TOWN OF MOUNTAIN VIEW, UINTA COUNTY, WYOMING
ORDINANCE 2021-5
AN ORDINANCE AND AGREEMENT GRANTING A NON-EXCLUSIVE FRANCHISE TO UNION TELEPHONE COMPANY WITHIN THE RIGHTS OF WAY OF THE TOWN OF MOUNTAIN VIEW, WYOMING
WHEREAS, Union Telephone Company d/b/a Union Wireless, (Company), a corporation created and existing under the laws of the State of Wyoming, desires to construct, erect, renew, repair, maintain and operate in, upon, along, across, under and over the streets, alleys, and all other public rights-of-way within the Town of Mountain View, Wyoming (Town) a system for the provision of telecommunication services; and,
WHEREAS, Article 13, §4 of the Wyoming Constitution states that no street passenger railway, telegraph, telephone, or electric light line shall be constructed within the limits of any municipal organization without the consent of its local authorities; and,
WHEREAS, Town desires to grant to Company, its successors and assigns, a non- exclusive Franchise to construct, erect, renew, repair, maintain, upgrade and operate in, upon, along, across, under and over the streets, alleys, and all other public rights-of-way within the corporate limits of Town, a system for transmission of telecommunications services, and to provide for compensation to Town for management of its rights-of-way.
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE TOWN OF MOUNTAIN VIEW, STATE OF WYOMING:
Section 1. Non-exclusive Franchise.
That Company is hereby granted a non-exclusive Franchise (Franchise) to construct, erect, renew, repair, maintain, upgrade, and operate a system for transmission of telecommunications services in, upon, along, across, under and over the streets, alleys, and all other public rights-of-way within the corporate limits of the Town.
Section 2. Definitions.
For the purposes of this Ordinance and Agreement, the following terms, phrases, words, and their derivations will have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. All terms not otherwise defined herein are defined pursuant to 47 U.S.C. §153 (Definitions).
“Right-of-Way” means any highway, street, road, sidewalk, alley, or other public right-of-way or public utility easement under the jurisdiction and control of the Town, which has been acquired, established, dedicated, or devoted to such purposes.
“Telecommunications System” or “System” means those Facilities necessary for Company to provide Telecommunications Service.
“Town Council” means the governing body of Town.
Section 3. Grant of Authority.
(a) This Ordinance and Agreement grants permission and authority to Company, subject to the terms and conditions of this non-exclusive Franchise, to construct, erect, renew, repair, maintain, upgrade and operate in, upon, along, across, under and over the streets, alleys and all other public rights-of-way of the Town, a Telecommunications System, including but not limited to lines, poles, anchors, wires, cable, conduit, vaults, hand holds, laterals and other fixtures and equipment (the “Facilities”), and to use said System for the transmission of sound, signals, data, or other means of Telecommunications for a period of Five (5) years from and after its acceptance of this Franchise.
(b) An option to extend for an additional five (5) years may be exercised by Company by giving written notice to Town no later than six (6) months prior to the expiration of the initial term or any renewal term.
(c) Any rights, privileges, and authority granted to Company under this Franchise are subject to the rights of the police power of Town.
(d) Nothing in this Franchise excuses Company of its obligation to obtain use and/or development authorization and permits from Town before entering, occupying, or using rights-of-way to construct, install, operate, maintain, repair, or remove such Facilities.
(e) Nothing in this Franchise excuses Company of its obligation to comply with applicable codes, rules, regulations, and standards, subject to verification by Town of such compliance.
(f) Nothing in this Franchise shall be construed to limit taxing authority or other lawful authority to impose charges or fees, or to excuse Company of any obligation to pay lawfully imposed charges or fees.
(g) Nothing in this Franchise shall be construed to create a duty upon Town to be responsible for construction of Facilities or to modify rights-of-way to accommodate Company’s Facilities.
(h) Nothing in this Franchise shall be construed to create, expand, or extend any liability of Town to any third-party user of Company’s Facilities or to otherwise recognize or create third party beneficiaries to this Franchise.
(i) In the event at least six (6) months’ prior to the expiration of this Franchise, written notice is given by Town to Company, or by Company to Town of a desire to terminate the permission and authority granted by this Franchise, the permission and authority granted by this Franchise shall thereupon expire in accordance with such notice. Whereupon this Ordinance and Agreement shall be null and void and of no effect whatsoever and all rights and privileges granted by this Franchise shall be at an end except for the indemnification obligations of Company.
Section 4. Location of Facilities.
(a) In the event the location of Company’s Facilities and the Telecommunications System, and the construction thereof, or any change or extension (or the removal thereof), shall necessitate the disturbance of any street, alley, or other public right-of-way, then such shall be subject to the approval of the Department of Engineering and Department of Public Works, which approval shall not be unreasonably denied, conditioned or delayed.
(b) Company shall place on file with the Town Clerk plans showing the location and character of each pole and each conduit to be erected or laid, and the location of manholes, handholds, vaults, or other openings to gain access to said conduit; and no portion of the Telecommunications System or associated Facilities shall be erected, constructed, or laid upon, under or over any street, alley, or other public right-of-way, until a permit therefore has issued, subject to the approval of the Department of Engineering, which shall indicate the time, manner and place of laying, constructing or erecting the said Telecommunications System.
(c) In any instance (except as expressly otherwise provided below) where Town requires construction in the public right-of-way for purposes of repair, widening, repaving, regrading or any other relevant purpose where Company’s Telecommunications System and associated Facilities are installed, Company shall, as soon as reasonably possible, upon written notice from Town, remove or relocate its Facilities to conform with Town’s written notice. Any portion of public right-of-way disturbed by Company’s removal or relocation of its Telecommunications System and associated Facilities, shall be restored by Company to the condition existing prior to Company’s construction. Company shall, upon receipt of written notice from Town, for a period of twelve (12) months following Company’s removal, relocation, and restoration of public rights-of-way subject to this sub-section, repair any damaged, uneven, or settled sections of right-of-way caused by Company’s removal or relocation of its Facilities.
(d) Company may place its Facilities underground or above ground subject to Town approval, and provided Company places its Facilities in a manner non-discriminatory to other Telecommunications Service providers. Subject to the terms and conditions of this Franchise and the Town Code, Company may place optical cable, optical cable housing, and splicing connections on existing utility poles as overhead Facilities, if approved by the owner of the utility poles and Town.
(e) Company’s Facilities shall not interfere with the use of rights-of-way or Town property by Town, the general public, or other persons authorized to enter, occupy, or use rights-of-way or Town property. Whenever new Facilities will exhaust the capacity of a right-of- way to reasonably accommodate future users or Facilities, Company shall provide nondiscriminatory access to its conduit to future users and facilities subject to the approval of Company and third-party users. However, Company shall not permit installations by others in its conduit in Town without written approval of Town, which approval shall not be in lieu of a franchise or other requirements of Town and shall not abrogate Company’s responsibility for compliance with this Franchise by third party users of the Telecommunications System.
(f) Upon receipt of reasonable notice by Town, Company shall relocate its Facilities at its expense at the request of Town in the event of an unforeseen emergency that creates an immediate threat to the public safety, health or welfare.
Section 5. Poles, Conduit, Structures, and Property Owned by Others.
Company shall obtain written approval from the owners of utility poles, conduit, structures, and property not owned by Company, prior to attaching to or otherwise using such poles, conduit, structures, or property, and shall provide proof of such approval to Town. The installation of Facilities by Company on or in the poles, structures, or property owned by others shall be subject to and limited by owner (or owners) authority to enter, occupy, and use rights-of-way. In the event that the authority of the owner (or owners) of poles, structures, or property to enter, occupy, and use the rights-of-way either expires, terminates, or is cancelled, the authority of Company to construct, install, operate, maintain, and repair Company’s Facilities at such locations may be immediately cancelled at Town’s sole option. Town shall not be liable for the costs of removal of Facilities arising from expiration, termination, or cancellation of any pole owner(s) authority to enter, occupy, or use rights-of-way for any reason whatsoever. However, Town shall seek alternative placement of said facilities working in good faith and with all reasonable efficiency together with Company to accomplish the process of maintaining its service to the citizens.
Section 6. Construction and Installation Requirements.
(a) The technical performance of the Facilities must meet or exceed all applicable industry standards.
(b) All Facilities shall be installed pursuant to the engineering, quality, and construction practices and standards of the telecommunications industry.
(c) All Facilities shall be constructed and installed in such manner and at such points so as not to: inconvenience Town or public use of the rights-of-way; or, adversely affect the public health, safety or welfare; and, in conformity with plans approved by Town.
(d) Company’s installations and operations shall conform to all federal, state, local, and industry codes, rules, regulations, standards, and laws. Company must cease work immediately upon notice, if Town reasonably determines Company is not in compliance with such codes, rules, regulations, or standards. Company may not begin or resume work until Town determines that Company is in compliance. Town shall not be liable for any costs arising out of delays occurring as a result of such work stoppage.
(e) Company shall have the sole responsibility for obtaining, at its own cost and expense, all permits, licenses, or other forms of approval or authorization necessary to construct, operate, maintain, or repair or expand the System, and to construct, maintain and repair any part thereof, including right-of-way use permits.
(f) Any tree trimming shall be in accordance with all of relevant provisions of the Town’s Code.
(g) Neither approval of plans by Town, nor any action or inaction by Town shall relieve Company of any duty, obligation, or responsibility for the design, construction, and installation of its Facilities. Company is solely responsible for the supervision, condition, and quality of the work done, whether it is performed by itself or by its contractors, agents, or assigns.
(h) Except as to emergency repairs, Company shall, prior to excavating within any street, alley or other public place and installing any conduit, overhead cable or equipment therein, file with the Public Works Director plans and specifications showing the work to be done, the location and nature of the installation to be made, repaired or maintained, and a schedule showing the times of beginning and completion and shall secure a permit from Town before proceeding with any such work. Company shall conform to all requirements of Town’s applicable Code and regulations, as such requirements and regulations currently exist or may be amended. Upon completion of the work, Company shall provide Town with as-built maps showing the final location of the Facilities.
(i) All construction and/or maintenance work as provided herein shall be performed in conformity with the plans and specifications filed with Town and with the permit or permits issued.
(j) In the event of an emergency requiring immediate action by Company for the protection of the Facilities, Town property, or other persons or property, Company may proceed without first obtaining the normally required permits. In such event Company must: (1) take all necessary and prudent steps to protect, support, and keep safe from harm the Facilities or any part thereof, Town property, or other persons or property and to protect the public health, safety, and welfare; and, (2) as soon as practicable, must obtain the required permits and comply with any mitigation requirements or other conditions of such permit.
(k) Whenever necessary, after construction or maintenance of any of Company’s Facilities within the Right-of-Way, Company shall, without delay and at Company’s sole expense, remove all debris and restore the surface disturbed by Company as nearly as possible to as good or better condition as it was in before the work began. Such restoration shall be done in a manner consistent with applicable codes and laws and to Town’s satisfaction and specifications.
(l) Company shall provide Town with GIS level maps showing the size and location of the Facilities within Town in a format acceptable to Town, subject to Town’s agreement to maintain the confidentiality of such information to the extent allowed by law. Town agrees that it will comply with all applicable law and regulation regarding public disclosure of Company’s maps and information and will withhold such disclosure from any third party to the extent allowed by law. Any map or information furnished to the Town pursuant to this Franchise shall remain the Company’s proprietary information for all purposes to the extent allowed by law. Company shall provide locates and field verify its Facilities at no cost to Town. Prior to any disclosure of Company proprietary information in Town’s possession by Town, Town will provide Company such notice as may be required in order that Company may seek an injunction or other equitable relief to prevent disclosure before Town will make such disclosure.
(m) Company shall be solely and completely responsible for workplace safety and safe working practices on its job sites within Town, including safety of all persons and property during the performance of any work.
(n) Company shall restore the right-of-way to pre-construction condition or better. Company agrees to pay all costs and expenditures required on rights-of-way as a result of settling, subsidence, or any other need for repairs or maintenance resulting from excavations made by Company for necessary trench patch maintenance for the earlier of a period of twelve (12) months following construction or until the next paving job. Favorable weather conditions permitting, Company agrees to repair rights-of-way as a result of settling, subsidence, or other needed repairs or maintenance resulting from excavations made by the Company upon forty-eight (48) hours’ notice excluding weekends and holidays. If Company fails to undertake or begin such repairs within forty-eight (48) hours’ actual notice, Town may perform the repairs at Company’s expense.
Section 7. Coordination of Construction and Installation Activities and Other Work.
(a) Company shall coordinate its construction and installation activities and other work with Town and other users of the rights-of-way at least annually or as reasonably determined by Town.
(b) Company shall conduct its construction and installation activities at all times so as to avoid conflicts with the facilities of other users, occupants, utilities, franchisees, or permittees of the rights-of-way.
Section 8. Safety and Maintenance Requirements.
(a) All work authorized and required under this Franchise shall be performed in a safe, thorough, and workmanlike manner.
(b) Company, in accordance with applicable federal, state, and local safety requirements, shall at all times employ necessary care and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to occur. All Facilities, wherever situated or located, shall at all times be kept in a good, safe, and suitable condition. If Town finds that Company is responsible for a violation of a safety code or other applicable regulation, upon Company’s receipt of written notice, Town may, after discussion with Company, establish in writing a reasonable time for Company to make necessary repairs. If the repairs are not made within the established written time frame, Town may make the repairs itself at Company’s cost.
(c) If Company fails to timely commence, pursue, or complete any work as required by law, permit, or this Franchise, Town may at its discretion cause the work to be done. Company shall pay to Town the reasonable and documented actual costs of the work in an itemized invoice provided by Town to Company within 30 days after receipt of such invoice.
(d) Town reserves the right to install, and/or permit to be installed, sewer, electric, phone, gas, water and other pipelines, cables, conduits, and related appurtenances and to do, or permit to be done, any underground or overhead work in, across, along, over or under a right-of- way or other public place occupied by Company. Town also reserves the right to construct new streets and public utilities and to alter the design of existing streets and public utilities. In performing such work, Town shall not be liable to Company for any damage except to the extent of Town’s negligence, but nothing herein shall relieve any other person or entity from the responsibility for damages to Company’s Facilities. Town will use its best efforts to provide Company with reasonable advance notice of plans by other persons to open the rights-of- way.
(e) Upon notice from Town that any work is being performed contrary to the provisions herein, or in an unsafe or dangerous manner, or in violation of the terms of any applicable permit, laws, regulations, ordinances or standards, Town may issue a stop work order and Company shall stop such work immediately. Town shall issue a stop work order in writing, unless given verbally in the case of an emergency, and provide the order to the individual doing the work or post it on the work site. A copy of the order shall be sent to Company, and the order shall indicate the nature of the alleged violation or unsafe condition and the conditions under which Company may resume work.
Section 9. Removal of Unauthorized Facilities.
Within thirty (30) days following written notice from Town, Company shall, at its expense, remove unauthorized Facilities and restore the rights-of-way and other property to as good a condition as existed prior to construction or installation of its Facilities. Any plan for removal of said Facilities must be approved by Town prior to such work.
Section 10. Abandonment of Facilities.
Town may, in its sole discretion, allow Company to abandon its Facilities in place, provided no Facilities may be abandoned in place without the express written consent of Town. Upon abandonment in place of Facilities, the Facilities shall become property of Town and Company shall submit to the Town an instrument in writing transferring to Town the ownership of such Facilities. The failure of Company to submit an instrument shall not prevent, delay, or impair transfer of ownership to Town.
Section 11. Restoration of Rights-of-Way and Other Property.
(a) When Company, or any person acting on its behalf, does any work in or affecting any right-of-way or other property, it shall, at its own expense, promptly remove any obstructions therefrom and restore, at Company’s cost, such right-of-way and property to as good a condition as existed before the work was undertaken.
(b) If weather or other conditions do not permit the complete restoration required by this section, Company shall temporarily restore the affected rights-of-way or property. Such temporary restoration shall be at Company’s cost, and Company shall promptly undertake
and complete the required permanent restoration, when the weather or other conditions no longer prevent such permanent restoration.
(c) All restoration work is subject to inspection and final approval by Town. The affected rights-of-way and property shall be restored to a comparable or better condition by Company. If restoration is not made to the satisfaction of Town within the established timeframe, Town may make the restoration itself at Company’s cost.
Section 12. Compensation.
