City Council

March 20, 2017 STATE OF ALABAMA, LIMESTONE COUNTY, CITY OF ATHENS. The City Council of the City of Athens, Alabama met in regular session at the Athens Municipal Building, 200 Hobbs Street West in the said City on March 20, 2017, at 5:30 p.m. The meeting was called to order by Councilman Joseph Cannon, President of the Council. Upon roll call the following were found to be present: Councilmember Chris Seibert, Harold Wales, Frank Travis, Joseph Cannon and Wayne Harper. Mayor Marks lead the Pledge of Allegiance. Annette Barnes, City Clerk, was present and recorded the minutes of the meeting. Harold Wales offered the invocation. The Chairperson stated that a quorum was present and that the meeting was open for transaction of business. The Chairperson stated that the Minutes of the February 27, 2017 City Council Meeting had been submitted for approval. Councilman Seibert moved that the reading of the Minutes be suspended and that the Minutes be approved as recorded. The motion was seconded by Councilman Harper and was unanimously carried. The Chairperson stated that the Minutes of the February 27, 2017 City Council Work Session Meeting had been submitted for approval. Councilman Seibert moved that the reading of the Minutes be suspended and that the Minutes be approved as recorded. The motion was seconded by Councilman Harper and was unanimously carried. D.W. Daws, 1721 Brownsferry Street, Athens, addressed the Council concerning the ongoing beaver problem along Brownsferry Street. He requested the Council take action to remove the beavers and eliminate the dams causing standing water and mosquito problems. Willie Mae Baker, 815 Acorn Hill Circle, Athens, stated that her home is located on Wright Street and that there are a number of vacant lots with overgrown vegetation and debris. She requested the Council take steps to require the property owners to clean up their properties. Scott Marshall, 23349 Piney Creek Road, Athens, addressed the Council concerning the need for tennis courts. He asked the Council to expedite its plan to repair the courts at Big Spring and Swan Creek Parks to accommodate both the citizens and the high school tennis teams. Billy Cannon, 2387 South Hine Street, Athens, addressed the Council concerning the agenda items to purchase the Regions Bank property at the corner of Hobbs and Marion Streets. He expressed concern that the Council has no specific plans for the property. He also stated that he had offered $149,000 for the property but his offer had been rejected by Regions Bank management. He expressed his displeasure that the bank then offered the property to the City for $85,000. Councilman Wales introduced the following resolution: RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA, to approve the purchase of one (1) Ford F-250 ¾ ton crew cab 4x4 pick up from Stivers Ford Lincoln, at a cost of $25,838.00 and emergency equipment, lighting, striping, sirens and labor at a cost of $5,700 for a total cost of $31,538.00 for the Fire Department. This vehicle shall be funded from the existing Fire Department capital account 301.500.85002. The motion was seconded by Councilman Travis and was unanimously carried. Councilman Travis introduced the following resolution: RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA that the travel expenses in the following amount be approved for Electric Department personnel. 1 David Jones $ 79.35 Factory Testing of Transformers-Greenbriar Substation-Savannah, GA Chris Haney $206.73 TVPPA-Line Design & Staking State 2-Nashville, TN Blair Davis $ 65.38 Factory Testing of Transformers-Greenbriar Substation-Savannah, GA Rhett Murphy $156.40 2017 ASA Southern Chapter Annual Conference-Myrtle Beach, SC Kelvin Snyder $244.83 TVPPA-Fundamentals of Distribution Circuit-Nashville, TN The motion was seconded by Councilman Harper and was unanimously carried Councilman Seibert introduced the following ordinance: ORDINANCE NUMBER 2017-2015 AN ORDINANCE GRANTING A FRANCHISE TO SOUTHERN LIGHT, LLC, WHEREAS, Southern Light, LLC (hereinafter referred to as the “the Company”) desires to construct a fiber-optic transmission line within certain public rights-of-way within the City of Athens, Alabama; WHEREAS, the Company agrees and recognizes that it is required to obtain consent from the City of Athens in order to construct the proposed fiber-optic transmission line within the corporate limits of the City of Athens; and WHEREAS, the City Council wishes to accommodate the Company’s request and grant a franchise for the construction of the proposed fiber-optic transmission line in accordance with the terms and conditions set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA, while in regular session on March 20, 2017, as follows: SECTION 1. In consideration of the benefits to accrue to the City, the City, pursuant to Section 220 of the Constitution of Alabama and other applicable law, does hereby grant to the Company a non-exclusive franchise granting the limited authority to construct a fiber-optic transmission line system in the City of Athens in and along certain public rights-of-way, subject to all of the terms and conditions set forth in the franchise agreement attached hereto as Exhibit A. SECTION 2. The granting of the franchise is contingent upon the execution by the Company of the franchise agreement attached hereto as Exhibit A. SECTION 3. The Mayor is authorized to take all actions and execute such other and further documents as may be necessary to effect and carry out and enforce the terms of the franchise agreement and the transactions contemplated by this Ordinance. SECTION 4. This Ordinance shall become effective upon its adoption as provided by law. 2 ADOPTED and APPROVED this, the 20th day of March, 2017. /s/ Joseph Cannon PRESIDENT, CITY COUNCIL, CITY OF ATHENS, ALABAMA /s/ William R. Marks MAYOR, CITY OF ATHENS, ALABAMA ATTEST: /s/ Annette Barnes CITY CLERK, CITY OF ATHENS, ALABAMA CERTIFICATION OF CITY CLERK STATE OF ALABAMA) LIMESTONE COUNTY) I, Annette Barnes, City Clerk of the City of Athens, Alabama, do hereby certify that the above and foregoing is a true and correct copy of the Ordinance duly adopted by the City Council of the City of Athens, on the 20th day of March, 2017. Witness my hand and seal of office this the ____day of _______, 2017. ___________________________________ Annette Barnes, City Clerk 3  EXHIBIT A FRANCHISE AGREEMENT BETWEEN THE CITY OF ATHENS, ALABAMA AND SOUTHERN LIGHT, LLC FRANCHISE AGREEMENT This Franchise Agreement is entered into on this the 20th day of March, 2017, by and between the City of Athens, Alabama (hereinafter referred to as the “City”) and Southern Light, LLC (hereinafter referred to as the “Company”). WITNESSETH: The City and the Company do hereby mutually covenant and agree as follows: SECTION 1. Defined Terms. For purposes of this Agreement, the following terms, words and phrases shall have the meanings set forth below. When not inconsistent with the context, words used in the singular number shall include the plural number, and words in the plural number shall include the singular. (a) “City” means the City of Athens, Alabama. (b) “City Council” means the City Council of the City of Athens, Alabama. (c) “Gross Receipts” means all revenues (exclusive of sales tax) received by the Company from (a) the operation of the System within the corporate limits of the City, and (b) any related services provided by the Company within the corporate limits of the City, including but not limited to: (i) all revenues from installation charges for customers within the City, (ii) all revenues from connection or disconnection fees from customers within the City, (iii) all revenues from penalties or charges to customers in the City for checks returned from banks, net of costs paid, and penalties, interest or charges for late payment, (iv) all revenues from equipment sold or rented to customer upon customer premises within the City, (v) all revenues from authorized rental of conduit space within the City’s Rights-of-way, (vi) all revenues from authorized rentals of any portion of the Company’s System, (vii) all other revenues collected by the Company from business pursued within the City, recoveries of bad debts previously written off and revenues from the sale or assignment of bad debts, and (viii) the value of any free services provided by the Company to customers within the City. Revenue of any affiliate of the Company shall be included in Gross Receipts to the extent that the treatment of the revenue as that of the affiliate would have the effect of evading the payment of fees required by this Agreement. (d) “Mayor” means the Mayor of the City of Athens, Alabama, and his/her designee(s) (which may include representatives from one or more of the departments of the City). (e) “Person” means any natural or corporate person, business association or other business entity including, but not limited to, a partnership, sole proprietorship, political subdivision, public or private agency of any kind, utility, successor or assign of any of the foregoing, or any other legal entity. (f) “Rights-of-way” means the surface and space above and below any public street, boulevard, road, highway, freeway, lane, alley, sidewalk, parkway, driveway, or other public rights of way, and public utility easements/rights of way that entitle the City and the Company to use the same for the purpose of installing, operating, repairing and maintaining the System. The term shall not include any state or federal rights-of-way or any property owned or controlled by any person other than the City, except as provided by applicable law or pursuant to an agreement between the City and any such governmental entity or person. The term shall also not include property owned or leased by the City that is not used or is not typically used as rights-of-way for vehicular or pedestrian transport or the installation of public utility facilities, such as City parks and/or City public works facilities. (g) “System” shall mean the Company’s fiber-optic transmission line, as well as the system of pipes, transmission lines, meters, equipment and all other facilities associated with and related to the operation of such fiber-optic transmission line, operated by the Company within the corporate limits of the City in accordance with the terms and conditions contained in this Agreement. (h) “Telecommunications” means the transmission, between or among points specified by the user, or information of the user’s choosing (e.g., data, video, and voice), without change in the form or content of the information as sent and received. (i) “Telecommunication Service(s)” means the offering of Telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public. 4  (j) “Franchise Fee” means the fee paid by the Company to the City in exchange for the rights granted to the Company under this Agreement. SECTION 2. Grant of Franchise. (a) The City hereby grants to the Company the non-exclusive and limited right, consent, and franchise to construct, maintain and operate the System within and along the Rights-of-way in the City of Athens, as set forth in more detail and subject to the limitations expressed herein. (b) The Company’s non-exclusive right, consent, and franchise granted herein is expressly limited such that it shall be granted only along the Rights-of-way in the manner, scope and locations as approved by the Mayor, in his/her sole discretion. The Company shall obtain the approval of the Mayor of the locations of all and any part of the System before constructing, expanding or extending the System within the City pursuant to this Agreement. Attached as Exhibit 1 is the proposed initial location of the System that the Company intends to submit to the Mayor for consideration. (c) Unless otherwise approved by the Mayor or as permitted by Section 2(d), the Company’s System shall be placed below the surface (except for such markers as may be required or permitted by the City to demonstrate the location of the Company’s System, or to facilitate the connection of the same to any aerial poles pursuant to Section 2(d)), upon such conditions and pursuant to such rules and regulations as may be required by the Electric Department of the City of Athens, Alabama and the City’s Public Works Department. (d) The Company’s System may be placed above the surface where it is located on or upon the poles of the Electric Department of the City of Athens, Alabama under such terms and conditions as may be agreed to by and between the Company and the Electric Department of the City of Athens, Alabama in a separate pole attachment agreement. However, this Agreement shall not be construed so as to extend to the Company any right, consent, franchise, authorization, or permission to place any cables, wires, associated appliances, or other items of any kind upon the poles of the Electric Department of the City of Athens, Alabama, and any such authorization must be the subject of a separate pole attachment agreement. In the event of any irreconcilable conflict between such pole attachment agreement and this Agreement, as it relates to an issue concerning the poles of the Electric Department of the City of Athens, Alabama, the terms of any such pole attachment agreement shall govern. (e) The right, consent, and franchise granted by this Agreement is for the sole and expressed purpose of operating a telecommunications system for providing telecommunication services. This Agreement shall not be construed so as to extend to the Company any right, consent, franchise, authorization, or permission to operate a “cable system” within the City as defined under federal law, and as such this Agreement shall not be governed by the restrictions and regulations governing franchises of “cable systems” found in Title 47, Chapter 5, Subchapter V- A, Part III of the United States Code. (f) The City makes this grant without reducing its police powers and expressly reserves the right to adopt and enforce, now and hereafter, in addition to the provisions in this Agreement and all other existing laws, such additional laws, ordinances, and regulations as it may find necessary in the exercise of its police power to provide for the health, safety, or welfare of the City. (g) The Company’s use of the Rights-of-way authorized hereunder shall be subordinate in all matters to the City’s use and rights of the Rights-of-way. (h) This Agreement does not convey any title, legal or equitable, to the Company with respect to the Rights-of-way. (i) This Agreement does not give the Company any vested right in any part of the System’s particular location, and the Company acknowledges and accepts at its own risk that the City may make use in the future of the Rights-of-way in which the Company is located in a manner inconsistent with Company’s use of the Rights-of-way, and that in such event the Company will not be entitled to any compensation from the City. SECTION 3. Compensation. (a) As consideration for this Agreement, the Company shall pay to the City as a Franchise Fee five percent (5%) of its Gross Receipts during each calendar year of operation under this Agreement. Such payments shall be made quarterly during each calendar year, within fifteen (15) days of the close of each quarter. Gross Receipts on Telecommunications Services that originate in one municipality and terminate in another shall be evenly apportioned among the two municipalities for purposes of calculating the Franchise Fee owed to each municipality by the Company, such that the aggregate Franchise Fee paid by the Company to the two municipalities shall not exceed five percent (5%) of the Gross Receipts on said Telecommunications Services. Notwithstanding the foregoing, the Franchise Fee with respect to any calendar year of operation under this Agreement shall not be less than two thousand five hundred dollars ($2,500.00) per each quarter during each calendar year. 5  (b) Each payment shall be signed by an official of Company who shall certify to its accuracy, showing the basis for the computation and such other relevant facts as may be reasonably required by the City. (c) The City shall have the right to, at its sole expense, inspect and audit, upon reasonable written notice, at the Company’s offices where such records are located, all relevant financial statements and financial records for the prior thirty-six (36) month period, in the form and manner as are reasonable prescribed by the City to verify compliance with the Franchise Fee or other payments requirements of this Agreement. (d) If it is determined that the Company has underpaid the Franchise Fee during any prior twelve (12) month period, then in addition to fully paying the owed sum, the Company will (i) reimburse the City for all of its reasonable costs associated with such determination (including but not limited to attorney fees and accountant fees), and (ii) pay interest on the underpayment at the rate of 10% per annum. (e) In addition to the Franchise Fee, upon the execution of this Agreement by the Company, the Company shall pay to the City an initial non-refundable fee of Two Thousand Five Hundred and 00/100 Dollars ($2,500.00). The Parties agree that this fee is intended to serve as reasonable reimbursement to the City for the payment of its legal, technical and administrative expenses arising from and related to the negotiation, preparation, and execution of this Agreement (f) No refund of any payment under this Section 3 shall be made upon the termination of this Agreement. (g) The City and the Company agree that the payments to be made to the City pursuant to this Agreement are not taxes and are not in the nature of a tax, but are in addition to any and all taxes of general applicability or other fees or charges which the Company shall be otherwise required to pay. The Company shall not have any claim for any deduction or credit of all or any part of the amount of payments made pursuant to this Agreement on account of any taxes of general applicability or other fees or charges which the Company is otherwise required to pay. The payment of such compensation by the Company in no way limits the right of the City to impose charges or fees with respect to any work that the Company performs in connection with any construction project or other work in the City. (h) No acceptance of any payment by the City shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be construed as a release of any claim the City may have for further or additional sums payable under the Agreement. (i) Unless otherwise provided for, all remittances for the monies due according to the terms of this Agreement are to be made payable to the City Clerk and mailed or delivered to: City of Athens Attn: City Clerk PO Box 1089 Athens, AL 35612 Such remittances shall clearly identify or reference this Agreement. SECTION 4. Duration and Term. (a) The Agreement shall be for an initial term of ten (10) years (the “Initial Term”), commencing upon the later date of the date of publication of the franchise ordinance authorizing this Agreement, or the date of the execution of this Agreement by all of the parties hereto. (b) Notwithstanding anything to the contrary contained in this Agreement, in the event the Company, at the sufferance of the City, holds over beyond the term of this Agreement and continues to operate all or any part of the System or otherwise exercise any part of the rights granted hereunder, after the term of this Agreement, then the Company shall continue to comply with and be subject to all provisions hereunder through the period of such holding over, provided that any such holding over shall not be viewed as a renewal or extension of this Agreement. SECTION 5. Grant of Non-Exclusive Authority. The right to use and occupy the Rights-of-way for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant the use of said Rights-of- way to any person at any time and for any lawful purpose. This Agreement shall not be construed to create any rights beyond the terms, conditions and periods set forth in this Agreement, except as provided herein. The City does not warrant any of the rights granted by this Agreement. SECTION 6. Reservation of Regulatory and Police Powers. The City, by granting this Agreement and approving this Agreement, does not surrender or to any extent lose, waive, impair or lessen the lawful powers and rights now, or which may be hereafter, vested in the City under the Constitution and the statutes of the State of 6 Alabama to regulate the use of the Rights-of-way by the Company or any person or to charge reasonable compensation for such use, and the Company, by its acceptance of this Agreement, agrees that all lawful powers and rights, regulatory power, police power or otherwise, that may be from time to time vested in or reserved to the City, shall be in full force and effect and subject to the exercise thereof by the City at any time. The City expressly reserves its right to make reasonable rules, regulations and restrictions for the protection of persons and property related to the Rights-of-way. The Company is deemed to acknowledge that its rights are subject to the regulatory and police powers of the City to adopt and enforce ordinances necessary for the safety and welfare of the public and agrees to comply with all applicable laws and ordinances enacted by the City pursuant to such powers. Any conflict between the provisions of this Agreement and any other present or future lawful exercise of the City’s police powers shall be resolved in favor of the latter. SECTION 7. Bond. (a) The Company shall obtain and maintain, at its sole cost and expense, during the entire term of this Agreement and for and until two hundred ten (210) days after the expiration or termination of this Agreement, a corporate surety bond(s) in the amount of Fifty Thousand and 00/100 Dollars ($50,000.00). (b) Said bond(s) shall be obtained and maintained to secure the faithful performance of the Company of all of its obligations provided under this Agreement. (c) The Company shall file such bond(s) with the City Clerk on or before the date that this Agreement is executed by all of the parties thereto and/or any renewal thereof. The failure by the Company to do so shall constitute a violation of this Agreement. (d) The bond(s) shall provide for and be subject to the following conditions: (i) There shall be recoverable by the City, jointly and severally from the principal and surety, any and all fines, penalties, damages, charges, obligations, fees or other amounts due to the City from the Company under the terms of this Agreement and any and all damages, losses, costs, and expenses suffered, including reasonable attorney fees, incurred by the City or resulting from the failure of the Company to: faithfully comply with the provisions of the Agreement; comply with all applicable orders, permits and directives of the City; and/or pay any claims, liens or taxes due to the City which arise from or by reason of the construction, operation, maintenance and/or repair of the System. (ii) The total amount of the bond(s), shall be forfeited in favor of the City in the event that (a) the Company abandons the System at any time during the term of the Franchise Agreement or renewal thereof or ceases operation of the System for a period in excess of six (6) months; (b) The Company does not remove the System upon the expiration or termination of the Agreement pursuant to Section 19 of the same; and/or (c) the Company assigns the franchise granted herein without the express prior written consent of the City. (f) The bond(s) required herein shall be in a form that is satisfactory to the City. The corporate surety bond shall require thirty (30) days written notice of any non-renewal, alteration or cancellation to both the City and the Company. The Company shall, in the event of any such cancellation notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of a replacement bond within thirty (30) days following the receipt by the City or the Company of any notice of cancellation. Failure to do so shall constitute a violation of this Agreement. (g) The City may draw against the Company’s bond(s) for any unpaid damages, charges, obligations, fees or other amounts owing to it as provided herein which are thirty (30) or more days past due, and upon doing so, shall provide the Company with written notice of the same. (h) The bond(s) shall at all times be maintained at the amount and levels as required in this section and shall be a continuing obligation for the duration of this Agreement and thereafter until the Company has liquidated all of its obligations with the City that may have arisen by reason of the construction, operation, or maintenance of the System or breach or termination of the Agreement. If the bond(s) is/are drawn-down for any reason, the bond(s) shall be renewed by the Company within thirty (30) days to the amounts required herein and the failure to do so by the Company shall constitute a violation of this Agreement. SECTION 8. Standards of Service. (a) Compliance with Local Ordinances. With respect to all of its activities and operations within the corporate limits of the City, Company shall comply with any and all municipal codes, standards, ordinances, and laws of the City, as they now exist or are hereafter enacted or amended, expressly including but not limited to those concerning the use of the Rights-of-way, as they now exist or may hereafter be amended. (b) Conditions of Street Occupancy. All portions of the System and all associated equipment installed or erected by the Company pursuant to this Agreement shall be located so as to cause minimum 7 interference with the proper use of the Rights-of-way and with the rights and reasonable convenience of property owners who own property that adjoins any of such Rights-of-way. (c) Excavation and Installation. Prior to any excavation within the Rights-of-way (or any disturbance of any pavement, sidewalk, or other improvement of any street, avenue, alley, or other public place), the Company shall obtain permission from the Mayor pursuant to this Agreement, and the work shall be performed in accordance with all applicable ordinances and codes and any subsequent ordinances or regulations that may be adopted by the City. Repair and replacement of the Rights-of-ways due to the Company’s installation, removal, relocation, maintenance and repair of its System or facilities shall be accomplished to the satisfaction of the City. Any opening or obstruction in the Rights of way made by the Company during the course of its operations shall be guarded and protected at all times by the placement of adequate barriers, fences, or boardings, the bounds of which during periods of dusk and darkness shall be clearly and visibly located. (d) Restoration of Rights-of-way. If during the course of the Company's construction, operation or maintenance of the System there occurs a disturbance of any Rights-of-way by the Company, it shall, at its expense, replace and restore such Rights-of-way to a condition as good as the condition of the Rights-of-way existing immediately prior to such disturbance to the reasonable satisfaction of the Mayor. The Company shall perform the work according to the standards and with the materials specified or approved by the Mayor. Such restoration shall be accomplished within 48 hours after the completion of the Company’s work. Upon failure of the Company to make such restoration within such time, if the restoration cannot be made within such time, or to begin the restoration within such time, or upon the Company’s delay of more than 24 hours in the continuation of a restoration begun, the Mayor may serve upon the Company notice of the Mayor’s intent to cause the restoration to be made in the Company’s stead. Unless the Company begins or resumes the proper restoration within 24 hours after receipt of such notice, the Mayor shall cause the disturbed area to be restored, including the removal of excess dirt, and the expense of the same shall be borne by the Company upon the demand of the City. (e) Relocation at Request of the City. Upon its receipt of reasonable notice, not to be less than forty- five (45) days, except where emergency conditions require shorter notice, the Company shall, at its own expense, protect, support, temporarily disconnect, relocate in the Rights-of-way, or remove from the Rights-of-way, any part of the System or the Company’s property when lawfully required by the City (including but not limited to by reason of traffic conditions; public safety; street abandonment; freeway and street construction; change or establishment of street grade; widening of roadways; construction or maintenance of sidewalks; construction or maintenance of public works; and installation of sewers, drains, gas or water pipes, electrical or telecommunications lines). Should the Company refuse or fail to remove its equipment or plant as provided for herein within forty-five (45) days after written notification, the City shall have the right to do such work or cause it to be done, and the reasonable cost thereof shall be chargeable to the Company. Notwithstanding the foregoing, in cases of emergency (as determined in the reasonable discretion of the Mayor), the City may remove, relocate, replace, or renew any part of the System placed in the Rights of way, and the Company shall on demand, reimburse the City for the reasonable expense thereby incurred. (f) Trimming of Trees and Shrubbery. Trimming of trees and shrubbery within the Rights-of-way by the Company to prevent contact with the System shall be done only upon the approval of the Mayor, and upon such standards as the Mayor may direct. The Company shall compensate the City for any damages, in such amounts as determined by the Mayor, caused by trimming, cutting or removing trees or shrubbery, or shall, at its own expense, replace all trees or shrubs damaged as a result of any construction, installation, repair or maintenance of the System undertaken by the Company to the satisfaction of the Mayor. (g) Safety and Permit Requirements. Construction, installation, repair and maintenance of the System shall be performed in an orderly and workmanlike manner. All such work shall be performed in compliance with applicable federal, state, and local laws, rules and regulations, including all permit requirements and ordinances adopted by the City which are now in effect or are hereafter adopted (including but not limited to the National Electrical Safety Code, and any amendments or revisions of said code). The System or parts thereof shall not unreasonably endanger or interfere with the safety of persons or property in the area. (h) Minimum Standards. All of the construction by the Company shall conform, at a minimum, to the minimum standards of the Company. In the event there is a conflict between the standards adopted by the Company and any applicable federal, state or local standards, including ordinances adopted by the City, the stricter standard shall apply. (i) Obstructions of Rights-of-Way. Except in the case of an emergency or with the approval of the Mayor, no rights-of-way obstruction or excavation may be performed when seasonally prohibited or when conditions are unreasonable for such work. The Company shall not so obstruct the Rights-of-way so as to interfere with the natural, free and clear passage of water through the gutters, drains, ditches or other waterways. 8  (j) Safety Requirements. (i) The Company shall at all times employ the highest degree of care as is commensurate with the practical operation of its business and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. (ii) The Company shall install and maintain the System in such manner that its operations will not interfere with any installations of the City or of a public utility serving the City. (iii) All of the Company’s structures and all lines, equipment and connections in, over, under and upon the Rights-of-way, wherever situated or located, shall at all times be kept and maintained in a safe and suitable condition and in good order and repair. (iv) The Company shall maintain a force of employees at all times sufficient to provide safe, adequate and prompt service for the System. (k) Least Disruptive Technology. The Company is encouraged to perform construction and maintenance of the System in a manner resulting in the least amount of damage and disruption to the Rights-of-way. The Company will be required to use trenchless technology for any portion of construction or maintenance projects which lie beneath the paved or improved portion of any roadway to which this Agreement applies, unless otherwise approved by the Mayor. The Mayor may require trenchless technology in other locations, where circumstances prevent or make open-cut methods impractical. The Company may use either the open-cut method or trenchless technology for construction outside the paved or improved portion of any roadway to which this Agreement applies. (l) Payment of Costs. The Company shall be responsible for all costs associated with the installation, repair and maintenance of the System and all associated equipment including, but not limited to (i) the reasonable costs to repair the Rights-of-way due to the installation, repair and maintenance of the System, and (ii) the reasonable costs incurred in removing or relocating any portion of the System or facilities constructed when required by the City. (m) Responsibility for Damages. The Company shall exercise precautions to avoid damage to any and all other facilities of the City and others located in the Rights-of-way, and hereby assumes all responsibility for any and all loss for such damages caused by the Company (or its contractors). The Company shall make an immediate report to the Mayor of the occurrence of any damages and hereby agrees to reimburse the City (and such others) for any and all reasonable expenses incurred in making repairs. (n) Reports. Company shall cooperate with the City with respect to the administration of this Agreement. Company shall furnish or make available to the City upon request, at no cost of the City, such records, information, and reports as may be reasonably necessary, as determined by the City, for the City’s administration of this Agreement. (o) Others Performing Work for Company. The Company shall be fully responsible for all activities performed by its contractors, sub-contractors, vendors, and others performing services or work on the Company’s behalf in connection with this Agreement, and the Company must ensure that all of the same adhere to the same provisions of this Agreement that would otherwise apply to Company if Company was performing the services or work. SECTION 9. Enforcement and Termination of Agreement. (a) Notice of Violation. In the event the Company has not complied with any of the terms of this Agreement, the City shall notify the Company in writing of the nature of the alleged breach. (b) Right to Cure or Respond. The Company shall have 30 days from receipt of the notice described in Section 9(a): (a) to respond to the City by contesting the assertion of breach, (b) to cure such breach, or (c) in the event that, by the nature of breach, such breach cannot, for reasons beyond the control of the Company, be cured within the 30-day period, initiate reasonable steps to remedy such breach and notify the City of the steps being taken and the projected date that they will be completed. (c) Enforcement. Should the City find, in its reasonable discretion, that the Company has failed to appropriately cure or remedy its breach with the terms of this Agreement, then the City may hold the Company in material default of this Agreement and (i) terminate the Agreement and/or (ii) pursue remedies as the City deems appropriate, including but not limited to, any of the following remedies: (i) Seek specific performance of any provision which reasonably lends itself to such a remedy; 9 (ii) Make a claim against any surety or performance bond which may be required to be posted; (iii) Restrain by injunction the default or reasonably anticipated default by the Company of any provision of this Agreement; and/or (iv) Seek any other available remedy permitted by law or in equity. (d) Impossibility of Performance. The Company shall not be held in breach with the provisions of this Agreement, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages or other events reasonably beyond its ability to control. (e) Attorney Fees. Unless prohibited by applicable law, the City shall be entitled to enforce this Agreement through all remedies lawfully available, and Company shall pay the City’s costs of enforcement, including reasonable attorney fees, in the event that Company is determined judicially to have violated the provisions of this Agreement. (f) Remaining Obligations After Termination. Upon termination or expiration of this Agreement, all rights and obligations between the parties created by this Agreement shall cease, except for (i) the obligation to pay outstanding fees and other amounts to the City; (ii) the obligation to maintain security until released by the City or otherwise in accordance with this Agreement and Section 7 hereof; (iii) the defense, release and indemnification obligations as set forth in this Agreement; (iv) the provisions regarding the removal of the System in Section 19 hereof; and (v) such other provisions in this Agreement which expressly provide for survival beyond the term of this Agreement. SECTION 10. Default. A breach of this Agreement by the Company shall include, but not be limited to the following: (1) The occurrence of any event relating to the financial status of the Company which may reasonably lead to the foreclosure or other judicial or non-judicial sale of all or any material part of the System or the assets of the Company; (2) The condemnation by a public authority, other than the City, or sale or dedication under threat or in lieu of condemnation, of all or substantially all of the facilities; or (3) If (a) the Company shall make an assignment for the benefit of creditors, shall become and be adjudicated insolvent, shall petition or apply to any tribunal for, or consent to, the appointment of, or taking possession by, a receiver, custodian, liquidator or trustee or similar official pursuant to state or local laws, ordinances or regulations of any substantial part of its property or assets, including all or any part of the System; (b) a writ of attachment, execution, distraint, levy, possession or any similar process shall be issued by any tribunal against all or any material part of the Company’s property or assets; (c) any creditor of the Company petitions or applies to any tribunal for the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official for the Company or for any material parts of the property or assets of the Company under the law of any jurisdiction, whether now or hereafter in effect, and a final order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator or similar official, or approving the petition in any such proceeding; or (d) any final order, judgment or decree is entered in any proceedings against the Company decreeing the voluntary or involuntary dissolution of the Company. (4) A failure to construct and begin operation of the System within twelve (12) months of the date that this Agreement is signed by all of the parties thereto. (5) A failure to operate the System for a period of six (6) months. (6) The Company assigns the franchise granted herein without the express prior written consent of the City. SECTION 11. Insurance. The Company shall maintain in full force and effect, at its own cost and expense, a comprehensive general liability insurance policy in the amount of $1,000,000.00 for bodily injury and property damage per person and $3,000,000.00 as to each occurrence, in a form and from a carrier that is satisfactory to the City. The City, its officers, agent, and employees shall be named as additional insureds on the policy, and the Company shall provide the City with a certificate of insurance designating the same as additional insureds on each policy and extension or renewal thereof. An endorsement shall be included with the policy that states that the policy shall not be cancelled without giving thirty (30) days written notice of such cancellation to the City. SECTION 12. Indemnity and Hold Harmless. The Company agrees to indemnify, defend, and hold harmless the City, its elected officers, employees, agents, and representatives, against all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorney’s fees and other costs and expenses of 10 litigation, which may be asserted against or incurred by the City or for which the City may be liable, which (i) arise from or are related to the negligence or willful misconduct of the Company, its employees, agents, or subcontractors, or (ii) arise from or are related to the construction, operation, maintenance, upgrade, repair or removal of the System. The City does not and shall not waive any rights against the Company which it may have by reason of this indemnification, or because of the acceptance by, or the Company’s deposit with the City of any of the insurance policies described in this Agreement. The indemnification by the Company shall apply to all damages, penalties and claims of any kind, regardless of whether any insurance policy shall have been determined to be applicable to any such damages or claims for damages. The City shall not be liable to the Company for any interruption to service of the Company or for any interference, however caused, with the operation of the Company’s System, arising in any manner out of the Company’s use of the Rights-of-way in the City, including but not limited to any effects undesirable to the Company which the presence, breakdown, operation, maintenance, alteration of, or additions to, the lines, pipes, and/or other facilities of the City may have upon the attachments or the transmission of the Company, even if the cause of such effects may be attributable to negligence (including, without being limited to, the City’s contributory negligence, concurring negligence, active negligence and passive negligence) on the part of the City or its agents. SECTION 13. Disclaimer of Warranties. The City makes no representation or warranty regarding its rights to authorize the installation or operation of the System on any particular easement or right-of- way, and the burden and responsibility for making such determination in advance of the installation shall be upon the Company. This Agreement shall not be construed to deprive the City of any rights or privileges which it now has, or may hereafter have, to regulate the use and control of its streets. SECTION 14. Warranties and Representations. The Company hereby agrees, represents and warrants that it is legally authorized to enter into this Agreement in accordance with all applicable laws, rules and regulations. Furthermore, the Company further agrees, represents and warrants that this Agreement is legal, valid and binding. SECTION 15. Other Obligations. Obtaining this Agreement does not relieve the Company of its duty to obtain all other necessary permits, licenses, authority and the payment of fees required by any other City, county, state or federal rules, laws or regulations, and the Company is responsible for all work done in the rights-of- way pursuant to this Agreement, regardless of who performs the work. SECTION 16. Priority of Use. This Agreement does not establish any priority for the use of the Rights-of-way by the Company or any present or future franchisees or permit holders. In the event of any dispute as to the priority of use of the Rights-of-way, the first priority shall be to the public generally, the second priority to the City, the third priority to the State of Alabama and its political subdivisions in the performance of their various functions, and thereafter, as between franchisees and other permit holders, as determined by the City in the exercise of its powers, including the police powers and other powers reserved to and conferred on it by the State of Alabama. SECTION 17. Notice. Every notice or response required by this Agreement to be served upon the City or the Company shall be in writing and shall be deemed to have been duly given to the required party three (3) business days after having been posted in a properly sealed and correctly addressed envelope when hand delivered or sent by certified or registered mail, postage prepaid as follows: SECTION 18. The notices or responses to the City shall be addressed to all of the following: City of Athens Attn: Mayor PO Box 1089 Athens, AL 35612 City of Athens Attn: City Clerk PO Box 1089 Athens, AL 35612 City of Athens Attn: Public Works Director PO Box 1089 11  Athens, AL 35612 Athens Utilities Attn: General Manager PO Box 1089 Athens, AL 35612 City of Athens Attn: City Attorney PO Box 1089 Athens, AL 35612 The notices or responses to the Company shall be addressed as follows: Southern Light, LLC ATTENTION: Kelly A. McGriff, Esq. General Counsel 107 St. Francis Street, Suite 1800 Mobile, AL 36602 The City and The Company may designate such other address or addresses from time to time by giving written notice to the other party as set forth in this section. SECTION 19. Application. The terms and conditions contained in this Agreement shall apply to all areas within the corporate limits of the City and those areas hereafter annexed by the City. SECTION 20. Removal of System Upon Termination. Upon the expiration or termination of this Agreement, the Company shall remove such portions of the System, at its own expense, pursuant to the same restrictions and provisions herein that governed their installation. If not so removed within one-hundred eighty (180) days of such termination, the System shall be deemed to be worthless and to be abandoned/forfeited to the City, in which case it may be removed or otherwise disposed of by the City, at the expense of the Company, and the City shall be free from any liability for removing or disposing of the same. SECTION 21. Waiver. Failure to enforce or insist upon compliance with any of the terms of conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. SECTION 22. Publication. A synopsis of the said ordinance approving this Agreement shall be published in accordance with the applicable provision of Ala. Code § 11-45-8 (1975). Such publication of the synopsis shall be done by the City Clerk of the City, and the expense of such publication shall be paid by the Company. SECTION 23. Assignment. (a) The Company’s interest in this Agreement shall not be sold, transferred, assigned or otherwise encumbered or disposed of, either by forced or voluntary sale or otherwise, without the approval and written consent of the City Council, which said consent shall not be unreasonably withheld. The City reserves the right to be reimbursed by the Company for costs incurred by it in reviewing the request for transfer of ownership. (b) In the normal course of its business, Company may enter into agreements with its customers, including resellers, that authorize the customers to use capacity or fiber which is located within the System. The customer’s rights to use the capacity or fiber will not constitute an assignment, license, lease or other transfer under subsection (a), above, provided that the Company does not in any way surrender control over its System and remains responsible for its obligations under this Agreement. Nothing herein waives the City’s right to require the Company’s customers to obtain any required franchise or other applicable authorization. SECTION 24. Miscellaneous. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in singular number shall be held to include the plural and vice 12 versa, unless context requires otherwise. The captions used in connection with the sections of this Agreement are for convenience only and shall not be deemed to construe or limit the meaning of the language contained in this Agreement, or be used in interpreting the meanings and provisions of this Agreement. SECTION 25. Rules of Construction. The parties hereto acknowledge that each party and its counsel have had the opportunity to review and revise this Agreement, and the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits thereto. SECTION 26. Governing Law / Venue. This Agreement shall be deemed to have been made in the State of Alabama and the validity of the same, its construction, interpretation, enforcement and the rights of the parties hereunder, shall be determined under, governed by and construed in accordance with the substantive laws of the State of Alabama, without giving effect to any choice of law provisions arising thereunder. For any action concerning this Agreement, venue in Alabama state courts shall be in Limestone County, Alabama, and in Alabama federal courts, shall be in the United States District Court for the Northern District of Alabama, Northeastern Division. SECTION 27. Severability Clause. If any part, section or subdivision of this Agreement shall be held unconstitutional or invalid for any reason, such holding shall not be construed to invalidate or impair the remainder of this Agreement, which shall continue in full force and effect notwithstanding such holding. SECTION 28. Entire Agreement. This Agreement shall constitute the entire agreement between the parties. Any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. However, this Agreement shall not be construed as modifying, superseding, invalidating or otherwise altering any contract or agreement by and between the Company and Electric Department of the City of Athens, Alabama concerning pole attachments. SOUTHERN LIGHT, LLC BY:________________________________ Its:_______________________ STATE OF ALABAMA COUNTY OF _______________ I, ________________________________, a Notary Public, in and for said County in said State, hereby certify that _______________________ whose name as ____________________ of SOUTHERN LIGHT, LLC, an Alabama limited liability company, is signed to the foregoing instrument and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, he/she, as such officers and with full authority, executed the same voluntarily for and as the act of said limited liability company. Given under my hand and seal this ______day of _________________, 2017. _______________________________________ Notary Public, My Commission Expires:_________________ CITY OF ATHENS, ALABAMA 13  BY:________________________________ Mayor ATTEST: ___________________________________ CITY CLERK STATE OF ALABAMA COUNTY OF LIMESTONE I, ________________________________, a Notary Public, in and for said County in said State, hereby certify that _____________________ and _________________________whose names as Mayor and City Clerk of the City of Athens, Alabama, a municipal corporation, are signed to the foregoing instrument and who are known to me, acknowledged before me on this day that, being informed of the contents of the instrument, they, as such officers and with full authority, executed the same voluntarily for and as the act of said municipal corporation. Given under my hand and seal this _____day of ____________________, 2017. _______________________________ Notary Public, My Commission Expires:___________ EXHIBIT 1 14 15 Councilmember Harper moved that unanimous consent be given for immediate consideration of and action on said ordinance, which motion was seconded by Councilmember Wales, and upon the said motion being put to vote the following vote was recorded: YEAS: Councilmembers Seibert, Wales, Travis, Cannon and Harper; NAYS: None. The President thereupon declared that the motion for unanimous consent for immediate consideration of and action on the said ordinance had been unanimously carried. Councilmember Seibert thereupon moved that the ordinance be finally adopted, which motion was seconded by Councilmember Harper and upon the said motion being put to vote the following vote was recorded: YEAS: Councilmembers Seibert, Wales, Travis, Cannon and Harper; NAYS: None. The President thereupon announced that the motion for the adoption of the said ordinance had been unanimously carried. Councilman Harper introduced the following resolution: RESOLUTION NUMBER 2017-1510 A RESOLUTION CONCERNING A POLE ATTACHMENT AGREEMENT WITH SOUTHERN LIGHT, LLC BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA while in regular session on March 20, 2017 at 5:30 p.m., as follows: 1. The Mayor and/or the General Manager of Athens Utilities is/are authorized to enter into a “Pole Attachment Agreement - Agreement for Attachments of Cables, Wires, and Appliances upon Poles of the Electric Department of the City of Athens, Alabama” between the Electric Department of the City of Athens and Southern Light, LLC, in substantially the form shown in Exhibit A, and to take all such actions as may be necessary to carry out and enforce the terms of that agreement. 2. The Mayor and/or the General Manager of Athens Utilities are authorized to take actions and execute such other and further documents as may be necessary to effect and carry out the transactions contemplated by this Resolution. ADOPTED and APPROVED this, the 20th day of March, 2017. /s/ Joseph Cannon PRESIDENT, CITY COUNCIL, CITY OF ATHENS, ALABAMA /s/ William R. Marks MAYOR, CITY OF ATHENS, ALABAMA ATTEST: /s/ Annette Barnes CITY CLERK, CITY OF ATHENS, ALABAMA 16  CERTIFICATION OF CITY CLERK STATE OF ALABAMA ) LIMESTONE COUNTY ) I, Annette Barnes, City Clerk of the City of Athens, Alabama, do hereby certify that the above and foregoing is a true and correct copy of a Resolution duly adopted by the City Council of the City of Athens, Alabama, on the 20th day of March, 2017. Witness my hand and seal of office this ___ day of __________________, 2017. ____________________________________ Annette Barnes, City Clerk The motion was seconded by Councilman Seibert and was unanimously carried. Councilman Wales introduced the following resolution: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA, to re-appoint Lisa Carter Payne to the Mental Health Center of North Central Alabama, Inc. for a six year term ending April 1, 2023. The motion was seconded by Councilman Seibert and was unanimously carried. Councilman Seibert introduced the following resolution: RESOLUTION NUMBER 2017-1511 A RESOLUTION REGARDING THE PURCHASE OF REAL PROPERTY AT 105 WEST HOBBS STREET, ATHENS, ALABAMA WHEREAS, the City Council of the City of Athens, Alabama wishes to acquire real property located at 105 West Hobbs Street. Said property is more particularly described as follows: 17  THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA on March 20, 2017, at 5:30 p.m., that the Mayor of the City of Athens (and/or his designee), on behalf of the City of Athens, Alabama, is authorized to purchase the real property described above from Regions Bank, or such other owners thereof, for a price of Eighty-Five Thousand and 00/100 Dollars ($85,000.00), plus any incidental costs related thereto in connection with the purchase and closing. The Mayor, on behalf of the City, is authorized to enter into a contract for the City’s purchase of the above-referenced real property at such cost, upon such customary terms and conditions as the Mayor may deem reasonable and appropriate, to carry out the terms of such contract, and to accept a deed to the property on behalf of the City. ADOPTED and APPROVED this, the 20th day of March, 2017. /s/ Joseph Cannon PRESIDENT, CITY COUNCIL, CITY OF ATHENS, ALABAMA /s/ William R. Marks MAYOR, CITY OF ATHENS, ALABAMA ATTEST: /s/ Annette Barnes CITY CLERK, CITY OF ATHENS, ALABAMA CERTIFICATION OF CITY CLERK STATE OF ALABAMA ) LIMESTONE COUNTY ) I, Annette Barnes, City Clerk of the City of Athens, Alabama, do hereby certify that the above and foregoing is a true and correct copy of a Resolution duly adopted by the City Council of the City of Athens, Alabama, on the 20th day of March, 2017. Witness my hand and seal of office this ___ day of __________________, 2017. ____________________________________ Annette Barnes, City Clerk Councilmember Travis moved that unanimous consent be given for immediate consideration of and action on said resolution, which motion was seconded by Councilmember Wales, and upon the said motion being put to vote the following vote was recorded: YEAS: Councilmembers Seibert, Wales, Travis, and Harper; NAYS: None; ABSTAINED: Councilmember Cannon. The President thereupon declared that the motion for consent for immediate consideration of and action on the said resolution had been carried. Councilmember Seibert thereupon moved that the resolution be finally adopted, which motion was seconded by Councilmember Wales and upon the said motion being put to vote the following vote was recorded: YEAS: Councilmembers Seibert, Wales, Travis, and Harper; NAYS: None; ABSTAINED: Councilmember Cannon. The President thereupon announced that the motion for the adoption of the said resolution had been carried. 18 Councilman Travis introduced the following resolution: RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA, to authorize the Mayor to enter into an agreement with Morell Engineering for the construction, engineering and inspection services for ATRIP PROJECT #ACOA63309-ATRP(015). The project scope is to resurface, traffic strip, and extend culverts on Nick David Road from Lindsay Lane to Mooresville Road. This project is proportionally shared between Limestone County and the City of Athens with a construction budget of $647.449.54. The CE&I budget is $85,000 and shall be funded from the City of Athens ATRIP project fund. The motion was seconded by Councilman Harper and was unanimously carried. Councilman Harper introduced the following resolution: RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ATHENS, ALABAMA, to authorize the Mayor to obtain an appraisal of certain real estate property owned by the City, with a tax parcel number of #10-05-15-2-00- 009.000, and along Center Pointe Drive, for the City’s use in connection with marketing the property for sale. The motion was seconded by Councilman Seibert and was unanimously carried. * * * There being no further business to come before the meeting, the same was, upon motion by Councilman Travis and second by Councilman Seibert, duly and properly adjourned. /s/ Joseph Cannon PRESIDENT, CITY COUNCIL ATTEST: /s/ Annette Barnes CITY CLERK 19 20