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ORD 2016-17 Adopted ORDINANCE NO. 2016-17 AN ORDINANCE AUTHORIZING THE CITY OF NORTH AUGUSTA TO GRANT A FRANCHISE AGREEMENT TO CROWN CASTLE NG EAST, LLC IN CONNECTION WITH THE PROVISION OF TELECOMMUNICATION SERVICE WHEREAS, Crown Castle NG East, LLC has requested consent of the City of North Augusta to use the streets and public places of the municipality to construct, install, maintain, and operate its facilities for use in providing telecommunications services to its customers within the municipality for its own business purposes and profit; and WHEREAS, the City has considered the request by Crown Castle NG East, LLC and determined that such request in accordance with the laws of this State; and WHEREAS, the City has determined that it is proper and in the interest of the citizens of the City to grant such franchise. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the City of North Augusta, South Carolina, in meeting duly assembled and by the authority thereof, that: 1. The City grant to Crown Castle NG East, LLC a nonexclusive franchise agreement as specified in the Franchise Agreement attached hereto, marked as "Exhibit A" and incorporated by reference. 2. All Ordinances or parts of Ordinances in conflict herewith or to the extent of such conflict are hereby repealed. 3. This Ordinance shall become effective immediately upon its adoption on third and final reading. 4. That the City Administrator is authorized to execute any documents necessary to complete the granting of this franchise agreement. DONE, RATIFIED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF NORTH AUGUSTA, SOUTH CAROLINA, ON THIS 3 ref DAY OF OCTOBER, 2016. First Reading: Ct Second Reading: Lark W. Jones, Mayor Third Reading: ID -1— 11. ATTEST: Donna B. Young, City lei rk U g Y EXHIBIT A STATE OF SOUTH CAROLINA FRANCHISE AGREEMENT COUNTY OF AIKEN WHEREAS, Crown Castle NG East LLC has requested consent of the City of North Augusta to use the streets and public places of the municipality to construct, install, maintain and operate its facilities for use in providing telecommunications services to its customers within the municipality for its own business purposes and profit; and, WHEREAS, other telecommunications providers either have or are likely to seek a similar consent; and, WHEREAS, it is the policy of the municipality to permit such entry into the corporate limits and such use of the streets and public places for the provision of telecommunication services, subject to the duty and authority of the municipality to manage its streets, public property and rights-of-way; to require fair and reasonable compensation from telecommunications providers for the use thereof on a competitively neutral and nondiscriminatory basis; and to publicly disclose the amount of such compensation; and, WHEREAS, the Council of the City of North Augusta has enacted Ordinance Number to grant Crown Castle NG East LLC (f/k/a NextG Networks of NY, Inc.) a franchise to construct, install, maintain and operate in, over, upon and under the streets and public places of the municipality, its lines, poles, wires, cables and other telecommunications facilities and equipment to render telecommunications services to its customers in the corporate limits of the City of North Augusta for such period as provided herein. Section 1: As used in this agreement, the word "Company" means Crown Castle NG East LLC ("Crown Castle"), a limited liability company organized and existing under the laws of the State of Delaware and duly authorized to do business in South Carolina, its successors and assigns. Section 2: As used in this agreement, the word "Municipality" means the City of North Augusta South Carolina. Section 3: As used in this agreement, the term "Telecommunications Services" has the meaning and definition given to that same term by S.C. Code Ann. Sections 58-9-10 and 58-9-2200 (1) and 47 U.S.C. § 153; provided, however, for purposes of this agreement, the term "Telecommunications Services" does not include cable television. Cable television services may only be provided in the municipal limits pursuant to a separate franchise pursuant to 42 USC 542. Page 1 Section 4: The non-exclusive right, power and authority are hereby granted and vested in the Company to construct, install, maintain and operate in, over, under and upon the streets, alleys, bridges, and rights-of-way of the Municipality, its lines, poles, antennas, wires, cables, cabinets, conduits, converters, equipment and other telecommunications facilities and to use those facilities to render Telecommunication Services to its customers within the corporate limits of the Municipality. Section 5: Prior to the commencement or continuation of any construction or operation in the corporate limits of the Municipality, the Company shall be duly authorized to do business in South Carolina and shall have received any necessary certificate of public convenience and necessity or other required authorization from the Public Service Commission of South Carolina. Evidence that such authority has been acquired or that it is not required will be filed with the Municipality. Section 6: All work upon the streets and public places of the Municipality shall be in accordance with all applicable standards, codes and ordinances and will be done under the general supervision of the Mayor and Council of the Municipality through the application for and administration of an encroachment permit from the Municipality. Accordingly, the Company's facilities shall be (a) constructed, maintained and operated in a manner consistent with other equipment in the right-of-way that does not obstruct or hinder the usual travel on or by such right- of-way, and (b) reasonably consistent with the size and height of other equipment in the right-of-way, with facilities not to exceed the greater of (i) ten feet in height above ground level higher than existing poles, if present, or (ii) fifty feet above ground level. In addition, all new construction, wherever practicable, will be placed underground; however, service lines/cables and/or equipment will be allowed to be placed aboveground if other existing service lines/cables and/or equipment in that area are installed aboveground. Any necessary aboveground construction, wherever practicable, will utilize existing utility poles. No street, alley, bridge, right-of-way or other public place used by the Company shall be obstructed longer than necessary during its work of construction or repair and shall be restored to the same good order and condition as when said work was commenced. No part of any street, alley, bridge, right-of-way or other public place of the Municipality, including any public drain, sewer, catch basin, water pipe, pavement or other public improvement, shall be damaged. However, should any such damage occur, the Company shall repair the same as promptly as possible, and, in default thereof, the Municipality may make such repairs and charge the reasonable cost thereof to and collect the same from the Company. The Company shall save the Municipality harmless from all liability or damage (including judgments, decrees, court costs, and defense costs) arising out of the Company's operations within the corporate limits of the Municipality, the exercise of the privileges granted to the Company by this ordinance, or the acts or omissions of the Company's employees, contractors, or agents. Page 2 Section 7: The Municipality reserves the right to determine that, in its reasonable discretion, it is in the public interest to improve or modify its streets or public places in a manner that requires the displacement, modification, relocation or removal of the Company's facilities from any area along the Municipality's streets or public places. In any such case, the Municipality shall use its reasonable efforts to afford the Company a reasonably equivalent alternate location. Upon its receipt of reasonable notice from the Municipality of that determination (which notice shall be not less than sixty (60) days except where emergency conditions require shorter notice), the Company, at its own expense, shall protect, support, temporarily disconnect, relocate to another section of the streets or public places designated by the Municipality, or totally remove from the streets or public places any facilities of the Company when required or requested by the Municipality for reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or electrical or telecommunications lines when such relocation work is being done directly by or for the Municipality. Section 8: In consideration of the grant of authority to utilize the streets and public places of the Municipality for the provision of Telecommunication Services, and in accordance with applicable laws and ordinances, the Company shall pay such lawful franchise fees, business license taxes, and administrative fees as are presently permitted by Article 20 of Chapter 9 of Title 58 of the 1976 Code of Laws of South Carolina, as enacted in 1999, and as may be enacted and imposed by the Municipality. The Company shall also pay all such ad valorem taxes, service fees, sales taxes, or other taxes and fees as may now or hereafter be lawfully imposed on other businesses within the Municipality. Provided, however, that in the event that Article 20 of Chapter 9 of Title 58 of the 1976 Code of Laws of South Carolina, as enacted in 1999, or other laws governing franchise fees, business license taxes and/or other fees with respect to Telecommunication Services shall be substantially modified by subsequent legislation or court decision, the provisions herein contained shall be brought into conformity with the changes in the applicable law by appropriate amendment to this agreement. If the limitations on the amount of franchise fees, administrative fees, and business license taxes on providers of Retail Telecommunications Services presently contained in said statute shall be removed or modified, the Municipality will be free, by amendment to this agreement, to impose such fair, reasonable, competitively neutral and non-discriminatory fees and taxes as may then be permitted by that statute or by such applicable South Carolina and federal law as may then govern. Section 9: Except as specifically provided herein, or otherwise mandated by law, the privilege granted to the Company by this agreement does not exempt or excuse the Company from the police power and all other lawfully imposed municipal authority and laws including, but not limited to, those relating to zoning, Page 3 permitting, traffic control, construction and excavation, planning, aesthetics, and the environment. Section 10: This agreement may be terminated by either party upon forty-five (45) days' prior written notice to the other party upon a default of any material covenant or term hereof by the other party, which default is not cured within forty- five (45) days of receipt of written notice of default (or, if such default is not curable within forty-five (45) days, if the defaulting party fails to commence such cure within forty-five (45) days or fails thereafter diligently to prosecute such cure to completion). Except as expressly provided herein, the rights under this agreement are irrevocable. Section 11: Any notice to either party shall be in written form and addressed as follows: If to the Municipality: City of North Augusta 100 Georgia Avenue North Augusta, SC 29841-3843 If to the Company: Crown Castle NG East LLC do Crown Castle USA, Inc. 2000 Corporate Drive Canonsburg, PA 15317-8564 Attention: General Counsel, Legal Department With a copy (which shall not constitute legal notice) to: Crown Castle NG East LLC Attention: SCN Contracts Administration 2000 Corporate Drive Canonsburg, PA 15317-8564 Section 12: This agreement constitutes the entire agreement of the Parties and may be modified only by a subsequent written instrument. Section 13: This agreement shall be binding upon the parties hereto, their legal representatives, successors and assigns. IN WITNESS WHEREOF, the Parties have caused this Franchise Agreement to be executed on the date the Council of the Municipality formally enacted Ordinance Number . WITNESSES The Company Page 4 Crown Castle NG East LLC By: Name: Its: The Municipality City of North Augusta, South Carolina By: Name: Its: Page 5 STATE OF SOUTH CAROLINA PROBATE COUNTY OF AIKEN PERSONALLY appeared before me, the undersigned witness, and made oath that (s)he saw the within named sign, seal and as their Act and Deed deliver the within written Franchise Agreement, and that (s)he with the other witness described above witnessed the execution thereof. SWORN to before me this Day of Notary Public for South Carolina My commission expires: STATE OF SOUTH CAROLINA PROBATE COUNTY OF AIKEN PERSONALLY appeared before me, the undersigned witness, and made oath that (s)he saw the within named sign, seal and as their Act and Deed deliver the within written Franchise Agreement, and that (s)he with the other witness described above witnessed the execution thereof. SWORN to before me this Day of , Notary Public for South Carolina My commission expires: Page 6