under this Section 3.F discloses an
underpayment in the amount due to the City of less than five percent (5%),
the amount of underpayment will be paid to the City immediately and accrues
interest at the rate of one and one-half percent (1.5%) per month,
commencing with the 15th day after Grantee is notified of the underpayment
amount.
2. In the event that an audit or review under this Section 3.F discloses an
underpayment of more than five percent (5%), the city may impose a penalty
of 10 percent of the additional amount due, plus costs of the audit, and
interest at the rate of one and one-half percent (1.5%) per month,
commencing with the 15th day after Grantee is notified of the underpayment
amount.
G. Holdover. Should Grantee continue to maintain and operate Facilities in the Public
Right of Way beyond the expiration date of this Agreement as set forth in Section
2.C., this Agreement will revert to a month-to-month agreement subject to all the
terms and conditions contained herein, except that the Fees due for the holdover
Attachment 1, Page 6 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 7 of 22
period will increase to 150% of the amount of the Fees due as of the last Payment
Date, prorated for each month of the holdover period. These Fees are due and
payable within thirty (30) days of the end of each month of the holdover period.
H. City agrees that, as of the effective date of this Agreement and for the duration of
this Agreement, the City will not impose rates or fees upon another entity subject to
a Public Right of Way Use Agreement regarding Wireless Telecommunications
Systems attached to Structures that are or will be more favorable to such entity than
those imposed on Grantee under this Agreement. If City agrees to a rate or fee that
is more favorable than those imposed on Grantee under this Agreement, then
Grantee will be entitled under this Agreement to such rate or fee on and after such
rate or fee becomes effective.
SECTION 4. INSURANCE
A. Insurance.
1. Grantee will maintain in force for the duration of this Agreement a Commercial
General Liability insurance policy written on an occurrence basis per form ISO CG
00 01 or equivalent with limits of not less than $2,000,000 per occurrence and
$3,000,000 in the aggregate for bodily injury or property damage. Grantee will
maintain Automobile Liability (owned, non-owned and hired) insurance with
limits not less than $1,000,000 per occurrence. The City, its employees, officials,
and agents will be included as an Additional Insured where operations are being
conducted related to this contract, on the General Liability policy as respects to
work or services performed under this Agreement to the extent that the death or
bodily injury to persons or damage to property arises out of the fault of Grantee
or the fault of Grantee’s agents, representatives, or employees. This insurance
will be primary over any insurance the City may carry on its own. This insurance
must include a “separation of insureds” clause that states at minimum that the
insurance applies (1) as if the City were the only insured, and (2) separately to
each insured against whom a claim is made or suit is brought.
2. Grantee understands that the City is a public entity subject to the limitations and
requirements of the Oregon Governmental Tort Claims Act, ORS 30.260 et seq.
In the event that the City’s financial obligations or liabilities are modified by any
amendment to the liability limits imposed by the Oregon Governmental Tort
Claims Act, Grantee agrees that the limits regarding liability insurance set forth in
this Section 4 will be modified to conform to such limits. Grantee and City sign
an amendment to this Agreement incorporating such modification.
3. Grantee will provide evidence of the required insurance coverages issued by an
insurance company with an A.M. Best rating of at least A-VII by way of an
ACORD 25 form approved by the City before any work or services commence.
Attachment 1, Page 7 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 8 of 22
4. There must not be any cancellation, material change, or non-renewal of
insurance coverage(s) without thirty (30) days written notice from the Grantee or
its insurer(s) to the City. Grantee will email said notice to the City of Springfield
Finance Director (finance@springfield-or.gov) with a copy by mail to the Finance
Director, City of Springfield, 225 Fifth Street, Springfield, OR 97477. Regardless
of what circumstances caused Grantee’s insurance coverage to cease or be
modified, it is Grantee’s responsibility to notify the City. Failure to maintain
proper insurance or provide notice of cancellation or modification is grounds for
immediate termination of this agreement. ________ (Grantee initials).
B. Self-Insurance.
1. In lieu of any of the insurance policies required in Section 4.A.1, Grantee may
provide proof of applicable self-insurance for any or all of the foregoing coverage
requirements in an amount at least equal to the coverage requirements of
Section 4.A.1. in a form acceptable to the City and subject to review and
approval by the City. Grantee must provide proof of self-insurance to the City
upon the Effective Date of this Agreement and prior to commencement of any
work pursuant to this Agreement and thereafter upon request by the City.
Alternately, if after the Effective Date of this Agreement, Grantee wishes to self-
insure under this subsection, Grantee must provide proof of self-insurance to the
City at least 30 days prior to the termination of Grantee’s required insurance
coverage under Section 4.A.1. Proof of self-insurance must be submitted in
writing to the City by a person with the authority and knowledge to certify that
the requirements of this Agreement are met with regard to Grantee’s self-
insurance. At minimum, the proof of insurance must demonstrate compliance
with the following:
a. Grantee uses an independent third-party administrator to manage all
claims;
b. Grantee maintains sufficient capital reserves to adequate self-insure the
coverages required by this agreement, as approved by Ernst & Young or
their successor auditing company; and
c. Grantee provides detailed information to the City regarding how and where
to file a claim.
2. In the event Grantee self-insures its obligation to include City as an additional
insured under Section 4.B.1, City will promptly and no later than thirty (30) days
after notice thereof provide Grantee with written notice of any claim, demand,
lawsuit, or the like for which it seeks coverage pursuant to this Section and
provide Grantee with copies of any demands, notices, summonses, or legal
papers received in connection with such claim, demand, lawsuit, or the like.
Attachment 1, Page 8 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 9 of 22
Except where provided otherwise by the terms of this Agreement, such claims
will be governed by the terms and conditions in the most recent version of the
ASO CG 00 01 as of the date of the claim, with Grantee as the insurer. The City
reserves the right to withdraw any claims, demands, or lawsuits from coverage
under Grantee’s self-insurance at any time except when withdrawal would
prejudice Grantee.
SECTION 5. INDEMNIFICATION
A. General Indemnification. Grantee must defend, indemnify and hold harmless City,
its agents, servants, and employees from and against all liability or loss and against
all claims, demands, and judgments (including attorney fees) made or recovered
against them including but not limited to damages to real or tangible personal
property or for bodily injury or death to any person, arising out of or in connection
with this Agreement, to the extent of such damage, injury or death is caused or
sustained in connection with the location of Grantee’s Facilities or improvements in
the public right of way or the performance of this agreement by the Grantee or its
employees, servants, or agents, except to the extent the claim, demand or
judgment is caused by the City's willful misconduct or negligence.
B. Relocation Indemnification. Grantee must indemnify, defend, save, and hold
harmless the City for any and all damages, claims, additional costs or expenses
assessed against or payable by the City arising out of or resulting, directly or
indirectly, from Grantee's failure to remove, adjust or relocate any of its Facilities in
a timely manner in accordance with a relocation schedule furnished to Grantee by
the City Engineer under this Agreement, except to the extent the damage, claim,
additional cost or expense is caused by the City's willful misconduct or negligence.
C. Indemnification – Hazardous Substances. Notwithstanding any other provision of
this Agreement, Grantee must forever indemnify the City, its officers, agents and
employees, from and against any claims, damages, losses, liabilities, costs and
expenses of any kind whatsoever, whether direct or indirect, or pursuant to any
state or federal law, statute, regulation or order, for the removal or remediation of
any leaks, spills, contamination or residues of Hazardous Substances, associated
with, arising from or due to Grantee's Facilities.
SECTION 6. CONSTRUCTION, REPLACEMENT, REPAIRS, AND MAINTENANCE
A. Permits. Grantee must apply for and obtain all permits necessary for the
construction, installation, and operation of its Facilities within the Public Right of
Way, including but not limited to building permits as required and
encroachment/placement permits for each Facility and for all maintenance or other
work conducted by Grantee within the public right of way. Grantee must pay all
applicable fees due for City permits in addition to any Fees required under this
Agreement. All construction and maintenance of any and all Grantee’s Facilities
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POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 10 of 22
incidental to Grantee's provision of Wireless Telecommunications Services,
regardless of who performs installation and/or construction, are the responsibility of
Grantee.
B. Installation of Equipment. Grantee's Facilities must be installed and maintained in
accordance with the laws of the State of Oregon, the Springfield Municipal Code, the
Springfield Development Code, and the adopted Standard Construction
Specifications of the City as then in effect. City will provide sixty (60) days’ notice of
changes to such Specifications, and such changes will not apply retroactively unless
required by law.
C. Facility and Structure standards. This subsection establishes standards for attaching
Facilities to Structures in the Public Right of Way.
1. Grantee will comply with the requirements of the City’s Wireless
Telecommunications Systems code, SDC 4.3-145, when applicable.
2. Except where provided otherwise in this Agreement, Grantee will comply with all
applicable requirements in the Springfield Municipal Code governing activities in
the Public Right of Way, including but not limited to SMC 3.208 through 3.222;
SMC 3.224 through 3.234; and SMC 4.616, and will obtain all required
encroachment/placement permits and building permits prior to commencing the
construction, extension, or relocation of any of its Facilities in the Public Right of
Way.
3. For the purpose of carrying out the provisions of Section 6, the City may provide
such specifications relating thereto as may be reasonably necessary or
convenient for the public health, safety, and welfare, or for the orderly
development of the City. City will provide sixty (60) days’ notice of changes to
such specifications, and such changes will not apply retroactively unless required
by law. The City may amend and add to such specifications from time to time.
Grantee’s Facilities and Structures will at all times comply with the adopted
standards and specifications of the City as then in effect.
4. In the event that emergency repairs are necessary for Grantee’s underground
Facilities in the Public Right of Way, Grantee will immediately notify the City of
the need for such repairs. Grantee may immediately initiate such emergency
repairs and must apply for all appropriate permits the next business day
following discovery of the emergency. Grantee will comply with Section 6.G and
all municipal code provisions relating to such excavations or construction,
including the payment of permit fees.
Attachment 1, Page 10 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 11 of 22
D. Locates. Grantee will comply with the requirements of the Oregon Utility Notification
Law, codified at ORS 757.542 to 757.562 and 757.993 (2017), and the rules and
regulations promulgated thereunder.
E. Record of Installations.
1. Within thirty (30) calendar days of the Effective Date of this Agreement, and
thereafter annually on July 1, in the event any new Facilities are constructed or
any existing Facilities are relocated, Grantee will provide to the City Engineer a
list that identifies the location of Grantee's Facilities within the Public Right of
Way. For existing Facilities, the form will be filed within ten (10) calendar days of
the Effective Date of this Agreement. For new Facilities, the form will be filed
within ten (10) calendar days of the date the Facility is installed or placed in the
Right of Way.
2. Within thirty (30) days following Grantee's acquisition of any Facilities within the
Public Right of Way, or upon any addition or annexation to the City of any area
in which Grantee retains any such Facilities in the Public Right of Way, Grantee
will submit to the City a written statement describing all Facilities involved,
whether authorized by agreement, license, permit or any other form of prior
right, and specifying the location of all such Facilities. Facilities acquired by
Grantee are immediately subject to the terms of this Agreement, but City will
provide Grantee a reasonable period of time to bring such acquired Facilities into
compliance with this Agreement. For purposes of calculating any compensation
owed pursuant to Section 3 of this Agreement, any such acquired Facilities will
be treated as new installations and are subject to the Fees provided in Section
3.A from the date the acquisition or annexation becomes effective.
3. Radio frequency emission levels. Grantee’s Facilities must be operated and
maintained so that the Facilities are in compliance with all radio frequency
emission standards specified by the Federal Communications Commission.
F. Maps. Grantee will maintain maps and data pertaining to its Facilities that are
subject to this Agreement on file at an office within Oregon, including but not limited
to records regarding the radio frequencies used by Grantee’s Facilities and records
of all maintenance performed on Grantee’s Facilities. The City may inspect all such
maps and data pertaining to Grantee’s Facilities at any time during regular business
hours upon not less than seventy-two (72) hours prior notice. Upon written request
of the City and without charge, Grantee must provide a map or maps consistent with
this Section to the City showing the locations as-built of its installed Wireless
Telecommunication System within the Public Right of Way. Such as-built maps must
be provided to the City within ten (10) calendar days of receipt of City’s written
request. Such as-built maps must be in a form acceptable to the City Engineer, with
adequate vertical and horizontal control defining the specific location of Grantee’s
Attachment 1, Page 11 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 12 of 22
Facilities. Except as required by law, the City will not disclose or transmit any such
as-built maps or related data to third parties unless permitted by Grantee.
G. Restoration After Construction. Grantee must, after construction, installation,
maintenance, or repair of Facilities, leave any portion of Public Right of Way affected
by Grantee’s activities in as good or better condition in all respects as they were
before the commencement of such construction, installation, maintenance, or
repairs, excepting normal wear and tear. Grantee agrees to promptly complete
restoration work and to promptly repair any damage caused by such work at its sole
cost and expense. Except in an emergency, the Grantee will make no excavation,
opening, or other intrusion into the public right of way without having first obtained
any required building permits and an encroachment permit to perform any work in
the Public Right of Way after the initial construction is concluded. If at any time the
Grantee makes any opening, excavation, or other intrusion into the Public Right of
Way, other than the activities and associated construction specifically authorized by
this Agreement and an approved encroachment/placement permit, the Grantee will
promptly restore the Public Right of Way to the same condition in which it was prior
to the opening, excavation, or intrusion, all in accordance with the City’s adopted
Standard Construction Specifications as then in effect. Should the Grantee fail to
promptly make such restoration or fail to make such restoration in accordance with
the City’s Standard Construction Specifications, the City may, at its election, cause
such restoration to be made. In such event, the Grantee will reimburse the City for
the full cost of such restoration including 40% as overhead or $200.00, whichever is
greater.
H. Tree Pruning. After obtaining a written permit from the City, Grantee may prune or
cause to be pruned, using proper arboricultural practices in accordance with such
permit, any tree in the Public Right of Way which substantially interferes with
Grantee's Facilities.
I. Compliance with City Codes. Grantee agrees that it is subject to and must obtain all
approvals required by all applicable City codes, ordinances, resolutions, and
administrative rules, including the Springfield Municipal Code and the Springfield
Development Code. This Agreement in no way creates or vests property rights in
Grantee; and Grantee hereby waives any claims for damages based on Grantee’s
use of the City’s right of way related to limitations imposed on, or affirmative actions
required of, Grantee through application of the City’s codes, ordinances, resolutions,
and administrative rules affecting.
SECTION 7. RESERVATION OF CITY STREET RIGHTS
A. Reservation of City Authority over Public Rights of Way. Nothing in this Agreement
prevents the City from constructing, establishing, or relocating any public work or
improvement, including but not limited to: widening streets; constructing sidewalks;
Attachment 1, Page 12 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 13 of 22
grading; paving; repairing and/or altering any Public Right of Way; laying down,
repairing or removing water lines; installing, repairing or removing sanitary or storm
sewer lines; installing, repairing, removing or relocating any electrical facilities; or
repairing, removing or relocating any Structures. All such work must be done,
insofar as practicable, to not obstruct, injure or prevent the unrestricted use and
operation of Grantee’s Facilities within the Public Right of Way. However, if any of
Grantee’s Facilities interfere with the construction or repair of any Right of Way,
City-owned Structures, or public improvement, Grantee's Facilities will be removed,
relocated, or changed in the manner the City directs in accordance with Section 7.B.
B. Relocation.
1. The City may require Grantee to temporarily or permanently remove, relocate,
change or alter the position of any Facilities within the Public Right of Way at
Grantee’s sole expense within 60 days following written notice from the City that
such removal, relocation, change or alteration is reasonably necessary for (1) the
construction, repair, maintenance or installation of any City or other public
improvement in or upon the Public Right of Way; (2) the operations of the City of
other governmental entity in or upon the Public Right of Way; or (3) the vacation
of a public street.
2. The City may require Grantee to temporarily or permanently remove, relocate,
change, or alter the position of any Facilities within the Public Right of Way at
Grantee’s sole expense within 120 days following written notice from the City
that such removal, relocation, change or alteration is not for the purposes
specified in Section 7.B.1 above, but is otherwise reasonably in the public
interest.
3. The City may require Grantee to temporarily or permanently remove, relocate,
change, or alter the position of any Facilities within the Public Right of Way
within 120 days following written notice from the City that such removal or
relocation is for the convenience or benefit of any private person or non-
governmental agency or instrumentality, provided that Grantee is entitled to
reimbursement for the reasonable cost thereof from such person, agency or
instrumentality, to the extent permitted by law.
4. Should Grantee fail to remove, relocate, change, or alter any such Facilities by
the date established by the City pursuant to written notice specified in Sections
7.B.1 through 7.B.3, the City may cause such to occur. Grantee will pay City for
City’s direct costs, including all expenses incurred by the City due to Grantee's
delay or failure, plus 20 percent (20%) overhead or $200.00, whichever is more.
If the City requires Grantee to relocate its Facilities located within the Public
Right of Way, the City will make a reasonable effort to provide Grantee with
Attachment 1, Page 13 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 14 of 22
alternate location(s) within the City's Public Right of Way for the relocated
Facilities.
5. The City retains the right and privilege to cut or move any Facilities as the City
determines necessary, appropriate, or useful in response to any public health or
safety emergency. In the event of such emergency removal, City is not liable to
Grantee for any costs or damages to the Facilities.
SECTION 8. MAINTENANCE OF FACILITIES
Grantee will construct, install, operate, and maintain all Facilities necessary to control
and carry on Grantee’s Wireless Telecommunications Services to prevent injury to the
City's property or property belonging to any Person within the City. Grantee, solely at
its own expense, will maintain, repair, renew, change, and improve said Facilities from
time to time as may be necessary to accomplish this purpose. Grantee will not construct
its Wireless Telecommunications System in a manner that requires any customer,
except the City, or any entity permitted by the City, to install cables, ducts, conduits, or
other facilities, in, under or over the Public Right of Way. For the purpose of carrying
out the provisions of this section, the City may provide such specifications relating thereto as may be necessary or convenient for public safety or the orderly development
of the City. The City may amend and add to such specifications from time to time. City
will provide sixty (60) days’ notice of changes to such specifications, and such changes
will not apply retroactively unless required by law. Grantee will obtain all necessary
required permits and approvals prior to performing any construction, installation, or
maintenance work on Grantee’s Facilities within the Public Right of Way.
SECTION 9. DISCONTINUED USE OF FACILITIES
Whenever Grantee intends to discontinue use of any of its Facilities and does not intend
to use said Facilities again for six (6) months or more, Grantee must submit to the City
for approval a completed application describing the Facility and the date on which
Grantee intends to discontinue using the Facility. Grantee must remove the Facility at
Grantee’s sole expense. Any such removal will be directed by, and performed to the
satisfaction of, the Development and Public Works Director. Until such time as Grantee
removes the Facility as directed by the Development and Public Works Director, or until
the rights to and responsibility for the Facility are accepted by another person having
authority to construct and maintain such Facility, Grantee is responsible for all
necessary repairs and relocations of the Facility, as well as maintenance and restoration
of the Public Right of Way, in the same manner and degree as if the Facility were in
active use, and Grantee retains all liability for such Facility.
SECTION 10. HAZARDOUS SUBSTANCES.
A. Compliance with Applicable Law. Grantee must comply with all applicable local,
state, and federal laws, statutes, regulations, and orders concerning Hazardous
Attachment 1, Page 14 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 15 of 22
Substances relating to its Wireless Telecommunications System or Facilities in the
Public Right of Way.
B. Maintenance, Inspection, and Remediation. Grantee will maintain and inspect its
Wireless Telecommunications System and Facilities. If Grantee discovers any
Hazardous Substances that require removal or remediation in the course of
Grantee’s work on its Wireless Telecommunications System or Facilities, Grantee
must provide a written report of the discovery to the City within two (2) business
days of the discovery. Grantee must immediately proceed to remove and
remediate, in accordance with all applicable local, state, and federal laws, any
Hazardous Substances in the Public Right of Way directly attributable to or caused
by Grantee’s Wireless Telecommunications System or Facilities or the acts or
omissions of Grantee. Nothing in this Agreement transfers or is intended to transfer
any liability to the City for removal or remediation of any such Hazardous
Substances found in the Public Right of Way.
C. Construction, Modification, or Removal of Facilities. In the course of construction,
installation, modification, or removal of any of its Facilities, to the extent necessary
to safely proceed with such work, Grantee must remove and remediate Hazardous
Substances encountered in the course of its activities in accordance with, and only
to the extent required by, all applicable local, state, and federal laws, statutes,
regulations, and orders. Grantee may seek to recover its costs for such removal and
disposal from all legally responsible third parties.
SECTION 11. ASSIGNMENT
This agreement shall not be assigned or transferred by Grantee, except by written
consent of the City upon such conditions that the City deems appropriate. Any
attempted assignment or transfer by Grantee without written consent by the City shall
not be binding upon City. Notwithstanding the foregoing, either party may assign its
rights and obligations to an affiliate without consent upon 30 days’ notice. For the
purposes of this section, an “affiliate” is any entity that controls, is controlled by, or is
under common control with assigning party.
SECTION 12. FORFEITURE AND REMEDIES
A. Forfeiture. In addition to any other rights set out elsewhere in this Agreement, the
City reserves the right to declare a Default in the event that any of the following
occur:
1. Grantee breaches any material provision of this Agreement. For the purposes of
this Section, the following are a breach of a material provision of this Agreement:
a. Grantee’s failure to pay to the City any of the Fees required under this
Agreement.
Attachment 1, Page 15 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 16 of 22
b. The invalidation or any suspension of Grantee’s payments of Fees to the
City under this Agreement;
c. Any failure by Grantee to submit timely reports regarding the calculation
of its Fees to be paid to the City under Section 3 of this Agreement;
d. Any failure by Grantee to maintain the liability insurance required under
this Agreement; or
e. Any failure by Grantee to otherwise fully comply with the requirements of
Sections 3 through and including Section 14 of this Agreement.
2. Grantee is found by a court of competent jurisdiction to have perpetrated or
practiced any fraud or deceit upon the City.
3. There is a final determination that Grantee has failed, refused, neglected or is
otherwise unable to obtain and/or maintain any permit required by the City, or
by any federal or state regulatory body regarding Grantee’s operation of its
Wireless Telecommunications System within the City.
B. Remedies. Subject to Subsection 12.E regarding cure, in the event of a Default
by Grantee, the City may terminate Grantee’s rights pertaining to the Facilities to
which the default relates. In the event of a Default which pertains to all Facilities,
the City may terminate this agreement.
C. Additional Remedies. All remedies and penalties under this Agreement, including
termination of the Agreement, 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 Agreement, including
termination of the Agreement, are not exclusive, and the City reserves the right to
enforce the provisions of any ordinance or resolution and to avail itself of any and all
remedies available at law or in equity. The City’s failure to enforce any provision of
this Agreement does not waive the breach of any term, condition, or obligation
imposed upon the Grantee by or pursuant to this Agreement. A specific waiver of a
particular breach of any term, condition or obligation imposed upon the Grantee by
or pursuant to this Agreement does not waive any other or subsequent or future
breach of the same or of any other term, condition, or obligation, nor does it waive
the term, condition, or obligation itself.
In addition, the City reserves the right at its sole option to apply any of the
following, alone or in combination:
1. Suspend Grantee's rights under this Agreement with respect to the Facilities to
which the default relates, until Grantee corrects or otherwise remedies the
violation; or
Attachment 1, Page 16 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 17 of 22
2. Terminate this Agreement if any provision of the Agreement becomes invalid or
unenforceable, and the City or Grantee expressly finds that such provision
constituted a consideration material to the Agreement. Alternately, the parties
may mutually agree to renegotiate the terms of this Agreement as provided in
Subsection 14.Q.
D. Determination of Remedy. In determining which remedy or remedies are
appropriate, the City will consider the nature of the violation, the person or persons
burdened by the violation, the nature of the remedy required in order to prevent
further similar violations, and any other matters the City deems appropriate in its
sole reasonable discretion.
E. Notice and Opportunity to Cure. The City will give Grantee not less than thirty (30)
day’s prior written notice of its intent to exercise its rights under this Section, stating
the reasons for such action. If Grantee cures the stated reason within the thirty
(30) day notice period, or if Grantee initiates efforts satisfactory to the City (in its
sole discretion) to remedy the stated reason and those efforts continue in good
faith, the City will not exercise its remedy rights. If Grantee fails to cure the stated
reason within the thirty (30) day notice period, or if Grantee does not undertake
and/or maintain efforts satisfactory to the City to remedy the stated reason, then
the City may impose any or all of the remedies available under this Section 12.
F. Removal upon Termination or Forfeiture. If this Agreement is terminated or expires
on its own terms and is not replaced by a new Agreement or similar authorization,
or if the City determines than any of Grantees rights to place its Facilities within the
Public Right of Way or to attach its Facilities to a City-owned Structure are forfeited
under Section 12.A, Grantee will remove its Facilities per Section 9 of this
Agreement.
SECTION 13. DISPUTE RESOLUTION
A. Good Faith Participation. Prior to the initiation of any litigation, the Parties may
attempt in good faith to settle any dispute arising out of or relating to this
Agreement through the non-binding mediation processes set forth herein. Good
faith participation in this process is a condition precedent to any litigation. All
negotiations pursuant to this Article will be confidential and will be treated as
compromise and settlement negotiations for purposes of ORS 40.190 (OR R Rev
408) and the Federal Rules of Evidence Rule 408.
B. Non-binding Mediation. Either Party may give the other Party written notice of any
dispute not resolved in the normal course of business. Representatives of the
parties will meet within (14) business days after receipt of such notice at a mutually
acceptable time and place and thereafter as often as both parties deem necessary to
exchange relevant information and attempt to resolve the dispute. If the matter has
not been resolved within thirty (30) business days of receipt of the disputing Party’s
Attachment 1, Page 17 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 18 of 22
notice, or if the Parties fail to meet within fourteen (14) business days, either Party
may initiate non-binding mediation. Such mediation shall take place at a mutually
agreeable location. In the event that such dispute is not resolved within sixty (60)
calendar days following the first day of mediation, either Party may initiate litigation
consistent with Section 14.E of this Agreement.
C. Enforcement. The parties regard the aforesaid obligation mediate in good faith is an
essential and material provision of this Agreement and one that is legally binding
upon them. In case of a violation of such obligation by either Party, the other may
seek specific enforcement of such obligation in the courts having jurisdiction
hereunder.
SECTION 14. MISCELLANEOUS
A. Compliance with Laws.
1. Both Grantee and the City will comply with all applicable federal and state laws.
2. Subject to Subsection 6.I, Grantee will comply with all applicable City ordinances,
resolutions, rules, and regulations adopted or established pursuant to the City’s
lawful authority.
B. Severability. If any provision in this Agreement is held invalid, illegal, or
unenforceable, such provision will be severed and inoperative, but the remaining
provisions in this Agreement not held invalid, illegal, or unenforceable remain
operative and binding.
C. Regulation and Nonenforcement by the City. The City is vested with the power and
authority to reasonably regulate the exercise of the privileges permitted by this
Agreement in the public interest. Grantee is not relieved of its obligations to comply
with any of the provisions of this Agreement by reason of any failure of the City to
enforce prompt compliance, nor does the City waive or limit any of its rights under
this Agreement by reason of such failure or neglect.
D. Force Majeure.
1. For purposes of this Section 14.D., the term Force Majeure means acts of God,
landslides, earthquakes, lightning, fires, hurricanes, volcanic activity, storms,
floods, washouts, droughts, civil disturbances, acts of terrorism or of the public
enemy, strikes, explosions, lockouts or other industrial disturbances,
insurrections, public riots, or other similar events which are not reasonably within
the control of the Parties hereto.
2. If Grantee is wholly or partially unable to carry out its obligations under this
Agreement as a result of Force Majeure, Grantee will give the City prompt notice
Attachment 1, Page 18 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 19 of 22
of such Force Majeure, describing the same in reasonable detail. For the
duration of the Force Majeure, Grantee is relieved of its obligations under this
Agreement, other than the payment of monies due. Grantee agrees to use its
best efforts to remedy as soon as possible, under the circumstances, Grantee’s
inability, by reason of Force Majeure, to carry out its responsibility and duties
under this Agreement.
E. Venue and Choice of Law.
1. Exclusive venue for litigation of any action arising under this Agreement lies in
the Circuit Court of the State of Oregon for Lane County, unless exclusive
jurisdiction is in federal court, in which case exclusive venue lies in the United
States District Court for the District of Oregon. Each Party hereto expressly
waives any and all rights to maintain an action under this Agreement in any
other venue, and expressly consents that, upon motion of the other Party, any
case may be dismissed or its venue transferred, as appropriate, so as to
effectuate this choice of venue.
2. This Agreement is governed by and will be construed in accordance with the
laws of the State of Oregon, even if Oregon’s choice of law rules would otherwise
require application of the law of a different state.
F. Notice. Whenever notice is required or permitted to be given under this Agreement
(except for notice regarding change in insurance required under Section 4.A.4), such
notice must be given in writing to the other Party by: (a) personal delivery; (b)
sending via a reputable commercial overnight courier; or (c) mailing using registered
or certified United States mail, return receipt requested, postage prepaid:
CITY: Director of Development and Public Works
City of Springfield
225 Fifth Street
Springfield, OR 97477
With a copy to:
City Attorney’s Office
City of Springfield
225 Fifth Street
Springfield, OR 97477
GRANTEE: New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: City of Springfield Pole Attachment and Public Right of
Way Use Agreement (OR)
575 Morosgo Drive NE
Suite 13-F West Tower
Attachment 1, Page 19 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 20 of 22
Atlanta, GA 30324
With a copy to:
New Cingular Wireless PCS, LLC
Re: City of Springfield Pole Attachment and Public Right of
Way Use Agreement (OR)
AT&T Legal Department – Network
208 S. Akard Street
Dallas, TX 75202-4206
Any such notice or communication delivered by personal delivery is deemed given
upon actual receipt. Any notice sent by overnight courier or by United States mail is
deemed given four (4) calendar days after dispatch or mailing.
G. Public Records. Documents and records submitted by Grantee to the City may be
subject to public inspection under the Oregon Public Records Law, ORS 192.410
through 192.505. Grantee acknowledges it is responsible for becoming familiar with
the provisions of the Oregon Public Records Law.
H. Confidential Records. Grantee may identify information submitted to the City as
confidential. Prior to submitting such information to the City, Grantee must
prominently mark in conspicuous letters any information with the word
"Confidential" on every page. The City will treat any information so marked as
confidential and not subject to public disclosure until the City receives any public
records request for disclosure of such information. The City will provide Grantee
with written notice of the request, including a copy of the request. Grantee will
have ten (10) working days within which to provide a written response to the City,
before the City may disclose any of the requested confidential information. Whether
Grantee submits any written response to the City, the City retains the final discretion
to determine whether to release the requested confidential information. Grantee
does not waive any of its rights to seek a protective order from a court of competent
jurisdiction restraining the City from disclosing such information.
I. Amendments. This Agreement may be amended only by written instrument
executed with the same formalities as this Agreement.
J. Interference. Grantee will, at its expense, comply with all Federal Communications
Commission Radio Frequency requirements in connection with the use, operation,
maintenance, construction and/or installation of its Facilities. If it is determined by
the City that Grantee's transmission facilities are negatively impacting the City's
communication facilities, Grantee agrees to cooperate with the City in addressing
the negative impact. Grantee agrees to temporarily shut off power and transmission
to and from the transmission facility that is causing a problem until the problem is
resolved, provided that the City agrees to cooperate with and assist Grantee in
Attachment 1, Page 20 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 21 of 22
installing a temporary replacement facility so as to avoid disruption of Grantee's
service.
K. In the event of expiration of this Agreement under Section 2.C or forfeiture,
termination, or revocation pursuant to Section 12, all indemnity rights, audit rights
and confidentiality obligations survive for a period of three (3) additional years
following the date of termination or forfeiture.
L. Grantee is responsible for obtaining all other necessary approvals, authorizations,
and agreements to attach Facilities to Structures owned or controlled by any third-
party. Grantee acknowledges and agrees that the City is making no representation,
warranty, or covenant whether any of the foregoing approvals, authorizations or
agreements are required or may be obtained by Grantee from any other Person.
M. FAA/FCC Compliance. Grantee acknowledges that Grantee, and not the City, is
responsible for compliance with all marking and lighting requirements of the Federal
Aviation Administration (the FAA) or the Federal Communications Commission (the
FCC). Grantee will indemnify and hold the City harmless from any fines or other
liabilities caused by Grantee's failure to comply with such requirements. Should
Grantee or the City be cited by either the FAA or the FCC because Grantee's
Facilities or System are not in compliance and should Grantee fail to cure the
conditions of noncompliance within the timeframe allowed by the citing agency, the
City may either terminate this Agreement immediately on notice to Grantee or
proceed to cure the conditions of noncompliance at Grantee's sole expense.
N. Nondiscrimination. Grantee agrees that no person will, on the grounds of race,
religion, color, creed, national origin, sex, marital status, familial status, sexual
orientation, gender identity, source of income, age or physical or mental disability
suffer discrimination in the performance of this Agreement when employed by
Grantee. Grantee agrees to comply with all applicable requirements of state and
federal civil rights and rehabilitation statutes, rules, and regulations. Further
Grantee agrees not to discriminate against minority-owned, women-owned, or
emerging small businesses in awarding subcontracts as required by ORS 279A.110.
O. Captions. Throughout this Agreement, captions to sections are intended solely to
facilitate reading and to reference the sections and provisions of this Agreement.
The captions do not affect the meaning and interpretation of this Agreement.
P. Complete Agreement. This Agreement represents the whole agreement between
the parties and supersedes all other agreements and understandings, whether oral
or in writing, between the parties with respect to the subjects covered by this
agreement. This Agreement may not be modified except by a writing executed by
both parties to the Agreement.
Attachment 1, Page 21 of 22
POLE ATTACHMENT AND PUBLIC RIGHT OF WAY USE AGREEMENT - PAGE 22 of 22
Q. Renegotiation. In the event that any provision of this Agreement becomes invalid or
unenforceable and the City or Grantee expressly finds that such provision
constituted a consideration material to entering into this Agreement, the City and
Grantee may mutually agree to renegotiate the terms of this Agreement. The Party
seeking renegotiation shall serve on the other Party written notice of an offer to
renegotiate. In the event the other Party accepts the offer to renegotiate, the
Parties shall have ninety (90) days to conduct and complete the renegotiation. If
both Parties agree to renegotiations under this Section, the Parties shall proceed in
good faith and in a manner that is reasonable under the circumstances.
SECTION 15. OTHER AUTHORITY SUPERSEDED:
Upon the Effective Date of this Agreement, any and all authority to operate within the
Public Right of Way previously granted to Grantee by the City is superseded by this
Agreement.
IN WITNESS WHEREOF the Parties have caused this Agreement to be signed in their
respective names by their duly authorized representatives as of the dates set forth
below.
CITY OF SPRINGFIELD, OREGON GRANTEE
NEW CINGULAR WIRELESS PCS, LLC
BY: AT&T MOBILITY CORPORATION
ITS MANAGER
By: _____________________________ By: __________________________
Gino Grimaldi, City Manager (Typed name and title)
Dated: __________________________ Dated: ________________________
Attachment 1, Page 22 of 22
________________________________________________________________________________________________
PO Box 34628 - #75604
Seattle, WA 98124
(fax) 206.219.6717
www.wirelesspolicy.com
June 8, 2018
The Honorable Christine Lundberg, Mayor
City Council
City of Springfield
225 Fifth Street
Springfield, Oregon 97477
VIA EMAIL – asowa@springfield-or.gov
RE: June 18th Public Hearing on Right-of-Way Fees for Small Cell Facilities
Dear Mayor Lundberg and Councilmembers:
On behalf of AT&T, thank you for the opportunity to comment on the City of
Springfield’s proposed fee schedule for the installation of small cell facilities in the right-
of-way.
We understand that the City of Springfield (the “City”) desires to be a leader in the
deployment of small cell facilities, wireless broadband services, and 5G technology for
the benefit of its residents, businesses, visitors, and first responders/emergency services
personnel. AT&T shares this goal and is prepared to invest in deploying small cell
technology to enhance its network capabilities and lay the foundation for various “smart
city” initiatives. Small cell facilities allow AT&T to provide a better LTE experience
today and to prepare for the technologies of the future such as 5G, smart cities, and new
developments in the Internet of Things (IoT). AT&T looks forward to continuing to do
its part in providing excellent communication service to meet your community’s ever
growing demands.
Staff has advised us that the City is considering an annual right-of-way use fee of $1,550
and an annual attachment fee of $250 for small cell facilities. We are concerned that this
pricing could present a significant barrier to the deployment of small cell facilities within
the Springfield area.
We respectfully request that the City consider the following in setting its right-of-way
fees for small cells:
Attachment 2, Page 1 of 4
June 8, 2018
Page 2
• Clarifications regarding the data and assumptions made in the Council Briefing
Memorandum for the May 21st Council meeting.
• The costs to the City of accommodating small cell attachments.
• Significant benefits of improved public safety and other municipal programs and
initiatives.
• Various additional benefits of facilitating small cell development in a “smart
city.”
Clarifications and Comments on Council Briefing Memorandum (May 21st)
In reviewing the Council Briefing Memorandum for your May 21st meeting
(“Memorandum”), we had noticed some items that required clarification or additional
context, for which we provided comments in a May 19, 2018, letter to Neil Obringer,
Senior Management Analyst. We do not believe that you were previously provided with
this letter, so we are reiterating our prior comments regarding fees.
Several of the Memorandum’s points regarding small cell right-of-way fees required
clarification or additional context, including:
• The small cell right-of-way fee in the City of Portland pilot program was
$1,200/pole/year, not $5,000/pole/year.
• AT&T’s agreement with EWEB does not include small cell attachment rates.
EWEB’s pricing structure also does not provide for a blanket small cell pole
attachment rate of $1,800/pole/year.
• Regarding the City of Salem, its right-of-way use agreement has outlined pricing
for both macro and small cell installations in the right of way. The $1,579/year
ground facility fee is applicable only to macro installations, and some of the per-
installation administrative fees were carried over from previous agreements that
only contemplated macro facilities. (Since our May 19th letter, the City of Salem
has approved right-of-way agreements with a right-of-way use fee of
$1,250/pole/year and a $250 attachment fee for city-owned poles.)
AT&T does not recollect offering the City a $250/pole/year right-of-way use fee and an
additional $1,000-$1,250/pole/year attachment fee as described in the Memorandum.
However, as with other jurisdictions throughout Oregon, AT&T is willing to pay the City
a reasonable annual fee that would compensate the City for its recurring costs.
Costs to the City:
As with other jurisdictions throughout Oregon, AT&T is willing to pay the City a
reasonable annual fee that would compensate the City for its recurring costs associated
with AT&T’s occupation of the right-of-way and its attachment to the City’s light poles.
In that regard, we note that there are only a few costs to the City of allowing small cells
in the right-of-way on another party’s poles or allowing attachments to City light poles.
Most costs of accommodating small cell facilities in the right-of-way will already be
Attachment 2, Page 2 of 4
June 8, 2018
Page 3
recovered through permit application, review, and other fees, some charged pursuant to a
Master Lease Agreement. Further, if changes need to be made to the City’s light poles to
accommodate AT&T’s attachment, AT&T will pay those costs.
Unique benefits for first responders and the public safety community:
Mobile communications are a critical tool for first responders in emergency situations.
According to the Federal Communications Commission, nearly 70 percent of 911 calls
are made from wireless phones and that percentage is expected to continue to grow.1
Furthermore, in December, Oregon State opted in2 to the FirstNet3 Nationwide Public
Safety Broadband Network. Through a public-private partnership with AT&T, FirstNet
will provide the nation’s first-ever high-speed nationwide wireless broadband network
dedicated to first responders.
Small cell facilities can play a big role in supporting first responders. Among other
benefits:
• AT&T offers first responders who subscribe to AT&T’s FirstNet services many
benefits on its commercial network, of which small cell facilities are a growing
part.
o FirstNet subscribers get priority access across AT&T’s entire suite of
deployed commercial spectrum.
o While the FirstNet frequency band (“Band 14”) will not be deployed
on small cell facilities, when first responders use bands other than
Band 14 they will benefit from increased small cell coverage and
capacity.
• By delivering enhanced capacity and faster connectivity speeds, small cell
facilities will help lay the strong network foundation needed for various “smart
city” initiatives that can enable new opportunities for the public safety
community. For example:
o Gunfire detection technology could help law enforcement react quickly
and efficiently. Remote sensors on light posts and other infrastructure
would help law enforcement determine the number of people involved
and the number of rounds fired.
o Near real-time information on traffic conditions could help determine
the fastest route to an emergency scene.
1 FCC 911 Wireless Services Consumer Guide https://www.fcc.gov/consumers/guides/911-wireless-services 2 https://firstnet.gov/news/oregon-transform-communications-public-safety 3 The First Responder Network Authority (FirstNet) is an independent authority within the U.S. Department of
Commerce. Chartered in 2012, its mission is to ensure the building, deployment, and operation of the nationwide,
broadband network that equips first responders to save lives and protect U.S. communities. See
FirstNet.gov/mediakit.
Attachment 2, Page 3 of 4
June 8, 2018
Page 4
Additionally, the increased wireless data speeds and improved call quality that small cell
facilities provide could complement next-generation 911 and emergency response
services to improve public safety. We ask that Springfield consider the important public
safety benefits that increased network capacity can provide, particularly in dense urban
areas.
Broad adoption of small cell technology:
In order for Springfield to be a leader in small cell technology by effectively promoting
investment in the necessary infrastructure, the conditions for deployment (access, pricing,
process) need to be workable and attractive for providers. We suggest that the City set
right-of-way fees to encourage this important investment.
We appreciate your consideration of our comments and for all of the efforts by
Springfield’s leaders and staff to establish workable policies for AT&T and the entire
industry. We look forward to working with you. Please let us know if you have any
questions.
Very truly yours,
Ken Lyons
(206) 227-0020
ken.lyons@wirelesspolicy.com
cc: Neil Obringer, Senior Management Analyst
Tom Boyatt, Interim Public Works Director
Attachment 2, Page 4 of 4
M E M O R A N D U M City of Springfield
Date: 6/25/2018
To: Gino Grimaldi COUNCIL
From: Tom Boyatt, Interim DPW Director
Neil Obringer, Senior Management Analyst
BRIEFING
Subject: Small Cell Pole Attachment Agreement MEMORANDUM
ISSUE:
On May 21, 2018 the Council provided feedback to staff regarding negotiations with AT&T for
a Pole Attachment/PROW Use Agreement which would allow the installation of small cell fixtures in the public right of way. Staff has integrated the feedback from Council into a draft
agreement (Attachment 1). Staff is requesting that Council authorize the City Manager to
execute a substantially similar agreement.
COUNCIL GOALS/
MANDATE:
Provide Financially Responsible and Innovative Government Services
BACKGROUND:
The focus of this CBM is to respond to the letter from AT&T dated June 8, 2018 (Attachment
2). The primary point of disagreement in negotiations at this point is around fee structure and compensation. Therefore, only items from the AT&T memo related to fee structure and
compensation are addressed below. In a redlined version of the agreement that AT&T
representatives sent City staff on June 14, AT&T proposed a $1,250/pole/year right-of-way use fee and a $250 pole attachment fee.
AT&T Statement: The small cell right-of-way fee in the City of Portland pilot program was $1,200/pole/year, not $5,000/pole/year.
Staff Response: The $5,000/pole/year amount referenced was based on templates staff had previously obtained from the City of Portland. City staff understands that the City of Portland has since adjusted their fee to $1,200 and is in the process of reevaluating the fee.
AT&T Statement: AT&T’s agreement with EWEB does not include small cell attachment rates. EWEB’s pricing structure also does not provide for a blanket small cell pole attachment
rate of $1,800/pole/year.
Staff Response: The compensation structure EWEB applies to small cell fixtures is indeed established through a fee schedule outside of the agreement between AT&T and EWEB. As
eluded to in the AT&T memo, EWEB applies two rates for small cell deployment; 1.) Pole top: $1,800/pole/year for pole top installations, and
2.) Mid-pole: As a utility, EWEB is regulated in what they can charge mid-pole and
applies a per-foot rate based on methodology outlined in Oregon Administrative Rule. In summary, the mid pole rate is based on EWEB’s actual costs and the amount of space
used on the pole. In an example contract provided by EWEB the charge for a mid-pole
attachment was about $135/pole/year. The City of Springfield is not subject to these administrative regulations that limit the amount charged for mid-pole attachments.
EWEB staff indicate that they would prefer mid-pole attachments as it causes fewer operational issues for their organization, however, the majority of the small cell pole attachment applications they have received so far have been for pole top installations (at $1,800/pole/year).
Attachment 3, Page 1 of 2
AT&T Statement: Regarding the City of Salem, its right-of-way use agreement has outlined
pricing for both macro and small cell installations in the right of way. The $1,579/year ground facility fee is applicable only to macro installations, and some of the per installation
administrative fees were carried over from previous agreements that only contemplated macro
facilities. (Since our May 19th letter, the City of Salem has approved right-of-way agreements with a right-of-way use fee of $1,250/pole/year and a $250 attachment fee for city-owned poles.)
Staff Response: The ground facility fees that are included in Salem’s agreement and are
referenced in the letter from AT&T are not currently proposed for inclusion in the Springfield agreement and therefore should not be an issue in these negotiations. Staff does understand the
Salem Council has approved an agreement with AT&T which contains a right-of-way use fee of $1,250/pole/year and a $250 attachment fee for city-owned poles.
RECOMMENDED ACTION: Authorize the City Manager to execute city contract #2093, a
Pole Attachment/Public Right of Way Use (PROW) Agreement with AT&T, or a substantially similar agreement.
Attachment 3, Page 2 of 2