ORDINANCE 1, 2023
June 15, 2023
ORDINANCE 1, 2023
AN ORDINANCE GRANTING A NONEXCLUSIVE FRANCHISE TO RT COMMUNICATIONS, INC. DBA RANGE, TO CONSTRUCT, ACQUIRE, OPERATE, MAINTAIN AND SUPPLY HIGH SPEED INTERNET ACCESS TO THE TOWN AND INHABITANTS THEREOF AND TO USE THE STREETS, ROADS, ALLEYS AND OTHER PUBLIC PLACES WITHIN THE TOWN.
SPECIFICALLY THIS ORDINANCE IS RENEWING AND EXTENDING THE TERMS (Section 1.3) OF THIS AGREEMENT FOR FIVE (5) ADDITIONAL YEARS.
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE TOWN OF PINE HAVEN, CROOK COUNTY, WYOMING THAT THE TOWN HEREBY ADOPTS CHAPTER 15, UTILITIES, ARTICLE II, ITEM 3. SAID ARTICLE SHALL HEREINAFTER READ AS FOLLOWS:
CHAPTER 15: UTILITIES
ARTICLE II: GRANTING A NONEXCLUSIVE FRANCHISE
3. RT COMMUNICATIONS INC.
GRANT OF FRANCHISE, USE OF RIGHT OF WAY, TERMS
1.1 Grant of Franchise. The Town of Pine Haven, Crook County, Wyoming, hereinafter called the “Town”, does hereby grant to RT Communications, Inc.dba Range, a corporation authorized to do business in the State of Wyoming, and to its successors and assigns, hereinafter called the “Company” or “RT”, a nonexclusive franchise for the limited purposes and uses contained herein and subject to the terms, conditions and provisions provided herein.
1.2 Use of Right of Way. The Company shall have the right to establish, construct, maintain, and operate into, within, through and across the right of way on and under the present and future streets, alleys, public places and ways, hereinafter referred to as “streets”, telecommunications transmission and distribution lines, with all necessary or reasonable appurtenances, including underground conduits, poles, wires and telephone wires, hereinafter referred to as “Facilities, for the purpose of supplying telecommunication services to said Town, the inhabitants thereof and persons and corporations within the limits of the Town, subject to the terms and conditions and to the making of payments hereinafter specified. The Company, subject to the terms and conditions contained herein, shall have the right to install, reinstall, remove, change, alter or extend its facilities as may be necessary for the proper operation and maintenance of the Company’s system.
1.3 Term. The term of this Franchise shall be for a period of five (5) years subject to renewal by the parties. Every consideration shall be given to the Company for continued operation in the Town after the expiration of the Franchise. The Town, however, is not obligated to extend the Franchise and no option to extend this Franchise shall be implied by the terms and conditions herein.
1.4 Release of Rights. This Franchise shall be interpreted to convey rights and interest only in so far as the Town has an actual interest and only to the extent and for the purposes set out in the Franchise or available pursuant to governing law. The issuance of the franchise does not deprive the Town of any powers, rights, privileges it now has or may later acquire in the future to use, perform work on, construct, operate or repair facilities or systems in, or regulate or control the use of the right of way and its streets and alleys.
1.5 Applicability of Law. The Franchise issued by the Town is subject to and Company must exercise all rights hereby granted to it in accordance with applicable federal, state and local law. References to laws or “applicable laws” in this Franchise include federal, state and local laws (and regulations lawfully adopted pursuant to those laws) now in effect, and, to be amended or new federal and state laws lawfully enacted. This Franchise does not confer rights upon the Company other than as expressly provided herein, nor pass rights by implication except those that may otherwise vest pursuant to governing law.
This Franchise and all rights granted under this Franchise are subject to the lawful exercise of the police powers the Town now has or may later obtain, including but not limited to the power of eminent domain; and are further subject to the exercise of the Town’s rights as a property owner under state and federal laws.
1.6 Affiliate must comply. Any affiliate of the Company involved in the management or operation of the facilities in the Town shall comply with the terms and conditions of the Franchise. The Company must be fully liable for any act or omission of an affiliate that controls the Company or is responsible in any manner for the management or operation of the facilities that result in a breach of this Franchise as if the act or omission was the Company’s act or omission.
2.1 Franchise Fee. As a consideration for all franchise rights and contractual privileges granted by the Town under the franchise hereby granted, RT Communications shall pay to the Town an amount equal to two percent (2%) of Company’s Gross Revenue as said term is defined herein.
2.2 Payments. Company shall make franchise payments to the Town on a quarterly basis. Payment for the first quarter shall be due on or before May 15 of each year; second quarter payments shall be due on or before August 1 of each year; third quarter payments shall be due on or before November 15 of each calendar year; and the fourth quarter payments shall be due on or before February 14 of each calendar year. The payments shall be computed upon the gross revenue accrued during the previous calendar quarter. Concurrent with each payment RT Communications shall provide to the Town a statement itemizing all revenues received during the preceding quarter less any deductions allowed to determine gross revenues as hereafter defined. Interest at the Citibank prime rate shall accrue and be paid by the Company on any franchise fee paid after it is due.
The term “Gross Revenue” as used herein shall mean and be construed as RT Communication’s gross operating revenue accruing during the preceding calendar quarter or fraction thereof from the sale of local wire line telephone exchange service within the corporate limits of the Town, deducting there from any amounts paid by the Company to the United States, State of Wyoming or other governmental entity as excise or business taxes for the sale of local wire line telephone exchange service within the Town. The Town shall have the right upon the provision of reasonable notice to examine the books and records of Company which are subject to the provisions of this Agreement for the purpose of verifying the accuracy of the payments made herein.
During the life of this Agreement, and as long as the Company continues to make the payments herein specified, the Town shall not assess any additional license or occupation tax or levy any other excise tax upon the Company; provided however that this provision shall not apply to ad valorem taxes levied against the Company’s property located within the Town.
2.3 Not in lieu of other payments. The Franchise issued and the franchise fees
paid hereunder are not in lieu of any other required permit, authorization, fee, charge or tax. Without limiting the foregoing, the Town, among other things, does not waive the obligation of, or the Company’s requirement to obtain, all applicable permits, and to comply with the conditions thereof; to comply with zoning laws; or to comply with codes, ordinances and regulations.
3.1 Required Response. The Company shall use due diligence in providing a timely response to and, as necessary, securing a site, with regard to an isolated emergency,
including without limitation, situations such as a line down, a pole hit or a fire, notwithstanding other emergencies of greater priority, such as instances involving
hospitals and life-support customers. The Company shall make every effort to promptly have Company work crews available to respond to and repair isolated emergencies that occur in the Pine Haven area.
CONDITIONS OF GRANT OF FRANCHISE AND USE OF RIGHT OF WAY
4.1 Town Use of Facilities. The Town shall have the privilege during the term of this franchise, where aerial construction exists, of maintaining upon the poles of RT within the Town limits wires and pole fixtures necessary for an emergency alarm system with such wires and fixtures to be placed and maintained under the requirements of the National Electrical Code and/or NESC. Such use of the poles of RT shall be at no cost to the Town. The Town, in its use and maintenance of such wires and fixtures, shall at all times comply with the rules and regulations of the RT, so that there may be a minimum danger of contact or conflict between the wires and fixtures used by the Town.
The Town shall be solely responsible for all damage to persons or property arising out of the construction or maintenance of said police and fire alarm fixtures, and shall hold the Company harmless from all claims or demands whatsoever, arising out of the attachment, maintenance and/or removal of said wires and fixtures to the poles of the Company. In cases of re-location of the Company’s plant, or removal of poles or fixtures, the Town shall hold the Company harmless from any damage to persons or property arising out of the removal or construction by the Town of its wires or other fixtures.
4.2 Maintenance of Facilities. RT shall erect and maintain all such facilities for the purpose of conducting its business for which this Franchise is given and in accordance with the standard engineering practice and in compliance with the Ordinances of the Town in effect at the time of the commencement of construction of said facilities. In the construction, reconstruction, repairing, operation and maintenance of such facilities RT shall use every reasonable and proper precaution to avoid damage or injury to persons or property of the Town or its citizens or unreasonably interfere with any improvements the Town may deem proper to make, or unreasonably hinder or obstruct the free use of streets by the public.
4.3 Use of existing poles Company shall use existing poles and facilities wherever possible. No new poles, other than those that may need to be replaced to facilitate routine maintenance, shall be placed in any Right of Way without written permission of the Town.
4.4 Clean-up and restoration. Whenever it shall be necessary in the location, construction, or maintenance of the facilities to dig, or in any manner disturb or interfere with any streets, RT shall at its own cost and expense immediately thereafter, and in a manner approved by the Town, and as required by any Ordinances of the Town of Pine Haven, replace and restore such streets disturbed in as good a condition as before said work was commenced, and shall promptly remove all waste materials from the streets. In the event any street shall become uneven, unsettled, or otherwise require repairing because of the disturbance by the Company, then the Company shall promptly upon receipt of notice from the Town to do so, cause said street to be repaired or restored to a good condition, and in compliance with the ordinances and standards of the Town. Whenever and wherever RT shall rebuild, relocate or construct new distribution or transmission lines within the Town, such distribution and transmission lines shall, if feasible, be located in the alleys or utility easements of the Town Except that the Town will recognize the priority of existing easements.
If the Company fails to restore the affected property as may be agreed to between the Town and Company, then following written notice to the Company, and reasonable opportunity to cure, the Town may make the restoration in a manner satisfactory to the Town, and all costs incurred for such restoration shall be paid by the Company.
4.5 Notice. The Company is to notify the Town at least thirty (30) days prior to beginning repair or replacement of existing facilities or installation of new facilities within or under existing improved, or unimproved streets, future streets, alleys, avenues, or public ways. The purpose of such notification shall be to so advise the Town in order that it may properly plan and coordinate its activities regarding street repair or replacement with the Company and other utility companies.
4.6 All work subject to Town laws and regulations. The maintenance, construction, operation and repair of the facilities shall be performed in compliance with all laws, ordinances, resolutions, departmental rules, regulations, written policies and practices of the Town affecting such system, as such laws, ordinances, resolutions, rules, regulations, policies and practices may change from time to time. By way of example, and not limitation, this includes laws addressing street cuts, pavement restoration, traffic control, permit fees and any and all other directives governing fees, the time, place and manner in which facilities may be installed.
4.7 Permits. Construction, operation or repair of the facilities shall not commence until all required permits have been obtained and all required permit fees have been paid, except in emergency situations.
DELIVERY OF SERVICE AND COMPLIANCE WITH LAWS
5.1 Compliance with WPSC. The Company shall comply with all standards promulgated by the Wyoming Public Service Commission, or successor agency, if any.
The rates and prices which RT may charge for the telecommunications service furnished and sold for public and private use during the term of the Franchise and in compliance with the conditions of this Franchise shall be in accordance with tariffs filed with or approved by the Public Service Commission of the State of Wyoming.
5.2 Compliance with Environmental Laws. The Company shall comply with all applicable environmental laws in the operation and maintenance of its facilities.
TREE TRIMMING AND REPLACEMENT
6.1 Interference of Trees and Plants. RT shall have the right and privilege of trimming all trees and other plants which overhang or interfere with its facilities in such a manner and to such an extent as will prevent the branches, roots or limbs or other parts of such plant life from interfering with RT’s services; no such trees or other plants shall be trimmed or cut back further than may be necessary to prevent such interference and to allow the proper operation and maintenance of said facilities, and providing that all debris resulting from said work be removed at RT’s expense.
6.2 Removal, Replacement. The Company may remove trees as necessary for the purpose of keeping overhead wires safe from possible tree damage.
TRANSFER AND ASSIGNMENT
7.1 Transfer. The Company may assign or transfer this Franchise and all rights and obligations hereunder with the written permission of the Town except that a transfer of the Franchise to an affiliate does not require such authorization. The assignee or transferee of the franchise shall become entitled to all the rights and privileges herein granted and shall assume all the obligations and liabilities as provided herein. Said assignment or transfer shall not relieve the Company from its obligations and liabilities as provided herein unless specifically provided by the Town. Approval by the Town shall not unreasonably be withheld.
8.1 Insurance. The Company agrees to maintain in full force and effect, at its own cost and expense, during the term of this franchise, Commercial General Liability Insurance in the amount of $1,000,000 combined single limit for bodily injury and property damage.
8. 2 Indemnification. In the construction, reconstruction, repairing, operation and maintenance of such facilities RT shall use every reasonable and proper precaution to avoid damage or injury to persons or property and shall at all times and under all circumstances hold harmless Town, its officers, boards, commissions, and employees from each and all such damage, injury, loss, cost or expense, including attorneys fees, caused or occasioned by reason of any negligent act, or failure to act, of RT herein, its officer, agents, servants and employees in the connection, installation, repairing, or maintaining of any of its facilities or making excavation in the public streets, and highways or public grounds of Town in the paving, repaving or repairing of any of the public streets, highways or public property of Town, and herein agrees that if Town is sued in any court by any person, firm, association, company or corporation for the installation, operation, maintenance or repairs of such facilities or any part thereof, RT, its successors and assigns, shall defend all suits and pay all costs, fees and judgments for damages, if any resulting there from, including all reasonable attorney fees incurred by the Town and all attorney fees and costs incurred in any appeal, and shall at the option of Town or RT be made a party to such court proceeding.
EXCAVATION AND RELOCATION
9.1 Location and Relocation. Any location or relocation of the Company’s facilities in the rights of way or public places reasonably required, caused or occasioned by any city project including the installations of water, sanitary sewer, storm drainage, landscaping, traffic signal facilities or road construction or reconstruction shall be promptly addressed consistent with the statute. The Town shall provide reasonable notice of such project and coordinate with the Company. The cost of relocation or alteration required by others not parties to this Agreement is the responsibility of the requesting party and may be governed by provisions of the law including the ordinances of the Town.
10.1 Validity of Franchise. If any section, paragraph, subdivision, clause, phrase or provision of this Franchise shall be adjudged invalid or unconstitutional, the same shall not affect the validity of this Franchise as a whole or any part of the provisions hereof, other than the part so decided to be invalid or unconstitutional. If any part of this Franchise is held invalid or unconstitutional, the Company and the Town shall commence meetings to negotiate the provision or provisions held invalid.
10.2 Acceptance. The Company, within thirty (30) days after the passage and approval of this Franchise or any amendment or addendum hereto shall file in the office of the Town Clerk a written acceptance or rejection of this Franchise of the amendment or addendum duly signed and acknowledged by the proper officer of Company authorized to execute such acceptance.
10.3 No Waiver. The waiver of any breach of any of the terms or conditions of this franchise shall be limited to the act or acts constituting such breach, and shall never be construed as being a continuing or permanent waiver of any such terms or conditions, all of which shall be and remain in full force and effect as to future acts or happening notwithstanding any such individual waiver of any breach thereof.
10.4 Default; Force Majeure. In the event the Company shall fail in the observance or performance of any one or more of the agreements, duties or obligations imposed upon it by this Agreement, and if any such failure or default shall continue for a period of thirty (30) days after written notice thereof is provided to the Company from the Town stating the alleged deficiency on the part of the Company, and the Company fails to take action necessary to cure said deficiency, then in such case all rights and privileges of the Company under this ordinance shall be reviewed by the Governing Body and declared in default of the Franchise, which declaration is stayed pending a review by a court of competent jurisdiction. Provided, however, that the Company shall not be considered to be in default and be excused from performance at all times during which the Company may be delayed or interfered with by unavoidable accidents, acts of God, action of or under governmental authority having jurisdiction over the Company, labor strikes, or other conditions not controlled by, or brought about by, the actions of the Company; provided, however, that excuse form performance shall not relieve the Company from any payment due to the Town as provided herein.
10.6 Full force and effect. This ordinance shall be in full force and shall take effect after ten (10) days have elapsed from the date of passage of this ordinance and the publication required by Wyoming Statute Section 15-1-116.
PASSED, ADOPTED AND APPROVED this 9 day of May, 2023
TOWN OF PINE HAVEN
BY: Karla Brandenburg, Mayor
Tammie McGovern, Clerk
The Franchisee hereby accepts the terms and conditions of the aforementioned Franchise Agreement and agrees to be bound thereby.
Dated this 7 day of June, 2023
BY: Becky Dooley
1st Reading: March 14, 2023
2nd Reading: April 11, 2023
3rd Reading: May 9, 2023
Publish: June 15, 2023