ORDINANCE No. 60

Amend and extend term oflimited right-of-way use agreement granted to Verizon Wireless (VAW) LLC dba Verizon Wireless for mobile telecommunications services (Ordinance; amend Ordinance No. 180379)

The City of Portland ordains:

Section 1. The Council finds:

1. In 2006, the City Council approved an ordinance granting a five year right-of-way use agreement to Verizon Wireless (VAW) LLC d/b/a Verizon Wireless (Verizon Wireless) to provide mobile telecommunications services in Portland. Ordinance No. 180379. The agreement became effective on October 15, 2006.

2. On July21, 2010, the City Council amended Verizon Wireless' agreement to reflect a revised process for establishing new wireless sites within the City's rights-of-way for all carriers and extended the term through June 30, 2014. Ordinance No. 184011.

3. In 2012, the City Council again amended the right-of-way use agreement template for all carriers operating within Portland. The City Council has approved these updated right-of-way use agreements for carriers for new terms.

4. Verizon Wireless' agreement should be extended and updated to maintain consistency with the other carriers' agreements, specifically regarding right-of-way use fees and acknowledgement of administrative rules promulgated by the City governing process.

5. The wireless industry is deploying technology called small cells and distributed antenna systems (DAS). Small cells and DAS are shorter range systems designed to complement the macro cell network. These technologies are smaller than traditional cell sites and are deployed where suitable in flexible configurations to provide capacity and coverage to existing networks. Small cells and DAS will be used to increase coverage capacity in targeted high traffic areas and extend coverage to hard-to-reach locations.

6. The City of Portland supports the implementation of small cell and DAS infrastructure as a means to increase broadband capacity within the city. Through the Broadband Strategic Plan, the Portland Plan and the City's draft Comprehensive Plan, the City has identified broadband service and infrastructure as vital for a prosperous and vibrant community. Both fiber and wireless are technologies that work together to create this critical infrastructure. Consumer habits support the increasing importance of a mobile network. The Pew Research Center estimates that 90% of adults in the U.S. have a cell phone, and two-thirds of those adults use their phones to go online. The National Center for Health Statistics estimates that 39% of U.S. households have dropped their landline completely and only have cell phones. The Federal Communications Commission reports that about 70 % of 9-1-1 calls are placed from cell phones.

placed from cell phones.

7. Verizon Wireless advised the City that it intends to deploy small cells and DAS within the public rights-of-way in Portland in the near future. Because the technologies are relatively new and have not been previously deployed in Portland rights-of-way, the City is evaluating the technologies and the potential impact on city infrastructure.

8. The current requirements and processes for siting wireless in the right-of-way are based on "traditional" cell site technology where each wireless site operates as a complete, self-supporting unit and is comprised of longer range antennas attached to the top of an existing utility pole with supporting equipment located on the pole, vaulted in the right-of-way or located on adjacent private property. The City's current siting standards and pre-application processes do not account for these small cell and DAS technologies and equipment, and therefore do not necessarily address them in an appropriate fashion.

9. In January 2014, the City began a process of reviewing its current wireless right-of-way siting and pre-application process. Staff anticipates that the RFP contract process will be concluded sometime around the fall of 2014. At the end of that evaluation, City staff will prepare and submit recommendations to Council for permit and process amendments and improvements to the current program, including how to integrate new technologies into the current process. Implementation of these improvements will require amendments or new agreements with all wireless carriers who are currently authorized to operate within the City.

10. Verizon Wireless submitted a written request asking the City to extend and amend its right-of-way use agreement to allow for a limited pilot program for siting small cells and DAS within the public right-of-way. A copy of Verizon Wireless' letter is attached to this Ordinance as Exhibit A, and is incorporated by reference. City staff recommends the Council approve the amendments related to the limited pilot project to accommodate Verizon Wireless' interests identified in this letter.

11. In its letter to the City, Verizon Wireless indicated that it is willing to partner with the City and utility pole owners to create a limited pilot project for siting small cells and DAS on a limited basis within the City right-of-way. Under the proposed limited pilot project, the fees, locations, designs and processes for small cell and DAS installations will be determined jointly by Verizon Wireless, the City and where applicable, utility pole owners. The installations will allow the partners to gain practical understanding of the technologies and implications for the City and utility pole owners. The City will use this understanding to help inform long-term decisions about small cell and DAS installations, the role of these technologies in the public right-of-way, and potential impacts on the community.

12. The Office for Community Technology recommends that the City Council extend and amend Verizon Wireless' current agreement for three years to allow adequate time for

the review of the limited pilot program to be implemented and evaluated. City staff also recommends that the Council approve amendments to maintain consistency in right-of-way use fees, and to create a limited small cell and DAS pilot program that will allow parties to gain practical experience in small cell and DAS technologies and limited deployment.

NOW, THEREFORE, the Council directs:

a. Ordinance No. 180379 is hereby amended to extend the term of the right-of-way use agreement, continuously and without interruption, to June 30, 2017.

b. Section 1.A.3 of Ordinance No. 1803 79 shall be deleted in its entirety.

c. Section 3.A. l of Ordinance No. 184011 shall be amended by substituting the following:

1. The Minimum Annual Fee. The Minimum Annual Fee for this Agreement shall be $15,000. The Minimum Annual Fee may be applied to the Right-of-Way Use Fee, below, but the combined total of Minimum Annual and Right-of-Way Use fees shall never be less than $15,000.

d. Section 3.A.2(a) of Ordinance No. 184011 shall be amended by substituting the following:

(a) Right-of-Way Use Fee. Grantee shall pay as a Right-of-Way Use Fee $7,500 per year per Structure that has any Attached Facilities. If Attached Facilities occupy a Structure for less than one year, the amount of this Fee for that year shall be prorated at $625 per month. The Right-of-Way Use Fee is calculated from the first day of the month following the date Attached Facilities are installed on a Structure;

e. Section 3.A.2(b) of Ordinance No. 184011 shall be amended by substituting the following:

(b) The Right-of-Way Use Fee shall increase annually by 3% over the rent paid during the prior year. This increase is applicable beginning January 1, 2016 and every year thereafter for the term of this Agreement.

f. Section 6.D.1.a of Ordinance 184011 shall be amended by substituting the following:

a. Verizon Wireless shall co-locate wireless Facilities on existing buildings, water towers or tanks, or on Original or Replacement Structures in the Streets.

g. Section 6.D.b - c of Ordinance 184011 shall remain unchanged.

h. Section 6.D.3 of Ordinance 184011 shall be amended by substituting the following:

3. Replacement Structures. For purposes of this Section "Replacement Structure" shall mean a Structure that a) replaces an existing Structure or Original Structure to accommodate Facilities; and b) does not result in an increase in the total number of utility or guy poles in the Streets except as otherwise approved by the City Engineer. Facilities may be attached to Replacement Structures in the Streets, provided:

I. Sections 6.D.a e and Sections 6.D.g-h of Ordinance No. 184011 shall remain unchanged.

J. Section 6.D.3 .f of Ordinance 184011 shall be amended by substituting the following:

f. Antennas above the top of the Replacement Structure and Mounting Device. Antennas shall not project more than three (3) feet above the maximum allowable height of the Replacement Structure and mounting device. Example: A 35 foot pole on a Priority 4 Street may be replaced with a pole and mounting device, the top of which is no more than 50 feet tall, and the measurement to the top of the antennas may be no more than 53 feet.

k. Section 6.D.3.i of Ordinance No. 184011 shall be deleted in its entirety.

1. Section 6.D.4 - 7 of Ordinance No. 184011 shall be deleted and replaced with new Sections 6.D.4 - 8 as follows:

4. Notice and Meeting. In the case of Verizon Wireless Facilities not otherwise co-located with existing Facilities, and proposed in or within 400 feet of a Priority 4 Street, Grantee shall provide written notice and participate in or conduct an informational neighborhood meeting consistent with this Agreement, except where superseded by applicable rules promulgated by the City.

a. Verizon Wireless will provide written notice to residents and property owners within a 400 foot radius of the Structure to be replaced. The notice shall: clearly state the name of the wireless carrier directing the work and what work will occur; identify the Structure to be replaced and Facilities that will be added; identify when the change is scheduled to begin and end; provide a contact name and telephone number of a representative of the wireless carrier, the pole owner, and the City of Portland; provide the date, time and location of a meeting to present and discuss the changes; and be sent no less than 14 days and no more than 30 days from the meeting date. A copy of this notice shall be provided to one or more officers of the city-recognized neighborhood association, business association, Neighborhood Coalition office or its equivalent, a representative of the pole owner, and the City.

b. Verizon Wireless shall participate in or conduct a meeting in coordination with the city-recognized neighborhood association and business association where the

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1 Structure is located. The meeting shall occur at least 3 0 days before Verizon Wireless submits its application to the City to place Facilities on a Structure. If no neighborhood association or business association meeting can be arranged, the carrier shall arrange a separate meeting at reasonably convenient date, time and location for the recipients of the notice.

5. Verizon Wireless shall not locate any Facilities, such as cabinets, at grade within the Streets, but may connect its Facilities in the Streets to Facilities located on property adjacent to the Streets in accordance with applicable City Code sections and with the permission of the adjacent property owner.

6. Verizon Wireless may make excavations in the City Streets for any Facility needed for the maintenance or extension of its Mobile Telecommunications System. Subject to obtaining permits from the City. Prior to doing such work, Verizon Wireless must apply for, and obtain, appropriate permits from the City, and give appropriate notices to any franchisees, licensees, or permittees of the City, or bureaus of the City, or other units of government owning or maintaining facilities that may be affected by the proposed excavation.

7. In the event that emergency repairs are necessary for Verizon Wireless' underground Facilities in the Streets, Verizon Wireless shall immediately notify the City of the need for such repairs. Verizon Wireless may immediately initiate such emergency repairs, and shall apply for appropriate permits the next business day following discovery of the emergency. Verizon Wireless must comply with all Charter and ordinance provisions relating to such excavations or construction, including the payment of permit or license fees.

8. Locates. Verizon Wireless shall comply with the requirements of the Oregon Utility Notification Law, codified at ORS 757.542 to 757.562 and 757.993 (2011 ), and the rules and regulations promulgated thereunder.

m. Section 6.D of Ordinance 184011 shall be amended by adding a new subsection 6.D. 9 to create a limited pilot program for the installation of small cells or DAS in the right-of-way as follows:

9. Small cells and distributed antenna systems. Verizon Wireless may install and maintain small cells or distributed antenna systems (DAS) on existing Structures in the Streets. Small cells and DAS facilities are specifically excepted from Sections 3.A, 3.B, and 6.D. l - 8 of this Agreement but are otherwise subject to all other remaining terms and conditions of this Agreement. The location, design, processes, fees and any other terms and conditions for installing small cell and DAS facilities within the Streets will be determined jointly by the Office for Community Technology, Verizon Wireless, and when applicable, the utility pole owner. Verizon Wireless shall apply for and obtain all permits and permissions necessary from the City, the utility pole owners and any other required entities for the construction, installation and operation of these small cells and DAS. All

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18 5 6 0 4 construction and maintenance of these small cells and DAS shall be the responsibility ofVeriwn Wirele ss, regardless of who performs the installation or construction.

n. All other terms and conditions of Ordinance 180379, as amended by Ordinance 184011, shall remain unchanged.

o. Solely for convenient r-eference, the final, comprehensive right-of-way use agreement that incorporates the 2010 amendments from Ordinance 184011 and this Ordinance is attached as Exhibit B. In case of any conflict in terms, the original Ordinance · .180379, as amended by Ordinance No. 184011 and directives a through n above of this Ordinance, shall control.

p. On or before the thirtieth (30th) day after this ordinance becomes effective, Verizon Wireless shall file in the Office of the Auditor of the City of Portland a written acceptance of this ordinance, executed by Verizon Wireless and meeting the approval of the City Attorney. Any failure on the part of Verizon Wireless to file such written acceptance within such time shall be deemed an abandonment and rejection of this ordinance, and shall be construed to be an acceptance of all the terms contained in this ordinance.

MAY ~8 2014 Passed by the Council:

Mayor Charlie Hales Prepared by: JL/B W April 30, 2014

La Vonne Griffin-Valade Auditor of the City of Portland

By: ~~ ~ d<.\/\~\l\p-

Deputy

J )L/V

- 47e~-= 522 ~ m Agenda No.

ORDIN~NCE NOl 8 6 6 0 . 4 Title

Amend and extend term of limited right-of-way use agreement granted to Verizon Wireless (VA W) LLC 1for mobile telecommunications services (Ordinance; amend Ordinance No. 180379)

INTRODUCED BY Commissioner/Auditor: Mayor Charlie Hales

Ma or-Finance

Position 1/Utilities - Fritz

Position 2NVorks - Fish

Position 3/Affairs - Saltzman

Position 4/Safet - Novick

BUREAU APPROVAL Bureau: Revenue Bureau ~ OMF CAO: Fred Miller 1: Bureau Head: Thomas W . Lanno;n

Financial lmP,act & Public Involvement Statement Completed [;g] Amends Budget D

Portland Policy Document If "Yes" requires City Policy paragraph stated in doc nt. Yes City Auditor Office Approval: re uired for Code Ordinances

AGENDA

TIME CERTAIN D Start time: --Total amount of time needed: --(for presentation, testimony and discussion)

CONSENT D

REGULAR [;g] Total amount of time needed: 15 (for presentation, testimony and discussion)

CLERK USE: DATE FILED _MA_Y_1_6_ 20_14 __

Lavonne Griffin-Valade Auditor of the City of Portland

By: ~ ACTION TAKEN:

l fl-14 PASSED TO SECOND READING MAY 2 8 2014 9:30 A.M.

FOUR-FIFTHS AGENDA COMMISSIONERS VOTED AS FOLLOWS:

YEAS NAYS

1. Fritz 1. Fritz

2. Fish 2. Fish v 3. Saltzman 3. Sa ltzman /

4. Novick 4. Novick V" 1 Hales Hales /