ORDINANCE No. 178061  

*Grant a temporary revocable permit to AT&T Wireless Services of Oregon, Inc. and establish terms and conditions (Ordinance).

The City of Portland ordains:

Section 1.  The Council finds:

1.  The City of Portland, Oregon, an Oregon municipal corporation, (the “City”), and AT&T Wireless Services of Oregon, Inc., have reached final agreement on the terms and conditions of a three-year renewable Right-of-Way Agreement for AT&T Wireless Services of Oregon, Inc. to use the City Streets to provide wireless telecommunications services.

2.  The City will initiate the formal Portland City Charter procedure of public notice and hearing for approval of the proposed Right-of-Way Agreement. This process will begin with the publication of a notice of proposed Right-of-Way Agreement, together with the publication of the entire proposed Right-of-Way Agreement in the City’s official newspaper. The process mandated by the Portland City Charter for adopting a proposed Right-of-Way Agreement may take up to four months, or more, from the date of initial publication.

3.  AT&T Wireless Services of Oregon, Inc. has asked the City, in writing, if the City would issue a temporary, revocable permit. AT&T Wireless Services of Oregon, Inc.’s letter acknowledges that the parties have otherwise reached final agreement on Right-of-Way Agreement terms and conditions, and identifies an immediate need to obtain authority to place and maintain its wireless telecommunications facilities in the public right-of-way. AT&T Wireless Services of Oregon, Inc. has accepted that its rights under a revocable permit would end upon the permit’s expiration, if not otherwise superseded by the proposed Right-of-Way Agreement. A copy of AT&T Wireless Services of Oregon, Inc.’s letter is attached to this Ordinance as Exhibit A, and is hereby incorporated by reference

4.  The temporary, revocable permit to be issued under this Ordinance is substantially similar to the terms and conditions set forth in the proposed Right-of-Way Agreement to be entered into between the City and AT&T Wireless Services of Oregon, Inc.

NOW THERFORE, The Council directs:

a.  NATURE AND TERM OF GRANT

A.  Grant of Authority. The City grants AT&T Wireless Services of Oregon, Inc. (“AT&T”), a Nevada corporation qualified to do business in the State of Oregon, and AT&T's successors and assigns, as approved by the City of Portland under paragraph l of this Permit, a temporary, revocable permit (“Permit”) to place Attached Facilities on Structures located in the City Streets, and to construct, repair, replace, maintain and operate Attached Facilities for a Telecommunications System in, under and over the surface of City Streets. AT&T intends to use its Telecommunications System to provide Mobile Telecommunications Services. AT&T represents that it has applied for and received all necessary regulatory authority to provide Mobile Telecommunication Services.

1.  This Permit does not authorize AT&T to operate a cable system or provide video programming, as defined by 47 U.S.C.A §522, or to provide a telecommunications service as defined in ORS 759.005(2)(g).

2.  Nothing in this Permit shall preclude AT&T from entering into a contract for the use of any portion of its 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 said Person has assumed responsibility for obtaining any required authority from the City.

B.  Duration. The term of this Permit, and all rights and obligations pertaining thereto, shall be effective for either: (1) a period of only one year, as measured from its effective date; or, (2) until the City grants a Right-of-Way Agreement to AT&T and the Right-of-Way Agreement becomes effective, whichever event occurs sooner. The effective date of this Permit shall be upon passage of this ordinance by the City Council, unless AT&T fails to file an unconditional written acceptance of this Permit in accordance with paragraph p of this Permit, in which event this Permit shall thereupon be null and void. The passage date of this Permit is set forth on the last page of the original hereof, as stamped by the Council Clerk.

C.  This Permit is temporary and revocable, and no expenditure of money, lapse of time, act, event, or other occurrence shall give AT&T any rights, vested or otherwise, to occupy or use the City’s streets, or shall operate as an estoppel against, or a waiver by, the City. Upon expiration to the term of this Permit, or its revocation by the City Council, AT&T shall remove its Telecommunications System and other facilities from the City Streets, or waive its rights to such Telecommunications System and other facilities. Any such removal shall be directed by, and to the satisfaction of, the City Engineer.

D.  Permit Not Exclusive. This Permit 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 Streets for similar or different purposes allowed AT&T under this Permit, by lease, franchise, permit or otherwise.

E.  Charter and General Ordinances To Apply. To the extent authorized by law, this Permit is subject to the Charter of the City of Portland and general ordinance provisions passed pursuant thereto, affecting matters of general City concern and not merely existing contractual rights of AT&T, now in effect or hereafter made effective. Section 10-201 through 10-218, inclusive, of the Charter of the City of Portland, (1942 compilation, as revised in part by subsequent amendments), are hereby incorporated by reference and made a part of this Permit, to the extent authorized by law. Nothing in this Permit shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, fees to be paid or the manner of construction.

F.  Mutual Reservation of Rights. AT&T and City disagree on the legality of the provisions in this Permit that refer to or incorporate Charter requirements. Nothing in this Permit shall be deemed a waiver by AT&T or the City of the rights of AT&T or City under applicable law. By entering into this Permit, AT&T is not waiving its rights to seek judicial or administrative review of the provisions in this Permit and is not agreeing that the provisions in this Permit are authorized by federal, state or local law. The City reserves and in no way waives any right to enforce the requirements in this Permit during the term of this Permit and AT&T agrees to such reservation and non-waiver by the City. AT&T also reserves and in no way waives any right to challenge the enforcement of the requirements in this Permit and the City agrees to such reservation and non-waiver by AT&T.

b.  DEFINITIONS

A.  Captions. Throughout this Permit, captions to paragraphs are intended solely to facilitate reading and to reference the paragraphs and provisions of this Permit. The captions shall not affect the meaning and interpretation of this Permit.

B.  Definitions. For the purpose of this Permit, the following terms, phrases, and their derivations shall have the meanings given below unless the context indicates otherwise. 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. The word "shall" is always mandatory and not merely directory.

1.  "Permit” means this temporary revocable permit, as approved by the City Council and accepted by AT&T, according to the terms of paragraph p of this Permit.

3.  "City" means the City of Portland, Oregon, a municipal corporation, and all of the territory within its corporate boundaries, as such may change from time to time.

4.  "City Council" means the Council of the City of Portland.

5.  "AT&T" means AT&T Wireless Services of Oregon, Inc.

6.  "Facility" means capital, equipment and property, including but not limited to the optical fiber, wires, pipes, mains, conduits, ducts, pedestals, antennas, cabinets and electronic equipment located in the Streets used for transmitting, receiving, distributing, providing or offering Mobile Telecommunication Services over the spectrum of radio frequencies licensed by the Federal Communications Commission.

7.  "Attached Facility" is any Facilities affixed to a Structure except optical fiber, wires, coaxial cable and the mounting hardware used to attach optical fiber, wires, coaxial cable. Examples of an "Attached Facility" includes but is not limited to antennas, telephone boxes, power boxes, and other equipment boxes and cabinets on Structures;

8.  “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.

9.  "Mobile Telecommunications Service" means commercial mobile radio service, as defined in Section 20.3 of title 47 of the Code of Federal Regulations as in effect on June 1, 1999.

10.  “Penalties” means any and all monetary penalties provided for in this Permit.

11.  "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.

12.  "Street" or "Right-of-Way" means the surface of, and the space above and below, any public street, road, alley or highway, within the City, used or intended to be used by the general public for travel, to the extent the City has the right to allow AT&T to use them.

13.  "Structure" means any utility pole, Guy pole, utility pole extension, light standard or other similar pole in the Streets that is suitable for the installation of Facilities. An “Original Structure” is a Structure that has not been replaced to accommodate Facilities.

14.  “Telecommunications System” means all necessary Facilities owned or used by AT&T for the purpose of providing Mobile Telecommunications Services and located in, under and above City Streets, excluding ducts, conduits and vaults leased from another City franchisee, licensee, lessee or permittee.

15.  “Year”, “Annual”, or “Annually” means the period consisting of a full calendar year, beginning January 1 and ending December 31, unless otherwise provided in this Permit.

c.  COMPENSATION AND AUDITING

A.  Amount. As compensation for the benefits and privileges under this Permit, and in consideration of permission to use the Streets of the City, AT&T shall pay the following fees to the City through the duration of the Permit for the right to install Facilities on Structures in the Streets:

1.  The Minimum Annual Fee. The Minimum Annual Fee for this Permit shall be $10,000. The Minimum Annual Fee may be applied to the Right-of-Way Use Fee, below, but the combined Minimum Annual and Right-of-Way Use fees shall never be less than $10,000.

2.  (a)  The Right-of-Way Use Fee. AT&T shall pay as a Right-of-Way Use Fee $3,000 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 $250 per month. If AT&T places Attached Facilities in the first half of a month, AT&T owes the fee for the full month. If Attached Facilities are affixed in the second half of the month, the fee will not be assessed for the remainder of that month. For months with 30 or 31 days the first half of the month is through and including the fifteenth of that month. For February, regardless of leap years, the first half of the month is through and including the fourteenth day of the month. AT&T shall provide a report stating how this fee was calculated, with the report to be in a form satisfactory to the City;

(b)  The Right-of-Way Use Fee per Structure shall increase by the Consumer Price Index for Urban Age Earners and Clerical Workers for the Portland, Oregon metropolitan region for the prior year, unadjusted for seasonal variations, as determined by the Bureau of Labor Statistics of the Department of Labor. This increase is applicable beginning one year after AT&T files its acceptance in accordance with paragraph p and every year thereafter for the term of this Permit; and

3.  Installation and Application Fee. There shall be a one-time Installation and Application Fee of $2,000 for each new Site that AT&T uses for Attached Facilities. A ‘Site’ is a Base Station (a fixed location with radio equipment used to serve one or more cells) that serves Attached Facilities on up to 10 Structures. An additional Installation and Application Fee will be due for every additional 10 Attached Facilities or portion thereof.

(a)  Example: AT&T constructs a Site and places five Attached Facilities in the streets. One Installation and Application Fee is due. The following year AT&T places an additional four Attached Facilities in the streets which connect to the same base station. No new Installation and Application Fee is due because AT&T has not yet placed more than 10 Attached Facilities for this base station. The following year AT&T places an additional three Attached Facilities in the streets which connect to the same base station. One new Installation and Application Fee is due because the base station serves more than 10 Attached Facilities.

4.  Previous Occupancy Fee. This Fee only applies if AT&T has had any Attached Facilities prior to the Effective Date of this Permit. If it has, then it shall pay a Fee based only on the Right-of-Way Use Fee as stated in paragraph c.A.2(a), above, for each of those Attached Facilities.

B.  Remittance Dates. AT&T shall pay the above fees as follows:

1.  The Annual Fee shall be due and owing on the date AT&T files its acceptance in accordance with paragraph p, and on that same date every calendar year thereafter.

2.  The Right-of-Way Fee shall be due and owing on the date AT&T files its acceptance in accordance with paragraph p, and on the same date every calendar year thereafter, provided that the Right-of-Way fee for Facilities that are installed after the Right-of-Way Fee has been paid for a calendar year, shall include the pro-rated payment plus the next calendar year’s payment.

3.  The Installation and Application Fee shall be due and owing when plans are submitted to the City for approval.

4.  The Previous Occupancy Fee shall be due and owing on the date AT&T files its acceptance in accordance with paragraph p.

C.  Late Payments: Any payment not paid when due shall be subject to a delinquency penalty charge of five percent (5%) of the unpaid amount. Failure to make full payment and penalty charges within sixty (60) days of the applicable payment date shall constitute a violation of this Permit. In addition, all overdue amounts, including penalty charges, shall bear interest, until paid, at the rate of one percent (1%) per month.

D.  Acceptance of Payment and Recomputation.

1.  No acceptance of any payment made by AT&T shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the City may have for further or additional sums payable. All amounts paid under paragraph c shall be subject to confirmation and recomputation by the City, provided that such audit and computation is completed within three (3) years of the date any audited and recomputed payment is due. If no such audit or financial review is conducted within the three (3) year period, then any claim that the City might have had for additional compensation shall be forever waived and relinquished. AT&T agrees to reimburse the City for:

a.  The reasonable costs of such confirmation if the City's recomputation discloses that AT&T had paid 95% or less of the Permit fees owing for the period at issue upon receipt of an invoice from the City showing such costs were actually incurred and directly related to the audit.

b.  One-half of the reasonable costs of such confirmation if the City's recomputation discloses that AT&T had paid more than 95% but less than 98% of the Permit fees owing for the period at issue.

c.  The City's costs which may be reimbursed under this Paragraph shall not exceed $5,000.00 per audit or financial review.

d.  If the City determines that AT&T made any underpayment, and that the underpayment exceeded 5% of the amount due, AT&T shall pay late fees pursuant to paragraph c.C, above.

e.  If AT&T disputes the City's determination of underpayment, AT&T shall immediately place the disputed amount in an escrow account until final resolution.

2.  The City and its agents and representatives shall have authority to arrange for and conduct reviews of AT&T’s records pertaining to this Permit including those for Facilities AT&T installed on structures in City rights-of-way and AT&T’s performance bond and insurance policy as required in this Permit. The City may determine the scope of review in each instance. All amounts paid by AT&T shall be subject to review by the City, provided that such review be completed within three (3) years from the date payment was due. City requests for reviews shall be in writing. If AT&T has not provided copies of all information reasonably within the scope of the review to the City within 30 days from the date of the written request, AT&T shall provide access within the Portland metropolitan region, during normal business hours, upon 48 hours prior written notice. If the City requests in writing that AT&T provide, or cause to be provided, copies of any information reasonably within the scope of the review, and AT&T fails within 30 days of receipt of the request to provide, or cause to be provided, such information, then the three (3) year period shall be extended by one day for each day or part thereof beyond 30 days that AT&T fails to provide, or fails to cause to be provided, such requested information.

E. Cost of Pre-Right-of-Way Agreement negotiations and Publication. AT&T has paid the City Five thousand Dollars ($5,000) for the City’s pre-Agreement costs, including publication of the Agreement, as such publication is required by the City Charter.

d.  GENERAL INSURANCE AND BONDING PROVISIONS

A.  Insurance.

1.  AT&T shall maintain commercial general liability insurance that protects the AT&T and the City, as well as the City's officers, agents, and employees, from the claims referred to in paragraph f. The insurance shall provide coverage at all times of not less than $200,000 for personal injury to each person, $500,000 for each occurrence, and $50,000 for each occurrence involving property damages, plus costs of defense; or a single limit policy of not less than $500,000 covering all claims per occurrence, plus costs of defense. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the State of Oregon during the term of this Permit. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing in this paragraph d.A.1 shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not be canceled or materially altered without thirty (30) days prior written notice first being given to the City Auditor. If the insurance is canceled or materially altered within the term of this Permit, AT&T shall provide a replacement policy with the same terms. AT&T shall maintain continuous uninterrupted coverage, in the terms and amounts required, upon and after the effective date of this Permit.

2.  AT&T shall maintain on file with the City Auditor a certificate of insurance certifying the coverage required above. The certificate of insurance shall be subject to the approval as to form by the City Attorney.

3.  In the alternative to providing a certificate of insurance to the City, certifying liability insurance coverage as required in this Paragraph, AT&T may provide the City with a statement regarding its self-insurance. AT&T's self-insurance shall provide at least the same amount and scope of coverage for AT&T and the City, its officers, agents and employees, as otherwise required under this Paragraph. The adequacy of such self-insurance shall be subject to the approval as to form by the City Attorney. Upon AT&T's election to provide self-insurance coverage under this paragraph d.A.3, any failure by the AT&T to maintain adequate self-insurance shall be a material violation of this Permit.

B.  Faithful Performance Bond.

1.  Upon the effective date of this Permit, AT&T shall furnish proof of the posting of a faithful performance bond running to the City, with good and sufficient surety approved by the City, in the penal sum of ten thousand dollars ($10,000), conditioned that AT&T shall well and truly observe, fulfill, and perform each term and condition of this Permit. AT&T shall pay all premiums charged for the bond, and shall keep the bond in full force and effect at all times throughout the term of this Permit, including, if necessary, the time required for removal of all of AT&T's Facilities installed in the City's Streets. The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire without thirty (30) days prior written notice first being given to the City Auditor. The bond shall be subject to the approval as to form by the City Attorney.

2.  During the term of this Permit, AT&T shall file with the City Auditor a duplicate copy of the bond along with written evidence of payment of the required premiums. However, in no event shall the City exercise its rights against the performance bond under paragraph d.B if a bona fide, good faith dispute exists between the City and the AT&T.

C.  Construction Bond. During all times when AT&T is performing any construction work in or under the Streets requiring a street opening permit, AT&T shall post a faithful performance bond or irrevocable letter of credit, as is required for street opening permits, running to the City, with good and sufficient surety approved by the City, in the sum of ten thousand dollars ($10,000). The bond or letter of credit shall be conditioned that the AT&T shall well and truly observe, fulfill and perform each term and condition under paragraph f. AT&T shall pay all premiums or other costs associated with maintaining the bond or letter of credit, and shall keep the same in full force and effect at all times during the construction work. The bond or letter of credit shall provide that it may be terminated upon final approval of AT&T's construction work in or under the Streets by the City Engineer which shall not be unreasonably withheld or delayed. Upon such approval, the City agrees to sign all documents necessary to release the bond in accordance with the terms of this Paragraph. During the duration of the construction work, AT&T shall file with the City Auditor a copy of the bond or letter of credit, along with written evidence of the required premiums. The bond or letter of credit shall be subject to the approval as to form by the City Attorney.

e.  COVENANT TO INDEMNIFY AND HOLD THE CITY HARMLESS

A.  General Indemnification. AT&T hereby agrees and covenants to indemnify, defend and hold the City, its officers, agents and employees, harmless from any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorney fees or expenses, arising from any casualty or accident to person or property by reason of any construction, excavation or any other act done under this Permit, by or for AT&T, its agents or employees, or by reason of any neglect or omission of AT&T to keep its Facilities in a safe condition, but not if arising out of or by reason of any negligence or willful misconduct by the City, its officers, agents or employees. The City shall provide AT&T with prompt notice of any such claim, which AT&T shall defend with counsel of its own choosing and no settlement or compromise of any such claim will be done by the City without the prior written approval of AT&T. AT&T and its agents, contractors and others shall consult and cooperate with the City while conducting its defense of the City.

B.  Relocation Indemnification. AT&T also hereby agrees to indemnify the City for any damages, claims, additional costs or expenses assessed against or payable by the City arising out of or resulting, directly or indirectly, from AT&T's failure to remove, adjust or relocate any of its Facilities in the City Streets in a timely manner in accordance with a relocation schedule furnished to AT&T by the City Engineer under this Permit, unless AT&T's failure arises directly from the City's negligence or willful misconduct.

f. CONSTRUCTION, REPLACEMENT, REPAIRS AND MAINTENANCE

A.  Permits. AT&T shall apply for and obtain all permits necessary for the construction, installation and operation of its Facilities in the Streets. AT&T shall pay all applicable fees due for City construction permits. All construction and maintenance of any and all AT&T’s Facilities within the Streets incident to AT&T's provision of Mobile Telecommunications Services shall, regardless of who performs installation and/or construction, be and remain the responsibility of AT&T.

B.  Installation of Equipment. AT&T's Facilities shall be installed and maintained in accordance with the laws of the State of Oregon and the ordinances and standards of the City regulating such construction.

C.  Common Users. AT&T's Facilities shall be attached to Structures located within the Streets. AT&T shall also allow and encourage other wireless carriers to co-locate facilities on Structures with AT&T's Facilities, provided such co-location does not interfere with AT&T's Facilities or jeopardize the physical integrity of the Structure and provided the owner of the Structure consents to such co-locations.

D.  Scale of Facilities. This paragraph f.D establishes standards for attaching Facilities to Structures in the Streets in a manner that minimizes the Facilities' potential incompatibility with adjacent uses. Nothing in this paragraph f.D modifies or supercedes other City requirements for these Facilities, such as Title 33 of the Portland City Code, also known as the Zoning Code.

1.  Original Structures. Facilities may be attached to Original Structures in the Streets, provided:

a.  Facilities do not jeopardize the physical integrity of the Structure;

b.  Three sector arrays, also known as triangular "top hat" style antenna mounts, are prohibited;

c.  The device used to mount the Facilities does not project more than ten (10) feet above the Structure;

d.  Antennas will be mounted flush with the device referenced in paragraph f.D.1.c or the existing structure, within a unicell-style top cylinder, or on davit arms that are no greater than five (5) feet in length as measured from the center of the Structure.

e.  The visual impacts of any Facilities located in the Streets must be minimized by utilizing the smallest antennas, equipment and equipment cabinets available that will satisfy engineering requirements and the service objectives of the site. Whenever possible, Facilities shall be painted or otherwise treated architecturally so as to minimize visual impacts.

f.  All antennas, cabling, mounting hardware and associated microcell/equipment cabinets mounted on an Original Structure must be painted to match the color of the Structure. If cabinets require a special heat-reducing paint finish, they must be a neutral color such as beige, off-white, or light gray.

g.  The Original Structure is not replaced with a taller Structure, except as authorized in paragraph f.D.2.

2.  Replacement Structures. For purposes of this Paragraph "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, guy or support poles in the Streets. Facilities may be attached to Replacement Structures in the Streets, provided:

a.  The Replacement Structure is of sufficient integrity to support the Facilities;

b.  The requirements of paragraph f.D.1.b, e and f are met;

c.  The device used to mount the Facilities does not project more than ten (10) feet above the top of the Replacement Structure;

d. Antennas will be mounted flush with the Replacement structure, within a unicell-style top cylinder, or on davit arms that are no greater than five (5) feet in length as measured from the center of the Structure.

e.  In Streets designated by current Official Zoning Maps of Title 33, Portland City Code, with a base zone of either R (residential) or OS (open space), any Replacement Structure, and any subsequent Replacement Structures, must never be more than ten (10) feet taller than the Original Structure. In general, street centerlines are also the established boundaries for base zones, but the AT&T must consult the current zoning map to determine the base zone in which a Replacement Structure will be installed;

i. When the Original Structure is a Guy Pole, the height of the Original Structure may be increased by the lesser of either a) twenty feet over the existing height of the Guy Pole; or b) ten feet over the height of the Structure the Guy Pole supports. For example, a 20 foot Guy Pole supporting a 30 foot utility pole may be extended to 40 feet when the Guy Pole is in an R or OS base zone.

f.  In Streets designated by current Official Zoning Maps of Title 33, Portland City Code, with a base zone other than R or OS, any Replacement Structure, and any subsequent Replacement Structures, is no more than twenty (20) feet over the height of the Original Structure.

i. If the structure being replaced is a Guy pole it may be up to twenty (20) feet taller than the height of a structure that a Guy Pole supports. In general, street centerlines are also the established boundaries for base zones, but the AT&T must consult the current zoning map to determine the base zone in which a Replacement Structure will be installed; and

g.  The Replacement Structure is no taller than eighty (80) feet.

3.  AT&T 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 codes and with the permission of the adjacent property owner.

4.  AT&T 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, AT&T 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 which may be affected by the proposed excavation.

5.  In the event that emergency repairs are necessary for AT&T's underground Facilities in the Streets, AT&T shall immediately notify the City of the need for such repairs. AT&T may immediately initiate such emergency repairs, and shall apply for appropriate permits the next business day following discovery of the emergency. AT&T must comply with all Charter and ordinance provisions relating to such excavations or construction, including the payment of permit or license fees.

6.  Locates. AT&T shall comply with the requirements of the Oregon Utility Notification Law (ORS 757.542 to 757.562 and 757.993 (2001)) and the rules and regulations promulgated thereunder.

E.  Relocation.

1.  The City shall have the right to require AT&T to change the location of its Facilities in the Streets when the public convenience requires such change, and the expense thereof shall be paid solely by AT&T. The City shall provide AT&T with the standard notice given under the circumstances to other Leasees, franchisees, licensees, or permittees. Should AT&T fail to remove or relocate any such Facilities by the date established by the City, the City may cause and/or effect such removal or relocation, and the expense thereof shall be paid by AT&T, including all expenses incurred by the City due to AT&T's delay. If the City requires AT&T to relocate its facilities located within the City's Streets, the City will make a reasonable effort to provide AT&T with an alternate location for its facilities within the City's Streets.

2.  The provisions of this Paragraph f.E. shall in no manner require or preclude AT&T from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity, other than the City where the Facilities to be constructed by said person or entity are not or will not become City owned, operated or maintained Facilities.

F.  Record of Installations.

1.  On the date AT&T files its acceptance in accordance with paragraph p, and annually thereafter, in the event any new Facilities are constructed or any existing Facilities are relocated, AT&T shall provide to the City's Office of Cable Communications and Franchise Management, or its successor, a list that identifies the location of AT&T's Facilities in the Streets. In addition, AT&T shall file a Radio Frequency Transmission Facility Registration Form, made available by the City, for each existing and new Facility that is installed on Structures in the Streets. For existing Facilities, the form shall be filed on the date AT&T files its acceptance in accordance with paragraph p, and every two years thereafter. For new Facilities, the form shall be filed within ten (10) days of the date the Facility is attached to the Structure in the City Streets, and every two years thereafter.

2.  Within thirty (30) days following AT&T's acquisition of any Facilities in the Streets, or upon any addition or annexation to the City of any area in which AT&T retains any such Facilities in the Streets, AT&T shall 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 AT&T shall immediately be subject to the terms of this Permit, within a reasonable period of time to bring such acquired Facilities into compliance with this Permit.

3.  Radio frequency emission levels. All existing and proposed Radio Frequency Transmission Facilities are prohibited from exceeding or causing other facilities to exceed the radio frequency emission standards specified in Part 1, Practice and Procedure, Title 47 of the Code of Federal Regulations, Section 1.1310, Radio Frequency Radiation Exposure Limits.

G.  Restoration After Construction. AT&T shall, after construction, maintenance or repair of Facilities, leave the Streets in as good or better condition in all respects as it was before the commencement of such construction, maintenance or repairs, excepting normal wear and tear. AT&T agrees to promptly complete restoration work and to promptly repair any damage caused by such work at its sole cost and expense. When any opening is made by AT&T in a hard surface pavement in any Street, AT&T shall promptly refill the opening and restore the surface to a condition satisfactory to the City Engineer, in accordance with standards developed and adopted by the City Engineer. All excavations made by AT&T in the Streets shall be properly safeguarded for the prevention of accidents. All of AT&T's work under paragraph f shall be done in strict compliance with all applicable rules, regulations and ordinances of the City.

H.  Tree Pruning.

1.  After obtaining a written permit from the City Forester, AT&T may prune or cause to be pruned, using proper arboricultural practices in accordance with such permit, any tree in or overhanging the Streets which interferes with AT&T's Facilities. Permit requirements for pruning are located in Portland City Code Chapter 20.40, or by contacting the City Forester's Office. Except in emergencies, AT&T may not prune trees at a point below 30 feet above sidewalk grade until one week after written notice has been given to the owner or occupant of the premises abutting the Street in or over which the tree is growing. For the purposes of this paragraph f.H, an emergency exists when it is necessary to prune to protect the public from imminent danger. The owner or occupant of the premises abutting the Street shall have seven days from receipt of AT&T's notice to prune such tree at his or her own expense. If the owner or occupant fails to do so, AT&T may prune such tree at its own expense.

2.  The City Forester may, at his or her own discretion, waive the notification and permit process in the case of single trees, if AT&T adequately demonstrates to the City Forester's satisfaction the ability to consistently apply proper arboricultural practices to the pruning of trees. Before any tree trimming permit may be issued, any contractor to be used by AT&T shall be subject to the approval of the City Forester. The City Forester shall have the discretion to cancel the permit if, at any time, the AT&T or its agents, fails to use proper arboricultural practices.

g.  RESERVATION OF CITY STREET RIGHTS

Nothing in this Permit shall be construed to prevent the City from constructing sewers, grading, paving, repairing and/or altering any Street or laying down, repairing or removing water mains or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as to not obstruct, injure or prevent the unrestricted use and operation of the AT&T’s Facilities in the Streets. However, if any of the AT&T’s Facilities interfere with the construction or repair of any Street or public improvement, including construction, repair or removal of a sewer or water main, the AT&T's Facilities shall be removed or replaced in the manner the City shall direct in accordance with paragraph f.E; provided, however, the City will cooperate with the AT&T to identify alternate locations within the Streets. Any and all such removal or replacement shall be at the expense of the AT&T. Should AT&T fail to remove, adjust or relocate its Facilities by the date established by the City Engineer's written notice to AT&T, the City may cause and/or effect such removal, adjustment or relocation, and the expense thereof shall be paid by AT&T, including all costs and expenses incurred by the City due to AT&T's delay.

h.  STREET VACATION

If any Street or portion thereof used by AT&Tis vacated by the City during the term of this Permit, unless the City Council specifically reserves to AT&T the right to continue its installation in the vacated Street, AT&T shall, without expense to the City, forthwith remove its Facilities from such Street, and restore, repair or reconstruct the Street where such removal has occurred, and place the Street in such condition as may be required by the City Council which shall be no better than the condition of such Street immediately prior to removal. In the event of any failure, neglect or refusal of AT&T, after thirty (30) days' notice by the City, to repair, improve or maintain such Street, the City may do such work or cause it to be done, and the direct cost thereof, as found and declared by the City Council, shall be entered in the Docket of City Liens against any property of AT&T which City may choose, and such lien shall be enforced in like manner and with like effect as other liens entered in such docket. The City shall cooperate with AT&T to identify alternative locations within the Streets.

i.  MAINTENANCE OF FACILITIES

AT&T shall provide and put in use all Facilities necessary to control and carry AT&T's Mobile Telecommunications Services so as to prevent injury to the City's property or property belonging to any Person within the City. AT&T, solely at its own expense, shall repair, renew, change and improve said Facilities from time to time as may be necessary to accomplish this purpose. AT&T shall not construct its 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 City's Streets.

j.  DISCONTINUED USE OF FACILITIES

A.  Whenever AT&T intends to discontinue use of its Facilities within all or part of a particular portion of the Streets and does not intend to use said Facilities again for six months, AT&T shall submit to the City Engineer for the City Engineer's approval a completed application describing the Facility and the date on which AT&T intends to discontinue using the Facility. AT&T may remove the Facility or request that the City permit it to remain in place. If AT&T is permitted to abandon its Facilities in place, upon consent of the City, the ownership of Facilities in the Streets shall transfer to the City and AT&T shall have no further obligation or liability therefor. Notwithstanding AT&T's request that any such Facility remain in place, the City Engineer may require AT&T to remove the Facility from the Streets or modify the Facility in order to protect the public health and safety or otherwise serve the public interest. The City Engineer may require AT&T to perform a combination of modification and removal of the Facility; provided, however, that AT&T may elect to remove its Facility entirely in the event the City requests any modification. AT&T shall complete such removal or modification in accordance with a reasonable schedule set by the City Engineer. Until such time as AT&T removes or modifies the Facility as directed by the City Engineer, or until the rights to and responsibility for the Facility are accepted by another person having authority to construct and maintain such Facility, AT&T shall be responsible for all necessary repairs and relocations of the Facility, as well as maintenance and restoration of the Streets, in the same manner and degree as if the Facility were in active use, and AT&T shall retain all liability for such Facility.

B.  If AT&T discontinues use of Facilities on a Replacement Structure, and that Replacement Structure is taller than the Original Structure, AT&T will return the Replacement Structure to its original height. In the alternative, after proper notice pursuant to this Permit, AT&T may request, and the City may grant at its discretion, a waiver from this requirement. If the City requests that the Structure be replaced with a Structure of the original height, the City shall give AT&T at least ninety (90) days to replace the Structure.

k.  HAZARDOUS SUBSTANCES:

A.  Compliance. AT&T shall comply with all applicable state and federal laws, statutes, regulations and orders concerning Hazardous Substances relating to AT&T’s Mobile Telecommunications System in the Streets. For purposes of this Paragraph, “Hazardous Substances” shall have the meaning given by ORS 465.200(15) (2001).

B.  Maintenance and Inspection. AT&T shall maintain and inspect its Facilities located in the Streets. Upon reasonable notice to AT&T and in the presence of an authorized representative of AT&T, the City may inspect AT&T's Facilities in the Streets to determine if any release of Hazardous Substances has occurred, or may occur, from or related to AT&T’s Telecommunications System.

C.  Remediation. In removing or modifying AT&T's Facilities as provided in this Permit, AT&T shall also remove all residue of Hazardous Substances in compliance with applicable environmental clean-up standards related thereto. Upon request, the City shall provide AT&T with information within the City's possession which identifies potentially responsible parties for the purposes of recovering such removal costs.

D.  Indemnification. AT&T agrees to forever indemnify the City against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the City arising out of the release or threat of release of Hazardous Substances caused by AT&T’s ownership or operation of Facilities in the Streets.

l.  CITY'S WRITTEN CONSENT REQUIRED FOR ASSIGNMENT, TRANSFER, MERGER, LEASE OR MORTGAGE

A.  Consent. Except as otherwise permitted by paragraph l.B. and except to entities that control, are controlled by, or are under common control with the AT&T, neither this Permit nor any of AT&T’s Facilities located in the Streets by authority of this Permit shall be sold, leased, mortgaged, assigned, merged or otherwise transferred without the prior written consent of the City as expressed by ordinance, which consent shall not be unreasonably withheld. AT&T shall give written notice to the City of any transfers to entities under common control within ten (10) days of such transfers. The City’s granting of consent in one instance shall not render unnecessary any subsequent consent in any other instance. Nothing contained in this paragraph l.A shall be deemed to prohibit the mortgage, pledge, or assignment of tangible assets of AT&Ts Telecommunications System for the purpose of financing the acquisition of equipment for or the construction and operation of AT&T’s Telecommunications System, within or outside the City, without the City’s consent, but any such mortgage, pledge or assignment shall be subject to the City’s other rights contained in this Permit.

1.  In determining whether the City will consent to any sale, lease, mortgage, assignment, merger or transfer, the City may inquire into the technical, legal, and financial qualifications of the prospective party. AT&T shall assist the City in any such inquiry. The City may condition any sale, lease, mortgage, assignment, merger or transfer upon such conditions related to the technical, legal, and financial qualifications of the prospective party to perform according to the terms of this Permit, as it deems appropriate. The City shall not unreasonably delay or withhold its consent to any such sale, lease, mortgage, assignment, transfer or merger.

2.  No sale, lease, mortgage, assignment, transfer or merger for which the City’s consent by ordinance is required may occur until the successor, assignee or lessee has complied with the requirements of paragraph d, including, but not limited to, providing certificates of insurance, unless the City Council waives such compliance by ordinance. Within ten (10) days after execution and delivery of any instrument so consented to by the City, AT&T shall file with the Auditor an executed counterpart or certified copy thereof.

B.  Transfers Without Consent in Ordinary Course of Business. AT&T shall not lease any of its Facilities without the City’s prior consent as expressed by ordinance. However, and notwithstanding paragraph l.A, hereof, AT&T may lease any portion of its Facilities in the ordinary course of its business without otherwise obtaining the City’s consent by ordinance, so long as AT&T remains solely responsible for locating, servicing, repairing, relocating or removing such Facilities. A lessee of AT&T’s Facilities shall not obtain any rights under this Permit. For the purposes of this Subparagraph, a capital lease shall be treated as a lease under this Subparagraph until the conclusion of the lease, when transfer of ownership occurs. At that point in time, the capital lease shall be treated as a sale under paragraph l.B.1.

1.  Notwithstanding paragraph l.A.1, AT&T may sell portions of its Facilities in the ordinary course of its business, without otherwise obtaining the City’s consent by ordinance, so long as AT&T complies with the following conditions:

a.  The sale is to the holder of a current existing, valid telecommunications or mobile telecommunications right-of-way agreement, franchise or permit with the City.

b.  Within fourteen days of the sale being executed and becoming final, AT&T shall provide written notice to the City, describing the Facilities sold by the AT&T, identifying the purchaser of the Facilities, the location of the Facilities (in accordance with the requirements of paragraph f.F.1), and providing an executed counterpart or certified copy of the sales documents.

c.  AT&T remains solely responsible for locating, servicing, repairing, relocating or removing its remaining Facilities.

d.  Within fourteen days of the sale being executed and becoming final, the purchaser of such Facilities shall file written notice to the City that it has assumed sole responsibility for locating, servicing, repairing, relocating or removing the purchased Facilities under the purchaser’s current, existing valid telecommunications or mobile telecommunications agreement, franchise, permit or lease. The purchaser shall not obtain any of the AT&T’s rights under this Permit.

m.  REVOCATION

A.  Revocation. In addition to any other rights set out elsewhere in this Permit, the City reserves the right to declare a revocation of the Permit, and all of AT&T’s rights arising thereunder, in the event that:

1.  The AT&T violates any material provision of the Permit.

a.  For purposes of this Paragraph, the following are material provisions of this Permit, allowing the City, without limitation, to exercise its rights under this Paragraph or as set forth elsewhere in this Permit:

(1)  The invalidation, failure to pay or any suspension of AT&T’s payments of Fees to the City for use of the Streets under this Permit;

(2)  Any failure by the AT&T to submit timely reports regarding the calculation of its Permit Fees to the City;

(3)  Any failure by AT&T to maintain the liability insurance required under this Permit;

(4)  Any failure by AT&T to maintain the performance bond required under this Permit;

(5)  Any failure by AT&T to otherwise fully comply with the requirements of paragraphs c through p of this Permit.

2.  The AT&T is found by a court of competent jurisdiction to have practiced any fraud or deceit upon the City.

3.  There is a final determination that AT&T has failed, refused, neglected or is otherwise unable to obtain and/or maintain any permit required by any federal or state regulatory body regarding AT&T’s operation of its Mobile Telecommunications System or Services within the City.

B.  Additional Remedies. In addition to any rights set out elsewhere in this Permit, as well as its rights under the City Code, the City reserves the right at its sole option to apply any of the following, alone or in combination:

1.  Impose a financial penalty of up to $1,000.00 per violation;

2.  Suspend AT&T's rights under this Permit, until AT&T corrects or otherwise remedies the violation;

3.  Revocation. The City Council or AT&T may revoke this Permit in the event that any provision becomes invalid or unenforceable and the City Council or AT&T expressly finds that such provision constituted a consideration material to the Permit. The City or AT&T shall exercise its revocation rights under this subparagraph by providing 30 days written notice prior to the effective date of the revocation, and an opportunity to renegotiate acceptable provisions in accordance with paragraph n.

C.  Determination of Remedy. In determining which remedy or remedies are appropriate, the City shall 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 such violations, and any other matters the City deems appropriate.

D.  Notice and Opportunity to Cure. The City shall give AT&T thirty (30) day’s prior written notice of its intent to exercise its rights under this Paragraph, stating the reasons for such action. If AT&T cures the stated reason within the thirty (30) day notice period, or if the AT&T initiates efforts satisfactory to the City to remedy the stated reason and the efforts continue in good faith, the City shall not exercise its remedy rights. If AT&T fails to cure the stated reason within the thirty (30) day notice period, or if the AT&T does not undertake and/or maintain efforts satisfactory to the City to remedy the stated reason, then the City Council may impose any or all of the remedies available under this Paragraph. However, in no event shall the City exercise its rights under this Paragraph if a bona fide, good faith dispute exists between the City and AT&T.

n.  RENEGOTIATION

In the event that any provision of this Permit becomes invalid or unenforceable and the City Council or AT&T expressly finds that such provision constituted a consideration material to entering into this Permit, the City and AT&T may mutually agree to renegotiate the terms of this Permit. 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 90 days to conduct and complete the renegotiation. If both parties agree to renegotiations under this Paragraph, the parties shall proceed in good faith and in a manner that is reasonable under the circumstances.

o.  MISCELLANEOUS

A.  Compliance with Laws.

1.  Both AT&T and the City shall comply with all applicable federal and state laws.

2.  AT&T shall comply with all applicable City ordinances, resolutions, rules and regulations adopted or established pursuant to the City’s lawful authority.

B.  Severability. If any Paragraph, provision or clause of this Permit is held by a court of competent jurisdiction to be invalid or unenforceable, or is preempted by federal or state laws or regulations, the remainder of this Permit shall not be affected.

C.  Regulation and Nonenforcement by the City. The City Council shall be vested with the power and authority to reasonably regulate the exercise of the privileges permitted by this Permit in the public interest. AT&T shall not be relieved of its obligations to comply with any of the provisions of this Permit 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 Permit by reason of such failure or neglect.

D.  Force Majeure.

1.  For purposes of this paragraph o.D, the term Force Majeure shall mean acts of God, landslides, earthquakes, lightning, fires, hurricanes, volcanic activity, storms, floods, washouts, droughts, civil disturbances, acts of terrorism or of the public enemy, partial or entire failure of utilities, 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 AT&T is wholly or partially unable to carry out its obligations under this Permit as a result of Force Majeure, AT&T shall give the City prompt notice of such Force Majeure, describing the same in reasonable detail, and AT&T’s obligations under this Permit, other than for the payment of monies due, shall not be deemed in violation or default for the duration of the Force Majeure. AT&T agrees to use its best efforts to remedy as soon as possible, under the circumstances, AT&T’s inability, by reason of Force Majeure, to carry out its responsibility and duties under this Permit.

E.  Choice of Forum. Any litigation between the City and AT&T arising under or regarding this Permit shall occur, if in the state courts, in the Multnomah County Court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the District of Oregon.

F.  Notice. Any notice provided for under this Permit shall be sufficient if in writing and (1) delivered personally to the following addressee, (2) deposited in the United States mail, postage prepaid, certified mail, return receipt requested, (3) sent by overnight or commercial air courier (such as Federal Express), or (4) sent by facsimile transmission addressed as follows, or to such other address as the receiving party hereafter shall specify in writing:

1.  If to the City:  Office of Cable Communications and Franchise Management

City of Portland, Oregon

1120 SW 5th Avenue, Room 1305

Portland, Oregon 97204

FAX (503) 823-5370

With a copy to:  City Attorney’s Office

City of Portland

Room 430, City Hall

1221 SW 4th Avenue

Portland, Oregon 97204

FAX (503) 823-3089

2.  If to AT&T:  AT&T Wireless Services, Inc.

Attn: Lease Management Department

2729 Prospect Park Drive

Rancho Cordova, CA 95670

Telephone 1-800-890-9038

Fax 1-916-636-2723

 With a copy to:  AT&T Wireless Services, Inc.

Attn: Daniel Smith

Legal Department

8645 154^th Street, N.E.

Redmond, WA 98052.

Telephone 1-425-580-5629

Fax 1-425-580-8900

3.  Any such notice, communication or delivery shall be deemed effective and delivered upon the earliest to occur of actual delivery, three (3) business days after depositing in the United States mail as aforesaid, one (1) business day after shipment by commercial air courier as aforesaid or the same day as facsimile transmission (or the first business day thereafter if faxed on a Saturday, Sunday or legal holiday).

G.  Confidential Records. AT&T may identify information submitted to the City as confidential. Prior to submitting such information to the City, AT&T shall prominently mark in conspicuous letters any information with the word "Confidential." The City shall 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. Within ten (10) working days of receiving any such request, the City shall provide AT&T with written notice of the request, including a copy of the request. AT&T shall 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 AT&T submits any written response to the City, the City shall retain the final discretion to determine whether to release the requested confidential information, provided the City shall give AT&T at least ten (10) working days written notice after receipt of any response from AT&T prior to releasing such information. AT&T 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.

H.  Public Records.

1.  Some information submitted by the AT&T to the City may be relevant to the AT&T’s obligation to pay Permit fees or Compensation. Requiring such information to be submitted to the City in order to determine fees or Compensation payable or paid to the City may qualify such information as being exempt from public disclosure under ORS 192.501(5) (2001) of the Oregon Public Records Law.

2.  Some information submitted by the AT&T to the City may otherwise be used to conduct its business and known to certain individuals within the organization, with actual or potential commercial value, and giving AT&T a business advantage over its competitors. Such information may constitute trade secrets and be exempt from public disclosure under ORS 192.501(2) (2001) of the Oregon Public Record Law.

3.  Identification of these exemptions under the Oregon Public Records Law, which may apply to information submitted by the AT&T to the City, is not an exhaustive list of those possibly applicable to such information.

I.  Permit Amendment. The City has negotiated this Permit in good faith, in reliance upon the information provided by the AT&T regarding the scope of its authority to offer the Mobile Telecommunications Services described in paragraph b.B.9 above. In the event that AT&T actually receives authority to offer telecommunications services outside the scope of this Permit, or otherwise begins offering telecommunications services outside the scope of those identified in paragraph b.B.9, AT&T shall immediately notify the City. Within 90 days of receiving such notice, the City may either enter into negotiations with the AT&T to revise or amend this Permit to reflect such changed circumstances, or may proceed with early termination of this Permit. The parties will negotiate in good faith to revise the Permit to authorize the expanded scope of services.

J. Interference. AT&T shall, 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 at any time during AT&T's occupancy of the transmission location, it is determined by the Portland Bureau of Technology Services ("BTS") that AT&T's transmission facilities are negatively impacting the City's communication facilities, AT&T agrees to cooperate with BTS in addressing the negative impact. AT&T 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 AT&T in installing a temporary replacement facility so as to avoid disruption of AT&T's service.

K.  Release of Claims. The City hereby releases all claims to compensation it may have against AT&T associated with AT&T’s placement of Facilities in the Streets prior to the effective date of this Permit, provided that this release does not relieve AT&T of its obligation to pay the Previous Occupancy Fee and to comply with all other terms and conditions of this Permit for all Facilities and Attached Facilities in the Streets.

p.  WRITTEN ACCEPTANCE

On or before the thirtieth (30th) day after this ordinance becomes effective, AT&T shall file in the Office of the Auditor of the City of Portland a written acceptance of this ordinance, executed by the AT&T, subject to the approval as to form by the City Attorney. Any failure on the part of AT&T to file such written acceptance within such time shall be deemed an abandonment and rejection of the rights and privileges conferred hereby and this ordinance shall thereupon be null and void. Such acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions and restrictions contained in this ordinance.

q.  OTHER AUTHORITY SUPERSEDED:

Upon effectiveness of this Permit, any and all authority to operate Facilities or Attached Facilities in the Streets previously granted to AT&T by the City shall be superseded by this Permit.

Section 2.  The Council declares that an emergency exists because the general public welfare will be served by AT&T being authorized to immediately expand its telecommunications system and operations without delay and introduce further competition into the marketplace for telecommunications services; therefore, this ordinance shall be in full force and effect from and after its passage by the Council.

Passed by the Council: December 3, 2003      Gary Blackmer

Commissioner Randy Leonard        Auditor of the City of Portland

Soloos/Walters            By /S/Susan Parsons

November 25, 2003                    Deputy

BACKING SHEET INFORMATION

AGENDA NO. 1373-2003

ORDINANCE/RESOLUTION/COUNCIL DOCUMENT NO. 178061