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HomeMy WebLinkAboutItem 03 Small Wireless Facilities in the Right-of-Way AGENDA ITEM SUMMARY Meeting Date: 11/5/2018 Meeting Type: Work Session Staff Contact/Dept.: Kristina Kraaz, CAO Neil Obringer, DPW Staff Phone No: 541-744-4061 (CAO) 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: Maintain and Improve Infrastructure and Facilities ITEM TITLE: SMALL WIRELESS FACILITIES IN THE RIGHT-OF-WAY ACTION REQUESTED: Provide staff with direction regarding amendments to the previously-approved Right of Way Use and Pole Attachment Agreement or other actions to achieve compliance with the FCC order regarding small wireless facilities. ISSUE STATEMENT: The Council approved the form of a Pole Attachment and Right-of-Way Use Agreement for AT&T’s small wireless facilities on June 25, 2018. On September 27, 2018, the FCC released a declaratory ruling and order that significantly limits local management of small wireless infrastructure deployment and associated fees in public rights-of-way. Staff is requesting Council direction regarding changes to the Agreement or other ordinances to comply with the FCC order prior to its effective date, January 14, 2019. ATTACHMENTS: 1. Council Briefing Memorandum 2. NATOA Outline of the FCC Declaratory Ruling and Third Report and Order 3. Draft AT&T Pole Attachment and Right-of-Way Use Agreement as approved on June 25, 2018 DISCUSSION/ FINANCIAL IMPACT: See the attached Council Briefing Memorandum and NATOA Outline for a discussion of the FCC order, and its implications for the City. This item may have a financial impact on the City because it affects the fees that the City can charge for use of the public right-of-way. No small wireless facilities have been approved for placement in the public right-of-way previously, so the City is not currently receiving any fees from these facilities. Attachment 1, Page 1 of 6 M E M O R A N D U M City of Springfield Date: 10/26/2018 COUNCIL BRIEFING MEMORANDUM To: Gino Grimaldi From: Kristina Kraaz, Assistant City Attorney Neil Obringer, Management Analyst Subject: Small Wireless Facilities in the Right-of-Way ISSUE: The Council approved the form of a Pole Attachment and Right-of-Way Use Agreement for AT&T’s small wireless facilities on June 25, 2018. On September 27, 2018, the FCC released a declaratory ruling and order that significantly limits local management of small wireless infrastructure deployment and associated fees in public rights-of-way. Staff is requesting Council direction regarding changes to the Agreement or other ordinances to comply with the FCC order prior to its effective date, January 14, 2019. COUNCIL GOALS/ MANDATE: Maintain and Improve Infrastructure and Facilities BACKGROUND: On June 25, 2018, the City Council approved the form of a Pole Attachment and Right-of-Way Use Agreement to allow AT&T to attach small cell devices to City-owned poles and other structures in Springfield’s public right-of-way. The Agreement was also to serve as a model for any future small wireless facilities in the right-of-way. Subsequently, the City and AT&T were unable to reach an agreement on the fee structure for these attachments. On September 27th, the FCC issued a Declaratory Ruling and Third Report and Order that preempts many aspects of local management of small cell wireless infrastructure, including market-based fees for use of the right-of-way. As a result, staff recommend that the Council revisit the previously-approved Pole Attachment and Right-of-Way Use Agreement and provide City staff with direction on changes to bring it in line with the FCC’s order. The attached outline from the National Association of Telecommunications Officers and Advisors explains the main aspects of the FCC order (the City is a member of NATOA). There are three main components to the FCC’s order: (1) it caps fees for use of the right-of-way and structures in the right-of-way at the City’s “reasonable cost,” (2) it preempts certain aesthetic requirements, and (3) it imposes 60-90 day shot clocks for small wireless facility applications. The order takes effect on January 14, 2019. Small Cell Workshop On October 25, city staff attended a meeting between city staff and officials and small cell/5G providers hosted by the League of Oregon Cities. The goal of the meeting was education and positive engagement of ideas to move forward with small cell and 5G technology deployment in a manner that is beneficial to providers, cities, and the citizens of Oregon. Important take-away messages from the meeting included that the wireless carriers have a strong need to install new small cell facilities to prepare for the rollout of 5G wireless service. 5G is the next level of wireless service that will be faster and able to handle the rapidly-increasing amount of data being sent and used on wireless devices. Access to the public right-of-way is important to wireless carriers because it is conveniently located to coincide with high-traffic areas needing additional coverage and capacity and because it is aligned with the utilities like Memorandum 10/31/2018 Page 2 Attachment 1, Page 2 of 6 electricity and fiber to which small wireless facilities need to connect. For cities, maintaining the ability to safely manage, maintain, and use the right-of-way as a public asset is extremely important. Cities are concerned that already-overburdened City staff and resources will be further stretched thin if applications for small wireless facilities are submitted in large quantities all at once. None of the wireless industry representatives at the 5G Summit could provide an estimate or ballpark figure for how many small wireless devices are likely to be deployed to meet the demand for 5G. Some solutions to streamline the permitting and deployment of small wireless facilities that cities and the wireless industry generally agreed upon include developing application checklists and forms that clearly specify the requirements for permits and land use approval; objective standards for approval that are less restrictive than standards for traditional cell towers; pre- application meetings when helpful; allowing batched applications when identical equipment is proposed for identical utility poles; and follow-through with the small wireless facility installation contractors to ensure that the facilities that were constructed are identical to what was approved in the permitting process. City staff plan to work on incorporating these recommendations into internal City processes for approving permits, or into the proposed Pole Attachment and Right-of-Way Use Agreement or code amendments for future consideration. Aesthetic Standards The FCC order preempts aesthetics requirements for small wireless facilities unless they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, (3) objective, and (4) published in advance. The order applies to any facility that meets the FCC’s definition of a “small wireless device” – which could include “small cell” antennas and equipment, or small versions of traditional “macrocells.” Small cells traditionally have a single, smaller antenna, and cover a smaller area, on the order of a couple football fields. Macrocells typically include an array of multiple antennas and cover a larger area, on the order of many miles. Equipment needed to support the wireless facility range in aesthetic impact from slim cabinets mounted on the pole itself, to ground-mounted utility cabinets, to camouflaged poles with all equipment concealed inside the pole itself. Small wireless facilities could be affixed to a variety of types of poles in the public right-of-way, including electrical utility poles and street lights. Figure 1: Small pole-top macrocell Source: City of Seattle, Washington Figure 2: Small cell antenna (left) and pole- mounted cabinet for equipment (right) Source: Palo Alto Online, March 21, 2018 Memorandum 10/31/2018 Page 3 Attachment 1, Page 3 of 6 1. How should the City address aesthetic standards for “microcell” facilities that are exempt from development review – by adding standards to the Pole Attachment and Right-of-Way Use Agreement, to the Springfield Development Code, or not at all? Wireless facilities in the right-of-way, except for “low-powered networked facilities attached to existing poles” require some form of development approval under SDC 4.3-145. Small cells are one kind of “low-powered networked facility” that are currently not subject to any development code standards if attached to an existing utility pole. The previously-approved Pole Attachment and Right-of-Way Use Agreement does not include any aesthetic standards for any facilities, except a prohibition on attachment to decorative light poles. The Agreement would allow either “small cell” facilities or small “macrocell” facilities. The City Council could address the aesthetic impact of “small cell” wireless facilities on existing poles by adding reasonable, objective standards to the Agreement. To comply with the FCC order, those standards cannot be more restrictive than the standards in the SDC 4.3-145 that apply to other wireless facilities. The following standards in the SDC 4.3-145 could be added to the Pole Attachment and Right-of-Way Use Agreement for low-powered small cell facilities that are exempt from development review:  Antennas in the right-of-way may not project more than 24 inches above the existing utility pole support structure.  No more than a total of 2 antennas or antenna arrays may be located on a single pole in the right-of-way.  Any equipment cabinet in the right-of-way cannot exceed 6 cubic feet and must be concealed from public view by burying, screening by means other than walls or fences, or camouflaging.  No portion of the antenna can project over a property line.  Colors and materials must be non-reflective and chosen to minimize visibility. Facilities, including support equipment, must be painted or textured to match or blend with the primary background.  No signs, striping, graphics, or other attention-getting devices are permitted on any facility except for a maximum of two (2) warning and safety signs that are 3 square feet or less and affixed to the equipment cabinet.  No beacon lights or strobe lights are permitted unless required by the FAA or other applicable authority. Other lighting for security and maintenance purposes must be shielded and directed downward and must comply with the on-site lighting standards. Figure 3 Example of an AT&T small cell, from left to right: antenna, equipment, and pole-mounted cabinet that conceals equipment from view. Source: League of Oregon Cities 5G Summit, Oct. 25, 2018 Memorandum 10/31/2018 Page 4 Attachment 1, Page 4 of 6 Alternately or in addition, the Springfield Development Code could be amended to make these standards applicable to the otherwise exempt facilities. Amending the Springfield Development Code to include these standards for all small wireless facilities in the public right-of-way has the benefit of making the same standards applicable to all small wireless facilities in the right-of- way, regardless of whatever standards are included in an individual right-of-way use agreement or regardless of whether the owner is subject to a right-of-way use agreement. Those amendments could be included in the Springfield Development Code rewrite project if the City Council does not wish to adopt them earlier. 2. Should the existing standards in the Springfield Development Code be amended to specifically address small wireless facilities in the public right-of-way? The Springfield Development Code was amended in 2014 to adopt specific requirements for Wireless Telecommunications Service (WTS) Facilities in SDC 4.3-145. Under the FCC order, some requirements in SDC 4.3-145 may not be enforceable for small wireless facilities in the public right-of-way, such as a 2,000 foot minimum spacing requirement, residential zone set- backs for wireless devices attached to new poles, undergrounding requirements, and a prohibition on new poles in residential zones. In addition, there may be standards that should be added to specifically address small wireless devices in the public right-of-way, including but not limited to a requirement to conceal all equipment in a single flush-mounted box rather than mounting individual components, a requirement to shield or cover wires that run between the antenna and equipment, and restrictions on ground-mounted equipment. The City can either amend the Springfield Development Code to create a specific set of standards for small wireless facilities in the public right-of-way that comply with the FCC order, or wait and see if the FCC order is upheld on appeal and in the meantime, not enforce the conflicting standards. Fees The FCC order presumes that upfront application fees of $500 for the first five small wireless facilities plus $100 for each additional facility and annual fees of $270 per small wireless facility are reasonable. The City can charge a higher fee if it is “a reasonable approximation of the state or local governments’ actual and reasonable costs.” 3. Should the City charge the FCC’s presumptive right-of-way use fee ($270/year), or should staff investigate the actual cost of small wireless facilities in the right-of-way and bring that fee back to the City Council before January 2019? The Pole Attachment and Right-of-Way Use Agreement includes an annual $1,550 right-of-way use fee for all small wireless facilities in the public right-of-way, and an additional $250 annual pole attachment rent for City owned poles. These fees were set as a reasonable market value for use of the right-of-way and City structures. The simplest way to comply with the FCC order is to reduce the right-of-way use fee to $270 for all small wireless facilities and forego any additional pole attachment rent. If set through the Master Fees and Charges Schedule, the City Council could increase the fee annually to account for inflation and other increases in City costs. Alternatively, the Council could adopt a higher cost-based fee. City staff have initially reviewed the costs associated with the right-of-way and the City’s actual cost to manage and maintain the right-of-way on a per-pole basis may exceed the FCC’s presumptive fee of $270. If the Council is interested in a higher fee, City staff would need time to fully analyze the City’s costs associated with managing and maintaining the right-of-way. Memorandum 10/31/2018 Page 5 Attachment 1, Page 5 of 6 4. Should the City reduce current permit fees to the FCC’s presumptive up-front fees ($500 for the first five facilities, then $100 each additional facility), or retain the existing application fees until City staff can evaluate the true cost to review permit applications? The City’s upfront application fees for an encroachment permit and any applicable development application exceed the presumptive upfront fees, depending on how many small wireless devices are included per application. A right-of-way encroachment and placement permit is $335 per facility in the right-of-way. The City also offers a Comprehensive Telecommunications Placement Plan permit which provides expedited pre-approval for all facilities a telecommunications provider intends to install. If there is an approved Comprehensive Telecommunications Placement Plan on file, an application that falls under that plan is deemed approved within 48 hours of submittal unless the City notifies the applicant otherwise. There are no such plans currently in place, but they would provide a viable option for small wireless facilities to batch large numbers of small wireless devices for pre-approval. The fee for the Comprehensive Telecommunications Placement Plan permit is $843 up front, and $335 per individual placement permit under that plan. For facilities that require development review, the fees are $870 for a Type I permit (non-low powered facilities on existing poles, or any facility on a replacement pole), or $4,530 for Type III Discretionary Use approval in addition to the cost of mailing notices (new poles in a new location in the right-of-way). In general, the City recovers less than 100% of costs for building and development permits. A comprehensive analysis of development approval fees in 2010 found that the average cost recovery for design review type permits is 40%. Based on that information, City staff believe that the existing fees do not exceed the City’s cost to review and approve permits, at least for the foreseeable future while these applications are uncommon and not routine. Staff recommend that the City Council retain the existing application fees for encroachment permits and development approval. Shot Clocks 5. Should the City Council amend the Springfield Development Code to make it easier to meet the new shot clocks for small wireless facilities, or make it a policy for City Council to directly review all new pole applications, or make no changes to existing procedures? The FCC order imposes a 60-day shot clock for small wireless facilities on existing poles or lights, and 90 days for new poles. The City must grant or deny all applications within that time period, including development review if required, right-of-way placement permits, and electrical building permits. The City can exceed the shot clock only in extraordinary circumstances. Under the SDC 4.3-145, new utility poles for small wireless facilities require Discretionary Use approval from the Springfield Planning Commission, with possible appeal to the City Council. The procedural requirements for a Discretionary Use include 20 days for mailed notice of a quasi-judicial hearing, up to 21 days after the first public hearing to leave the record open, 15 days to appeal the Planning Commission’s decision to City Council, time to schedule the City Council appeal hearing and provide notice, and time for the City Council to make a decision. One way to reduce the approval timeline for development review of a new pole is to elevate the Discretionary Use decision to City Council review under SDC 4.3-145.H.4, bypassing the Springfield Planning Commission. The Council can decide to automatically request direct review for any small wireless device in the public right-of-way, which would reduce the review time by at least two weeks. Memorandum 10/31/2018 Page 6 Attachment 1, Page 6 of 6 Another option is to amend the Springfield Development Code to reduce the level of review required for new poles in the public right-of-way to support small cell facilities. The long timeline for Discretionary Use approval is largely the result of state law requirements for quasi- judicial decisions. The FCC order preempts the City from applying many, if not all, of the discretionary standards for these facilities, so Discretionary Use approval may be unnecessary. If Council approves of this approach, staff could develop proposed amendments to the Springfield Development Code to allow new poles for small wireless facilities under a ministerial review process. Staff could prepare such amendments for adoption in early 2019, as part of the code rewrite, or only after the FCC order is upheld on appeal. RECOMMENDED ACTION: Staff recommend that the City Council provide direction regarding amendments to the previously-approved Pole Attachment and Right-of-Way Use Agreement or other actions to achieve compliance with the FCC order prior to January 14, 2019. THE FCC’S DECLARATORY RULING AND THIRD REPORT AND ORDER ON BROADBAND INFRASTRUCTURE DEPLOYMENT: PREEMPTION OF LOCAL AUTHORITY OVER SMALL WIRELESS DEPLOYMENTS On September 27, 2018, the FCC released a Declaratory Ruling and Third Report and Order that significantly limits state and local management of small wireless infrastructure deployment and associated fees for use of the rights of way and public property in the rights of way. The Ruling and Order will take effect 90 days after notice is published in the Federal Register. The Ruling and Order: Caps all fees related to small wireless facilities (SWF) at “a reasonable approximation of the state or local governments’ actual and reasonable costs.” o Caps apply to application/review or similar fees for SWF inside and outside the rights of way; right of way use fees; and fees for use of municipal property in the rights of way. o The following fees are presumed to meet the standard: Non-Recurring Fees: $500, including a single up-front application that includes up to five SWF, with an additional $100 for each SWF beyond five, or $1,000 for non-recurring fees for a new pole to support SWF. Recurring Fees: $270 per SWF per year for all recurring fees, including any ROW access fee or fee for attachment to municipally-owned structures in the ROW. o Local governments can charge higher fees than those set forth above if they can show the fees are: A reasonable approximation of costs; Those costs themselves are reasonable; and They are non-discriminatory. Preempts aesthetics requirements for SWF unless they are (1) reasonable; (2) no more burdensome than those applied to other types of infrastructure deployments; (3) objective; and (4) published in advance. o Under this standard, requirements that all wireless facilities be deployed underground are preempted, as is any undergrounding requirement that “materially inhibits wireless service.” o Implies that minimum spacing requirements likely could not meet this standard. Attachment 2, Page 1 of 2 Imposes shot clocks of 60 days for SWF added to existing structures (regardless of whether the structure already supports a SWF) and 90 days for SWF using a new structure. o Existing shot clocks for non-SWF deployments remain in place: 90 days for collocation on an existing structure; 150 days for deployment on a new structure. o Both the new and existing shot clocks apply to “any approval that a siting authority must issue under applicable law prior to deployment.” This includes zoning approvals and building permits, and may also include license or franchise agreements to access the rights of way, leases for use of municipal poles or property in the rights of way, electric permits and road closure permits, among others. o For SWF, shot clocks are reset, not just tolled, if the siting authority notifies the applicant within 10 days after submission that the application is incomplete. For subsequent determinations of incompleteness, the shot clock would toll—not reset—if the siting authority provides written notice within 10 days that the supplemental submission did not provide the requested information. o For non-SWF, shot clocks begin to run when an application is first submitted, and can be paused—not reset—if the siting authority notifies the applicant within 30 days that the application is incomplete. For subsequent determinations of incompleteness, the process is the same as described above for SWF. o Failure to act within the new SWF shot clock constitutes a presumptive violation of the Communications Act and applicants may seek expedited injunctive relief in court within 30 days of a local government missing a shot clock deadline. There is no “deemed granted” remedy. Defines SWF as, among other things: o Facilities mounted on structures 50 feet or less in height including their antennas; or mounted on structures no more than 10 percent taller than other adjacent structures; or that do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater. o Each antenna associated with the deployment, excluding associated antenna equipment, is no more than 3 cubic feet in volume; o All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume. Does not grandfather existing agreements or state small cell bills or other state laws, which may be preempted to the extent they conflict with the Ruling and Order. Attachment 2, Page 2 of 2 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 3, 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 3, 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 Attachment 3, Page 3 of 22 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 3, 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 3, 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 3, 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 3, 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 3, 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 Attachment 3, Page 9 of 22 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, 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 3, Page 22 of 22