TOWN OF HURLEY, GRANT COUNTY, NEW MEXICO
ORDINANCE NO. 78

AN ORDINANCE GRANTING A NON-EXCLUSIVE TELECOMMUNICATIONS FRANCHISE TO WNM COMMUNICATIONS, INC., A NEW MEXICO CORPORATION

WHEREAS pursuant to NMSA 1978, Section 3-42-1 (1965), a municipality is authorized to grant by ordinance a franchise to any person, firm, or corporation for the construction and operation of any public utility.

WHEREAS WNM Communications is a public utility providing public telecommunication services to the residents of Grant County, New Mexico. See NMSA §63-9A-3 (2017); See also 47 U.S.C.A. §153 (50) and (53) (2010); 47 U.S.C.A. §253 (1996).

WHEREAS the Town of Hurley has determined that the financial, legal, and technical ability of WNM Communications, Inc. is reasonably sufficient to provide services, facilities, and equipment necessary to meet the future telecommunication needs of the community; and

WHEREAS the Town of Hurley recognizes that the development of wireless public telecommunication service can be an economic development asset to Hurley and of significant benefit to its residents; and

WHEREAS, the Town of Hurley desires to enter into a Franchise Agreement with WNM, for the operation of a public telecommunication service on the terms set forth herein.

NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE TOWN OF HURLEY, GRANT COUNTY, NEW MEXICO, THAT:

Section 1. SHORT TITLE. This Ordinance shall be known and may be cited as the "WNM Communications Telecommunications Franchise Ordinance".

Section 2. AUTHORITY. NMSA 1978, Section 3-42-1, authorizes a municipality by ordinance to grant a franchise for the construction of any public utility.

Section 3. GRANT OF FRANCHISE. The Town of Hurley hereby grants to WNM Communications, Inc., a New Mexico Corporation and its successors and assigns (collectively "WNM"), the right and privilege to conduct a public telecommunications service business within the corporate boundaries of the Town of Hurley, subject to the provisions set forth hereafter and those provisions enumerated in the MASTER LICENSE AGREEMENT executed by The Town of Hurley and WNM contemporaneously with this Franchise Ordinance, which Master License Agreement permits the lease of portions of municipal owned buildings and structures for public telecommunications service, and is made a part hereof as if restated in its entirety herein.

A. General Provisions. To serve, supply, and furnish telecommunication services to the Town of Hurley, its inhabitants, and others, this Franchise Ordinance permits WNM, within the corporate limits of The Town of Hurley, to: (i) place, erect, construct, equip, lay, maintain, repair, and operate equipment, systems, and telecommunication facilities to generate, store, sell, distribute, convey, or otherwise provide public telecommunications services; and (ii) construct and use (during the life this Franchise) telecommunication facilities upon, over, and under public right-of-ways, land owned in fee simple by the Town of Hurley (municipal land), and as provided in the Master License Agreement, portions of municipal buildings and structures.
(1) "Public right-of-way" means the area of real property in which the Town of Hurley has a dedicated or acquired right-of-way interest in the real property. Public right-of-way shall include The Town of Hurley utility easements; the 10-foot easements adjacent to The Town of Hurley roadways; and the area on, below, or above present and future roadways, streets, alleys, avenues, highways, sidewalks, and bridges within the corporate limits of The Town of Hurley.
(2) "Telecommunication facilities" means the poles or other supports, wires, appliances, cables, conductors, underground conduits, manholes, and auxiliary apparatuses for telecommunication purposes.

B. Franchise Non-exclusive. Nothing herein shall be construed as giving WNM any exclusive privileges or rights. This Franchise is not exclusive and the Town of Hurley may grant to any other person like, similar, or different rights, privileges, licenses, and franchises. Provided however, any grant by the Town of Hurley of such rights, privileges, licenses, and franchises, insofar as practicable, shall not obstruct, injure, or prevent the use and operation of WNM's public telecommunication service.

C. Conditions. WNM shall be responsible for obtaining any necessary permit, license, certification, grant, registration, or any other authorization required by any appropriate governmental entity, including but not limited to the Federal Communications Commission (FCC), the New Mexico Public Regulation Commission (PRC), and the Town of Hurley. WNM shall also comply with all applicable laws, statutes, and/or ordinances, subject to WNM's right to challenge in good faith such laws, statutes, and/or ordinances. While in effect, this Franchise Ordinance shall be subject to all State or Federal legislative enactments.

Section 4. TERM. The rights, privileges, and franchise herein granted shall continue and be in force for the period of twelve (12) years from and after the date this Franchise Ordinance becomes effective. Either party may terminate this Franchise Ordinance after 180 days' notice in writing to the other party as provided in Section _____. Provided however, the right to cancel this Franchise Ordinance on the part of the Town of Hurley shall be limited to cause wherein WNM has demonstrated a pattern of non-compliance with the Franchise Ordinance and the obligations thereunder.

Section 5.
REMUNERATION BY WNMC. In consideration of the rights, privileges, license, and franchise hereby granted, WNMC shall pay to Town of Hurley from and after the date of the acceptance of this franchise an amount equal to 5% (five percent) of the monthly recurring revenues received for basic local exchange services within the corporate limits of the Town of Hurley for services listed in Appendix A, less net uncollectibles.

A. Term of Payments. Payment shall be made quarterly on or before thirty (30) calendar days after the end of each calendar quarter.

B. Franchise Fee in Lieu of Other Fees. The Town of Hurley will accept such payments made by WNMC as payment of any charge that the Town of Hurley may require during the term of this franchise, including any: (i) license, privilege, or occupation tax or fee for revenue or regulations; (ii) franchise fee; (iii) any permit or inspection fees or similar charges for street openings, installations, construction; (iv) other forms of excise or revenue taxes based upon or measured by revenues, employees, payroll, property, facilities, or equipment of WNMC; or (v) for any other purpose now or hereafter.

C. Option to Accept Discounted Services in Lieu of Franchise Fee Payments. The Town of Hurley may identify the locations and buildings for such discounted internet service from standard WNM rates, which may include buildings within the service area. If such action is taken, The Town of Hurley and WNM agree that the value such discounts of telecommunication service is equal to or greater than 3% (three percent) of the estimated monthly recurring revenues received for allowable franchised fee telecommunication service within the Town of Hurley, less net uncollectibles, and therefore is good and sufficient consideration

Section 6. WNM'S USE OF PUBLIC RIGHT-OF-WAYS AND MUNICIPAL LAND. WNM may install telecommunication facilities above ground or underground upon public right-of-ways and municipal land. Provided however, such telecommunication facilities shall be constructed and maintained so as not to obstruct or hinder the usual travel or public safety upon such public right-of-ways and municipal land or obstruct the legal use of such by other utilities.

A. WNM may use such other apparatus as may be necessary or proper to operate and maintain its telecommunication facilities.

B. WNM shall pay for the modification of any traffic control facility or alteration in any public right-of-ways or municipal land caused by WNM changing the location of any telecommunication facilities, subject to the exceptions outlined below and in Section ____ (Relocation).

C. The Town of Hurley shall provide notice of the adoption of any policy, rule, regulation, resolution, or ordinance related to the administration or regulation of public right-of-ways and municipal land in the manner described in Section ____ below, inasmuch such adoption affects WNM use of such.

Section 7. EXCAVATIONS. It shall be lawful for WNM to make all necessary excavations in any public right-of-ways or municipal land for the purpose of placing, erecting, laying, maintaining, repairing, renewing, or replacing its telecommunication facilities.

A. WNM shall ensure that all work shall be done in compliance with applicable Federal and State statutes and regulations and the Town of Hurley ordinances and regulations.

B. All excavations made by WNM in public right-of-ways or municipal land shall be properly safeguarded for the prevention of accidents by the placement of adequate barriers, fences, or boarding, the bounds of which during period of dusk and darkness shall be clearly designated by warning lights.

Section 8. RESTORATION. Whenever WNM disturbs or alters any public right-of-ways or municipal land, and any of the Town of Hurley's infrastructures therein, WNM shall restore the same to good order and condition as soon as practicable all in conformance with current standards and requirements of Federal and State statutes and regulations and the Town of Hurley ordinances and regulations without unnecessary delay. The Town of Hurley shall have the right to fix a reasonable time within which WNM shall complete such repairs and restorations. Upon failure of WNM to make such repairs and restorations, the Town of Hurley shall make the repairs and restorations and reasonably charge WNM for the work.

Section 9. INSPECTION OF CONSTRUCTION AND TELECOMMUNICATION FACILITIES. The Town of Hurley may inspect any of WNM's telecommunication facilities, equipment, or construction at any time upon at least twenty-four (24) hours' notice, or, in case of emergency, upon demand without prior notice. If WNM is out of compliance with its obligations under this Franchise Ordinance, the Town of Hurley, in addition to taking any other action permitted under applicable law, may order WNM, in writing, to make the necessary repairs and alterations to correct the unsafe condition by a time the Town of Hurley reasonably establishes. The Town of Hurley has the right to correct the unsafe condition if WNM fails to do so and to charge WNM for the work.

Section 10. THE TOWN OF HURLEY'S USE AND MAINTENANCE OF AREAS CONTAINING TELECOMMUNICATION FACILITIES. Nothing in this Franchise Ordinance shall be construed in any way to prevent the Town of Hurley from constructing and maintaining its sanitary sewer and water systems or municipal land; or from repairing, altering, or improving any public right-of-ways, in or upon which the telecommunication facilities are located. Provided however, the Town of Hurley shall make reasonable efforts not to obstruct or prevent the use of said telecommunication facilities.

Section 11. RELOCATING TELECOMMUNICATION FACILITIES; COSTS. Prior to any relocation of installed WNM's telecommunication facilities, in the pre-design phase of any such project the Town of Hurley and WNM shall coordinate such activity to avoid unnecessary relocation, cost, and inconvenience.

A. The cost of relocating WNM's telecommunication facilities, once installed, will be borne by a party or a third person depending upon the circumstances.
(1) WNM shall pay the cost of the relocation of its telecommunication facilities when requested by the Town of Hurley to accomplish construction and maintenance activities directly related to improvements for the health, welfare, and safety of the public. WNM shall complete such relocation as soon as reasonably possible within the time set forth in any request by the Town of Hurley for such relocation.
(2) The Town of Hurley shall reimburse WNM for the cost of relocating its telecommunication facilities where the relocation is for (i) aesthetic purposes or for the Town of Hurley's benefit to compete with WNM as a public telecommunications service provider.
(3) A third person, including a private developer or development consortium, shall pay the cost of the relocation where that person requests the relocation or if such relocation is for the benefit or convenience of that person.

B. Where the relocation project is incidental to any public housing or renewal project, the Town of Hurley shall not require WNM to remove or relocate its telecommunication facilities or vacate its rights in any public right-of-ways or municipal land without reserving WNM's rights therein or without requiring WNM to be compensated for the costs thereof.

Section 12. TEMPORARILY MOVING AERIAL AND OTHER TELECOMMUNICATION FACILITIES. Whenever it becomes necessary to temporarily rearrange, remove, lower, or raise the aerial cables or wires or move any other telecommunication facility of WNM to permit the passage of any structure, building, machinery, or other object moved over the public right-of-ways within the Town of Hurley, WNM will perform such a rearrangement within a reasonable period after written notice from the owner or contractor-mover desiring to move said structure, building, machinery, or other object. Said notice shall: (i) bear the written approval of the Town of Hurley; (ii) detail the route of movement of the structure, building, machinery, or object; (iii) provide and guarantee that the costs incurred by WNM in making such a rearrangement of its aerial facility or other telecommunication facility shall be borne by the contractor-mover; (iv) contain an agreement by the contractor-mover to indemnify and save WNM harmless of and from any and all damages or claims whatsoever kind or nature caused directly or indirectly from such temporary rearrangement of the telecommunication facilities of WNM; and (v) if required by WNM, be accompanied by cash deposit or a good and sufficient bond to pay any and all such costs as estimated by WNM.

Section 13. ABANDONMENT OF TELECOMMUNICATION FACILITIES. Whenever WNM intends to discontinue using any telecommunication facility within the public rights-of-way or upon municipal lands, WNM shall submit to the Town of Hurley a complete description of the facility and the date on which WNM intends to discontinue using the facility. WNM may remove the facility or request that the Town of Hurley permit it to remain in place. Notwithstanding such request, the Town of Hurley may require WNM to remove the facility from the public right-of-way or municipal land or modify the facility to protect the public health, welfare, safety, and convenience, or otherwise serve the public interest, and such removal or modification shall be completed within a reasonable period. Until WNM removes the facility, WNM shall retain all liability for such facility in the same manner and degree as if the facility were in active use.

Section 14. RESERVATION OF RIGHTS. By accepting this Franchise Ordinance, WNM reserves all rights under the law including, but not limited to, those rights arising under Section 253 of the 1996 Federal Telecommunications Act (47 U.S.C.A. §253), as that has been and may be amended, and the laws of New Mexico. The Town of Hurley will offer WNM the opportunity to adopt and operate under any franchise provisions that are in variance with the provisions herein.

Section 15. INSPECTION OF WNM INFORMATION AND ACCOUNTING. WNM shall make available to the Town of Hurley, upon reasonable advance written notice of no less than 30 days, such information pertinent to enforcing the terms of this Franchise Ordinance and the Master License Agreement incorporated herein. WNM shall produce the requested information in such form and at such times as WNM can reasonably make the information available. Subject to New Mexico public records laws, any information that is provided to the Town of Hurley and/or that the Town of Hurley reviews in camera is confidential and proprietary and shall not be disclosed or used for any purpose other than verifying compliance with the terms of this Franchise Ordinance. The Town of Hurley shall immediately return the information to WNM upon completion of review. The Town of Hurley shall not make photocopies of such information.

Section 16. INDEMNIFICATION. Neither the Town of Hurley nor WNM shall be responsible for liability incurred because of the other party's acts or omissions in connection with this Franchise Ordinance and Master License Agreement incorporated herein. Any liability incurred in connection with this Franchise Ordinance is subject to the immunities and limitations of the New Mexico Tort Claims Act, and in compliance with state, federal, and the New Mexico Public Regulation Commission regulations.

Section 17. INSURANCE. WNM shall maintain in full force and effect at its own cost and expense a comprehensive general liability insurance policy, including automobile liability and Worker's Compensation and Employer's Liability coverage, reasonably satisfactory to the Town of Hurley.
A. Comprehensive General Liability Insurance. The comprehensive general liability insurance policy maintained by WNM shall include blanket contractual and completed operations coverage with limits of liability of at least $1,000,000 (one million dollars) in respect to bodily injury, including death, arising from any one occurrence, and $1,000,000 in respect of damage to property arising from any one occurrence. Said insurance policy shall be endorsed to include the Town of Hurley as an additional insured and shall provide that the Town of Hurley will receive at least thirty (30) days' prior written notice of any cancellation, expiration, or material change in such insurance policy.
B. Certificates of Insurance. WNM shall, prior to the installation of any telecommunication facility, furnish to the Town of Hurley certificates of insurance confirming that the insurance coverage as specified herein is in full force and effect.
C. No Waiver. Notwithstanding the foregoing insurance requirements, the insolvency, bankruptcy, or failure of any insurance company carrying insurance for WNM or the failure of any such insurance company to pay claims accruing, shall not be held to waive any of the provisions of this Franchise Ordinance or relieve WNM from any obligations under this Ordinance.
D. Endorsements. All policies shall contain, or shall be endorsed so that
(i) The Town of Hurley, its officers, elected officials, employees, and agents shall be covered as, and have the rights of, additional insureds with respect to liability arising out of activities performed by, or on behalf of, WNM under this Franchise Ordinance, applicable law, or in the construction, maintenance, or ownership of the telecommunication facilities and public telecommunication service;
(ii) WNM's insurance coverage shall be primary insurance with respect to the Town of Hurley, its officers, elected officials, employees, and agents. Any insurance or self-insurance maintained by the Town of Hurley shall be in excess of WNM's insurance and shall not contribute to it; and
(iv) WNM's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability.

Section 18. HAZARDOUS SUBSTANCES.
A. WNM shall comply with all applicable laws, statutes, regulations, ordinances, and orders concerning hazardous substances relating to WNM's public telecommunication service business.
B. So long as the hazardous substances were generated, stored, disposed of or transported to, on, under, or around public right-of-ways and municipal land by WNM, its employees, agents, or contractors, WNM shall hold the Town of Hurley harmless from and indemnify the Town of Hurley against any damage, loss, expense, response costs, fines (or other penalties) or liability, including consultant fees and reasonable attorney's fees, resulting from (i) the presence of hazardous substances on, under, or around public right-of-ways and municipal land; (ii) from hazardous substances being generated, stored, disposed of or transported to, on, under, or around public right-of-ways and municipal land.
30Section 19. NOTICES. All notice required to be given under this Franchise Ordinance shall be given in writing, hand-delivered or mailed certified or registered mail (return receipt requested) to the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing.

WNM Communications
314 W. Yankie Street
P.O. Box 3079
Silver City, NM 88062 Town of Hurley
1101 Cortez Ave
Hurley, NM 88043

Section 20. MISCELLANEOUS PROVISIONS.

A. Publication Costs. WNM shall reimburse the Town of Hurley for all reasonable costs incurred in publishing this Franchise Ordinance. Section 3-42-1, NMSA 1978, requires two publications of the Ordinance "in full, not less than seven days apart."

B. Binding Effect. This Franchise Ordinance shall be binding upon WNM and the Town of Hurley, their successors and assigns.

C. No Joint Venture. Nothing herein shall be deemed to create a joint venture or principal agent relationship between the parties and neither party is authorized to nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other.

D. Waiver. The failure of the Town of Hurley at any time to require performance by WNM of any provision hereof shall in no way affect the right of the Town of Hurley hereafter to enforce the provisions of this Franchise Ordinance. The waiver by the Town of Hurley of any breach of any provision of this Ordinance shall not be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any other provision.

E. Severability. If any section, subsection, paragraph, term, or provision of this Franchise Ordinance and the incorporated Master License Agreement is determined to be illegal, invalid, or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other provision of this Franchise Ordinance and the incorporated Master License Agreement, all of which will remain in full force and effect.

F. Entire Agreement. This Franchise Ordinance and the incorporated Master License Agreement represent the entire understanding and agreement between the Town of Hurley and WNM with respect to the subject matter hereof and supersede all prior oral negotiations between the parties.

 
Section 21. EFFECTIVE DATE. This ordinance shall, if accepted by WNM, as signified by WNM's filing with the Clerk-Treasurer of the Town of Hurley its written acceptance of all the terms and conditions of this ordinance, take effect and be in force thirty (30) days from the passage and approval of this ordinance. NMSA 1978, §3-42-1(B) (1965).

PASSED, ADOPTED, AND APPROVED by vote of the Council of the Town of Hurley, Grant County, New Mexico, this 30th day of January, 2018
____________________________________
Fernando Martinez, Mayor
Town of Hurley

ATTEST:

____________________________________
Lori Ortiz, Town Clerk
Town of Hurley

APPENDIX A
LISTING OF SERVICE CATEGORIES INCLUDED IN "GROSS REVENUE" FOR CALCULATION OF FRANCHISE FEES
Business Local Access-including Flat Rate, Multiparty, and Extended Area Service
Business Measured Usage Local Access Service
Flat Usage Local Access Trunks
Low Income Telephone Assistance Program Local Access
Measured Rate Local Access Trunk Usage
Message Rate Local Access Trunk Usage
Public Access Line (PAL) Service
Residential Local Access-including Flat Rate, Multiparty, and Extended Area Service
Residential Measured Usage
THE FOLLOWING IS A NON-EXCLUSIVE LISTING OF CATEGORIES OF REVENUE NOT REPRESENTING THE RETAIL SALE OF LOCAL ACCESS SERVICES AND EXCLUDED FROM THE DEFINITION OF "GROSS
REVENUES," AND THEREFORE, ARE NOT INCLUDED IN THE CALCULATION OF ANY FEE DUE TO SANTA CLARA,
Proceeds from the sale of bonds, mortgages, or other evidences of indebtedness, securities or stocks;
Bad debt write-offs and customer credits
Revenue from directory advertising
Any amounts collected from customers that are to be remitted to a federal or state agency as part of a Universal Service Fund or other government program, including but not limited to support for the hearing impaired
Any amounts collected for taxes, fees, or surcharges and paid to the federal, state or local governments
Revenues from internet access
Revenues from digital or other electronic content, such as computer software, music and video downloads
Revenues from equipment sales, rentals, installation and maintenance
Revenues from any carrier purchased for resale
Revenues from private line services not for switched local access service