Loading...
HomeMy WebLinkAbout2017-0103 Council Agenda PACKET - MEETING CANCELLED Meeting Cancelled Due to Weather CITY OF ASHLAND Important: Any citizen may orally address the Council on non-agenda items during the Public Forum. Any citizen may submit written comments to the Council on any item on the Agenda, unless it is the subject of a public hearing and the record is closed. Time permitting, the Presiding Officer may allow oral testimony. If you wish to speak, please fill out the Speaker Request form located near the entrance to the Council Chambers. The chair will recognize you and inform you as to the amount of time allotted to you, if any. The time granted will be dependent to some extent on the nature of the item under discussion, the number of people who wish to speak, and the length of the agenda. AGENDA FOR THE REGULAR MEETING ASHLAND CITY COUNCIL January 3, 2017 Council Chambers 1175 E. Main Street Note: Items on the Agenda not considered due to time constraints are automatically continued to the next regularly scheduled Council meeting [AMC 2.04.030.E.] 6:45 p.m. Oath of Office: Mayor John Stromberg, City Councilors Dennis Slattery, Greg Lemhouse, and Rich Rosenthal for a term to expire December 31, 2020. 7:00 p.m. Regular Meeting 1. CALL TO ORDER II. PLEDGE OF ALLEGIANCE III. ROLL CALL IV. ELECTION OF COUNCIL CHAIR V. MAYOR'S ANNOUNCEMENTS VI. APPROVAL OF MINUTES 1. Study Session of December 19, 2016 2. Business Meeting of December 20, 2016 VII. SPECIAL PRESENTATIONS & AWARDS 1. Proclamation regarding January 7, 2017 as Christmas Tree-cycle Day in Ashland VIII. PUBLIC FORUM Business from the audience not included on the agenda. (Total time allowed for Public Forum is 15 minutes. The Mayor will set time limits to enable all people wishing to speak to complete their testimony.) [15 minutes maximum] IX. CONSENT AGENDA 1. Ashland Water Advisory Committee Council liaison appointment 2. Adoption of a resolution titled, "A resolution authorizing reimbursement of law COUNCIL MEETINGS ARE BROADCAST LIVE ON CHANNEL 9, OR ON CHARTER CABLE CHANNEL 180. VISIT THE CITY OF ASHLAND'S WEB SITE AT WWW.ASHLAND.OR.US enforcement training costs pursuant to Oregon Revised Statutes 181A.620" 3. Approval of a television head-end system lease agreement and contract X. PUBLIC HEARINGS (Persons wishing to speak are to submit a "speaker request form" prior to the commencement of the public hearing. Public hearings shall conclude at 9:00 p.m. and be continued to a future date to be set by the Council, unless the Council, by a two-thirds vote of those present, extends the hearing(s) until up to 10:30 p.m. at which time the Council shall set a date for continuance and shall proceed with the balance of the agenda.) None XI. UNFINISHED BUSINESS 1. Annual appointments to Citizen Budget Committee XII. NEW AND MISCELLANEOUS BUSINESS 1. Adoption of selection criteria and discussion of selection process for Administrative Services/Finance Director XIII. ORDINANCES, RESOLUTIONS AND CONTRACTS 1. Second reading by title only of an ordinance titled, An ordinance amending AMC 2.50.070 and AMC 2.28.045 public contracting delegated officer authority for intergovernmental agreements" XIV. OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS XV. ADJOURNMENT OF BUSINESS MEETING In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Administrator's office at (541) 488-6002 (TTY phone number 1-800-735-2900). Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title I). COUNCIL MEETINGS ARE BROADCAST LIVE ON CHANNEL 9, OR ON CHARTER CABLE CHANNEL 180. VISIT THE CITY OF ASHLAND'S WEB SITE AT WWW.ASHLAND.OR.US City Council Study Session December 19, 2016 Page 1 of 4 MINUTES FOR THE STUDY SESSION ASHLAND CITY COUNCIL Monday December 19, 2016 Siskiyou Room, 51 Winburn Way Mayor Stromberg called the meeting to order at 5:33 p.m. in the Siskiyou Room. Councilor Rosenthal, Morris, and Lemhouse were present. Councilor Seffinger arrived at 5:45 p.m. Councilor Marsh and Voisin were absent. 1. Public Input Mark DiRienzo/700 Mistletoe Road/Croman Mill was ideal for economic development and would tie in well with the Transit Triangle infill strategy. He supported improving Ashland Street with multifamily apartments but thought rents in the plan might be higher than what people currently paid for smaller spaces. In order to have people afford rent, they needed real jobs. He supported the Transit Triangle Project and wanted it to include the Croman Mill site. He suggested redeveloping the Croman Mill plan to create economic development first then affordable housing. Huelz Gutcheon/2253 Highway 99/Noted Portland Mayor Charlie Hales pledged no diesel of any kind by 2025, along with Paris and Athens, Greece during the C-40 Cities Climate Leadership Group event in Mexico City. He talked about the importance of measuring, provided several examples, and commented the City did not use measuring techniques. He went on to explain how Ashland had reached its population capacity five years before, was overcrowded, and that had a negative effect on traffic and safety. A good way to measure traffic safety was eliminating "fossil" cars. 2. Look Ahead review Interim City Administrator Chief John Karns reviewed items on the Look Ahead. 3. Update on infill strategies for transit triangle project Planning Director Bill Molnar explained staff had been working with the Planning Commission and Fregonese & Associates, a consulting firm, regarding an infill strategy. They chose an area that involved a key transit route that included Ashland Street, Siskiyou Boulevard, and linked to Tolman Creek Road the called the Triangle Transit. The area could accommodate future rental housing, specifically housing for median family incomes. There was a lot of vacant and underdeveloped property there and not much investment had occurred over the past 30 years. The plan could increase housing, the economy, and transit. It fit with prior council initiatives in terms of the economic development strategy, strategic housing priorities, the Transportation System Plan, and the eventually the Climate Energy Action Plan. John Fregonese, president of Fregonese Associates Urban & Regional Planning explained he had developed a tool to understand why R-3 zoning had not worked in Ashland. The zone permitted 36 units per acre but no one was able to build. The Transit Triangle Study focused on a specific area involving Siskiyou Boulevard, Ashland Street, and Tolman Creek Road. The frontages in these areas had opportunities for change that would improve the neighborhoods. Phase 1 of the Transit Triangle Study Conducted in the fall of 2015 completed the following tasks: • Market analysis • Initial developer interviews • Demographic analysis • Analysis of current zoning • Pro forma testing conducted City Council Business Meeting December 20, 2016 Page 1 of 6 MINUTES FOR THE REGULAR MEETING ASHLAND CITY COUNCIL December 20, 2016 Council Chambers 1175 E. Main Street CALL TO ORDER Mayor Stromberg called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers. ROLL CALL Councilor Morris, Lemhouse, Seffinger, Rosenthal, and Marsh were present. Councilor Voisin was absent. MAYOR'S ANNOUNCEMENTS Mayor Stromberg noted this was Councilor Voisin and Councilor Marsh's last meeting and expressed his appreciation to both. Councilor Seffinger/Rosenthal m/s to place appointing the City Finance Director as the Budget Officer for the City of Ashland on the Consent Agenda. Voice Vote: All AYES. Motion passed. Mayor Stromberg explained the City was currently working with Wendy Brown Consulting Partners (WBCP Recruiting) to conduct a national search for the Administrative Services/Finance Director. Council would discuss the process at the January 17, 2017 Council Meeting. He invited public input at that meeting on the selection criteria used in the screening process January 9 and 10, 2017. Citizens could submit input on the City website as well. The cutoff day for input was January 5 in order to go into the Council's final screening process. Monday, January 9, 2017, the five finalists will participate in a two-day interview and selection process. On Tuesday, January 10, 2017, Council will meet in a closed Executive Session to interview the top 2-3 candidates. Interim City Administrator Chief John Karns announced the Transportation Commission would hold a public hearing regarding the effectiveness of the Road Diet January 26, 2017 from 6:00 p.m. to 8:00 p.m. in the Council Chambers. Mayor Stromberg announced vacancies on the Airport, Housing & Human Services, and Tree Commissions. APPROVAL OF MINUTES The minutes of the Business Meeting of December 6, 2016 were approved as presented. SPECIAL PRESENTATIONS & AWARDS 1. Mayor's statement to the community Councilor Marsh read a proposed Mayor and Councilor statement to the community regarding the election of Donald Trump as president of the United States and pledged to uphold fundamental principles. Councilor Lemhouse/Rosenthal m/s to join the Mayor in supporting the Statement to the Community. Voice Vote: all AYES. Motion passed. PUBLIC FORUM Maureen Basttistella/395 Hemlock Lane/Spoke on behalf of the Tree Commission who endorsed the nomination of the Southern Oregon University's Spirit Tree as the Oregon Heritage Tree and as a City of Ashland Heritage Tree. The Commission asked that Council endorse their nomination of the Spirit Tree as the Ashland Heritage Tree. City Council Business Meeting December 20, 2016 Page 2 of 6 Annika Larson/795 Ellendale, Medford/Explained she was an Ashland High School student, addressed climate change efforts and supported Council adopting a climate change ordinance. Mina DeVore/568 Liberty Street/Was an Ashland High School student and spoke on the need for a Climate and Energy Action Plan and climate change ordinance. Claire Pryor/1221 Orchid Street/Was an Ashland High School student and member of the Climate and Energy Action Plan ad hoc Committee. She spoke on the direct impact Council's decisions had on her future and the need for a dedicated climate focused position in the City. Kaiya John/157 Max Loop, Talent, OR/Was an Ashland High School student and spoke on her concerns regarding climate change. The Climate and Energy Action Plan tied to the ordinance on climate change. She urged Council to place the climate action ordinance on the January 17, 2017 Study Session. Carson Barry/134 Church Street/Explained that 80% of citizens surveyed thought climate change was a real threat and wanted action now. With newly elected government having different views on climate change, it was up to local institutions to take the most aggressive and progressive actions possible. She urged council to put the climate change ordinance on the January 17, 2017 Study Session. Ms. Barry considered having an ordinance on climate change as part of the most aggressive actions to take. City Attorney Dave Lohman clarified the January 16, 2017 Study Session was rescheduled to January 23, 2017 due to Martin Luther King Day. CONSENT AGENDA 1. Minutes of boards, commissions, and committees 2. Assistance to firefighters grant application 3. Appointment of Ashland School District representative to the Conservation Commission 4. Request for sewer connection to a property located outside the City limits and within the Urban Growth Boundary 5. Appointment of Tina Gray as the Director of Hum-din Resources 6. Resolution Designating the City's Finance Director as the Budget Officer Councilor Rosenthal pulled Consent Agenda item 45 and shared how pleased he was to see this appointment go from manager to director. He noted Tina Gray's fourteen years as the City's Human Resource manager and congratulated her on this promotion. Councilor Seffinger/Morris m/s to approve Consent Agenda Items. Voice Vote: all AYES. Motion passed. PUBLIC HEARINGS 1. Public hearing and approval of the release of interest in an easement for construction and maintenance of iron pipes and flumes Engineering Services Manager Scott Fleury explained the City received an easement for construction and maintenance of iron pipes and flumes at a residence on Maple Way in 1890. The deed restriction followed the property until the owner recently inquired about removing the deed. The City was required to hold a public hearing whenever it released interest in a property or easement. Public Hearing Open: 7:40 p.m. Public Hearing Closed: 7:40 p.m. City Council Business Meeting December 20, 2016 Page 3 of 6 Councilor Marsh/Rosenthal m/s to approve the release of interest document for an easement dedicated in Jackson County official records in Volume 20, page 400, for parcel 92 of partition plat P-54-2000. Roll Call Vote: Councilor Morris, Lemhouse, Seffinger, Rosenthal, and Marsh, YES. Motion passed. 2. Public hearing and approval of three resolutions titled, "A resolution adopting new Transportation Systems Development Charges, pursuant to Section 4.20 of the Ashland Municipal Code, and repealing Resolution 1999-42"; "A resolution adopting new Wastewater Systems Development Charges, pursuant to Section 4.20 of the Ashland Municipal Code, and repealing Resolution 2006-27"; and "A resolution adopting new Water Systems Development Charges, pursuant to Section 4.20 of the Ashland Municipal Code, and repealing Resolution 2006-27" Financial Analyst Ray Bartlett explained the Transportation Systems Development Charge (SDC) was the most difficult one to administer because the criteria for administrating it was based on statistical data as opposed to other SDCs that went by square feet, plumbing units, or meter size. Transportation SDCs used PM peak hour traffic. Transportation criteria identified what produced the most traffic during the PM peak hour. The City based sewer and water rates on capital investments to meet peak demand. The lumberyard was data driven and presently determined by PM peak hour traffic. Traffic engineers carefully controlled the studies that formulated the method. The data over time would improve and until then municipalities had to work with current calculations. The City's traffic plan reduced PM peak hour travel and designed roadways to make travel as efficient as possible during those peak times. Councilor Morris commented the SDC on the lumberyard appeared to be a 389% increase. Councilor Marsh did not think the City used the Transportation SDC as aggressively as it could to encourage certain kinds of development. SDCs went across the board to residential development regardless of location. Mr. Bartlett explained there were several municipalities that attempted unsuccessfully to be more innovative. Demand Management had worked well in some situations when companies changed shift times and reduced PM peak hour travel. Universities could reduce trips during PM peak hour by encouraging development of their campuses or changing class scheduling to reduce trips. At the same time traffic needed to move. It would be several years before the city would see a huge reduction of change in those travel patterns. Public Works Director Mike Faught added the current Transportation SDC included multi modal and was more innovative than an SDC standpoint. Mr. Bartlett explained there were many experiments currently underway regarding transportation to measure fringe development. Some cities charged an SDC for their water systems based on elevation above that cities location or where the water source came into the system. With transportation, it did not matter on location as much since cars trended to travel throughout the city. He was not sure using an SDC to encourage specific types of change would necessarily happen. However, in the City of Portland when they build a multifamily development, the SDC for that development is less than if it had off street parking. Public Hearing Open: 7:55 p.m. John Fields/845 Oak Street/Explained building permits and SDCs for new construction was at 10%-12% of construction costs, excluding lands. The lumberyard increase created $280,000 worth of transportation fees and if it went out of business, people would drive to Talent and that created transportation issues. He was not sure if it was a good method for social equity or if the City could socially engineer its way out of what he surmised was a collapse. He went on to state concerns he had regarding the Transportation SDC. Public Hearing Closed: 8:02 p.m. City Council Business Meeting December 20, 2016 Page 6 of 6 OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS Councilor Lemhouse regretted Council did not have an official send off for Councilor Marsh. The best thing he did as the executive director of the Ashland Emergency Food Bank was hire Pam Marsh as their executive director. One of the best decisions he made as a city councilor was supporting Councilor Marsh's appointment to Council. He voiced his appreciation for all her hard work and effort she put into the community. ADJOURNMENT OF BUSINESS MEETING Meeting adjourned at 8:41 p.m. Barbara Christensen, City Recorder John Stromberg, Mayor 0 111 ZIP I in 4 0%111`0Z o--Z,,n) J ~ 0 - ' ~ - - - - ate- c~~> °O~ PROCLAMATION P r "31 ST ANNUAL CHRISTMAS TREE RECYCLE DAY" J c~00r+Lj j 00 • Solid waste disposal and a dwindling capacity in our landfills is a critical national problem. 00 • Garden waste contributes a significant volume in our landfills. L) ° • Troop 112 of the Boy Scouts of America, with assistance from the Ashland Parks Department, pick up and chipped Christmas trees in the City of Ashland. • The chipped material was used on park trails and as mulch for plants and did _i ,s not enter the "waste stream." • The Ashland Lions Club supports this effort by donating volunteer power and equipment to transport the pick-up crews. l NOW THEREFORE, the City Council and Mayor, on behalf of the citizens of ~ Ashland, hereby proclaim Saturday, January 7, 2017 as:~ ° CHRISTMAS TREE- CYCLE J DA Y IN ASHLAND au th and hereby urge all citizens to set out their tree near the curb on Friday, January 8 to be picked up on Saturday, January 7th, and to consider making a donation to assist the Troop in their community service activities. 7 c 00~ ~,c oo Dated this 31h day of January, 2017 .moo o~ ~ John Stromberg, Mayor D, VT (2 L~ a00~ OOz=a Barbara Christensen, City Recorder ~c+oo~o coo°;.~ P-b ~r £IuDCn~J CITY OF ASHLAND Council Communication January 3, 2017, Business Meeting Ashland Water Advisory Committee Council Liaison Appointment FROM: Michael R. Faught, Public Works Director, Public Works Department, faughtm@ashland.or.us SUMMARY The Council is asked to appoint Councilor Mike Morris as Council liaison to the Ashland Water Advisory Committee (AWAC). BACKGROUND AND POLICY IMPLICATIONS: In January of 2016 the Council approved appointment of nine AWAC Committee members plus Carol Voisin as the Council liaison to that committee. As Ms. Voisin is no longer a member of the City Council, AWAC staff have requested that Councilor Morris be appointed as Council Liaison to assist the completion of the committee's work. Both Councilor Morris and Mayor Stromberg have agreed to this appointment. COUNCIL GOALS SUPPORTED: 21.3 Re-examine and review master plans and SDCs on a regular basis FISCAL IMPLICATIONS: N/A STAFF RECOMMENDATION AND REQUESTED ACTION: Staff recommends that the City Council appoint Councilor Morris as Council Liaison to the AWAC. SUGGESTED MOTION: Move to appoint Councilor Morris as Council Liaison to the AWAC. ATTACHMENTS: N/A Page I of 1 ~r CITY OF ASHLAND Council Communication January 3, 2017, Business Meeting Resolution Authorizing Reimbursement of Law Enforcement Training Costs FROM: Tighe O'Meara, police chief, tighe.omeara@ashland.or.us SUMMARY Adoption of this resolution would allow the City of Ashland to recover the cost of training a new law enforcement officer if that officer should choose to leave the City's employ within a short time after completion of training. BACKGROUND AND POLICY IMPLICATIONS: The initial cost of hiring and training a new City police officer can be as much as $52,000 in salary and benefits for the 30 weeks it takes to get someone through the academy and in-house training. Oregon Revised Statutes (ORS) 181A.620 allows a police department to recover the costs of training a new officer if that officer voluntarily leaves the department's employ and is hired by another Oregon governmental agency in a position that requires the same training as required by the original employer. The statute permits recovery of the costs of law enforcement training on a pro rata basis from the subsequent employer if the employee leaves employment and is hired elsewhere in Oregon within three years of completing training. To obtain reimbursement of the training costs, the original employing agency must have already adopted policy providing for such cost recovery and a statutorily- prescribed pro rata reimbursement schedule. Approval of this resolution would serve to adopt such a policy and reimbursement schedule. COUNCIL GOALS SUPPORTED: 40. Ensure on-going fiscal ability to provide desired and required services at an acceptable level. FISCAL IMPLICATIONS: Recovery of at least some of the costs of training police officers who are here for a short time and are subsequently hired by other Oregon governmental agencies would result in a modest, but indeterminable increase in General Fund revenue over time. STAFF RECOMMENDATION AND REQUESTED ACTION: Staff recommends that the Council adopt the resolution as written. SUGGESTED MOTION: I move for adoption of the resolution titled, "A Resolution Authorizing Reimbursement of Law Enforcement Training Costs Pursuant to Oregon Revised Statutes 181 A.620." ATTACHMENTS: Resolution Page 1 of 1 1 . RESOLUTION NO. 2017- A RESOLUTION AUTHORIZING REIMBURSEMENT OF LAW ENFORCEMENT TRAINING COSTS PURSUANT TO OREGON REVISED STATUTES 181A.620 RECITALS: A. The City of Ashland from time to time may incur training costs for law enforcement employees in positions that require training; and B. Oregon Revised Statutes 181A.620 provides for reimbursement of law enforcement training costs when an original employing governmental agency trains an employee who is employed in a position that requires training and said employee voluntarily leaves employment with that original employing governmental agency and is subsequently employed by a different governmental agency in a position that requires the same training as required for the original employing governmental agency; and C. The City may obtain such reimbursement of the costs of training a City law enforcement employee subsequently hired by another Oregon governmental agency only if the City adopts a policy providing for a statutorily-prescribed pro rata reimbursement schedule. THE CITY RESOLVES AS FOLLOWS: SECTION 1. The City of Ashland shall request reimbursement for training costs as defined in ORS 181A.620 at the rate of reimbursement equal to the maximum permitted by ORS 181A.620 now in effect or as may be amended hereafter. This resolution was duly PASSED and ADOPTED this day of , 2017, and takes effect upon signing by the Mayor. Barbara Christensen, City Recorder SIGNED and APPROVED this day of , 2017. John Stromberg, Mayor Reviewed as to form: David Lohman, City Attorney Resolution No. 2017- Page 1 of 1 CITY OF ASHLAND Council Communication January 3, 2017, Business Meeting Approval of a Television Head-End System Lease Agreement and Contract FROM Mark Holden, director of IT and electric utility, mark. hoIdenkashland.or.us SUMMARY This is a request to approve a television head-end system lease agreement and contract (Contract) with the current agreement holder - Ashland Home Network (Home Network). The Contract seeks to continue to lease the head-end facilities from Ashland Fiber Network (AFN). The contract is for a term of eighteen months beginning January 1, 2016 and ending June 30, 2017. The Contract maintains the current base operating fee structure and decreases the monthly fixed revenue sharing by fifteen-hundred dollars per month. The Contract provides Home Network reasonable relief of its operating costs, helps to preserve the current television customer base, helps to preserve television customers as Home Network internet customers (AFN provides internet to Home Network), and clarifies lease terms. BACKGROUND AND POLICY IMPLICATIONS: Demand for subscription cable TV services is decreasing. Over the term of the previous contract subscription levels have continued to decline both locally (Home Net) and nationally (e.g. Charter, Comcast, etc.). The trend is projected to continue. The reason for the decline is the Internet and the Internet's growing availability of competitive programmed (broadcast TV) and custom (e.g. Hulu, Netflix) television content. The proposed Contract supports a financially viable relationship with Home Network. As was found during 2012 contract discussions, current contract discussions with Home Network indicate the current contract terms are not sustainable due to the declining TV subscription rate. The Contract provides a viable cost structure for Home Network. The proposed Contract continues to provide cable TV services to existing Ashland customers. Without Home Network TV services, customers would likely choose and alternative TV (and internet) provider resulting in a loss of revenue for both Home Network and AFN. Both Home Network and AFN recognize the TV subscribers are also valued internet customers. The Contract continues to require Home Network to purchase internet services from AFN. By preserving internet customers, the Contract continues to provide important internet revenue to both Home Network and AFN. Page 1 of 2 ~r CITY OF ASHLAND The Contract clarifies existing lease terms and operating practices. The Contract contains a new provision for the right of AFN to retain the Home Net customer base should Home Net decide to sell its customer accounts. The Contract maintains the current base operating fee structure and decreases the monthly fixed revenue sharing by fifteen hundred dollars per month. COUNCIL GOALS SUPPORTED: 17. Market and further develop the Ashland Fiber Network. 17.1 Complete and implement the AFN business plan. FISCAL IMPLICATIONS: The contract maintains the monthly base operating fee at $1,750 per month. The Contract reduces the monthly fixed revenue sharing from $6,250 to $4,750 per month, a reduction of $1,500 per month. The Contract reduces the AFN annual revenue from $96,200 to $78,200, a reduction of $18,000 per year. The reduction is not part of the existing budget and will be a reduction in expected revenues. However, an unrelated, significant reduction in AFN's Internet expense will dampen the effect of the revenue loss. Should Home Network's customers move to another TV provider, AFN's potential combined loss of proposed head-end and existing internet revenue is approximately $315,200 per year ($78,200 + $237,000). The recommended Contract retains the valuable Home Network relationship, continues service to Ashland's citizens and preserves an important customer base for both Home Network and AFN. STAFF RECOMMENDATION AND REQUESTED ACTION: Staff recommends the Television Head-End System Lease Agreement and Contract with Ashland Home Network be approved. SUGGESTED MOTION: I move approval of a contract between Ashland Home Network, Inc. and the City of Ashland for a television head-end lease under which the City is to be paid seventy-eight thousand and two-hundred dollars ($78,200) per year. ATTACHMENTS: Contract - Television Head-End System Lease Agreement and Contract Contract - Television Head-End System Lease Agreement and Contract, February 10, 2011 Contract Addendum 41 - Television Head-End System Lease and Contract, January 1, 2011 (signed April 3, 2012) RFP - Television Services, October 1 1, 2010 Page 2 of 2 ~r PIA TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT BETWEEN CITY OF ASHLAND, OREGON AND ASHLAND HOME NET TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT ("Agreement") entered this 1 st day of January 2016, between the City of Ashland, Oregon, ("City") by and through its Ashland Fiber Network division ("AFN"), and Ashland Horne Net, a Nevada Corporation, hereinafter referred to as "Home Net". WHEREAS, in 2010, pursuant to a Request for Proposal ("RFP") by AFN, Home Net entered into a lease agreement with AFN for the television head-end (as defined below) and the provision of cable television services; and WHEREAS, Home Net must maintain a Franchise Agreement with the City because AFN is not a cable television operator and will not maintain a cable television franchise; and WHEREAS, the Parties have had to amend the lease in order to make the enterprise financially sustainable, the results of which leave a profit margin so small that it is not practical for AFN to reissue an RFP in today's marketplace, and WHEREAS, the Parties wish Home Net to continue providing services to the Ashland, Oregon, community; and WHEREAS, this Agreement serves to continue an agreement to lease for the television head-end and contract for services between AFN and Home Net. Material terms and conditions that supplement the underlying lease are also found within the RFP, which is attached hereto as Exhibit A; and WHEREAS, AFN and Home Net wish to enter into this Agreement to clarify the lease terms and to ensure that the Agreement reflects the intent and current practices of the parties; NOW, THEREFORE, THE CITY AND ASHLAND HOME NET HEREBY AGREE AS FOLLOWS: 1. LEASE OF TELEVISION HEAD-END: AFN hereby leases to Home Net its television head-end and all the associated equipment located at the City of Ashland Service Center, 90 N. Mountain Avenue, Ashland, Oregon 97520, as set forth in the RFP and attached hereto, and 450 MHz and 860 MHz WAN bandwidth provided by and through AFN's hybrid fiber-coax network (the "Network") as required to provide cable television service to residents of the City of Ashland, subject to the limitations set forth herein (hereinafter referred to as the "television head-end"). The television head- end does not include the outside plant. Home Net holds and maintains ownership rights to television subscribers and cable television from the head-end and into the customer premises. 2. LEASE FEES 2.1. BASE OPERATING FEES: Home Net shall pay AFN, as rent and for the cost of basic operations of the television head-end, a set monthly fee effective retroactive to January 1, 2016. The Base operating fee is one thousand seven hundred and fifty dollars ($1,750 USD) per month, with an annual charge of $200 for security for a total of $21,200.00. 2.1.1. Payments are due and payable in monthly installments paid no later than the twenty fifth (25 ) of each month and addressed to AFN at the address set forth in this Agreement. 2.1.2. This Base Operating Fee shall be paid in arrears for the previous month period, without deduction or setoff of any kind. al in cats contract.docx Page 1 or 7 4/21/2016 8:00 AM 2.2. MISCELLANEOUS CHARGES AND FEES: Home Net shall pay AFN for services rendered per the table in this section. Payments for services are due and payable no later than thirty (30) days after the billing period, or per date listed on invoices sent by AFN. Payments shall be made by Home Net without deduction or setoff of any kind, and be addressed to AFN at the address set forth in this Agreement. Fees, hourly rates, and miscellaneous charges will apply from the effective date of this Agreement and last through June 30, 2017, after which they may be amended by AFN provided AFN gives Home Net 60-days prior notice. 2.2.1. Traps. Home Net shall pay for cable television traps ("filters"). 2.2.2. Signal Filings. AFN shall pay for annual aeronautical signal leak detection and fly- over examinations, which shall be filed accordingly with the FCC by AFN. 2.2.3. Waivers. At its discretion, AFN may waive these fees, but waiver shall not be a waiver of or prejudice the party's right to require strict performance of the same provision in the future or of any other provision. Description of Services RATE Installation Fee in Home (Additional charges for parts and supplies apply.) $30.00 Disconnect Fee $50.00 Standard Outlet Fee $20.00 Add/Remove Trap Fee $10.00 Field Technician Hourly Rate (Non-standard work such as advanced troubleshooting, nonstandard $55.00 outlets, wall fishing, etc.) Consulting and Technical Support - Hourly Rate (Charge applies to support for issues not related to AFN infrastructure $85.00 performance and reliability.) Staff Screening Fee (Charge for each employee submitted for authorization to access AFN and $150.00 City Service Center facilities.) 2.3. REVENUE SHARING: Revenue sharing payments shall be due and paid monthly no later than the twenty fifth (25`') day of the following month. Revenue sharing shall be for the following services and calculated in the following manner: 2.3.1. Non-Advertising Revenues are revenues from all services other than advertising sales. Revenue share shall be paid by Home Net to AFN as a percentage of all Non- Advertising Revenues, calculated from overall average revenue per customer. 2.3.1.1. For customers 1 to 3000, Home Net shall pay AFN a Non-Advertising Revenues payment of $4,750 per month. 2.3.1.2. For customers 3001 to 3500, Home Net shall pay AFN 5% of Non-Advertising _ Revenues. 2.3.1.3. For customers 3501 to 4000, Home Net shall pay AFN 3% of Non-Advertising Revenues. 2.3.1.4. For customers 4001 and above, Home Net shat l pay AFN I% of Non-Advertising Revenues. 2.3.2. Advertising Revenues are those revenues generated from the sale of advertising time and/or services. Home Net shall pay AFN 0% of its Advertising-related Revenues. 3. SPECIAL EXAMINATIONS: Home Net agrees that the City may initiate a special examination of its finances to confirm accuracy of payments at any time after giving reasonable notice to Home Net. Special examination shall not exceed one per year. In the event of a special examination, Home Net must and shall make all files, materials, and staff fully available to AFN, or its assigned independent contractors or agents. 3.1. Reporting. At least annually, Home Net shall submit a current financial report reviewing the financial status of the company and its operations. ahn cats contract.doex Page 2 or 7 4/21/2016 8:00 AM 3.2. Scope. The scope of any special examinations will be limited to services contracted and/or proposed in Home Net's response to the RFP. 3.3. Selection. AFN shall select contractors or agents with the necessary qualifications to review Home Net's financial report. 3.4. Cost. Special examinations shall be paid for equally by Home Net and the City if the selected contractor determines payments by Home Net do not exceed three percent (<3%) less than was due to AFN. If payments to AFN by Home Net exceed three percent (>3%) less than was due to AFN and the errors were not inadvertent, Home Net agrees to pay the full cost of the special examination. 4. TERM OF AGREEMENT: The initial term of this Agreement shall commence on the date noted above and continue through the following dates (with other term noted): Dates Term Base Operating Fee Minimum Revenue Minimum Payment Sharing January 1, 2016, through 18 months $1750 / month $4750 / month $6,50o / month June 30, 2017 4.1. AFN may, at its sole discretion, extend the term of this Agreement for one additional one year term. The extension shall be communicated in writing by AFN and sent to Home Net at least ninety (90) days prior to the end date of this Agreement. 5. USE OF PROPERTY: Home Net shall be granted use of and access to the AFN television head-end for the provision of television services to residents of Ashland, OR, pursuant to the RFP, Proposal, and Cable Franchise. As used herein, "television services" means: (A) the transmission to subscribers of analog video programming, and (B) the one-way transmission to subscribers of digital video programming. Home Net is not permitted under this Agreement to use the television head-end to provide any non-television services or use the television head-end to provide any other services or for any other purposes except as specifically granted under this Agreement. 6. STORE-FRONT LOCATION: Home Net will maintain a commercial storefront location within the City of Ashland's urban growth boundary throughout the term of this Agreement. Said offices shall be assessable to the public during normal business hours and will be equipped and staffed to handle walls-in customer and premise visits for connects, disconnects, and equipments and parts pick-up. 6.1. Hours of Operation. Store-front facility shall be open to the public standard business days and hours, except for national and State of Oregon holidays. 6.2. Service Standard. Customer support staff must be courteous and professional. 7. WHOLESALE TELEVISION PRODUCTS: Home Net agrees to make its television products available to AFN and its partners at reduced wholesale prices. 7.1. Packages and Prices. Home Net agrees to make available for resale its television packages for at least a 10% discount from its retail prices. These packages will be made available only to AFN and its designated partners. 7.2. Management of Wholesale Purchases. Vendors shall be able to purchase television services directly from Home Net by a process Home Net defines and manages. 7.3. Notification. Home Net shall notify AFN, customers of its services, and vendors purchasing its products at wholesale rates of any related prices or product changes. Notifications must be sent at least sixty (60) days prior to price and product changes taking effect, unless required in a shorter timeframe by law. 'f 8. BILLING, ACCOUNTING, AND CONTRACTS: Home Net shall independently manage its commitments and operations as they relate to the services under this contract. Home Net agrees it carries complete and sole liability for its billing, accounting, contracts, and related processes. 9. CONDITIONS OF USE: 9.1. Disposition of Customers. Without exception, Home Net agrees it and AFN share mutual interest in all customers obtained under the duration of this Agreement and for the services specified. ahn cats contract.doex Page 3 or 7 4/21/2016 8:00 AM 9.1.1. Home Net shall share customer data openly, fully, and exclusively with AFN. Customer data shall be maintained in a secure fashion and shall not be shared, transmitted, or otherwise revealed to third parties without the written consent of AFN. 9.1.2. Home Net agrees not to sell, transfer, exchange, grant an option to purchase, or otherwise dispose of customer accounts or any part of, or interest in, its customer accounts without first offering these accounts to AFN on the terms and conditions set forth in this Section. 9.1.2.1. Home Net must give AFN written notice (the "Notice") of the price, terms, and conditions of any third party offer and deliver a copy of the executed contract evidencing the offer (the "Offer") to AFN. 9.1.2.2. AFN will have 15 days from the date that it receives the Notice and a copy of the Offer to notify Home Net whether AFN elects to purchase the customer accounts under the terms of the Offer. 9.2. Cable Franchise. Without exception, Home Net must obtain and maintain a valid Cable Franchise Agreement with the City of Ashland for the duration of this Agreement. Further, Home Net agrees to fully accept revisions to the City Code affecting administration of the City's rights-of-way and telecommunications franchise agreements. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. 9.3. Business License. Without exception, Home Net must obtain and maintain a valid Business License with the City of Ashland for the duration of this Agreement, as well as any extensions. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. 9.4. Co-Marketing. Home Net agrees to cooperatively market all services and products under this Agreement with AFN. This includes inclusion of the AFN logo and brand in all marketing efforts and providing AFN management opportunity to review and control use of its logo and brand. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. 9.5. Use of Facilities. Horne Net's use of the television head-end shall be conditioned upon its } compliance with the requirements and obligations set forth in the RFP, Proposal, Agreement, and Cable Franchise Agreement. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. AFN agrees to provide all information, documents, materials and services that are within its possession or control and are required by Home Net for performance of the requirements and obligations set forth in the RFP, Proposal and Cable Franchise. 9.6. Reliability. Home Net's lease and contract (Agreement) shall be conditioned upon maintaining access for subscribers to channels and content at least 99.9% of all available hours. 9.7. Compliance. Home Net's lease and contract (Agreement) shall be conditioned upon receiving no more than thirty-six notices of violation from the Federal Communications Commission (FCC), Public Utilities Commission (PUC), or other regulating bodies. 9.8. Maintenance of Assets. Home Net shall, at its own expense, operate, maintain, and repair the television head-end and equipment in proper operating condition during the term of this Agreement. 9.9. Customer Service Surveys. Home Net shall conduct at least one (1) periodic customer service survey per year, which shall be reviewed and approved by AFN prior to sending to subscribers. Home Net's Lease Agreement and Contract shall be conditioned upon maintaining a customer satisfaction rating of at least 75% good to excellent. 9.10. Taxes. Home Net shall be responsible for all applicable taxes including, but not limited to, franchise fees and PEG fees due pursuant to the Cable Franchise. Home Net shall not deduct from Lease Fees due under this Agreement any such taxes or fees paid by Home Net. 9.11. Permits and Licenses. Home Net shall be responsible to obtain all necessary permits and licenses required to operate the television head-end and to provide cable television services over the television head-end. ahn eaty contract.doex Page 4 or 7 4/21/2016 8:00 AM 9.12. Coordination of Use. Home Net acknowledges that the television head-end is located in the same facility as AFN's network and that the network capacity provided to Home Net under this Agreement is also used by AFN to provide internet access services over its Network. Home Net acknowledges and agrees that the terms of this Agreement do not limit AFN's access to that facility for any purpose associated with the operation, maintenance, repair or use of the Network, nor does it grant Home Net the exclusive use of the Network or otherwise place any F limitations on AFN's use of the Network. 9.13. Other Conditions. Home Net further agrees to the following conditions on access to and use = of the television head-end: 9.13.1. The City of Ashland and its agents shall at all times (upon reasonable notice to Home Net) have access to television head-end equipment for the purposes of inspecting and assessing its condition and state of repair. 9.13.2. Home Net may not operate the television head-end in a manner that fails to maintain the signal integrity of AFN's network or to meet ingress and signal to noise specifications set by AFN. 9.13.3. Notwithstanding the grant of use, Home Net shall not be permitted to erect, install, construct, repair, replace, reconstruct and retain the television head-end, or any part thereof, without AFN's written permission. 9.13.4. Home Net may upgrade the television head-end pursuant to the RFP, provided that any alteration, improvement, or addition(s) to the television head-end shall be conducted by Home Net with AFN's prior written permission. Such changes, additions or alterations shall be at the sole expense of Home Net. All alterations, improvements, or additions to the television head-end shall become property of AFN after installation. 9.13.5. Home Net shall only allow access to the television head-cnd by designated staff who have passed background checks by the City of Ashland or other entities as deemed necessary by the City's Information Technology Department. 9.13.6. Home Net shall not store any equipment or supplies on City property without prior approval by the City's Information Technology Department, and shall not park vehicles on City property other than in authorized parking spaces. 9.13:7. Home Net shall not access the network equipment or any other area within City's property, or use City property for any reason other than as permitted herein or in the RFP. 10. ADDITIONAL SERVICES: Ashland Home Net will render the following value-added services at the stipulated revenue sharing. 10.1. Internet Connectivity-Home Net shall purchase its Internet services products exclusively from AFN for customers in Ashland's urban growth boundary. Home Net agrees to purchase AFN connectivity products at the rates approved by City Council and shall resell those products to the community at retail prices it deems appropriate. AFN shall have no additional revenue share from this service above its revenue from Home Net's purchases of internet Y services. 11. EFFECT ON PREVIOUS AGREEMENTS: Upon execution of this Agreement by both parties, this Agreement shall supersede and render null and void all previous leases, agreements, and contracts between AFN and Home Net for television services. 12. COMPLIANCE WITH LAWS: 12.1. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon. Home Net shall promptly observe and comply with all present and future laws, orders, regulations, rules and ordinances of federal, state and local governments with respect to the lease of the television head-end and the requirements and obligations of the RFP and Proposal, including but not limited to provisions of ORS 27913.220, 27913.230 and 27913.235. 12.2. Home Net is a "subject employer" as defined in ORS 656.005 and shall comply with ORS 656.017. If it has not already done so as required by the Cable Services Agreement, within 10 business days of the execution of this Agreement, Home Net shall certify to City that it has workers' compensation coverage required by ORS Chapter 656. If Home Net is a carrier ahn cats contract.docx Page 5 or 7 4/21/2016 8:00 AM k t insured employer, Home Net shall provide City with a certificate of insurance. If Home Net is a self-insured employer, Home Net shall provide City with a certification from the Oregon Department of Insurance and Finance as evidence of Home Net's status. 13. INSURANCE: 13.1. Home Net shall, at its own expense, and at all times during the term of this Agreement, maintain in force: 13.1.1. A comprehensive general liability policy including coverage for contractual liability for obligations assumed under this contract, blanket contractual liability, products and completed operations and owner's and contractor's protective insurance. 13.1.2. A comprehensive automobile liability policy including owned and non-owned automobiles. 13.2. The coverage under each liability insurance policy shall be equal to or greater than the limits for claims made under the Oregon Tort Claims Act with minimum coverage of $2,000,000, or higher, per occurrence (combined single limit for bodily injury and property damage claims) or $1,000,000, or higher, per occurrence for bodily injury and $500,000, or higher, per occurrence for property damage. Liability coverage shall be provided on an "occurrence" basis. "Claims made" coverage is not acceptable, except for the automobile liability policy coverage required by paragraph 12.1.2. 13.3. Certificates of insurance acceptable to City shall be filed with City within 10 business days of the execution of this Agreement, if not already on file with City. Each certificate shall state that coverage afforded under the policy cannot be cancelled or reduced in coverage until at least thirty (30) days prior written notice has been given to City. A certificate that states merely that the issuing company "will endeavor to mail" written notice is unacceptable. 14. INDEMNIFICATION: Home Net shall defend, indemnify and hold City, its officers, agents, and employees harmless from any and all claims, actions, costs, judgments, damages or other expenses resulting from injury to any person (including injury resulting in death), or damage to property (including loss or destruction), of whatsoever nature arising out of, or incident to, the negligent performance of this Agreement by Home Net. Home Net's indemnification of the City and AFN includes, but is not limited to, the negligent acts or omissions of Home Net's employees, agents and others designated by Home Net to access the television head-end, provide cable television services, perform work or services attendant to this Agreement, and/or maintain the security of customer data. Home Net shall not be held responsible for any claims, actions, costs, judgments, damages or other expenses, directly and proximately caused by the direct negligence of City. 15. DEFAULT: 15.1. There shall be a default under this Agreement if either party fails to perform any act or obligation required by this Agreement within ten (10) days after the other party gives written notice specifying the nature of the breach with reasonable particularity. If the breach specified in the notice is of such a nature that it cannot be completely cured within the 10 day period, no default shall occur if the party receiving the notice begins performance of the act or obligation within the 10 day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. 15.2. Misrepresentations of experience, staff, references, or other qualification of material importance to accurately rating the ability of proposers in the RFP process shall be considered a default and shall constitute grounds for terminating this Agreement. 15.3. Notwithstanding Section 12.1, either party may declare a default by written notice to the other party, without allowing an opportunity to cure, if the other party repeatedly breaches the terms of this Agreement. 15.4. If a default occurs, the party injured by the default may elect to terminate this Agreement and pursue any equitable or legal rights and remedies available under Oregon law. All remedies shall be cumulative. 15.5. Any litigation arising out of this Agreement shall be conducted in Circuit Court of the State of Oregon for Jackson County. ahn cats contract.doex Page 6 or 7 4/21/2016 8:00 AM I 16. TERMINATION FOR PUBLIC INTEREST: In addition to the right to terminate this Agreement under Section 15, City may terminate this Agreement and Contract by giving Home Net sixty (60) days prior written notice if it determines termination is required for the interests of the community. If City terminates under this Section; Home Net shall be paid all fees earned and costs incurred prior to the termination date set forth in the notice. Home Net shall not be entitled to be compensated for lost profits. 17. WAIVER: Failure of City or Home Net in any one or more instances to insist upon the performance of any of the terms of this Agreement, or to exercise any right or privilege conferred herein, or the waiver of any breach of any term of this Agreement should not thereafter be construed as a waiver of such term, which shall continue in force as if no waiver had occurred. 18. NOTICES: Any notice required to be given under this Agreement or any notice required to be given by law shall be in writing and may be given by personal delivery or by registered or certified mail, or by any other manner prescribed by law. 18.1. Notices to City shall be sent to: Director of Information Technology City of Ashland 90 N. Mountain Avenue Ashland, Oregon 97520 With a copy to: City Administrator City of Ashland 20 East Main Street Ashland, Oregon 97520. 18.2. Notices to Ashland Home Net shall be sent to: Ashland Home Net ' c/o Jim Teece 485 East Main Street Ashland, OR 97520 19. ASSIGNMENT: City and Home Net and the respective successors, administrators, assigns and legal representatives of each are bound by this Agreement to the other party and to the partners, successors, administrators, assigns and legal representatives of the other party. Home Net shall not assign or subcontract Home Net's rights or obligations under this Agreement without prior written consent of City. Except as stated in this Section, nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City or Home Net. 20. MODIFICATION: No modification of this Agreement shall be valid unless in writing and signed by the parties. IN WITNESS WHEREOF, the parties have executed this Agreement at Ashland, Oregon, on this day of 1 2016. By: City of Ashland By: Ashland Home Net Dave Kanner, City Administrator Ji e ent & CEO ahn cats contract.doex Page 7 or 7 4/21/2016 8:00 AM TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT BETWEEN CITY OF ASHLAND, OREGON AND ASHLAND HOME NET E TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT ("Agreement") entered this 10`h day of February, 2011, between the City of Ashland, Oregon, ("City") by and through its Ashland Fiber Network division ("AFN"), and Ashland Home Net, a Nevada Corporation, hereinafter E referred to as "Home Net". WHEREAS, in November, 2010, AFN issued a request for proposals ("RFP," attached hereto as Exhibit A) for the lease of the television head-end (as defined below) and the provision of cable television services; and WHEREAS, Operator submitted a proposal in response to the RFP issued by AFN (the "Proposal," attached hereto); and WHEREAS, after reviewing Home Net's proposal, the RFP Evaluation Committee selected Home Net as the successful proposer to lease AFN's television head-end and provide television services as described in the RFP; and WHEREAS, Home Net wishes to provide services to the Ashland, Oregon, community as described in the RFP for the incentives negotiated with AFN; and WHEREAS, this Agreement serves as a lease for the television head-end and contract for services between AFN and Home Net; and WHEREAS, Home Net must execute a Franchise Agreement with the City because AFN is not a cable television operator and will not maintain a cable television franchise; and WHEREAS, AFN and Home Net wish to enter into this Agreement to clarify the lease terms and to ensure that the Agreement reflects the intent and current practices of the parties; NOW, THEREFORE, THE CITY AND ASHLAND HOME NET HEREBY AGREE AS FOLLOWS: 1. LEASE OF TELEVISION HEAD-END: AFN hereby leases to Home Net its television head-end and all the associated equipment located at the City of Ashland Service Center, 90 N. Mountain Avenue, Ashland, Oregon 97520, as set forth in the RFP and attached hereto, and 450 MHz and 860 MHz WAN bandwidth provided by and through AFN's hybrid fiber-coax network (the "Network") as required to provide cable television service to residents of the City of Ashland,, subject to the limitations set forth herein (hereinafter referred to as the "television head-end"). The television head- end does not include the outside plant. Home Net holds and maintains ownership rights to television subscribers and cable television from the head-end and into the customer premises, 2. LEASE FEES f 2.1, BASE OPERATING FEES; Home Net shall pay AFN, as rent and for the cost of basic operations of the television head-end, the sum of two hundred thousand dollars ($200,000 USD), which shall be due and payable in quarterly installments paid no later than the twenty fifth (25{h) day of March, June, September, and December of each year. This Base Operating Fee shall be paid in arrears for the previous three-month period, without deduction or setoff of any kind, and be addressed to AFN at the address set forth in this Agreement. RFP - Television Services, February 10, 2011, Page I or 9 2.2. MISCELLANEOUS CHARGES AND FEES: Home Net shall pay AFN for services rendered per the table in this section. Payments for services are due and payable no later than thirty (30) days after the billing period, or per date listed on invoices sent by AFN. Payments shall be made by Home Net without deduction or setoff of any kind, and be addressed to AFN at the address set forth in this Agreement. Fees, hourly rates, and miscellaneous charges will apply from the effective date of this Agreement and last through December 31, 2011, after which they may be amended by AFN provided AFN gives Home Net 60-days prior notice. 2.2.1. Traps. Home Net shall pay for cable television traps ("filters"). 2.2.2. Signal Filings. AFN shall pay for annual aeronautical signal leak detection and fly-over examinations, which shall be filed accordingly with the FCC by AFN, 2.2.3. Waivers. At its discretion, AFN may waive Miscellaneous Charges and Fees. Description of Services RATE Installation Fee (Additional charges for arts and supplies apply,) $20.00 Disconnect Fee $50.00 Standard Outlet Fee $20.00 Add/Remove Trap Fee $10.00 Field Technician Hourly Rate (Non-standard work such as advanced troubleshooting, nonstandard $40.00 outlets, wall fishing, etc.) Consulting and Technical Support - Hourly Rate (Charge applies to support for issues not related to AFN infrastructure $70.00 performance and reliability.) Staff Screening Fee (Charge for each employee submitted for authorization to access AFN and $150.00 City Service Center facilities.) 2,3. REVENUE SHARING: Revenue sharing payments shall be due and payable in quarterly installments paid no later than the twenty fifth (251h) day of March, June, September, and December of each year, for the previous quarter's total, Revenue sharing shall be for the following services and calculated in the following manner: , 2.3.1. Non-Advertising Revenues are revenues from all services other than advertising sales. Revenue share shall be paid by Home Net to AFN as a percentage of all Non- Advertising Revenues, calculated from overall average revenue per customer. 2.3.1.1. For customers 1 to 3000, Home Net shall pay AFN 0% of Non-Advertising a Revenues. 2.3.1.2. For customers 3001 to 3500, Home Net shall pay AFN 5% of Non-Advertising Revenues. 2.3.1.3. For customers 3501 to 4000, Home Net shall pay AFN 3% of Non-Advertising Revenues. i 2.3.1.4. For customers 4001 and above, Home Net shall pay AFN 1 % of Non-Advertising Revenues, 2.3.2. Advertising Revenues are those revenues generated from the sale of advertising time and/or services. Home Net shall pay AFN 0% of its Advertising-related Revenues for the first three years of this agreement, after which AFN will receive 1% of revenues. 3. SPECIAL'EXAMINATIONS: Home Net agrees that the City may initiate a special examination of its finances to confirm accuracy of payments at any time after giving reasonable notice to Howie Net. Special examination shall not exceed one per year. In the event of a special examination, Home Net must and shall make all files, materials, and staff fully available to AFN, or its assigned independent contractors or agents. 3.1, Reporting. At least annually, Home Net shall submit a current financial report reviewing the financial status of the company and its operations. RFP -Television Services, February 10, 2011, Page 2 or 9 3.2. Scope. The scope of any special examinations will be limited to services contracted and/or proposed in Home Net's response to the RFP. 3.3. Selection. AFN shall select contractors or agents with the necessary qualifications to review Home Net's financial report. 3.4. Cost. Special examinations shall be paid for equally by Home Net and the City if the selected contractor determines payments by Home Net do not exceed three percent (<3%) less than was due to AFN. If payments to AFN by Home Net exceed three percent (>3%) less than was due to AFN and the errors were not inadvertent, Home Net agrees to pay the full cost of the special examination. 4. TERM OF AGREEMENT: The initial term of this Agreement shall commence on the date noted above and continue through the following dates (with other term noted): Dates Term Base Operating Fee Technical Review Operating Review Basis Basis January1, 2011, to Pour years $zao,ooo (Year 1-4) Services & Financial & Compliance Marketing December 31., 201.4 January a., zo-is, to Possible one-year Services & Financial & [Marketing December 31, zo15 extension; Fifth year $205,000 (Year 5) Compliance 4.1. AFN may, at its sole discretion, extend the term of this Agreement for one additional one year term. The extension shall be communicated in writing by AFN and sent to Home Net at least ninety (90) days prior to the end date of this Agreement. 4,2. The 51n Year will be automatically awarded if Home Net has >3,000 televisibn customers as of December 1, 2014. 5. USE OF PROPERTY: Home Net shall be granted use of and access to the AFN television head-end for the provision of television services to residents of Ashland, OR, pursuant to the RFP, Proposal, and Cable Franchise. As used herein, "television services" means: (A) the transmission to subscribers of analog video programming, and (B) the one-way transmission to subscribers of digital video programming. Home Net is not permitted under this Agreement to use the television head-end to provide any non-television services or use the television head-end to provide any other services or for any other purposes except as specifically granted under this Agreement. 6. STORE-FRONT LOCATION: Home Net agrees to maintain a commercial storefront location within the City of Ashland's urban growth boundary throughout the term of this Agreement. Said offices shall be equipped and staffed to handle on-site customer visits for connects, disconnects, and equipments and parts pick-up. 6.1. Hours of Operation. Store-front facility shall be open to the public standard business days and hours, except for national and State of Oregon holidays. 6.2. ' Service Standard. Customer support staff must be courteous and professional. 7. WHOLESALE TELEVISION PRODUCTS: Home Net agrees to make its television products available to AFN and its partners at reduced wholesale prices. 7.1. Packages and Prices. Home Net agrees to make available for resale.its television packages for at least a 10% discount from its retail prices. These packages will be made available only to AFN and its designated partners. 7.2. Management of Wholesale Purchases. Vendors shall be able to purchase television services directly from Home Net by a process Home Net defines and manages. 7.3. Notification. Home Net shall notify AFN, customers of its services, and vendors purchasing its products at wholesale rates of any related prices or product changes. Notifications must be sent at least sixty (60) days prior to price and product changes taking effect, unless required in a shorter timeframe by law. 8, BILLING, ACCOUNTING, AND CONTRACTS: Home Net shall independently manage its commitments and operations as they relate to the services under this contract. Home Net agrees it carries complete and sole liability for its billing, accounting, contracts, and related processes. 9. CONDITIONS OF USE: R1=P Television Services, February 10, 2011, Page 3 or 9 9.1. Disposition of Customers. Without exception, Home Net agrees it and AFN share mutual interest in all customers obtained under the duration of this Agreement and for the services specified. 9.1.1. Home Net shall share customer data openly, fully, and exclusively. Customer data shall be maintained in a secure fashion and shall not be shared, transmitted, or otherwise revealed to third parties without the consent of AFN. 9.1.2. Home Net shall not sell or otherwise transfer customer accounts, nor sell or transition customers to alternative services, without mutual agreement and addendum to this Agreement. 9.2. Cable Franchise. Without exception, Home Net must obtain and maintain a valid Cable Franchise Agreement with the City of Ashland for the duration of this Agreement. Further, Home Net agrees to fully accept revisions to the City Code affecting administration of the City's rights-of-way and telecommunications franchise agreements. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. 9.3. Business License. Without exception, Home Net must obtain and maintain a valid Business License with the City of Ashland for the duration of this Agreement, as well as any extensions. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. 9.4. Co-Marketing. Home Net agrees to cooperatively market all services and products under this Agreement with AFN. This includes inclusion of the AFN logo and brand in all marketing efforts and providing AFN management opportunity to review and control use of its logo and brand. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. 9.5. Use of Facilities. Home Net's use of the television head-end shall be conditioned upon its compliance with the requirements and obligations set forth in the RFP, Proposal, Agreement, and Cable Franchise Agreement. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. AFN agrees to provide all information, documents, materials and services that are within its possession or control and are required by Home Net for performance of the requirements and obligations set forth in the RFP, Proposal and Cable Franchise. 9.6. Reliability. Horne Net's lease and contract (Agreement) shall be conditioned upon maintaining access for subscribers to channels and content at least [99.9%] of all available hours. 9.7, Compliance. Home Net's lease and contract (Agreement) shall be conditioned upon receiving no more than [36] notices of violation from the Federal Communications Commission (FCC), Public Utilities Commission (PUC), or other regulating bodies. 9.8. Minimum Customers. Home Net's lease and contract (Agreement) shall be conditioned upon maintaining market penetration of no less than two thousand (2000) customer accounts in Ashland, Oregon. 9.8.1. Customer Accounts. For all purposes in this Agreement, Customer Accounts are defined and-will be calculated as unique customer addresses, as determined by Ashland Electric Department utility billing records. 9.8.2. Year 1 Minimum. By the end of the first year of the Agreement, Home Net shall acquire customers to meet or exceed two thousand three hundred fifty (2350) customer accounts. 9.8.3. Year 2 Minimum. By the end of the second year of the Agreement, Horne Net shall' acquire customers to meet or exceed two thousand six hundred (2600) customer accounts. 9.8.4. Year 3 Minimum. By the end of the third year of the contract, Home Net shall acquire customers to meet or exceed two thousand eight hundred fifty (2850) customer accounts. 9.9. New Customers. Home Net's Lease Agreement and Contract shall be conditioned upon acquiring at least 100 New Customers per year in Ashland, Oregon. For all purposes in this RFP -Television Services, February 10, 2011, Page 4 or 9 Agreement, a "New Customer" is defined and will be calculated as one switching to television entertainment services with Home Net and wha had not purchased those services from Home Net either directly or indirectly in the previous twelve calendar months, and who remains a customer of Home Net for no less than six full calendar months. 9.10. Customer Churn. Home Net's Lease Agreement and Contract shall be conditioned upon achieving a Customer Churn (turnover rate) of no more than 20% per year in Ashland, Oregon. For all purposes in this Agreement, Customer Churn is defined as deactivated customer accounts in the twelve months preceding the date of an inquiry. 9,11. Maintenance of Assets. Home Net shall, at its own expense, operate, maintain, and repair the r television head-end and keep it in proper operating condition during the term of this Agreement. 9.12. Customer Service Surveys. Home Net shall conduct at least one (I) periodic customer service survey per year, which shall be reviewed and approved by AFN prior to sending to subscribers. Home Net's Lease Agreement and Contract shall be conditioned upon maintaining a customer satisfaction rating of at least 75% of customer ratings overall services and "Good" to "Excellent". 9.13. Taxes. Home Net shall be responsible for all applicable taxes including, but not limited to, franchise fees and PEG fees due pursuant to the Cable Franchise. Home Net shall not deduct from Lease Fees due under this Agreement any such taxes or fees paid by Home Net. 9.14. Permits and Licenses. Horne Net shall obtain all necessary permits and licenses required to operate the television head-end and to provide cable television services over the television head-end. 9.15. Coordination of Use. Home Net acknowledges that the television head-end is located in the same facility as AFN's network and that the network capacity provided to Home Net under this Agreement is also used by AFN to provide internet access services over its Network. Home Net acknowledges and agrees that the terms of this Agreement do not limit AFN's access to that facility for any purpose associated with the operation, maintenance, repair or use of the Network, nor does it grant Home Net the exclusive use of the Network or otherwise place any limitations on AFN's use of the Network. 9.16. Other Conditions. Home Net further agrees to the following conditions on access to and use of the television head-end: 9.16.1. The City of Ashland and its agents shall at all times (upon reasonable notice to Home Net) have access to television head-end equipment for the purposes of inspecting and assessing its condition and state of repair. 9.16.2. Home Net may not operate the television head-end in a manner that fails to maintain the signal integrity of AFN's network or to meet ingress and signal to noise specifications set by AFN. _ 9.16.3. Notwithstanding the grant of use, Home Net shall not be permitted to erect, install, construct, repair, replace, reconstruct and retain the television head-end, or any part thereof, without AFN's written permission. 9.16.4. Home Net may upgrade the television head-end pursuant to the RFP, provided that any alteration, improvement, or addition(s) to the television head-end shall be conducted by Home Net with AFN's prior written permission. Such changes, additions or alterations shall be at the sole expense.of Home Net. All alterations, improvements, or additions to the television head-end shall become property of AFN after installation. 9.16.5. Home Net shall only allow access to the television head-end by designated staff who have passed background checks by the City of Ashland or other entities as deemed necessary by the City's Information Technology Department. 9.16.6. Home Net shall not store any equipment or supplies on City property without prior approval by the City's Information Technology Department, and shall not park vehicles on City property other than in authorized parking spaces. RFP - Television Services, February 10, 2011, Page 5 or 9 9.16.7. Home Net shall not access the network equipment or any other area within City's property, or use City property for any reason other than as permitted herein or in the RFP. 9.16.8. AFN shall invest at least $25,000 in advertising per year and will co-market Ashland Home Net's services and products in its materials whenever possible. 9.16,9. The City of Ashland will offer television services to customers signing up for utilities with the City. 9.16.9.1. AFN will communicate that the City's television partner is "Ashland Home Net." 9.16.9.2. The City will provide prominent space and presence for Home Net to provide ' its products and services information. This will be in the area where f customers visit to sign up for utilities. 9.16.9.3. AFN will include Home Net's products and services as primary sales options on AFN's website. 9.16.9.4. AFN will allow magnetic signage from Home Net on AFN vehicles, Signage must fit the vehicle areas designated and be approved by AFN management. 9.16.9.5. AFN will include Home Net's logo on the apparel of its installation technicians at Home Net's election. 9.16.9.6. Home Net will be allowed at least two stuffers per year to be included with utility bills. Home Net shall pay production costs for its included materials and those materials shall meet the City's specifications for size, weight, and i professionalism. 9,16.9.7. For its compensation to the City under this contract, Home Net shall be the exclusive television provider allowed to present its products and services advertisements in the City's utility signup areas. la: ADDITIONAL SERVICES: Ashland Home Net will render the following value-added services at the stipulated revenue sharing. 10.1. DVR-Home Net agrees to offer Ashland residents digital video recording products. AFN shall have no additional revenue share from this service. 10.2. Internet Connectivity-Home Net shall purchase its Internet connectivity products , exclusively from AFN for customers in Ashland's urban growth boundary. Home Net agrees to purchase AFN connectivity products at the rates approved by City Council and shall resell those products to the community at retail prices it deems appropriate. AFN shall have no additional revenue share from this service above its revenue from connectivity wholesale purchases. 10.3. ESPN 3/ESPN 360-Home Net shall offer specialized online ESPN content services to its customers. AFN shall endeavor, to the extent feasible, to manage its network in a way that supports the services. AFN shall have no additional revenue share from the online ESPN services. 10.4. Phone Service- Home Net shall offer phone services to its customers. AFN shall have no additional revenue share from this service so long as Home Net's revenues from phone services remain under $5,000 per year. AFN and Home Net must agree to a revenue sharing arrangement if revenues meet or exceed $5,001 per year. 10.5. Support Home Net agrees to provide computer and networking support services to AFN on a per-call fee basis at AFN's request. Cost of support shall not exceed $15 per call, or shall follow a price agreement added to this contract as an addendum. AFN revenue share is not applicable to this service. 11. EFFECT ON PREVIOUS AGREEMENTS AND FRANCHISE AGREEMENT: Upon execution of this Agreement by both parties, this Agreement shall supersede and render null and void all previous leases, agreements, and contracts between AFN and Home Net for television services. 12. COMPLIANCE WITH LAWS: 12.1. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon. Home Net shall promptly observe and comply with all present and future laws, orders, REP -Television Services, February 10, 2011, Page 6 or 9 regulations, rules and ordinances of federal, state and local governments with respect to the lease of the television head-end and the requirements and obligations of the RFP and Proposal, including but not limited to provisions of ORS 2790.220, 279B.230 and 279B.235. 12.2. Home Net is a "subject employer" as defined in ORS 656.005 and shall comply with ORS 656.017. If it has not already done so as required by the Cable Services Agreement, within 10 = business days of the execution of this Agreement, Home Net shall certify to City that it has t workers' compensation coverage required by ORS Chapter 656. If Home Net is a carrier insured employer, Home Net shall provide City with a certificate of insurance. If Home Net is a self-insured employer, Home Net shall provide City with a certification from the Oregon Department of Insurance and Finance as evidence of Home Net's status. 13. INSURANCE: 13.1. Home Net shall, at its own expense, and at all times during the term of this Agreement, maintain in force: 13.1.1. A comprehensive general liability policy including coverage for contractual liability for obligations assumed under this contract, blanket contractual liability, products and completed operations and owner's and contractor's protective insurance; and 13.1.2. A comprehensive automobile liability policy including owned and non-owned automobiles. 13.2. The coverage under each liability insurance policy shall be equal to or greater than the limits for claims made under the Oregon Tort Claims Act with minimum coverage of $1,000,000, or higher, per occurrence (combined single limit for bodily injury and property damage claims) or $500,000, or higher, per occurrence for bodily injury and $100,000, or higher, per occurrence for property damage. Liability coverage shall be provided on an "occurrence" basis. "Claims made" coverage is not acceptable, except for the automobile liability policy coverage required by paragraph 13.1.2. 13.3. Certificates of insurance acceptable to City shall be filed with City within 10 business days of the execution of this Agreement, if not already on file with City. Each certificate shall state that coverage afforded under the policy cannot be cancelled or reduced in coverage until at least thirty (30) days prior written notice has been given to City. A certificate that states merely that the issuing company "will endeavor to mail" written notice is unacceptable. 14. INDEMNIFICATION: Home Net shall defend, indemnify and hold City, its officers, agents, and employees harmless from any and all claims, actions, costs, judgments, damages or other expenses resulting from injury to any person (including injury resulting in death), or damage to property (including loss or destruction), of whatsoever nature arising out of, or incident to, the negligent performance of this Agreement by Home Net. Home Net's indemnification of the City and AFN includes, but is not limited to, the negligent acts or omissions of Home Net's employees, agents and others designated by Home Net to access the television head-end, provide cable television services, perform work or services attendant to this Agreement, and/or maintain the security of customer data. Home Net shall not be held responsible for any claims, actions, costs, judgments, damages or other expenses, directly and proximately caused by the direct negligence of City. 15. DEFAULT; 15.1. There shall be a default under this Agreement if either party fails to perform any act or obligation required by this Agreement within ten (10) days after the other party gives written notice specifying the nature of the breach with reasonable particularity. If the breach specified in the notice is of such a nature that it cannot be completely cured within the 10 day period, no default shall occur if the party receiving the notice begins performance of the act or obligation within the 10 day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. 15.2. Misrepresentations of experience, staff, references, or other qualification of material importance to accurately rating the ability of proposers in the RFP process shal l be considered a default and shall constitute grounds for terminating this Agreement. RFP - Television Services, February 10, 2011, Page 7 or 9 15.3. Notwithstanding Section 13. 1, either party may declare a default by written notice to the other party, without allowing an opportunity to cure, if the other party repeatedly breaches the terms of this Agreement. 15.4. If a default occurs, the party injured by the default may elect to terminate this Agreement and pursue any equitable or legal rights and remedies available under Oregon law. All remedies shall be cumulative. 15.5. Any litigation arising out of this Agreement shall be conducted in Circuit Court of the State of Oregon for Jackson County. 16. TERMINATION FOR PUBLIC INTEREST: In addition to the right to terminate this Agreement under Section 15, City may terminate this Agreement and Contract by giving Home Net sixty (60) days prior written notice if it determines termination is required for the interests of the community. If City terminates under this Section, Home Net shall be paid all fees earned and costs r incurred prior to the termination date set forth in the notice. Home Net shall not be entitled to be compensated for lost profits. 4 17. WAIVER: Failure of City or Home Net in any one or more instances to insist upon the performance of any of the terms of this Agreement, or to exercise any right or privilege conferred herein, or the waiver of any breach of any term of this Agreement should not thereafter be construed as a waiver of such term, which shall continue in force as if no waiver had occurred. 18. NOTICES: Any notice required to be given under this Agreement or any notice required to be given by law shall be in writing and may be given by personal delivery or by registered or certified mail, or by any other manner prescribed by law. 18.1. Notices to City shall be sent to: CIO/Director of Information Technology City of Ashland 90 N. Mountain Avenue Ashland, Oregon 97520 With a copy to: City Administrator City of Ashland 20 East Main Street Ashland, Oregon 97520. 18.2. Notices to Ashland Home Net shall be sent to: Ashland Home Net c/o Jim Teece 607 Siskiyou Boulevard Ashland, OR 97520 19. ASSIGNMENT: City and Horne Net and the respective successors, administrators, assigns and legal representatives of each are bound by this Agreement to the other party and to the partners, successors, administrators, assigns and legal representatives of the other party. Home Net shall not assign or subcontract Home Net's rights or obligations under this Agreement without prior written consent of City. Except as stated in this Section, nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City or Home Net. 20. MODIFICATION: No modification of this Agreement shall be valid unless in writing and signed by the parties. IN WITNESS WHEREOF, the parties have executed this Agreement at Ashland, Oregon, on this I0th day of February, 2011. RFP - Television Services, February 10, 2011, Page 8 or 9 By: City of Ashland By: Ashland Ho e Net Rob Lloyd, CIO/Director Jim Teece, President & CEO ORDER The governing body hereby approves and authorizes the terms of this lease as set forth above. Mayor John Stromberg Date 3 2 s jy {i 7j 1 t RFP -Television Services, February 10, 2011, Page 9 or 9 TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT BETWEEN CITY OF ASHLAND, OREGON AND ASHLAND HOME NET Amendment #1 E TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT ("Agreement") f entered this 1st day of January, 2011, between the City of Ashland, Oregon, ("City") by and through its E Ashland Fiber Network division ("AFN"), and Ashland Home Net, a Nevada Corporation, hereinafter referred to as "Home Net". WHEREAS, in November, 2010, AFN issued a request for proposals ("RFP," attached hereto as Exhibit A) for the lease of the television head-end (as defined below) and the provision of cable television services, and WHEREAS, Operator submitted a proposal in response to the RFP issued by AFN (the "Proposal," attached hereto)- and WHEREAS, after reviewing Home Net's proposal, the RFP Evaluation Committee selected Home Net to as the successful proposer to lease AFN's television head-end and provide television services as described in the RFP; and WHEREAS, Home Net wishes to provide services to the Ashland, Oregon, community as described in the RFP for the incentives negotiated with AFN; and WHEREAS, this Agreement serves as a lease for the television head-end and contract for services between AFN and Home Net; and WHEREAS, Home Net must execute a Franchise Agreement with the City because AFN is not a cable television operator and will not maintain a cable television franchise; and WHEREAS, AFN and Home Net entered into the Agreement February 10, 2011, and changes in the cable television industry have rendered certain parts of the original agreement no longer feasible, and both parties now desire to amend the Agreement; NOW, THEREFORE, THE CITY AND ASHLAND HOME NET HEREBY AGREE TO AMEND THE AGREEMENT AS FOLLOWS: 1. LEASE OF TELEVISION HEAD-END: Is left without amendment. 2. LEASE FEES 2.1 BASE OPERATING FEES: Home Net pay to AFN, as rent and for the cost of basic operations of the television head-end, a set monthly fee effective retroactive back to January 1, 2012. However, an amount of $75,000 outstanding from the original agreement is hereby reduced to $37,500 and is agreed to be paid to the City in monthly installments or lump sum by July 31, 2012. Future Base Operating Fees will be $1750 per month with an annual charge of $200 for security for a total of $21,200. 2.2 MISCELLANEOUS CHARGES AND FEES: Home Net shall pay AFN for services rendered per the table in this section. Payments for services are due and payable no later than thirty (30) days after the billing period, or per date listed on invoices sent by AFN, Payments shall be made by Home Net without deduction or setoff of any kind, and be addressed to AFN at the address set forth in this Agreement. Fees, hourly rates, and miscellaneous charges will apply RFP - Television Services, 7anuacy 2012, Page l or3 s from the effective date of this Agreement and last through June 30, 2012, after which they may be amended by AFN provided AFN gives Home Net 60-days prior notice. 2.2.1 Traps. Home Net shall pay for cable television traps ("filters")_ 2.2.2 Signal Filings. AFN shall pay for annual aeronautical signal leak detection and fly-over examinations, which shall be filed accordingly with the FCC by AFN. 2.2.3 Waivers & Discounts. At its discretion, AFN may waive Miscellaneous Charges and Fees or charge reduced rates. Description Installation Fee (Additional charges for arts and supplies apply.) [$20.00] Disconnect Fee $50.00 Standard Outlet Fee $20.00 Add/Remove Trap Fee $10.00 Field Technician Hourly Rate (Non-standard work such as advanced troubleshooting, nonstandard outlets, ($40.00) wall fishing, etc. Consulting and Technical Support - Hourly Rate (Charge applies to support for issues not related to AFN infrastructure [$70.00] performance and reliability.) Staff Screening Fee (Charge for each employee submitted for authorization to access AFN and [$150.001 City Service Center facilities.) 2.3 REVENUE SHARING: Revenue sharing payments shall be due and paid monthly no later than the twenty fifth (251") day of the following month. Revenue sharing shall be for the following services and calculated and described: 2.3.1 Non-Advertising Revenue are revenues from all services other than advertising sales. Revenue share shall be paid by Home Net to AFN at 7% of all Non-Advertising Revenues, with a minimum of $75,000 per year, beginning January 1, 2012, and excluding the amount in Section 2.1. f 2.3.2 Advertising Revenues are those revenues generated from the sale of advertising time and/or services. Home Net shall pay AFN 0% of its Advertising-related Revenues for the first three years of the original agreement (January 1, 2011, through December 31, 2013, after which AFN will receive 5% of revenues. 3. SPECIAL EXAMINATIONS: Is left without amendment. 4. TERM OF AGREEMENT: The term of the original Agreement is revised as noted above and continue through the following dates (with other terms noted): Dates Term Base Operating Fee Technical Operating Review Basis Review Basis January1, 2012, to Three years sz75o/month plus 7% Services & Financial & December 31,20-14 of applicable revenue Compliance Marketing One-year extension or Fifth Year of the January 1, zo15, to Services & Financial & December 31, 2015 original agreement as To be negotiated Compliance Marketing amended by this agreement 4.1 AFN may, at its sole discretion, extend the term of this Agreement for one additional one year term. The extension shall be communicated in writing by AFN and sent to Home Net at least ninety,(90) days prior to the end date of this Agreement. 4.2 The terms of the 5 h Year will be negotiated. RFP -'television Services, January 1, 2012, Page 2 or 3 } 5 USE OF PROPERTY: Is left without amendment. b STORE-FRONT LOCATION: Is left without amendment. 7 WHOLESALE TELEVISION PRODUCTS: Is left without amendment. 8 BILLING, ACCOUNTING, AND CONTRACTS: Is left without amendment. 9 CONDITIONS OF USE: 9.1 -9.7: Is left without amendment. 9.8 Minimum Customers. This section is deleted. 9.9 New Customers. This section is deleted. 9.10 Customer Churn. This section is deleted. All other sections and terms of the original agreement remain in force. IN WITNESS WHEREOF the parties have executed this Agreement at Ashland, Oregon, on this day of , 2012. By: City of Ashland By: Ashland Home Net Lee Tuneberg, ACA/Finance D ctor Jim . r sident & CEO ORDER The governing bo y hereby approves and authorizes the terms o this lease as set forth above. 4Mr/Mayorl's Designee, Cit Ashland Date A a RFP - Television Services, January 1, 2012, Page 3 or 3 t t 5 E 'r i CITY F ft ASHLAND S k k Request for Proposal TELEVISION SERVICES Released: October 11, 2010 r Proposals due prior to: 2:00 PM (PST), Wednesday, November 10, 2010 l i Contracting Agency: City of Ashland Sole Point of Contact: Kari Olson. Title: Purchasing Representative Address: City of Ashland 90 N. Mountain Avenue Ashland, OR 97520 Telephone: (541) 488-5354 i - RFP - Television Services, October 11, 2010, Page 1 or 83 TABLE OF CONTENTS PUBLIC NOTICE ...............................................................................................................................3 VOLUNTARY PRE-PROPOSAL CONFERENCE 6 ..............7 1. SCHEDULE OF EVENTS 2. SCOPE OF SERVICES .......................................................................................................,..s3 3. MANDATORY MINIMUM QUALIFICATIONS AND TERMS i5 4. CONTENTS OF PROPOSAL 20 5. SUBMITTAL OF PROPOSALS 26 6. EVALUATION PROCESS 27 i EXHIBIT A-Certificate of Compliance 29 EXHIBIT B-Living Wage Brochure .................................................................................................30 I EXHIBIT C-Living Wage Ordinance ..............................................31 i EXHIBIT D-Mandatory Minimum Qualifications & Terms............. ..........36 EXHIBIT E-Financial and Marketing Performance ........................................................................37 EXHIBIT F-Performance Requirements ........................................................................................38 3 EXHIBIT G-Head-End Asset Inventory..... 39 EXHIBIT H-Channel Lineups EXHIBIT I-Example Franchise Agreement ....................................................................................45 EXHIBIT J-Base Lease Agreement and Contract ...........................................................................71 ; t EXHIBIT K-Historical Customer Counts ........................................................................................79 EXHIBIT L-Evaluation Matrix 80 i L i 6 i 7 r 3 i ~ S S . F - c _ I F { F a i F 9 - RFP - Television Services, October 11, 2010, Page 2 of 83 PUBLIC NOTICE { Request for Proposals Television Services Proposals are due prior to 2:OOPM (PST), Wednesday, November 10, 2010 The City of Ashland, Ashland Fiber Network, is seeking proposals from qualified companies interested in leasing and operating the AFN television head-end to sell video entertainment services to the local community. Video entertainment services include traditional cable television (CATV) program. content, marketing and sales, customer support, and advertising insertions. The City's intent is to award this contract to an innovative partner with which it can meet emerging demands of the Ashland community, share in both customer service and financial successes, and meet the challenges of a competitive telecommunications marketplace. The successful proposer will assume day-to-day management responsibilities for Ashland Fiber Network's television operations, including the AFN head-end, satellite receivers, associated equipment maintenance and upgrades, updates to technology and infrastructure, and complying with governmental (FCC and PUC) rules and regulations. AFN physical plant has approximately 8,500 serviceable addresses in Ashland, Oregon. The successful proposer will be granted a contract to access and use space at the AFN head-end to accomplish these functions. Ashland Fiber Network serves a competitive telecommunications marketplace. Television offerings and prices must appeal to viewers in the community and compete with alternatives. As a result, proposals will be evaluated in part on the channel offerings proposed, how programming matches Ashland's demographics, and package prices. IP-based television, on-demand movie offerings, voice over IP (VOIP), and other advanced services are not required, but are desired to meet emerging customer demand. Proposals that effectively incorporate advanced services will be eligible for additional points in the evaluation process. AFN currently provides traditional analog cable television services within a system capacity of 480 MHz. AFN is making 860 MHz system capacity available under this RFP to enable distribution of digital and high- definition programming. A minimum lease cost is incorporated into this RFP to support the infrastructure for these services. The City of Ashland's intent is to award a contract for three years with two one-year extensions at the City's option, for a potential total term of five years. Extensions will be granted on the basis of the successful proposer's financial, operating, and marketing performance. Maintaining a valid cable franchise agreement and City of Ashland business license will be a mandatory requirement throughout the terra of the contract. j f This Request for Proposals is intended to provide interested companies with sufficient information to prepare and submit a complete proposal in response to this RFP. SUMMARY OF REQUIREMENTS: 1. Operation of television service a. Analog and digital programming and delivery b. High-definition channels c, Sales, customer support, and billing RFP -Television Services, October 11, 2010, Page 3 or 83 2. Marketing/sales and support of all related customer contacts ~ a. Mutual customer ownership with AFN, including full sharing of customer data 4 b. Highly-satisfied customers I c. Wholesale television offering(s) that AFN partners may sell d. Co-branding with AFN e. Storefront location in Ashland f. Effective customer acquisition and growth plans 3. Operating performance standards a. High channel availability I Nominal outages b. Nominal PUC and FCC violations per year c. Low customer churn rates d. Secure handling of customer records and data MANDATORY MINIMUM QUALIFICATIONS AND TERMS Proposers will be required to acknowledge understanding and acceptance of the Mandatory Minimum I Qualifications and Terms as detailed in Section 3 (Page 16) of the RFP. VOLUNTARY PRE-PROPOSAL CONFERENCE All.potential proposers are invited, but not required to attend the Voluntary Pre-Proposal Conference. The Voluntary Pre-Proposal Conference will consist of a walk-through of the facility, presentation of Historical Customer Counts attached as Exhibit K, and an opportunity for potential proposers to ask questions. Verbal statements made by the City of Ashland representatives at the Voluntary Pre-Proposal Conference do not change the RFP document unless the City of Ashland confirms such changes with a written addendum to the RFP document. € The Voluntary Pre-Proposal Conference is scheduled for the following date and time. Day & Date Tuesday, October 19, 2010 Time: 2:00 PM Location: City of Ashland, Service Center, 90 N. Mountain Ave RESPONDING TO THE PROPOSAL: 4 The Request for Proposals may be reviewed at the City of Ashland Purchasing Office, located at 90 N. Mountain Avenue, Ashland, OR 97520. For a copy of the Request for Proposals and requirements, please contact the Purchasing Representative at (541) 488-5354. All questions and inquiries regarding this RFP - must be directed to the Purchasing Representative, Kari Olson. I 1 Sealed Proposals must be received prior to 2:OOPM (PST), Wednesday, November 10, 2010 by Kari Olson, Purchasing Representative of the City of Ashland. Proposals must be delivered to the City of Ashland Purchasing Office, located at 90 N. Mountain Avenue, Ashland, OR 97520. The proposals will be opened at 2:OOPM (PST), Wednesday, November 10, 2010 and only the identity of each proposer will be released at E that time. Kari Olson E Purchasing Representative City of Ashland Published: October 12, 2010 I 5 RFP -Television Services, October 11, 2010, Page 4 or 83 3 i 1. - C I T Y OF -,SH LAN FE) Request for Proposals Television Services Proposals are due prior to 2:OOPM (PST), Wednesday, November 10, 2010 ORS 279 060(2)(c) PURPOSE OF REQUEST FOR PROPOSALS (RFP) The City of Ashland requests proposals from qualified companies interested in leasing and operating the City of Ashland's television head-end to sell video entertainment services to the local community. Video entertainment services include traditional cable television (CATV) program s content, marketing and sales, customer support, and advertising insertions. ! The City of Ashland's telecommunications utility, Ashland Fiber Network (AFN), supports providing these services on its existing infrastructure and will administer the contract with the i successful proposer. IP-based television, on-demand movie offerings, voice over IP (VOIP), and similar offerings are not required, but are desired to meet emerging customer demand in Ashland. Proposals that effectively include these services to be sold to Ashland residents and businesses will k be eligible for additional points in the evaluation process. The City of Ashland's intent is to award a contract for three years with two one-year extensions at the City's option, for a potential total term of five years. Extensions will be granted on the basis of measures that gauge the successful proposer's financial, operating, and marketing performance. Maintaining a valid cable franchise agreement and City of Ashland business license will be a mandatory requirement throughout the term of the contract. This Request for Proposals is intended to provide interested companies with sufficient information to prepare and submit a complete proposal in response to this RFP. SUMMARY OF REQUMMENTS: 1. Operation of television service a. Analog and digital programming and delivery b. High-definition channels c. Sales, customer support, and billing- 2. Marketing/sales and support of all related customer contacts a. Mutual customer ownership with AFN, including full sharing of customer data b. Highly-satisfied customers c. Wholesale television offering(s) that AFN partners may sell d. Co-branding with AFN e. Storefront location in Ashland f. Effective customer acquisition and growth plans t 3. Operating performance standards a. High channel availability / Nominal outages RFP -Television Services, October 11, 2010, Page 5 or 83 1 i P b. Nominal PUC and FCC violations per year E c. Low customer churn rates d. Secure handling of customer records and data a MANDATORY MINIMUM QUALIFICATIONS AND TERMS s Proposers will be required to acknowledge understanding and acceptance of the Mandatory Minimum Qualifications and Terms as detailed in Section 3 (Page 16) of the RFP. CONDITIONS: The successful proposer will assume day-to-day management responsibilities for Ashland Fiber Network's television entertainment operations, including the AFN head-end, satellite receivers, . associated equipment maintenance and upgrades, updates to technology and infrastructure, and 4 complying with governmental (FCC and PUC) rules and regulations. The head-end selves as the AFN technical operations facility for receiving and redistributing cable television to. subscriber homes and businesses. AFN physical plant has approximately 8,500 serviceable addresses in } Ashland, Oregon. The successful proposer will be granted a contract to access and use space at the AFN head-end to accomplish these functions. a i Ashland Fiber Network serves a competitive telecommunications marketplace. Television offerings and prices must appeal to viewers in the community and compete with alternative offerings. As a result, proposals will be evaluated in part on the channel offerings proposed, how programming matches Ashland's demographics, and package prices. As IP-based television and access to on- demand programming are also important to long-term viability, this RFP may evaluate proposals that meet emerging demands on a more advantageous basis. AFN currently provides traditional analog cable television services within a system capacity of 480 _ MHz. AFN is making 860 MHz system capacity available under this RFP to enable distribution of digital and high-definition programming. A minimum lease cost is incorporated into this RFP to P I support the infrastructure for these services. , VOLUNTARY PRE-PROPOSAL CONFERENCE All potential proposers are invited, but not required to attend the Voluntary Pre-Proposal Conference. 4 The Voluntary Pre-Proposal Conference will consist of a walls-through of the facility, presentation of Historical Customer Counts attached as Exhibit K, and an opportunity for potential proposers to ask questions. Verbal statements made by the City of Ashland representatives at the Voluntary Pre-Proposal Conference do not change the RFP document unless the City of Ashland confirms such changes with a written addendum to the RFP document. The Voluntary Pre-Proposal Conference is scheduled for the following date and time. f Day & Date Tuesday, October 19, 2010 Time: 2:00 PM Location: City of Ashland, Service Center, 90 N. Mountain Ave ORS 279B.060 2 b SOLE POINT OF CONTACT Information, correspondence and questions pertaining to this Request for Proposals (RFP) shall ONLY be directed to: Mari Olson Name: Title: Purchasing Representative RFP -Television Services, October 11, 2010, Page 6 of 83 f' f r s Address: City of Ashland 90 N. Mountain Avenue Ashland, OR 97520 Telephone: 541-488-5354 f This Purchase Representative is the sole point of contact during the entire RFP process. This includes clarification and/or protest of specifications, method of bidding, the evaluation and award f process, and/or other questions that may arise. The RFP documents may be reviewed upon request by contacting the designated sole point of contact listed above. QUESTIONS AND REQUESTS FOR ADDITIONAL INFORMATION: All potential proposers are encouraged to ask questions and request additional information that will aid in the clarification of the RFP requirements. Questions and requests for information must be mailed or emailed to the RFP single point of contact, and will be promptly considered. 1 Written responses will be provided in the form of RFP an addendum. Addenda will be mailed to all potential proposers who have received the RFP documents. i i OAR 137-047-0260(2)(a)(c) OPENING DUE DATE AND TIME Proposals must be received prior to the scheduled opening. The o enin is scheduled for the following due date and time: Proposals are due prior to: 2:OOPM (PST), Wednesday, November 10, 2010 The proposal must be addressed to the designated sole point of contact, complete, and received prior to the due date and time. Late and/or incomplete proposals will not be considered. s 1. SCHEDULE OF EVENTS r OAR 137-047-0260(2)(c)(A) SCHEDULE OF EVENTS ACTIVITY DATE Request for Proposals Released October 11, 2010 1" Public Notice October 12, 2010 r F Optional Pre-Proposal Conference 2:OOPM (PST), Tuesday, October 19, 2010 f DUE DATE AND TIME 2:OOPM (PST), Wednesday, g (Note: Proposals must be received November 10, 2010 prior to the due date and time. Evaluation Process November 12 -December 1, 2010 Contract Recommendation Upon completion of evaluation process (7) Days prior to executing Franchise Intent to Award Announcement Agreement and Lease Agreement Contract Recommendation December 7, 2010 Presented to City Council for Final Approval Upon Council Approval and Contract Award (7) Days after the Intent to Award { Announcement Sex-vices intended to begin January 1, 2011 RFP -Television Services, October 11, 2010, Page 7 of 83 l t t6 f t z~ f t 4 NOTE: This is a tentative schedule and is provided as a courtesy to potential proposers. The actual schedule may vary from that provided without notice to potential proposers. Any changes made to the closing date of the RFP will be made in the form of an addendum and mailed to all potential proposers who have received RFP documents. OAR 137-047-0260(2)(a)(F) ADDENDA { The provisions of this RFP cannot be modified by oral interpretations or statements. Proposers are cautioned not to make any assumptions as to the implied meaning or intent of any part of the RFP. Proposers should request clarification. If inquiries or comments by proposers raise issues that require clarification by the City, or the City revises any part of this RFP, addenda will be provided to all persons who received the RFP. Receipt of an addendum must be acknowledged g by signing and returning it with the proposal. Addenda will be issued within a reasonable time to allow prospective proposers to consider the addenda in preparing their proposals. Addenda shall not be issued less than 72 hours before the closing unless the addendum also extends the closing. ORS 279B.405 PROTEST SOLICITATION PROCESS A prospective proposer who contends that the provisions of this RFP or any aspect of the procurement process will encourage favoritism in the award of the contract, or substantially diminish competition, may file a written protest delivered to the sole point of contact named in the RFP at least ten days prior to the date set for the opening of proposals. Failure to file a protest will be deemed a waiver of any claim by a proposer that the procurement process violates any provision of ORS Chapter 279A, 279B, 279C or the Ashland Municipal Code. Withdrawal of Proposals Any proposal may be withdrawn by delivering a written request to the sole point of contact named in the RFP at any time prior to the time set for opening proposals. The request shall be executed by a duly authorized representative of the proposer. s Proposal Acceptance Proposals that do not address all areas requested by this RFP may be deemed non-responsive and may not be considered for any possible contract awarded as a result of this RFP. ORS 279B.060(2)(e) CANCEL, REJECT, OR DELAY PROCUREMENT The City of Ashland may cancel the procurement, reject in whole or in part any or all proposals, S or suspend or delay the procurement in accordance with ORS 279B.100 when its in the best interest of the City of Ashland as determined by the City of Ashland. In no event shall the City i of Ashland have any liability for the cancellation, rejection, or suspension of a solicitation or award. The proposer assumes the sole risk and responsibility of all expenses connected with the preparation of its proposal. f Collusion By submitting a proposal, proposer certifies that no officer, agent, or employee of the City of Ashland has a monetary interest in this proposal; that the proposal is made in good faith without fraud, collusion, or connection of any kind with any other proposer and that the proposer is competing solely in its own behalf without connection with, or obligation to, any undisclosed person or firm. RFP -Television Services, October 11, 2010, Page 8 of 83 1 i Disputes In case of any doubt or differences of opinions as to the items or services to be furnished hereunder, or the interpretation of the provisions of the RFP, the decision of the City of Ashland shall be final and binding upon all parties. f Clarification of Responses The City of Ashland reserves the right to request clarification of any item in any proposal, or to request additional information necessary to properly evaluate a particular proposal. References The City of Ashland reserves the right to investigate any and all references and the past performance information provided in the proposal with respect to proposer's successful performance of similar projects, compliance with specifications and contractual obligations, completion or delivery of a project on schedule,-and lawful payment of employees and workers. Contract Preferences Pursuant to ORS 279A.120(2), to determine the lowest responsive bid, the City will add a percent increase on the bid of a nonresident bidder equal to the percent, if any, of the preference given to that bidder in the state in which the bidder resides. i Terms or discounts which are conditioned upon payment within a certain time will not be considered for purposes of comparison of bids. i Pursuant to ORS 279A.120(2), the City shall give preference to goods and services manufactured or produced in Oregon if price, availability and quality are otherwise equal. f Recycled Products ; The contractor shall use recycled products to the maximum extent economically feasible in the performance of the contract. QRS 279B.060(2)(f) RECYCLABLE PRODUCTS 1 Contractors shall use recyclable products to the maximum extent economically feasible in the performance of the contract work set forth in this document. _ i QRS 279B.060(2)(f) ASBESTOS ABATEMENT If required under ORS 468A.710, the contractor or subcontractor is required to possess an asbestos abatement license. (Note; Under the Oregon Revised Statutes, this statement is required to be included in a formal competitive sealed proposal, also referred to as a Request for Proposals.) AMC Chapter 3.12 LIVING WAGE If the contract exceeds $18,703 the Contractor will be required to comply with Chapter 3.12 of the Ashland Municipal Code by paying a living wage to applicable employees, as defined in this chapter, performing work under this contract and to any applicable subcontractor who performs 50% or more of the service work under this contract. The Living Wage is $13.40 per hour effective June 30, 2010 and increases annually every June 30 by the Consumer Price Index. In calculating the living wage, employers may add the value of health care, retirement, 401K and IRS eligible cafeteria plans (including childcare) benefits to the amount of wages received by the RFP -Television Services, October 11, 2010, Page 9 of 83 5 E f F e e employee. It is the responsibility of the proposer to review and comply with the Living Wage ordinance requirements, which can be viewed online at www.ashland.onus. The City of L Ashland Living Wage Reference Sheet is attached as Exhibit B and the Ashland Municipal ~ Code, Living Wage, Chapter 3.12 is attached as Exhibit C. 5 ORS 279B.060(5)(a) OPENING PROCEDURES Notwithstanding ORS 192.410 to 192.505, proposals may be opened in a manner to avoid 4 disclosure of contents to competing proposers during, when applicable, the process of negotiation, but the City of Ashland shall record and make available the identity of all proposers S as part of the City's public records from and after the opening of the proposals. Notwithstanding ORS 192.410 to 192.5 05, proposals are not required to be open for public inspection until after the notice of intent to award a contract is issued. The fact that proposals are ` opened at a meeting, as defined in ORS 192.610, does riot make their contents subject to disclosure, regardless of whether the public body opening the proposals fails to give notice,of or provide for an executive session for the purpose of opening proposals. ORS 279B.060(5)(b) PROPRIETARY INFORMATION (TRADE SECRETS) Notwithstanding any requirement to make proposals open to public inspection after the City of Ashland's issuance of a notice of intent to award a contract, the City of Ashland may withhold from disclosure to the public materials included in a proposal that are exempt or conditionally exempt from disclosure under ORS 192.501 or 192.502. Under ORS 192.505, it is the City of Ashland's responsibility to separate the exempt and nonexempt material and make the nonexempt material available for examination. Therefore, it is the responsibility of the proposer to clearly identify trade secrets as confidential information and include them separately within their proposal. The City of Ashland, in good faith, will honor the proposer's request to keep the proprietary information confidential in accordance with -the Oregon Revised Statutes. ORS 279A.205 thru 279A.215 COOPERATIVE PROCUREMENT Pursuant to ORS 279A.205 thru 279A.215, other public agencies and members of the Oregon Cooperative Purchasing Program (ORCPP) may use the purchase agreement resulting from this RIP unless Proposer expressly notes in the proposal that the prices quoted are available to the City of Ashland only. The condition of such use by other agencies is that any such agency must make and pursue contact, purchase order, delivery arrangements, and all contractual remedies - directly with the successful proposer; the City accepts no responsibility for performance by either the successful proposer or such other agency using this agreement. With such condition, the City of Ashland consents to such use by any other public agency. ORS 279A.110 (4) DBE CERTIFICATION Proposers certify by submitting their proposal that the Proposer has not discriminated and will not discriminate, in violation of ORS 279A.110(1), against any minority, women or emerging small business enterprise certified under ORS 200.055, in obtaining any required subcontract. ORS 279B.060(10) CONTRACT AWARD The City of Ashland shall award the contract to the responsible proposer whose proposal the City of Ashland determines in writing to be the most advantageous to the City of Ashland based on the evaluation process and evaluation factors described in the request for proposals, and any RFP --Television Services, October 11, 2010, Page 10 of 83 i 3 applicable preferences described in ORS 279A.120 and ORS 279A.125 and, when applicable, f the outcome of any negotiations authorized by the request for proposals. f ORS 279B.060(9) INTENT TO AWARD The City of Ashland shall issue or electronically post the notice of intent to award in accordance with ORS 27913.135 and OAR 137-047-0610. i 3 k ORS 279B.410 PROTEST OF CONTRACT AWARD Eligible proposers protesting award shall follow the procedures described herein. Protests that do not follow these procedures shall not be considered. This protest procedure constitutes the sole administrative remedy available to proposers. Protests must be received within seven days after issuance of the notice of intent to award the contract. All protests must be in writing, signed by 3 the protesting party or an authorized Agent, and submitted to the sole point of contact named in the RFP. The protest must state all facts and arguments on which the protesting party is basing the protest. Only protests stipulating an issue of fact concerning a matter of bias, discrimination or conflict of interest, non--compliance with procedures described in the procurement documents, or City of Ashland policy shall be considered. Protests based on procedural matters will not be considered. The City of Ashland will review the protest and submit a decision, in writing, to the protesting proposer s ORS 279E 060(2)(h) CONTRACTUAL TERMS AND CONDITIONS The proposer selected by the City of Ashland will be expected to enter into a written contract in the form attached to this RFP. The proposal should indicate acceptance of the City of Ashland's a contract provisions or suggest reasonable alternatives that do not substantially impair the City of t Ashland's rights under the contract. The proposer may also propose contractual terms and conditions that relate to subject matter reasonably identified in the request for proposals. The City of Ashland reserves the right to negotiate the contractual terms and conditions proposed as alternatives by the proposer. If inclusion of any of the City of Ashland's contract provisions will result in higher costs for the services, such costs must be specifically identified in the proposal. I Unconditional refusal to accept the contract provisions proposed by the City of Ashland without offering acceptable alternatives may result in the disqualification of the proposal. I i Insurance Certificates The successful proposer will be required to provide and maintain ALL required insurance 1 certificates, and provide current Certificates of Insurance, including the City of Ashland as the additional insured, to the City prior to any lapse of insurance coverage. Additional Terms The City of Ashland reserves the right to waive irregularities or deficiencies in a proposal if the City of Ashland determines that waiver is in the best interest of the City of Ashland. The City of Ashland may request supplemental written information from a proposer concerning the proposer's ability to perform the services. If a proposer fails to provide supplemental information within the time stated in the request, the City of Ashland may refuse to consider the proposer's proposal. The City of Ashland may request an interview with any proposer. If a proposal is unclear, or f appears inadequate, the proposer may be given an opportunity in the interview to explain how RFP -Television Services, October 11, 2010, Page 11 of 83 i i 3 t _ the proposal complies with the RFP. 4 The City of Ashland reserves the right to make such investigation it deems appropriate to determine whether a proposer is qualified to provide the services. If a proposer fails to cooperate 3 with an investigation, or if a proposer provides false, misleading or incomplete information, the d City of Ashland may refuse to consider the proposer's proposal. j In cases of doubt or differences of opinion concerning the interpretation of this RI'P, the City of ~ r Ashland reserves the exclusive right to determine the intent, purpose and meaning of any 3 provision in this RFP. a i f. i i Y f yi I i s i 3 pi - 3 s 3 7 i 3 s - r a if UP-Television Services, October 11, 2010, page 12 of 83 i i i r r 2. SCOPE OF SERVICES Core Services: The City of Ashland requests proposals from qualified companies interested in leasing and operating its television head-end to sell video entertainment services to the local community. { r Video entertainment services include traditional cable television (CATV) program content, marketing and sales, customer support, and advertising insertions. The successful proposer will be required to have a thorough and current understanding of cable television service and related industry trends. F The City of Ashland's telecommunications utility, Ashland Fiber Network (AFN), supports providing television services on its existing infrastructure and will administer the contract with the successful proposer. The successful proposer will assume day-to-day management responsibilities for AFN television entertainment operations, including the AFN head-end, s satellite receivers, associated equipment maintenance and upgrades, updates to technology and infrastructure, and complying with governmental (Federal Communications Commission and e Public Utilities Commission) rules and regulations. The successful proposer must also comply with all pertinent laws, regulations and procedures as a cable television operator and employer; ensure payment of all required taxes and charges incurred in connection with use and occupancy of the premises; and maintain sound accounting practices throughout their contract with the City of Ashland. The AFN head-end serves as telecommunications utility's primary technical operations for ~ - receiving and redistributing cable television to subscriber homes and businesses. The successful proposer will be granted a contract to access and use space at the AFN head-end to accomplish these functions. The successful proposer must be prepared to work well and closely with AFN staff on marketing initiatives, to maintain operations within high service standards, and to coordinate service for customers such as installation of new television connections and service calls that require advanced assistance from AFN. It is important for potential proposers to understand that the successful proposer will represent their company, the City of Ashland, and Ashland Fiber Network in the course of performing the contracted services, which must be positive and professional at all times. Maintaining a valid cable fianchise agreement with the City of Ashland and a City of Ashland business license will be mandatory throughout the term of the contract. Transition and Activation Planning: Ashland Fiber Network's current contractor serves approximately 1,800 subscribers via AFN telecommunications infrastructure, a hybrid fiber-coax HFC") network. The AFN plant passes approximately 8,500 homes in Ashland. Detailed maps that contain proprietary information will be provided to the highest ranked proposer during final contract negotiations. Residents currently have the option of subscribing to a basic cable television package (-$20 per month; -25 channels), an upgraded package (-$53 per month; -81 channels), and one premium channel offering (-$16 per month). Alternative service providers available within the City of Ashland, include Charter Communications, satellite dish providers, and emerging web-based television services. RFP -Television Services, October 11, 2010, Page 13 of 83 ' } f i Definitions 1) Customer Accounts are defined and will be calculated as unique customer addresses, as determined by Ashland Electric Department utility billing records. 2) New Customers are defined and. wilt be calculated as those customers switching to f television entertainment services with the successful proposer, who had not purchased those services from an AFN-affiliated service provider in the previous twelve calendar months, and who remain customers for no less than six full calendar months. 3) Customer Churn defined as deactivated customer accounts in the twelve months preceding the date of an inquiry. i Marketing Strategy: Television offerings and prices must appeal to viewers in the community and compete with available alternatives. As a result, proposals will be evaluated in part on the channel offerings proposed, how programming matches Ashland's demographics, package prices, coordination with AFN staff, and customer retention. Proposals must detail their channel offerings, along with the costs of packages. Proposers should also discuss how the proposer would approach 4 customer service, create opportunities to market advanced television services, and sell additional services. Current channel lineups are attached as Exhibit H. . 3 AFN currently provides traditional analog cable television services within a system capacity of ; 480 MHz. AFN is making 860 MHz system capacity available under this RFP to enable distribution of digital and high-definition programming. A minimum lease cost is incorporated into this RFP, in part to support the infrastructure for these services. Although proposers must define their own cable television channel lineups, AFN recommends the following channels be carried due to local interest: all available RVTV channels, Local Medford DMA broadcast television stations, ESD (Jackson Long Distance Education), Classic s Arts Showcase, and Free Speech TV. F j f AFN is requiring proposers to submit wholesale pricing for cable television packages to AFN ~ f and its partners. This is to allow AFN and its partners to offer service bundles to local residents and businesses, such as any combination of cable television, Internet access, telephone services, alarm, technology support, and other services. If so desired, how proposer will sell television advertising and perform necessary production and encoding support work Long-term Strategy: Proposers may include novel services and incentive options in-their proposals. Minimum Qualifications and Terms are not negotiable and serve as a foundation for all negotiations. All other arrangements are open to negotiation. The City's intent is to award this contact to an innovative partner with which it can meet emerging demands of the Ashland community, share in both customer, service and financial successes, and meet the challenges of a competitive telecommunications marketplace. In order to remain competitive in the marketplace, service providers must offer competitive television entertainment services in the form of traditional cable television channels, digital channels, and high-definition programming. UP - Television Services, October 11, 2010, Page 14 of 83 E i F 3 . 1. k t t E IP-based television (IPTV), on-network IPTV, on-demand video, digital video recorders, voice over IP (VOIP), and similar offerings are not required, but are desired to meet emerging customer demand in Ashland. Proposers are encouraged to propose additional/alternative z services, incentive arrangements, and performance goals for suggested services. All proposed j f services will receive consideration provided it/they meet or exceed the minimum requirements defined in this Request for Proposals. For each alternative service or product, the proposer must clearly explain the proposed service or product. 3. MANDATORY MINIMUM QUALIFICATIONS AND TERMS: Mandatory Minimum Qualifications and Terms: Proposals must contain and agree to the following qualifications and terms to submit a proposal. Failure to agree to the qualifications and terms contained in this section shall render the proposal invalid. The successful proposer shall meet all the qualifications and terms by the start of services. In addition, failure to adhere to the mandatory minimum qualifications and terms contained in this section at any point during the contract term may render it invalid. 1. Experience-Administrative staff must have pertinent and current experience in maintaining programming contracts, selling entertainment services, and supporting customer accounts. Technical staff must have pertinent and current experience in operating and maintaining head-end facilities and in all phases of implementation and delivery. This is defined as at least two years of experience in the past four years providing services of similar scope and scale. Provide the following information: a. Resumes of proposed technical staff, including narrative explaining how proposed technical staff meet experience requirements as stated in the RFP, and at least three references (may be fioxn the same company) with contact information (name, address, telephone number, and fax number) supporting stated experience; b. Description of services company/staff has provided and geographical areas served; c. Company/staff experience in system planning, plant management, and maintaining quality service; d. Company/staff experience in selling and supporting similar services, including failures, successes, and new strategies; and e. Company/staff experience effectively managing at least 1,000 customer accounts together with accurate billing of services. 2. City of Ashland Franchise Agreement Proposer accepts the Franchise agreement attached as Exhibit I without exception. Further, the proposer agrees to maintain the franchise agreement administered by the City of Ashland throughout the term of the lease contract administered by AFN. 3. City of Ashland Business License-Proposer agrees to obtain and maintain a City of Ashland Business license without exception throughout the term of the awarded contract. 4. Co-Ownership of Customers-Without exception, proposer agrees it and AFN share mutual interest in all customers obtained under the duration of this Agreement for the services specified. Proposer shall not sell, transfer, share, transition, or otherwise affect the ownership of customer accounts without prior approval and fully executed addendum to this contract. S. Co-Branding Proposer agrees to cooperatively market all services under its awarded contract with Ashland Fiber Network/AFN without exception. This includes inclusion of the RPP - Television Services, October 11, 2010, Page 15 of 83 f { i i 3 } 4 AFN logo and brand in all marketing efforts and providing AFN management oppoitLmity to F ` review and control use of its logo and brand. 6. Availability of Wholesale Products-Proposer agrees to make its television programming packages available to AFN and its partners at wholesale prices for use in the sale of bundled telecommunications services--c.g., combined Internet, television, and telephone. These packages must match the successful proposer's own offerings, be competitive on.the basis of wholesale pricing, as well as be available to AFN and its partners throughout the contract term without exception. 7. Operating Fees and Payment Policy----Proposer agrees to pay a minimum of $200,000 per annum for operating costs associated with the HFC plant on which television services operate. The base cost recovery calculation for this figure is as follows: Cost Sectors 2011 r2012 2013 Descri tion Staff $83,940 6,458 $89,052 CATV support hours of .9 FTE $1500/month space and utilities + Space usage $183200 $18,200 $18,200 $200/year Access/Security $7,120/month Network Capital Infrastructure $85,440 $85,440 $85,440 and Maintenance Regulatory Compliance $12;106 $12,106 $12,106 PUC compliance work tickets Total $199,686 $202,204 $204,598 By submitting a proposal, the proposer agrees to the following: A. Operating fees payment shall be made quarterly, in advance for the subsequent quarter, submitted to Ashland Fiber Network prior to the first day of January, April, July, and October of each year. B. Revenue sharing payment shall be made quarterly, for the previous quarter's total, submitted to Ashland Fiber Network prior to the first day of January, April, July, and October of each year, C. Payment for miscellaneous charges and fees billed by AFN shall be as billed, within 30 days of the billing date listed on AFN invoices. D. Payment of franchise fees shall be administered under the terms of the franchise granted 4 to the successful proposer by the City of Asbland (not AFN) and are not considered to - fall within this RFP and the contract awarded as a result of this RFP. 8. Storefront Operation-Proposer agrees to maintain a commercial storefront location within the City of Ashland's urban growth boundary throughout the term of their awarded contract, By submitting a proposal, the proposer agrees to equip and staff the storefront facility to handle on-site customer visits for connects, disconnects, and equipments and parts pick-up. Hours of operation for the storefront facility shall be standard business days and hours, minus national and State of Oregon holidays. Customer support staff must have excellent customer service skills and be courteous and professional at all times. 9. Liability-Proposer agrees all liability associated with their management and operation of television services during the term of their contract shall belong solely to them as the successful proposer, without exception. By submitting a proposal, the proposer also accepts responsibility for liquidated damages for any negative impacts to AFN's customers and brand 3 Y 3 `f 7 1 I£ tE y 1 RFP - Television Services, October 11, 2010, Page 16 of 83 { f ' i resulting from their management of television services. The successful proposer is not liable t for failure to perform if such failure is as a result of force majeure. 10. Auditing- Proposer agrees that the City of Ashland, through its Ashland Fiber Network Division, may initiate an audit of the finances of the successful proposer to confirm accuracy a of payments at any time. Audits shall not exceed one per year, shall be paid in equal proportion by both the successful proposer and the City, and shall be selected by AFN's executives. The successful proposer must make all :files, materials, and staff fully available to the assigned auditors. The scope of any audits will be limited to the services being contracted. Contract Length: The City of Ashland's intent is to award a contract for three years with two one-year extensions at the City's option, for a potential total term of five years. Extensions will be granted on the basis of the successful proposer's financial, operating, and marketing performance. Miscellaneous CharlZes and-Fees.- The City of Ashland may provide the following services at stated costs. The proposed fees, hourly rates, and miscellaneous charges will apply from the start of the contract, through December 31, 2011. They may be increased or decreased with 90-days notice, after January 1, 2012. Description of Services RATE, Installation Fee (Additional charges for arts and supplies apply. May be waived by AFN.) $20'00 Disconnect Fee $50.00 Standard Outlet Fee $20.00- (Ma y be waived by AFN.) Field Technician Hourly Rate (Non-standard work such as advanced troubleshooting, nonstandard outlets, wall $40.00 fishing, etc.) Add/Remove Trap Fee $10.00 Consulting and Technical Support - Hourly Rate (Charge applies to support for issues not related to AFN infrastructure performance $70.00 and reliability.) Staff Screening Fee (Charge for each employee submitted for authorization to access AFN and City Service $150.00 Center facilities.) Issues Management and Communications Protocol: As part of their response, proposers must explain how they will provide support 24 hours per day by seven days a week by 365 days per year (plus leap year) response to technical outages and major issues. AFN requires channels be available and viewable by subscribing AFN customers at least 99.90% of all hours in a year, minus maintenance periods mutually agreed to by the successful proposer and AFN. Proposers are required to provide timely outage notification and resolution protocol for City staff to utilize, AFN contacts must be notified of any television outages, widespread channel issues, and repair of those scenarios within 60 minutes of occurrence. AFN must also be notified of Federal Communications Commission and Public Utilities Commission violations within two RFP - Television Services, October 11, 2010, Page 17 of 83 l i I d t business days. Proposers must detail how they will communicate issues and provide updates to AFN staff, as well as include contact information and escalation steps for AFN staff to follow in R the event it needs to communicate issues or outages to the successful proposer. i Access to Head-End and Equipment: The Cable television head-end and all equipment associated with rendering television services are and shall continue to be located at the City of Ashland Service Center, 90 N. Mountain Avenue, Ashland, Oregon, 97520. The physical area of the Cable television head-end is approximately 400 square feet and space is shared with the Ashland Fiber Network's Internet Services operations. Eight satellite dishes are located outdoors, in an adjacent lot. The successful proposer's designated staff will have access to these facilities after being granted authorization. Authorization requires completing City of Ashland security forms, including successfully passing background checks performed and required by the Ashland Police Department, To j ensure staff can transition in quickly, proposers should screen their proposed staff prior to ~ I submittal. The successful proposer will only have authority to access the AFN television head-end, I associated equipment, and AFN staff in the head-end area of the Service Center facility. The successful proposer shall not have authority to access network equipment or other areas of the ` City Service Center. The successful proposer shall not store equipment or supplies, expand equipment space, grow utilities requirements, nor park vehicles on City property without prior approval by the City's CIO/Director of Information Technology (CIO/Director), or his/her _ designee. The successful proposer's authorized staff will only be permitted to park in the City Service Center's public parking areas and must agree to maintain a safe distance from any and all f heavy equipment on the Service Center property. Maintenance of Head-End Assets: The successful proposer will be required to maintain and upgrade television head-end equipment in a professional manner, so as to meet all required performance measures. The television head- end shall be used solely for cable television, IP-based television, video content distribution, and services-as approved under the awarded contract and any subsequent contract amendments. The City of Ashland shall own all upgrades to its television and network assets without compensation to the proposer, unless otherwise agreed to via a contract amendment to the awarded contract. Current hardware used in operation of AFN cable is attached as Exhibit G. _ AFN shall provide existing rack space and use of its eight satellite dishes, which are and shall remain the property of the City of Ashland, for use by the successful proposer, The successful proposer is responsible for acquiring any and all hardware and software it deems required for provision of agreed services, such as channel receivers and modulators. Note that a portion of the current head-end equipment is owned and operated by AFN's current contactor attached as Exhibit G. Consequently, proposers should account for providing equipment they require in their projected costs. Community Outreach: It is the intent of the City to obtain a service provider that acts as a positive corporate citizen in the local community due to AFN's status as a public resource. Proposers need to ensure their company will work to honor the Ashland community's diverse culture, interests, and needs, RFP -Television Services, October 11, 2010, Page 18 of 83 t i t F Revenue and Fee Arrangements: Base Operating Fee payments compensate AFN only for the use of building facilities, electrical consumption, utilities, infrastructure maintenance and upgrades for use of network distribution E plant, AFN staff support to include field technicians servicing installations and service calls, and related vehicle fleet expenses. Proposers must also include proposed revenue sharing arrangements and/or payment schedules to share financial benefits realized from services rendered via the community-owned Ashland Fiber Network infrastructure. Arrangements and schedules should generally be presented as a _ percentage of gross revenue or an amount per customer account and address. However, t proposers are permitted to propose alternative structures. Proposers are also highly encouraged to structure their proposals to reward performance. For example, percentages and fees (not including base operating fee) can be reduced as the successful proposer's performance improves on measures of higher total customer accounts, more new customer acquisitions, lower customer churn, high customer satisfaction scores, and other measures that materially and positively affect AFN's services. The final revenue sharing and fee arrangement will result from successful negotiations between the City of Ashland and the highest ranked proposer. Definitions 1) Revenue sharing is defined as payment to the City of Ashland's Ashland Fiber Network Division by the successful proposer for cooperatively meeting specific operating goals. 2) Gross revenues shall be calculated solely on the basis of average total revenue per customer account. This calculation shall exclude advertising revenue. Contract Term: The City's intent is to award a contract to the successful proposer for a period of three years, with the option of two one-year extensions for a maximum term of five years. The City of Ashland shall retain the sole right to approve or deny the sale, transfer, and/or divestiture of the contract by the successfirl proposer to another entity. This includes, but is not limited to, the transfer or sale of the successful proposer's contract of AFN infrastructure, accounts and data for customers within Ashland city limits, and subcontracts with other service providers. Timeline for Contract Review: Dates Term Technical Review Basis O eratin Review Basis January 2011 to December 2013 Three years Services & Compliance Financial & Marketing January 2014 to December 2014 First one-year extension Services & Compliance Financial & Marketing January 2015 to December 2015 Second one-year extension Services & Compliance Financial & Marketing RFP -Television Services, October 11, 2010, Page 19 of 83 i i .f F) I 4 r S i 4. CONTENTS OF PROPOSAL Y i 9 Preparation Proposals shall provide a straightforward, concise description of the proposer's capabilities to satisfy the requirements of the RFP. Emphasis should be on completeness and clarity of content. The proposal must contain and be organized in accordance with the following section titled Contents of Proposal. The proposer assumes the sole risk and responsibility of all expenses connected with the preparation of its proposal. Title Paze I Cover Include the name of the company; its principal business address and contact information where the services will be managed and if applicable, the local company address and contact information. Table of Contents Include a clear identification of the material by section and by page number. Transmittal Letter A letter of introduction addressed to "Rob Lloyd, CIO/Director of Information Technology" and signed by a person legally authorized to bind the proposer to its proposal. The letter will introduce the name of the main contact and include the company name, physical address, mailing address, telephone number and fax number. The letter will also introduce the company representatives who have authority to make decisions on behalf of the company. And, if applicable a cellular number and contact name for additional inquiries. The transmittal letter may also introduce the proposal and summarize the key provisions of the proposal. 3 Acceptance of Mandatory Minimum Qualifications and Terms Proposer to acknowledge understanding and acceptance of the Mandatory Minimum Qualifications and Terms as detailed in Section 3 on Page 16. Acceptance, without E exception, will be acknowledged in writing on the form attached as Exhibit D. The Mandatory Minimum Qualifications and Terms are mandatory and nonnegotiable. In addition to Exhibit D, proposer to provide: a. Resumes of proposed technical staff, including narrative explaining how proposed technical staff meet experience requirements as stated in the RFP, and at least three references (may be from the same company) with contact information (name, address, telephone number, and fax number) supporting stated experience. References may be contacted by the City; b. Description of services company/staff has provided and geographical areas served; c. Company/staff experience in system planning, plant management, and maintaining quality service; d. Company/staff experience in selling and supporting similar services, including failures, successes, and new strategies; and e. Company/staff experience effectively managing at least 1,000 customer accounts together with accurate billing of services, f. Company references for selling/supporting similar types of services and maintaining quality services. Provide at least three references (not from the same company) with RFP -Television Services, October 11, 2010, Page 20 of 83 I f f s F - i contact information (name, address, telephone number and fax number) supporting stating experience. References may be contacted by the City. F Financial Strength a Financial Statements Include current audited Balance Sheet, Statement of Cash Flows, and Statement of Income. These financial reports must reflect positive financial status and indicate ability of the proposer to meet the terms and length of the intended contract without issue. j Proprietary information (Trade Secrets) - Please see section on page 11. Head-End Equipment Include the proposer's projected costs for start-up head-end equipment. Acknowledge proposer reviewed and understands the section of the RFP titled "Maintenance of Head- End Equipment" on Page 19, and has reviewed the Head-end Asset Inventory attached as Exhibit G, 'which includes a list of the head-end equipment that is owned and operated by the current contractor. i Proposed Services 1 Current channel lineups are attached as Exhibit H. Note: Although proposers must define their own cable television channel lineups, AFN recommends the following channels be carried due to local interest: all available RVTV channels, Local Medford DMA broadcast television stations, ESD.(Jackson Long Distance Education), Classic Arts Showcase, and Free Speech TV. r Core Services - Including Retail/Wholesale Cost Provide 480 MHz channel lineup(s) by proposed packages/tiers with estimated cost for each package/tier. Base package should include local news and public/educational/government channels. Describe how the channel lineup(s) and packages/tiers appeal to Ashland residents and business, Note at what wholesale versus retail cost(s) AFN and its partners would be able to purchase each of the packages/tiers. { Digital Services - Including Retail/Wholesale Cost Provide 860 MHz channel lineup(s) by proposed packages/tiers with estimated cost for each package/tier. Premium package should include local news and public/educational/government channels. Describe how the channel lineup(s) and packages/tiers appeal to Ashland residents and business. Note at what wholesale versus retail cost(s) AFN and its partners would be able to purchase each of the packages/tiers. Y Additional/Alternative Services Examples of additional services: Telephone, Internet, IP-Based Television (IPTV), On- Network IPTV, Digital Video Recorders (DVR), Video-on-Demand Programming (VOD) Additional Services Proposer Intends to Offer RFP -Television Services, October 11, 2010, Page 21 of 83 r i E Proposers may include additional /alternative services or products, novel services and/or incentive options in their proposals they wish/intend to offer AFN customers. IP-based television (IPTV), on-network IPTV, on-demand video, digital video recorders, voice _ over IP (VOIP), and similar offerings are not required, but are desired to meet emerging 3 customer demand in Ashland. Proposers are encouraged to propose additional/alternative services or products, incentive arrangements, and performance goals for each proposed service. y For each additional/alternative service or product, the proposer must provide a clear and E detailed description of each service or product, including what the proposed service is, estimated cost, how revenues from sales will be shared, how the service benefits AFN customers, whether the additional service would be available to AFN and its partners at wholesale prices, the timeline for implementing the service and implementation date, how the service would be tested, and any limitations or concerns. Proposers must also describe their company's ability to administer the proposed service and what assistance or allowances they may need from AFN. Activation Plan Goals and incentives in proposals should support successful activation and transition to the proposer's services. Proposers must provide a plan that accounts for and ensures all transitions related to this contract occur smoothly for AFN customers and staff. Provide a detailed work breakdown structure and schedule for the required tasks needed to complete the activation process and/or to implement an alternative solution. Detailed information on the proposed technical activation with an administrative timeline detailing ' acquisition of programming content is to be included. Note any requirements of AFN i staff to successfully transition services as needed. f Lona Term Strategy Provide the strategic direction proposer intends to take television services if awarded the contract. At minimum, address the following: I) The priority and place of high-definition, video-on-demand, and digital video 3 recording devices in marketing efforts; 2) How should bundling of services be used to augment sales and reduce customer ! - churn; 3) How to position for changing programming contracts coming from content production companies; and 4) A credible response to the emergence of Internet Protocol-based television (IPTV) in the coming years. . f Customer Data Security Proposers must acknowledge in writing their acceptance of requirements to maintain customer data in a secure fashion and not to sell or otherwise release customer data without prior approval from the CIO/Director of Information Technology or his/her designee. Proposers should describe how they will accomplish this requirement. Communications Protocol Provide a communications protocol that details how proposer will provide timely outage UP-Television Services, October 11, 2010, Page 22 of 83 r r i notifications, technical outages, channel issues, major issues and minor issues will be communicated to AFN, how AFN should communicate issues to the proposer, processes t for updates, and escalation procedures. The protocol must be designed to meet the 3 24x7x365, 99.90% uptime standards minus maintenance periods mutually agreed to by the successful proposer and AFN. AFN contacts must be notified of any television s outages, widespread channel issues, and repair of those scenarios within 60 minutes of t z occurrence. AFN must also be notified of Federal Communications Commission and Public Utilities Commission violations within two business days. Proposers must detail how they will communicate issues and provide updates to AFN staff, as well as include contact information and escalation steps for AFN staff to follow in the event it needs to communicate issues or outages-to the successful proposer. Revenue Sharing and Fee ArranlZements Provide detailed revenue sharing and fee arrangement. t F 3 i Revenue Sharing and Fee Arrangement for Television Services (Non--Advertising) Propose and describe revenue sharing and fee arrangement for television services: The proposed arrangement may include shared benefits, incentives for strong performance, growth in the number of customer accounts, new customer acquisitions, nominal customer churn, and high customer service ratings. Revenue Sharing and Fee Arrangement for Advertising Include revenue sharing approach for advertising revenues. Revenue Sharing and Fee Arrangement for the Proposed Additional Services Include revenue sharing and fee arrangement for additional services being proposed. Optional,- Additional Revenue Sharing and Fee Arrangements Proposers may propose additional or alternative revenue sharing and fee arrangements related to its lease and operation of AFN television services. A narrative description of ; the objectives of each alterative arrangement is required for clarity. Marketing Performance Detail proposed marketing strategies, Marketing Television Services Discuss marketing strategy for television services, customer acquisition and retention, and cooperative marketing efforts with AFN. Describe how they will ensure their company will work to honor the Ashland community's diverse culture, interests, and , needs, Include how the proposer intends to create and maintain an active and consistent presence in the City of Ashland. Examples may include efforts to support community events, and cooperatives with local educational institutions and non-profits. Marketing Advanced Television Services/Additional Services Discuss marketing strategy for creating opportunities to market advanced television services and additional services being proposed. Marketing Advertising RFP -Television Services, October 11, 2010, Page 23 of 83 f i i f i Discuss how proposer will sell television advertising and perforan necessary production and encoding support work. ' s F Customer Service Survey Propose and describe a cooperative customer survey process for the proposer and AFN to manage jointly. The survey must be.performed at least once annually and be approved by AFN prior to release, It must gauge customer satisfaction with channels, pricing, customer service, and overall satisfaction. Financial and Marketing Performance Proposers should agree to the Financial and Marketing Performance requirements attached as Exhibit E, or suggest alteratives, so long as the alternatives do not conflict with the Minimwn Qualifications and Terms section of this RFP. Sample Usajye and Billing Statements and/or Reports_ Provide sample usage and billing invoices, statements and/or reports. 3 9 Performance Requirements Proposers should agree to the Performance Requirements attached as Exhibit F, or suggest alternatives, so long as the alternatives do not conflict with the Minimum Qualifications and Terms section of this RFP. s s Contract Terms and Conditions The proposal should indicate acceptance of the City of Ashland's contract provisions or suggest reasonable alternatives that do not substantially impair the City of Ashland's rights under the contract. The proposer may also propose contractual terms and conditions that relate to subject matter reasonably identified in the request for proposals. The City of Ashland reserves the right to negotiate the contractual terms and conditions proposed as alternatives by the proposer. Final terms of the lease contract to be negotiated. F Exhibit A Certificate of Compliance The Certificate of Compliance attached as Exhibit A is required to be signed and included with your proposal. f _ Lease Agreement and Contract } A' sample lease agreement is attached as Exhibit J. This sample lease agreement serves as a default agreement on which negotiations will be based. s I Liquidated Damages Failure to meet performance requirements and-thresholds defined in this RFP adversely } affects the reputation of AFN and the ability of it and its partners to sell services. A j liquidated damages clause will be required in the contract negotiated between AFN and ~ f the successful proposer, It is suggested that proposers propose liquidated damages in their proposals. Termination Either party may terminate this agreement for cause, provided written notice is given the f RFP -Television Services, October 11, 2010, Page 24 of 83 f 3 Y r 1 t . Y other party specifying the cause for termination and requesting correction within 10 days for failure to pay a sum due, or within 3 0 days for any other cause, and such cause is not E corrected within the applicable period. Cause is any material breach of the terms of this agreement, including the failure to pay any amount when due; sale or transfer of customer accounts without agreement; the filing of a petition in bankruptcy; inability to I meet financial obligations when due; or failure to provide services as detailed in this 4 agreement. i In the event the contract is terminated under any circumstance, the City of Ashland may f pay the successful proposer $1.00 for each active television customer account to ensure } effective transition of customers. Active customer accounts are defined as those that are being provided television services under the scope of the contracted services at the time the contract is concluded, that have no overdue balances, and that have not given notice to the successful proposer or City of intent to cancel their service. In consideration for i proposer investments under the terms of the contract, the City, through its AFN division, shall also have the option to purchase equipment installed for the operation of television services from the successful proposer, at current depreciated values at the time termination notice is sent by either party. ~ f i RFP - Television Services, October 11, 2010, Page 25 of 83 t 1 5. SUBMITTAL OF PROPOSALS Final contents of proposal to be submitted in sealed envelope: 1. Complete set of RFP documents released by the City of Ashland j S 2. Proposal: One (1) original copy of the proposal signed in M Four (4) additional copies of the proposal r The final contents of the proposal must be submitted in a single SEALED ENVELOPE and received at the following address: _ Mari Olson Purchasing Representative City of Ashland 90 N. Mountain Avenue ' Ashland, OR 97520 i Contents: REQUEST FOR PROPOSAL 1 TELEVISION SERVICES Due by 2:OOPM (PST), Wednesday, November 10, 2010 DUE DATE AND TIME: The proposals must be received at the designated address listed above prior to 2:OOPM (PST), Wednesday, November 10, 2010. Late proposals will not be considered. Faxed or emailed proposals will not be considered. Period of Irrevocability Proposals will be offers that are irrevocable for a period of sixty (60) days after the time and date proposals are due. Proposals will contain the name, address and telephone number of an individual or individuals with authority to bind the company during the period in which the proposal will be evaluated. { RFP - Television Services, October 11, 2010, Page 26 of 83 i i 6. EVALUATION PROCESS An evaluation committee appointed by the City of Ashland will evaluate the proposals based on the evaluation criteria established in the Request for Proposal. Each category will be scored with a number of points, up to the maximum number of points assigned to each category. The greater the number of points assigned to a category, the greater the category's level of importance. Each proposal will be evaluated, scored and then ranked according to the evaluation criteria. Interview/Clarification Process After the initial evaluation of the proposals has been completed, the Evaluation Committee may conduct an interview process and/or request clarifications, The actual interview and/or additional inquiries for clarifications may be performed or requested via the telephone, fax, email and/or in person. Evaluation Criteria The proposals will be evaluated according to the following criteria: Evaluation Criteria Points Mandatory Minimum Qualifications and Terms Pass/Fail Title page, Table of Contents, and Transmittal Letter 3 Financial Strength 14 Proposed Services $ Activation Plan 15 Long Term Strategy 5 Customer Data Security 4 Communications Protocol 4 Revenue Sharing and Fee Arrangements 12 Marketing Performance 21 Sample Usage and Billing Statements 1 Performance Requirements $ Contract Terms and Conditions 5 z TOTAL 100 Additional/Alternative Services or Products 20 3 TOTAL 120 j a The City of Ashland may reject any proposal not in compliance with all prescribed solicitation procedures and requirements and other applicable laws, and the City may reject for good cause any or all proposals upon the City's findings that it is in the best interest of the City of Ashland. r If only one responsive proposal is received, the City of Ashland reserves the right to negotiate a contract with the sole responsive proposer, The City of Ashland will determine if the proposal will be considered and if the proposed revenue sharing and fee alTangement is within an acceptable range. If the City determines the proposal is fair and reasonable,. the City may enter i into negotiations with the sole responsive proposer. RFP - Television Services, October It, 2010, Page 27 of 83 i E The total points awarded to each proposal will be tabulated and the proposers shall be ranked Y accordingly. A contract with the proposer deemed to be most qualified will then be negotiated. If z negotiations with a proposer are unsuccessful, the City of Ashland may proceed to the next most qualified, and so on until a contract is successfully negotiated. The final contract recommendation will then be presented to the City Council (Local Contract Review Board) for final approval prior to execution. S ya f L 3 eflQeC g6 E59S 5 9 jE 3 y c RFP - Television Services, October 11, 2010, Page 28 of 83 i f S f EXHIBIT A-Certificate of Compliance a I Compliance with Oregon Tax Laws: i In compliance with OAR 137047-0260(2)(e), I hereby attest or affirm under penalty of perjury: That I am authorized to act on behalf of the contractor in this matter, that I have authority and knowledge regarding the payment of taxes, and that contractor is, to the best of my knowledge, not in violation of any Oregon Tax Laws, as defined in ORS 305.380. E Compliance with Nondiscrimination Laws: In compliance with ORS 279A.110(4) and OAR 137-047-0260(2)(a)(E), I hereby attest or affirm f under penalty of perjury that I am authorized to act on behalf of contractor in this matter, and to i the best of my knowledge the contractor has not discriminated against minority, women or emerging small business enterprises in obtaining any required subcontracts, and that the Bidder I is not in violation of any Discrimination Laws. i Corporate Officer: By: Signature = 1 i Print Name z Title: Date: i RFP -Television Services, October 11, 2010, Page 29 of 83 1 r j 7 ` EXHIBIT B--Living Wage Brochure CITY OF ASHLAND, OREGON 0 City of Ashland LIVING* A employers described E WA below must comply with City ♦ Ashland laws regulating i payment of a living wage. l i per hour, effective June 30, 2010. The Living Wage is adjusted annually every June 30 by the Consumer Price Index. • _ / _ r , portion of business of their- cafeteria plans (including - employer, if the employer has childcare) benefits to the ten or more employees, and amount of wages received by has received financial the employee. assistance for the project or ➢ For all hours worked under a business from the City of ➢ Note: "Employee" does not . service contract between their Ashland in excess of $18,703. include temporary or part-time employer and the City of employees hired for less than Ashland if the contract ➢ If their employer is the City of 1040 hours in any twelve- exceeds $18,703 or more. Ashland, including the Parks month period. For more and Recreation Department. details on applicability of this ➢ For all hours worked in a policy, please see Ashland month if the employee spends ➢ In calculating the living wage, Municipal Code Section 50% or more of the employers may add the value 3.12.020. - employee's time in that month of health care, retirement, working on a project or 401K and IRS eligible i • additional information: Ij Call the Ashland City Administrator's office at 541-488-6002 or write to the City Administrator, City Hall, 20 East Main Street, Ashland, OR 97520, or visit the City's website at wvvw.ashland.or.us. Notice to Employers: This notice must be posted predominantly in areas where it can be seen by all employees. CITY OF ASHLAND RFP -Television Services, October 11, 2010, Page 30 of 83 a I z i "s EXHIBIT C-Living Wage Ordinance r CHAPTER 3.12 LIVING WAGE i SECTIONS; s 3.3.2.020 Purpose. 4 3.3.2.020 Definitions. 3.12.030 Payment of a Living Wage. 3.3.2.040 Enforcement. 3.3.2.050 Retaliation and Discrimination Prohibited. ; i 3.3.2.o6o Applicability of Provisions. i 3.3.2.070 Severability. 1 SECTION 3.3.2.03.0 Purpose. The City awards contracts to private firms to provide services to the public and City government. i -for-profit organizations. Such public expenditures should be The City also provides grants to not spent only with deliberate purpose to promote the creation of jobs that allow citizens to support themselves and their families with dignity. Jobs that pay below living wages do not serve the public purpose and place an undue burden on taxpayers and the community which must further j subsidize employers who pay sub-poverty wages by Providing their employees health care, housing, nutrition, energy assistance, and other government-provided services. The City has a responsibility when spending public money to set a community standard that promotes workers living above the poverty line. Therefore, contractors, subcontractors or other recipients of City financial assistance should pay their employees nothing less than a living wage as defined by this I chapter. (Ord 2875, Added, 0910412001) r SECTION 3.3.2.02-0 Definitions. r For the purpose of this ordinance the following definitions shall apply: A. "Employee" means any person who is employed as an employee of a service contractor or a recipient, or who is a recipient subcontractor or independent contractor of a service contractor, or subcontractor on a service contract with the City, for all employment hours spent performing the duties required pursuant to the service contract, or by a recipient or a subcontractor of a recipient who spends 50% or more of the employee's compensated time in a month working on the project or portion of business that received City financial i assistance. I "Employee" does not include: a.. Employees outside the state of Oregon; 2. Employees who are hired as temporary or part-time employees and who are employed for a total of less than 1.04o hours in any twelve month period; 3. Employees participating in bona fide training programs such as welfare-to-work (state), work study (educational institutions), certified apprentice programs or on-the-job training program of no more that 18 months; 3 4. Volunteers and quasi-volunteers (who may receive a stipend); 5. Employees who are under 18 years of age, employed by a non-profit entity for after f R1'P - Television Services, October 11, 2010, Page 31 or 83 i s 1 i school or summer employment or as a trainee for a period of not longer than 7.2o days; 6. Employees who are standing by or on-call according to the criteria established by the r Fair Labor Standards Act, 29, U.S.C. Section 2oi. This exemption shall only apply during the time when the employee is actually standing by or on-call; or i 7. An employee subject to a bona fide collective bargaining agreement. i f B. "Employer" means the City of Ashland including the Parks and Recreation Department and any person who is a recipient, contractor, or subcontractor and who employs employees. l E "Employer" does not include other governmental agencies or quasi- governmental F agencies, which have publicly elected boards or commissions. ` f C. "Person" means natural person, joint venture, joint stock company, partnership, 1 ; association, club, company, corporation, business, trust or organization. E f z D. "Recipient" means any person who receives financial assistance from the City, including direct grants, loans, waiver of city fees or other valuable consideration in an amount of more than $ S,ooo in any twelve month period. This amount shall be adjusted annually, effective June 30, to reflect increases during the preceding year (January through ; December) in the Consumer Price Index - Urban Wage Earners, as published by the U.S. Department of Labor, Bureau of Labor Statistics. Recipient does not include a private employer with less than ten employees who receives a tax abatement or subsidy; "s "Financial assistance" does not include: ' 1. The purchase of goods or other property; z. The lease or rental of goods or other property; 3. Payment to provide services for the occasional meeting, reception, or similar function, 4. Payments under contracts subject to prevailing wage requirements in ORS 279.348 to 279.38o; or S. City staff assistance, or an economic benefit as an incidental effect of city policies, regulations or ordinances. y 4 E. "Safety net services" include: 1. Temporary, emergency food and shelter; 2. Substance abuse education, prevention and treatment; 3. The preservation of dignity and equal access to justice; P 4. Primary and preventive health care services; or I S. Critical supportive-services for families, seniors and victims. i G F. "Service contractor" means any person who enters into a service contract with the City. A r "service contract" means a contract to provide services for the operation of the City or to maintain City property. A service contract does not mean: 1. The purchase of goods or other property; 2. The lease or rental of goods or other property; 3. Payment to provide services for the occasional meeting, reception,-or similar function; 4. Those contracts subject to prevailing wage requirements in ORS 279 348toz7938o•or UP -Television Services, October 1 L 2010, Page 32 or 83 I i i i 5. Contracts involving payment of less than si5,ooo. This amount shall be adjusted annually, effective June 30, to reflect increases during the preceding year (January 'Y 1 through December) in the Consumer Price Index - Urban Wage Earners, as published by F the U.S. Department of Labor, Bureau of Labor Statistics. Amendments to such contracts that increase the contract amount over s1.5,ooo are also not included within the definition of a service contract unless such amendments are used to circumvent living wage requirements. i G. "Subcontractor" means any person that enters into a service contract with: } i. A service contractor to assist the service contractor in performing 5o% or more of the service work on a project or portion that receives city funds; 2. A recipient to assist the recipient in performing 5o% or more of the service work on a project or portion that receives city funds. (Ord 287„ Added, 09/04/2002) 3 3 3 i ' SECTION 3.3.2.030 Payment of a Living Wage. A. All employers covered under this chapter shall pay employees a "living wage" of wages and benefits equal to $11.74 per hour (CPI 6/30105). Benefits, which can be attributed to a living wage, are limited to health care, retirement, 40i.k and IRS eligible cafeteria plans (including childcare). B. Work presently being performed by City of Ashland employees may not be contracted out unless the contractor pays employees performing that work a living wage or the current City wage, whichever is higher. C. The wage rate required in section A shall be adjusted annually, effective June 3o, to reflect increases during the preceding year (January through December) in the Consumer Price Index - Urban Wage Earners, as published by the U.S. Department of Labor, Bureau of Labor Statistics. F i 3 D. Employers subject to this chapter shall post a notice, which notifies employees of their potential rights under this chapter. Such notice shall be posted predominantly in areas where it - will be seen by all employees. g (Ord 287$, Added, og/off/zaoi) i SECTION 3.a.2.040 Enforcement. A. Compliance with this chapter shall be required in all City contracts to which it applies. Such 1 contracts shall provide that upon a violation of any provision of this chapter the recipient, contractor or subcontractor who is out of compliance shall have thirty days to come into compliance. Such contracts shall further provide that after 3o days if the recipient, contractor or subcontractor remains out of compliance, the City may terminate the cclntract and otherwise pursue legal remedies that may be available including the repayment of, or payment for, all or part of the financial assistance provided. If a recipient, contractor, or subcontractor violates the provisions of this chapter twice, the City may terminate all contracts already in force and x RFP - Television Services, October 11, 2010, Page 33 or 83 f jf 4 r 3 i - that recipient, contractor, or subcontractor shall be prohibited from receiving City financial assistance or contracting with the City for a period of two years. E t B. An employee claiming violation of this chapter may report such action to the city. The city administrator may establish a procedure for receiving and investigating such complaints and take appropriate enforcement action. 5 6 An employee claiming violation of this chapter may choose to bring an action in the Circuit Court of Oregon against an employer and may be awarded back pay for each day during which 4 the employer failed to pay the employee the required living wage. As additional damages the employee shall be awarded an amount equal to an hour's pay for each hour the employee was not paid the amount required in section 3.3.2..o3o and any additional injunctive relief necessary r and appropriate under the circumstances. The court shall award reasonable attorney's fees and costs to an employee who prevails in any such enforcement action. The damage provision of this section shall not apply if such violation was deemed to be unintentional on the part of the employer and the employer paid the required back pay for each day the violation of this chapter occurred. 1 C. The statute of limitations for this chapter shall be two years from the time of the alleged ~ violation of this chapter. (Ord 2875, Added, 0910412001) K i SECTION 3.3.2.050 Retaliation and Discrimination Prohibited. A. No employer shall 'retaliate or discriminate against an employee in his or her terms and conditions of employment by reason of the person's status as an employee protected by the requirements of this chapter. B. No employer shall retaliate or discriminate against a person in his or her terms and conditions 1 of employment by reason of the person reporting a violation of this chapter or for prosecuting an action for enforcement of this chapter. _ (Ord 2875, Added, 09/0412001) ; t SECTION 3.1.2.o6o Applicability of Provisions. The provisions of this chapter shall apply to: 3 e A. A contract executed and financial assistance provided after the effective date of this ordinance- B. A contract amendment executed after the effective date of this ordinance which itself meets the requirements of this chapter or extends a contract that meets the requirements of this chapter, and E C. Supplemental financial assistance provided after the effective date of this ordinance which itself meets the requirements of this chapter. y UP -Television Services, October 11, 2010, Page 34 or 83 ( I l s of The Council may waive the requirements f this chapter for a recipient or service contractor upon a finding and determination that such a waiver is in the best interest of the City. The Council may waive the requirements of this chapter for a recipient or service contractor who provides safety net services, upon Council acceptance of a three-year plan 1 for achieving the requirements of this chapter. (Ord 2875, Added, 09/04/2001) I SECTION 3.1.2.070 Severability. If any court of competent jurisdiction declares any provision of this chapter legally invalid, the remaining provisions shall remain in full force and effect g (Ord 2875, Added, 09/0412001) 4 S L } 7 3 i 2 t } 9 - i i - i i • 1 I 3 S 1 7 t3 i p~ i E S 9 6 555555 . 3~ 1 - 3 - 9 s 3 RFP -Television Services, October 11, 2010, Page 35 or 83 € l y 6 Exhibit D --Mandatory Minimum Qualifications & Terms _ s Mdff t 3 Administrative staff must have pertinent and current experience in maintaining programming contracts, selling entertainment services, and supporting customer accounts. Technical staff • - - must have pertinent and current experience in operating and maintaining head-end facilities and in all phases of implementation and delivery. This is defined as at least two years of experience in Initial the past fouryears providing services of similar scope and scale. Proposer accepts the Franchise agreement attached as Exhibit I without exception.. f Initial i _ Proposeragrees to obtain and maintain a City of Ashland Business license without exception 3 throughout the term of the awarded contract. Initial i - Without exception, proposer agrees it and AFN share mutual interest in all customers obtained • • • underthe duration of this Agreement for the services specified. Proposer shall not sell, transfer, • - share, transition, or otherwise affect the ownership of customer accounts without prior approval Initial and fully executed addendum to this contract. Proposer agrees to cooperatively market all services under its awarded contract with Ashland Fiber Network/AFN without exception. This includes inclusion of the AFN logo and brand in all marketing efforts and providing AFN management opportunity to review and control use of its Initial logo and brand. • • Proposer agrees to make itstelevision programming packages available to AFN and its partners ' • • at wholesale prices for use in the sale of bundled telecommunications services-e.g., combined i • - Internet, television, and telephone. These packages must match the successful proposer's own 1 offerings, be competitive on the basis of wholesale pricing, as well as be available to AFN and its initial - ' - - artners throughout the contract term without exception. Proposer agrees to pay a minimum of >$zoo,ooo per annum for operating costs associated with the HFC plant on which television services operate. (Refer to chart on Page 17.) 1) Operating fees payment shall be made quarterly, in advance for the subsequent i 1 quarter, submitted to Ashland Fiber Network prior to the first day of January, April, July, and October of each year. i . _ 2) Revenue sharing payment shall be made quarterly, for the previous quarter's total, i - - submitted to Ashland Fiber Network priorto the first day of January, April, July, and October of each year. Initial 3) Payment for miscellaneous charges and fees billed by AFN shall be as billed, within 30 days of the billing date listed on AFN invoices. 4) Payment of franchise fees shall be administered underthe terms of the franchise granted to the successful proposer bythe City of Ashland (not AFN) and are not a considered to fall within this RFP and the contract awarded as a result of this RFP, Proposer agreesto maintain a commercial storefront location within the City of Ashland's urban growth boundary throughout the term of their awarded contract. By submitting a proposal, the i _ proposer agrees to equip and staff the storefront facility to handle on-site customer visits for _ connects, disconnects, and equipments and parts pick-up. Hours of operation for the storefront facility shall be standard business days and hours, minus national and State of Oregon holidays. Initial Customer support staff must have excellent customer service skills and be courteous and professional at all times. Proposer agrees all liability associated with their management and operation of television services during the term oftheir contract shall belong solely to them as the successful proposer, without exception. By submitting a proposal, the proposer also accepts responsibility for - liquidated damages for any negative impacts to AFN's customers and brand resulting from their Initial management of television services. The successful proposer €s not liable forfailure to perform if ! such failure is as a result of force majeure. Proposer agrees thatthe City of Ashland, through its Ashland Fiber Network Division, may initiate an audit of the finances of the successful proposerto confirm accuracy of payments at any time. Audits shall not exceed one peryear, shall be paid in equal proportion by both the successful proposer and the City, and shall be selected by AFN's executives. The successful Initial proposer must make all files, materials, and staff fully available to the assigned auditors. The scope of any audits will be limited to the services being contracted. ? RFP -Television Services, October 11, 2010, Page 36 or 83 i Y E 1 { i Exhibit E - Financial and Marketing Performance Financial and Marketing Performance Propose Level of Suggested Description Performance Percentage of gross non-advertising revenues for o - >S /0 customers 3,007-3{500 . - % Percentage of gross non-advertising revenues for customers 3,501-4,500 z Percentage of gross non-advertising revenues for • - - customers 4,501. i' >0% Percentage of advertising revenues to share a • : - >2350 Minimum Number of Customers i 1 - a • <20% Maximum Annual Customer Churn ' Minimum Number Customer Accounts within - 2,000 First Three Months of Contract s i _ Minimum Number of New Customers Acquired in ' 350 Year s of Contract Minimum Number of New Customers Acquired in ; ' 250 Year z of Contract f L i . 250 Minimum Number of New Customers Acquired in Year z of Contract G • Customer Service surveys per Year (Coordinated = with and approved by AFN) ' >650/6 Positive Average Overall Annual Satisfaction Rating(s) c S 2 ' F F i¢! f ~ { q]} I ])7}i l RFP -Television Services, October 11, 2010, Page 37 or 83 f r i Exhibit F - Performance Requirements F M1 36 E PERFORMANCE REQUIREMENTS i x Propose Level of Suggested Description Performance ; Transition } and ozJos/zoal Date by which all services and customer accounts Activation Date are active Minimum number of active customer accounts by >200o - Transition and Activation Date plus 90 days k 4 Total channel availability/uptime per year (all ng,gooyo channels; includes IPTV and video-on-demand 1 services) I . <36 Total FCC and PUC violation perYear • Customer service surveys performed per year (as >2 reviewed and approved by AFN) 5 - Percentage of customers rating proposer services as >55% "Good" or "Excellent" i rt Late payments for lease operating fees, revenue F i None sharing payments, and/or service fees billed by AFN j Errors in calculating payments to Ashland Fiber q one Network for operating fees, revenue sharing payments, and/or service fees billed b AFN None Failures to share customer data as requested C Minimum number of customer accounts maintained Minimum 7350 atthe end of any month afterthe Transition and Customers Activation Date plus 18o days Minimum number of customer accounts acquired in , 350 year from customers not purchasing AFN television ` services in previous twelve months Minimum number of cpstomer accounts acquired in Customer New 250 yearfrom customers not purchasing AFN television ? Acquisition, services in previous twelve months _ Minimum number of customer accounts acquired in Customer 250 yearfrom customers not purchasing AFN television Acquisition, services in previous twelve months Maximum off- Threshold customer accountturnover (churn) shall l Customer o y . - 200 not exceed annually Wholesale Television packages offered at wholesale prices to Positive AFN and AFN partners and serviced professionally Offerings .1 New services developed and offered to Ashland (nnovation Positive customers-e.g., IPTV, video-on-demand, VOIP telephone ` I Occurrences wherein customer data has not been i managed in a secure fashion; Customer None Occurrences wherein customer data and/or ecurity customer accounts have been sold, shared, I released, or otherwise transferred without approval by the City of Ashland Communications.; Failuresto adhere to communications protocol None stipulated in the awarded contract i i i RFP -Television Services, October 11, 2010, Page 38 or 83 f i{{ t: I: t r t EXHIBIT G-Head-End Asset Inventor) (8o+ receivers) 1 Property of AFN CHANNEL # CALL SIGN RECEIVER MODEL # MODULATOR MODEL # t 5 KOBI (NBC 5) Scientific Atlanta 6150 Scientific Atlanta 6150 6 QVC Scientific Atlanta 9660 Scientific Atlanta 9820 4 3 General 7 TV Guide PREVUE GUIDE Instrument DSR4200V Scientific Atlanta 9820 8 KSYS (PBS 8) Scientific Atlanta 6140 Scientific Aflanta 6140 a Scientific Atlanta 6140 9 RVTV - Community Access Scientific Atlanta 6140 Scientific Atlanta 6140 Sctentific Atlanta 6140 10 KTVL (CBS 10) 11 KBLN (3ABN) Scientific Atlanta 6270 Scientific Atlanta' 9820 Scientific Atlanta 6140 12 KDRV (ABC 12) Scientific Atlanta 6140 13 KMVU (POX 26) Scientific Atlanta 6140 Scientific Atlanta 6140 General 14 Northwest Cable News Instrument DSR4500 Scientific Atlanta 9820 T 15 The Weather Channel Motorola DSR4520X Scientific Atlanta 9820 The Learning Channel (ad insert General 16 ch) Instrument DSR4500 Scientific Atlanta 9820 1 Scientific Atlanta D9850 Scientific Atlanta 9820 17 CNN Espanol General a 18 Discovery Health Instrument DSR4500 Scientific Atlanta 9820 t 19 Nickelodeon Motorola DSR4402X Scientific Atlanta 9620 20 AFN Info / Blazers Scientific Atlanta 9660 Scientific Atlanta 9820 = OX Scientific Atlanta 9820 / 9890 21 ESPN (ad insert ch) Motorola DSR450 22 ESPN2 Motorola DSR460OX Scientific Atlanta 9820 f 23 CNN Headline News Scientific Atlanta 9660 Scientific Atlanta 9820 I t Scientific Atlanta 9660 Scientific Atlanta 9820 24 CNN (ad insert ch) 25 C-Span (House of Reps) Scientific Atlanta 9660 Scientific Atlanta 9820 I t 26 C-Span 2 (Senate) Scientific Atlanta 9660 Scientific Atlanta 9820 27 WTBS (ad insert ch) Scientific Atlanta D9850 Scientific Atlanta 9820 / 9890 28 Discovery Motorola DSR4402X Scientific Atlanta 9820 ) 29 Hallmark Channel Scientific Atlanta D9229 Scientific Atlanta 9820 Motorola DSR4500X Scientific Atlanta 9820 30 ABC Family 31 Lifetime (ad insert ch) Scientific Atlanta D9850 Scientific Atlanta 982019890 32 Animal Planet Motorola DSR4402X Scientific Atlanta 9820 33 The Travel Channel Motorola DSR4402X Scientific Atlanta 9820 I Motorola DSR4402X Scientific Atlanta 982019890 34 VH-1 35 MTV (ad insert ch) Motorola DSR4402X Scientific Atlanta 982019890 RCA 301 Scientific Atlanta 9820 t 36 Free Speech TV 37 UNUSED - split point Scientific Atlanta 9820 38 UNUSED - split point Scientific Atlanta 9820 39 UNUSED - split point Scientific Atlanta 9820 40 TNT Scientific Atlanta D9850 Scientific Atlanta 9820 General 41 Court TV Instrument DSR4500 OLSON OTM-3550 i Scientific Atlanta 9820 42 Wisdom Television Motorola DSR4500X 43 UScientihc Atlanta Network Motorola DSR4402X Scientific Atlanta 9820 / 9890 RFP - Television Services, October 11, 2010, Page 39 or 83 r i Scientific Atlanta 9820 f 44 American Movie Classics Scientific Atlanta D9230 45 Fox Sports Northwest WEGENER U-4600 Scientific Atlanta 9820 General Instrument DSR440OX Scientific Atlanta 9820 i 46 NogGenerallnstrumentn` General 47 Ovation Instrument DSR4500 Scientific Atlanta 982019890 48 Arts & Entertainment (ad insert ch) Scientific Atlanta D9850 Scientific Atlanta 982019890 49 Cartoon Network Scientific Atlanta D9850 Scientific Atlanta 9820 Motorola DSR450OX Scientific Atlanta 9820 I 50 TV Land Scientific Atlanta D9229 Scientific Atlanta 9820 I 51 El Entertainment F 52 Disney Channel Motorola DSR4500X Scientific Atlanta 9820/9890 53 EWTN Scientific Atlanta 9660 Scientific Atlanta 9820 I q 54 The Golf Channel Scientific Atlanta 9660 Scientific Atlanta 9820 General Instrument DSR440OX Scientific Atlanta 9820 55 Sci-fi Channel Scientific Atlanta D9850 Scientific Atlanta 9820 56 Turner Classic Movies 57 The History Channel Scientific Atlanta D9850 Scientific Atlanta 9820 58 fX WEGENER U4000 Scientific Atlanta 9820 General f 59 Food Network (ad insert ch) Instrument DSR4500 Scientific Atlanta 9820 t 1 Motorola DSR4500 Scientific Atlanta 982019890 60 BET 61 Home & Garden TV Motorola DSR4402X Scientific Atlanta 9820 € 62 MSNBC Motorola DSR4402X Scientific Atlanta 9820 63 Fox News Channel Scientific Atlanta 9660 Scientific Atlanta 9820 64 CNBC Motorola DSR4402X Scientific Atlanta 9820 Motorola DSR4402X Scientific Atlanta 982019890 f 65 Spike 66 MTV2 Motorola DSR4410 Scientific Atlanta 9820 19890 General a 67 WB - KMFD Instrument SR3200 Scientific Atlanta 9820 68 Comedy Central Motorola DSR4402X Scientific Atlanta 9820 69 UNUSED r Motorola DSR4402X Scientific Atlanta 982019890 E 70 Bravo 71 Tech TV Scientific Atlanta D9834 Scientific Atlanta 9820 f 72 UNUSED 73 UNUSED 74 GMT Motorola DSR4402X Scientific Atlanta 982019890 Motorola DSR440OX Scientific Atlanta 9820 75 Oxygen 76 NAScientific Atlanta Channel RCA 301 Scientific Atlanta 9820 77 Classic Arts Showcase Scientific Atlanta 9860 Scientific Atlanta 9820 Scientific Atlanta 9820 E 78 Independent Film Channel Scientific Atlanta 9660 79 UNUSED 80 Worship TV COSHIP CDVB2000G Scientific Atlanta 9821 81 UNUSED 82 UNUSED 83 UNUSED 84 UNUSED 85 UNUSED 86 UNUSED RFP ---Television Services, October 11, 2010, Page 40 or 83 E E t { 87 UNUSED 88 UNUSED 89 UNUSED 4 90 UNUSED a 91 UNUSED F 92 UNUSED 93 UNUSED Motorola DSR4402X Scientific'Atlanta 9821 94 GUTHY-RENKER Scientific Atlanta 9820 t 95 Community Access Scientific Atlanta 6140 96 UNUSED Scientific Atlanta 6140 Scientific Atlanta 9820 r 97 Government Access OLSON OTD-3000 Scientific Atlanta 9820 98 ESD - Educational z gg Educational Access Scientific Atlanta 6140 Scientific Atlanta 9820 e f _ QUANTITY ADDITIONAL EQUIPMENT PAANUI'ACTURER MODEL # I - 1 Emergency Alert System Encoder TFT 911 1 EAS Receiver TFT 930A 1 EAS Server Computer Frontline 1 EAS Server Monitor Frontline 5 EAS IF Inserter Frontline ACM 3L . r 1 EAS IF Inserter Frontline 4 1 EAS Modulator Frontline 720 EAS 5 lI AD Insertion Encoder Workstation Canopus RES 300 - 9 1 AD Insertion Control Computer Addige 2 AD Insertion Head-end Computer Addige 2 AD Insertion Quad MPEG Decoder Vela Research 2000-402 1 Warner Brothers Computer W$ 1 Weather Channel Computer InteiliStar 1 TV Guide Computer TV Guide 71407 Property of Current Vendor (Ashland Home Net) Quantity Manufacturer Model Description Network or Channel 1 Drake VM2860 Modulator Ch S 1 Drake VM2862 Modulator Ch 19 { 1 Drake VM2860 Modulator Ch 35 Drake VM2862 Modulator Ch 82 1 1 Drake VM2862 Modulator Ch 83 1 Drake VM2860 Modulator Ch 10 1 Drake VM2860 Modulator Ch 13 1 Drake VM2860 Modulator Ch 11 1 Drake VM2860 Modulator Ch 12 RFP -Television Services, October 11, 2010, Page 41 or 83 t i t i 1 SA 9820 Modulator Ch 99 j 1 SA 9820 Modulator Ch 97 CH 81 1 Sa 9$21 Modulator 9820 Modulator Ch 20 SA i 1 I SA 9820 Modulator Spare 1 SA 9280 Modulator Ch 22 ; Ch 78 1 SA 9280 Modulator t ~ 1 SA 9820 Modulator Ch 18 1 Olson OTM 3550 Modulator Ch 34 2 Olson OTM 3550 Modulator Spares 1 Olson OTD-3000 Modulator Ch 32 1 SA 9821 Modulator Spares } 1 Ktech DVM-150E Digital off air Receiver Ch 10 Digital to analog 1 Magnavox SDTV convertor Ch 13 Digital to analog 1 Magnavox SDTV convertor Ch 11 Digital to analog 1 RCA convertor Ch 12 i Digital to analog 1 Digital Stream convertor Ch 95 Drake HCP2550A Processor Ch 95 1 Ktech DVM-150E Digital off air Receiver Ch 8 Digital to analog 1 RCA convertor Ch 5 i 2 Drake SCI1686 Active Combiner Multi Ch RF Combiner 1 Digital DPS-290 Time Base Corrector Ch 22 1 Digital DPS-290 Time Base Corrector Spare 1 Drake VM2550A Modulator Spare 1 Drake DD860 Digital ATSC Receiver KDRV HD 1 Drake TMQAM Digital QAM.Modulator KDRV HD 1 Drake DD860 Digital ATSGReceiver KOBI HD 1 Drake TMQAM Digital QAM Modulator KOBI HD KOBI, KMVU, KTVL, 3 Drake PS8 Power Supply KSYS&KDRV 1 GE C8U-H Digital Processor Shaper KMVU HD 1 GE C8U-H Digital Processor Shaper KSYS, KOBI 1 GE C8U-H Digital Processor Shaper KTVL, KDRV 1 GE C8U-H Digital Processor Shaper Spare Digital processing 1 Blonder Tongue AQM equipment FSNW HD Digital processing 1 Blonder Tongue AQM equipment Comcast Sport HD 2 Drake TMQAM Digital GAM Modulator Spares 2 GE C8U-H Digital Processor Shaper Spares 1 SA PowerVu Receiver Comcast Sport HD 1 SA PowerVu Receiver Fox Sport HD 1 SA PowerVu Receiver Spare 1 Dish 311 Receiver Ch 97 1 PDI PDI-60ENC Video Scrambler 22 HBO 1 SA PowerVu Receiver 81 RFP -Television Services, October 11, 2010, Page 42 or 83 l I i i s S i } 1 SA PowerVu Receiver 29 23 1 Motorola DSR-4410 Receiver ! SA PowerVu Receiver 32 SA PowerVu Receiver 35 66 Motorola DSR-4402 Receiver I Motorola DSR-4402 Receiver 68 i i s S i } i S 1 e g~ t 9 4 ~ 3 aE~ - tl j )1 1 9 9 i ,i 3 3 i } i i 7 3 7 RFP - Television Services, October 11, 2010, Page 43 or 83 f t 4 E t E i i . 1 s f EXHIBIT H--Channel Lineups s . t Community Basic: KOBI (NBC) 5 RVTV Government Access 14 Classic Arts Showcase * 24 _ 6 RVTV Local Access a5 Infomercials 94 OVC (Shopping) TV Guide Channel 17 RVTV Educational Access a6 KFBI MY48 95 KSYS PBS 8 C-Span I (House of Reps) 3-7 Free Speech TV * 96 RVTV Community Access 9 C-Span II (Senate) 18 Ovation * 97 KTVL(CBS) 10 HSN 19 EWTN * 98 e ~ 11 Ashland TV 20 * 20 Worship TV * 99 CW (old WB) KDRV (ABC) 12 ESD Educational 21 3 KMVU (FOX) 13 KBLN Better Life TV 72 Y b Expanded Basic: All the "Community Basic Channels plus: 44 MSNBC 63 ~ Fox Sports Northwest 2S FX ESPN 26 Animal Planet 45 TRUTV/COURTTV 64 r ! ESPN z 27 Disney Channel 46 CMT 65 47 VH-1 66 Comcast SportsNet NW's 28 Noggin Lifetime 29 Nickelodeon 48 MTV 68 a - 30 History Channel 49 Su Fi 71 Oxygen ABC Family 31 Discovery Channel 5o Comedy Central 72 E F Hallmark G 4Tech TV 73 32 Discovery Health* 51 I Style 33 TLC 52 American Movie Classics 74 ; The Travel Channel 53 Turner Classic Movies* 75 6 EI Entertainment 34 * 35 National Geographic 54 Sundance * 76 Hallmark Movies Arts & Entertainment 36 Food Network 55 Independent Film Channel 77 ~ Nome & Garden TV S6 VERSUS (OLN) 78 1 Bravo 37 TNT 38 Northwest Cable News 57 The Golf Channel TV 79 The Weather Channel 58 Speed Channel 80 Cartoon Network 39 i 59 Fox Soccer Channel 81 USA Ketwork 40 CNN TBS 41 CNN Headline News 6o ESPN Classic 8z SpikeTV 42 Fox News Channel 61 BBC America 83 i TV Land 43 CNBC 62 'I f RFP - Television Services, October 11, 2010, Page 44 or 83 i 1 3 s 'r f F{ 1 EXHIBIT I -Example Franchise Agreement c CABLE TELEVISION SYSTEM FRANCHISE AGREEMENT Cable Services Franchise Agreement ("agreement") dated December , 20##, between the t [SUCCESSFUL PROPOSER], ("Grantee"). s t A Recitals: I A. SUCCESSFUL PROPOSER] is a cable service provider in the City of Ashland and has requested a franchise to operate and maintain a cable television system within the City of Ashland; r B. City is authorized to grant one or more nonexclusive franchises to construct, operate, and maintain a cable television system within the city limits; and 1 f C. Grantee is willing to accept this agreement and to abide by the terms and conditions; e City and Grantee agree: t 1. Definitions. For the purposes of this agreement, the following terms, phrases, words and their derivations shall have the meaning set forth below. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words not defined shall be given their common and ordinary meaning. The word "shall" is always mandatory and not merely directory. 1.1. Access means the availability for noncommercial use by various agencies, institutions, organizations, groups and individuals in the community, including City and its designees, of the Cable System to acquire, create, receive, and distribute video, Cable Service, and signals as permitted under applicable law, including, but not limited to: 1 1.1.1. Public Access which means Access where organizations, groups or i individual members of the general public, on a nondiscriminatory basis, are the primary users; i j 1.1.2. Educational Access which means Access where schools and educational ~ institutions are the primary users of programming and service 1.1:3. Governmental Access which means Access where governmental institutions are the primary users of programming and service; and 1.1.4. PEG Access which means Public Access, Educational Access, and Governmental Access, collectively. 1.2. Access Channel means any Channel, or portion of any Channel, designated for non- commercial Access purposes or otherwise made available to facilitate or transmit Access programming or service. 1.3. Basic Service means any service tier which includes the retransmission of local television broadcast signals and PEG Access Channels. 1.4. Cable Acts means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992'and any amendments, including those contained in the Telecommunications Act of 1996. 1.5. Cable Operator means any Person or group of Persons, including Grantee, who provide Cable Service over a Cable System and directly owns a significant interest in such Cable RFP - Television Services, October 11, 2010, Page 45 or 83 f S f • F 1 System, or who otherwise control or are responsible for, through any arrangement, the management and operation of such a Cable System. E 1.6. Cable Service means the one-way transmission to Subscribers of video programming s or other programming service and Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. 5 r i 1.7. Cable System means a facility, consisting of a set of dosed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves Subscribers without using any public right-of-way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title Il of the Federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interactive on-demand service; (4) an open video system that complies with federal statutes; or (5) any facilities of any electric utility used solely for operating its electric utility systems. e 5 z I.S. Channel means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering video signal whether in an analog or digital format. This definition does not restrict the use of any channel to the transmission of analog video signals. - 1.9. Downstream means the transmission from the Head-end to remote points on the Cable System. 1.10. FCC means the Federal Communications Commission. I i 1.11. Franchise Area means the area within the city limits of Ashland as they now exist or as they may be amended in the future. l i 1.12. Gross Revenues means all revenues of Grantee, in any way derived from the operation of the Cable System to provide Cable Services in the Agreement Area. Gross Revenues include, by way of illustration and not limitation, monthly fees charged Subscribers for any Basic, optional, premium, per-channel, or per-program service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and administrative fees; revenues from i t rentals or sales of converters or other equipment; advertising sales revenues; revenues from l program guides; and revenues from home shopping channels. The term "Gross Revenues" encompasses any and all revenue of any kind, form or nature including franchise fees passed through by Grantee to Subscribers, except that the term does not include sales taxes imposed by law on Subscribers that the Grantee is obligated to collect. With the exception of recovered bad debt, "Gross Revenues" shall not include bad debt. Gross Revenues shall not include any taxes, fees or assessments of general applicability collected by the Grantee from subscribers for pass- through to a government agency, including, the FCC User Fee. 1.13. Head-end means a facility for signal reception and dissemination on a Cable System, including cables, antennas, wires, satellite dishes, monitors, switches, modulators, processors and all other related equipment and facilities. 1,14. Interconnection means the provision by Grantee of technical, engineering, physical, and all other necessary components to maintain a physical linking of Grantee's Cable System and Cable Service or any designated Channel or signal pathway with neighboring Cable Systems, so that Cable Service of technically adequate quality may be sent to, and received from, other systems in accordance with this agreement. RFP -Television Services, October 11, 2010, Page 46 or 83 r1.1 5. Leased Access means the use of Channel capacity designated for commercial use by Persons unaffiliated with Grantee as defined in Section 612 of the Cable Act. 1.16. Origination Point means a location where Public, Educational, or Governmental f use programming is delivered to the Grantee for Upstream transmission. 1 1.17. Person means any individual, natural Person, sole proprietorship, partnership, , association, or corporation, or any other form of entity or'organization. 3 i 1.18, Public Rights of Way include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public utility easements, and all other public ways, including the subsurface under and air, space over these areas, excluding parks and parkways, but only to - the extent of City's right, title, interest, or authority to grant a franchise to occupy and use such streets and easements for a Cable System and only to the extent that sufficient capacity exists for a Cable System. "Public rights of way" shall also include any easement granted to or owned by City or County and acquired, established, dedicated, or devoted for public utility purposes. 1.19. Quarterly, or quarter, means the standard calendar periods of January 1 March 31, April 1 - June 30, July 1 - September 30, and October 1 December 31, unless otherwise i specified in this agreement. 1.20. School means any accredited educational institution, public or private, including, but not limited to, primary and secondary schools, and colleges and universities. t 1.21. Street means each of the following which have been dedicated to the public, or which may be dedicated to the public in the future, and maintained under public authority or by others and located within the Franchise Area: Streets, roadways, highways, avenues, lanes, alleys, t sidewalks, easements, rights-of-way and other public ways. 1.22. Subscriber means any Person who elects to subscribe to, for any purpose, Cable Service provided by Grantee by means of, or in connection with, the Cable System, and whose premises are physically wired and lawfully activated to receive Cable Service from Grantee's Cable j System. i 1.22.1. Commercial Subscriber means any Subscriber other than a Residential g Subscriber. 1.22.2. Residential Subscriber means any Person who contracts individually for Cable Service to a residence, whether that residence is a single family unit or located in a multiple E dwelling unit. 1.23. Telecommunications, Telecommunications Facilities and Telecommunications - Services have the same meaning as set forth in Ashland Municipal Code Title 16. 1 P 1.24, Upstream means the carrying of a transmission to the Head-end from remote points on the Cable System. 2. Grant of Franchise. 2.1 Grant. 2.1.1. City grants to Grantee in the public interest a nonexclusive and revocable authorization to make lawful use of the Streets and Public Rights of Way within the Franchise Area to construct, operate, maintain, reconstruct, and repair a Cable System for the purpose of providing Cable Services. However, nothing in this agreement prohibits or limits the parties from entering into UP - Television Services, October 11, 2010, Page 47 or 83 s i other agreements, leases, or contracts regarding Grantee's authorization to make lawful use of the Streets and Public Rights of Way provided that such other agreements specifically states whether this franchise agreement controls in the event of a conflict between the language in the documents. f 2.1.2. This agreement is intended to convey limited rights and interests only as to g those Streets and Public Rights of Way, in which the City has an actual interest. It is not a warranty of title or interest in any right-of-way, it does not provide the Grantee any interest in any particular location within the right-of-way, and it does not confer rights other than as expressly provided in this agreement. This agreement does not deprive the City of any powers, rights, or privileges it no 1 has, or may acquire in the future, to use, perform work on, or regulate the use and control of the City's Streets covered by this agreement, including without limitation, the right to perform work on k its roadways, rights-of-way, or appurtenant drainage facilities, including constructing, altering, paving, widening, grading, or excavating. i 2.1.3. This agreement authorizes Grantee to engage in providing Cable Service, as that term is defined in 47 U.S.C. Sec. 522(6) as amended. This agreement shall not be interpreted to prevent the City from imposing lawful additional conditions, including additional compensation e conditions for use of the rights-of-way should Grantee provide service other than Cable Service so long as similar conditions are also imposed on other similarly situated rights-cf-way users. Nothing in this agreement shall be interpreted to prevent Grantee from challenging the lawfulness or enforceability of any provisions of applicable law. 2.1.4. Grantee promises and guarantees as a condition of exercising the privileges granted by this agreement, that any joint venture or partner of the Grantee directly involved in the offering of Cable Service in the Franchise Area, or directly involved in the management or operation b of the Cable System in the Franchise Area, will also comply with the terms and conditions of this agreement. 2.2. Use of Public Streets and Ways. Subject to City's supervision and control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public Streets, including rights-of-way and public utility easements within the Franchise Area, such wires, cables, conductors, ducts, conduits, vaults, amplifiers, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of a Cable System for the provision of Cable Service within the Franchise Area. Grantee shall comply with all applicable construction codes, laws, ordinances, regulations and procedures now in or enacted in the future, and must obtain any and all necessary permits from the appropriate effect agencies of City prior to commencing any construction activities. Grantee, through this agreement, is granted extensive and valuable rights to operate its Cable System for profit using City's public rights-of-way and public utility easements within the Franchise Area in compliance with all applicable City construction codes and procedures. As trustee for the public, City is entitled to fair compensation to be paid for these valuable rights throughout the term of this agreement. 2.3. Duration. The term of this agreement and all rights, privileges, obligations, and h restrictions pertaining to this agreement shall be from the effective date of this agreement through June 30, 2014, unless extended or terminated sooner as provided below. 2.4. Effective Date. The effective date of this agreement shall be July 1, 20##, unless e Grantee fails to file an unconditional written acceptance of this agreement and post any requir d bond or deposit within 45 days from Grantee's written acceptance of this agreement. In either event, this agreement shall be null and void, and any and all rights of Grantee to own or operate a Cable System within the Franchise Area under this agreement shall be of no force or effect. 2.5. Franchise Nonexclusive. This agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements, permits, easements or licenses granted by City to any Person to use any street, right-of-way, easements not otherwise restricted, or property for any purpose whatsoever, including thet right of City to use same for any purpose it deems fit, including the same RFP --Television Services, October 11, 2010, Page 48 or 83 t f t E J b i or similar purposes allowed Grantee. City may, at any time, grant authorization to use the public r rights-of-way for any purpose not incompatible with Grantee's authority under this agreement, and for such additional Franchises for Cable Systems as City deems appropriate, upon substantially terms and conditions to those contained in this agreement as City deems appropriate. equivalent l 4 2.6. Grant of Other Franchises. 5 2.6.1. In the event the City enters into a franchise or other agreement of any kind with any other Person or entity other than the Grantee to enter into the City's public ways for the purpose of constructing or operating a Cable System, or providing cable Service to any part of the 1 Service Area in which the Grantee is actually providing Cable Service under the terms and conditions of this agreement, or is required to extend Cable Service under the provisions of section 11.2 and 11.3 the material provisions of such other franchise or agreement shall be reasonably comparable to those contained in this agreement, in order that one operator not be granted an e unfair competitive advantage over another, 2.6.2. If City grants a Franchise to a third party for service to an area that Grantee is not actually serving or required to extend service to, and which has material provisions that are not reasonably comparable to those contained in this agreement, City shall offer Grantee a franchise to serve the same area under terms and conditions that are reasonably comparable to those set forth in the franchise agreement entered into with the third party. 2.7. Police Powers. Grantee's rights under this agreement are subject to the lawful police powers of City to adopt and enforce ordinances necessary to the safety, health, and welfare of the general public and Grantee agrees to comply with all applicable laws and ordinances enacted, or enacted in the future, by City or any other legally-constituted governmental unit having lawful jurisdiction over the subject matter of the enactment. Nothing in this agreement shall be deemed to waive the requirements of the other codes and ordinances of general applicability enacted, or which may be enacted in the future, by City. 2.8. Relations to Other Provisions of Law. This agreement. and all rights and privileges granted under it are subject to, and the Grantee must exercise all rights in accordance with, applicable law as amended over the Franchise term. This agreement is a contract, subject to the City's exercise of its police and other regulatory powers and such applicable law. This agreement does not confer rights or immunities upon the Grantee other than as expressly provided in the agreement. In cases of conflict between this agreement and any ordinance of general application enacted pursuant to the City's police power, the ordinance shall govern. Nothing in this agreement, however, shall be interpreted to prevent Grantee from challenging the lawfulness or enforceability of any provision of applicable law. The Franchise issued and the Franchise fee paid are not in lieu of any other required permit, authorization, fee, charge, or tax, unless expressly stated in this agreement. 2.8.1. Without limiting the foregoing, by way of example and not limitation, this agreement shall not include or be a substitute for: 2.8.1.1. Any other permit or authorization required for the privilege of transacting and carrying on a business within the City that may be required by the ordinances and laws of the City. 2.8.11.2. Any permit, agreement or authorization required in connection with operations on or in public streets or property, including by way of example and not limitation, street out permits; or 2.8.1.3. Any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by this Agreement including, without limitation, permits and agreements for placing devices on or in poles, conduits, other RFP -Television Services, October 11, 2010, Page 49 or 83 l i 4 structures, or railroad easements, whether owned by the City or a private entity. 2.x.2. This agreement does not authorize Grantee to provide Telecommunications l Services, or to construct, operate or maintain Telecommunications Facilities. This Agreement is not a bar to imposition of any conditions on Grantee with respect to Telecommunications, whether- similar, different or the same as conditions specified herein. This Agreement does not relieve Grantee of its obligations to obtain an authorization to provide Telecommunications Services, or to construct, operate or maintain Telecommunications Facilities, or relieve Grantee of its obligation to i comply with any such authorizations. 2.9. Effect of Acceptance. By accepting the agreement the Grantee: (1) acknowledges and accepts the City's legal right to issue and enforce the agreement; (2) agrees that it will no i oppose the City's intervening or other participation in any proceeding affecting the Cable System; 3 (3) accepts and agrees to comply with each and every provision of this agreement; and (4) agrees { that the agreement was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary. ' 2.10. Non-Discriminatory Access to Internet Access System. Grantee shall provide non-discriminatory access to the Grantee's Internet Access System for internet service providers, whether or not such providers are affiliated with Grantee. Grantee may limit such access only in terms of requiring such providers to utilize the network and technological standards developed by Grantee. 3. FRANCHISE FEE AND FINANCIAL CONTROLS. 3.1. Franchise Fees. As compensation for the benefits and privileges granted under this agreement, and in consideration of permission to use City's Streets, Grantee shall pay as a Franchise fee to City, throughout the duration of this agreement, an amount equal to five percent of Grantee's Gross Revenues including the franchise fee itself, derived from the operation of the Cable System to provide Cable Service in the Franchise Area. Accrual of such Franchise fees shall commence as of the effective date of this agreement. The Franchise fees are in addition to all other fees, assessments, taxes, or payments of general applicability that the Grantee may be required to pay under any federal, state, or local law to the extent not inconsistent with applicable law. This agreement and the Franchise fees are not in lieu of any other generally applicable required permit, authorization, fee, charge, or tax. In the event any law or valid rule or regulation applicable to this franchise limits franchise fees below the five percent of gross revenues, the Grantee agrees to and shall pay the maximum permissible amount and, 'if such law or valid rule or regulation is later repealed or amended to allow ! a higher permissible amount, then the Grantee shall pay the higher amount up to the maximum allowable by law, not to exceed five percent during all affected time periods. . 3.2. Payments. Grantee's Franchise fee payments to City shall be computed quarterly. Each quarterly payment shall be due and made available to City no later than 30 days after the last day of the preceding quarter. 3.3. Acceptance of Payment and Re-computation. No acceptance of any payment shall be construed as an accord by City that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim City may have for further or additional sums payable or for the performance of any other obligation of Grantee. 3.4. Quarterly Franchise Fee Reports. Each payment shall be accompanied by a written report to City containing an accurate statement in summarized form, as well as in detail, and in a form approved by City, of Grantee's Gross Revenues and the computation of the payment amount. 3.5. Annual Franchise Fee Reports. Grantee shall, no later than 180 days after the end of RFP - Television Services, October 11, 2010, Page 50 or 83 E E 3 E~ each calendar year, furnish to City a statement (Audited Gross Receipts Report) stating the total amount of Gross Revenues and all payments, deductions, and computations for the period covered by the payments. 3.6. Audits/reviews. On an annual basis, no more frequently than every 12 months, upon 30 days prior written notice, City shall have the right to conduct an independent audit or review of Grantee's records reasonably related to the administration or enforcement of this agreement, in i accordance with generally accepted accounting principles. For purposes of this section, records reasonably related to the administration and enforcement of this agreement include those financial records pertaining to the number and location of cable customers within City's Urban Growth Boundary. The City may hire an independent certified public accountant to audit or review the Grantee's financial records, in which case the Grantee shall provide all necessary records to the l certified public accountant. All such records shall be made available in the local offices of the Grantee. If the audit or review shows that Franchise fees have been underpaid by 2% or more, Grantee shall reimburse to City the total cost of the audit or review and the underpayment plus r interest, at the rate specified in section 3.7 within 30 days of the City's written demand for same. Records for audit/review purposes shall include without limitation: 3.6.1. Source documents, which demonstrate the original or beginning amount, and the final amount shown on any report related to or included in the determination of franchise fees, revenues or expenses. and all calculations related to 3.6.2. Source documents that completely explain any any allocation of any amounts involving franchise fees, revenues, or expenses. C 3.6.3. Any and all accounting schedules, statements, and any other form of representation, which relate to, account for, or support or correlate to any accounts involving franchise fees, revenues or expenses. i 3.7. Interest on Late Payments. In the event that a franchise fee payment or other sum is not received by the City on or before the due date, or is underpaid, the Grantee shall pay in addition- to the payment, or sum due, interest from the due date at a rate equal to the legal interest rate on judgments in the State of Oregon. 3.8. Additional Commitments Not Franchise Fees. No term or condition in this agreement shall in any way modify or affect Grantee's obligation to pay Franchise fees to City. Although the total sum of Franchise fee payments and additional commitments set forth elsewhere in this agreement may total more than 5% of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional commitments are not Franchise fees as defined under any federal law, to the extent not inconsistent with applicable federal law, nor are they to be offset or credited against any Franchise fee payments due to City. 3.9. Costs of Publication. Grantee shall pay the reasonable cost of newspaper notices and publication pertaining to this agreement, and any amendments, including changes in control or transfers of ownership, as such notice or publication is reasonably required by City or applicable law. 3.10. Tax Liability. Payment of the Franchise fees under this agreement shall not exempt Grantee from the payment of any generally applicable license, permit fee or other generally applicable fee, tax or charge on the business, occupation, property or income of Grantee that may be imposed by City. 3.11. Payment on Termination. If this agreement terminates for any reason, the Grantee shall file with the City within 90 calendar days of the date of the termination, a financial statement, certified by an independent certified public accountant, showing the Gross Revenues received by the Grantee since the end of the previous fiscal year. The City reserves the right to satisfy any RFP -Television Services, October 11, 2010, Page 51 or 83 t i i remaining financial obligations of the Grantee to the City by utilizing the funds available in a Letter of Credit or other security provided by the Grantee. I 4. ADMINISTRATION AND REGULATION E S 4.1. Authority. City is vested with the power and right to regulate the exercise of the privileges permitted by this agreement in the public interest, or to delegate that power and right to { the extent permitted under state and local law, to any agent, in its sole discretion. 4.2. Rates and Charges. All of Grantee's rates and charges related to or regarding Cable Service shall be subject to regulation by City to the full extent authorized by applicable federal, state 1 and local laws. 4.3. Rate Discrimination. All of Grantee's rates and charges shall be published and shall be nondiscriminatory as to all Persons and organizations of similar classes, under similar , circumstances and conditions. Grantee shall apply its rates in accordance with-governing law, with ; similar rates and charges for all Subscribers receiving similar Cable Service, without regard to race, G color, familial, ethnic or national origin, religion, age, sex, sexual orientation, marital, military or economic status, or physical or mental disability, or geographic location in the Franchise Area. Grantee shall provide equivalent Cable Service to all Residential Subscribers at similar rates and to Commercial Subscribers as authorized by applicable laws. Nothing in this section shall be construed to prohibit: 4.3.1. The temporary reduction or waiving of rates or charges in conjunction with valid promotional campaigns; 4.3.2. The offering of reasonable discounts to senior citizens or economically disadvantaged citizens; i 4.3.3. Grantee from establishing different and nondiscriminatory rates and charges for commercial customers, as well as different nondiscriminatory monthly rates for commercial customers as allowable by federal law and regulations; or 4.3.4. Grantee from establishing different and nondiscriminatory rates and charges for Residential Subscribers as allowable by federal law and regulations. 4.4 Filing of Rates and Charges. Throughout the term of this agreement, Grantee shall maintain on file with City a complete schedule of applicable rates and charges for Cable Service provided under this agreement. Nothing in this.subsection shall be construed to require Grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns, and rates for multiple dwelling units. Grantee shall provide upon request from City a complete schedule of current rates and charges for any and all Leased Access provided by Grantee. The schedule shall include a description of the price, terms and conditions established by Grantee for Leased Access. 4.5 Time Limits Strictly Construed. Whenever this agreement sets forth a time for any act to be performed by Grantee, such time shall be deemed to be of the essence, and any failure of Grantee to perform within the allotted time may be considered a material violation of this agreement and sufficient grounds for City to invoke any relevant provision of this agreement. However, in the event that Grantee is prevented,or delayed in the performance of any of its obligations under this agreement by reason of a force majeure occurrence, such as acts of God (for example, floods, tornadoes, earthquakes or unusually severe weather conditions), Grantee's performance shall be excused during the force majeure occurrence. After such occurrence Grantee shall promptly perform the affected obligations under this agreement or procure a substitute for performance which is satisfactory to City. Grantee shall not be excused by mere economic hardship nor by RFP -Television Services, October 11, 2010, Page 52 or 83 misfeasance or malfeasance of its directors, officers, employees, or duly authorized agents. Notwithstanding the foregoing, City shall utilize the procedure in section 13 to resolve any material breach committed by Grantee, 5. INDEMNIFICATION. Grantee shall, at its sole cost and expense, indemnify, hold harmless, and defend the City and its officers, boards, commissions, duly authorized agents, and employees I f against any and all claims, including, but not limited to, third party claims, suits, causes of action, proceedings, and judgments for damages or equitable relief, to the extent such liability arises out of E or through the acts or omissions of the Grantee arising out of the construction, operation or repair of E its Cable System regardless of whether the act or omission complained of is authorized, allowed, or prohibited by this agreement, provided, however, the Grantee will not be obligated to indemnify City should City intervene in any proceeding regarding the grant of this agreement pursuant to section - 5.4; however, Grantee's obligation to indemnify City shall continue for all other proceedings in which the City is not an Intervenor. Without limiting in any way the Grantee's obligation to indemnify the City and its officers, boards, commissions, duly authorized agents, and employees, as set forth i above, this indemnity provision also includes damages and liabilities such as: 5.1. To persons or property, to the extent such liability arises out of or through the acts or D omissions of the Grantee, its contractors, subcontractors, and their officers, employees, or duly l authorized agents, or to which the Grantee's negligence or fault shall in any way contribute; 5.2. Arising out of any claim for invasion of the right of privacy; for defamation of any Person, firm or corporation; for the violation or infringement of any copyright, trademark, trade- p name, service mark, or patent; for a failure by the Grantee to secure consents from the owners or F authorized distributors of programs to be delivered by the Cable System; or for violation of any other right of any Person, to the extent such liability arises out of or through the acts or omissions of the Grantee, provided, however, that Grantee will not be required to indemnify City for any claims I I arising out of use of PEG Access Channels by City or its designee.; i 9 5.3. Arising out of Grantee's failure to comply with the provisions of any federal, state or local statute, ordinance, rule or regulation applicable to the Grantee with respect to any aspect of its business to which this agreement applies, to the extent such liability arises out of or through the 3 acts or omissions of the Grantee; and 5.4. Arising from any third party suit, action, or litigation, whether brought by a competitor to Grantee or by any other Person or entity, to the extent such liability arises out of or through the acts 3 or omissions of the Grantee, whether such Person or entity does or does not have standing to bring such suit, action or litigation if such action (1) challenges the authority of the City to issue this agreement to Grantee; or (2) alleges that, in issuing this agreement to Grantee, the City has acted in a disparate or discriminatory manner. ~ 5.5. The City shall give the Grantee timely written notice of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity obligation in this Section. In the event any such claim arises, the City or any other indemnified party shall tender the defense to the Grantee and the Grantee shall have the obligation. and duty to defend, settle or compromise any claims arising from the claim, and the City shall cooperate fully. Grantee shall accept or decline the tender within 30 days. Grantee shall reimburse reasonable attorney fees and costs incurred by the City during the 30 day period in which the Grantee accepts or declines tender. In the event that the Grantee declines defense of the claim in violation of section 13, the City may defend such claim and seek recovery from Grantee its expenses for reasonable attorney fees and disbursements, including expert witness fees, incurred by. City for defense and in seeking such recovery. 6. CUSTOMER SERVICE. Grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice to subscribers affected and occur during periods of RFP -Television Services, October 11, 2010, Page 53 or 83 k 6 i i i i 3 minimum use. 7. REPORTS AND RECORDS. 7.1. Open Records. r 7.1.1. Grantee shall manage all of its operations in accordance with a policy of keeping its documents and records. directly concerning its gross revenues, including customer identification numbers (e.g. account numbers) and levels of service, open and accessible to City. City shall have access to, and the right to inspect, any books and records of Grantee. Grantee shall not deny City access to any of Grantee's records on the basis that Grantee's records are under the control of any parent corporation, affiliated entity or a third party. City may, in writing, request copies of any such records or books and Grantee shall provide such copies within ten business days of the transmittal of such request. If the requested books and records are too voluminous, or for security reasons cannot be copied or removed, then Grantee may request, in writing within ten business days, that City inspect them at one of Grantee's local area offices. If any books or records of Grantee are not kept in a local office, Grantee will provide or otherwise make such documents available for inspection and review at the local office within ten business days. s 7.1.2. Grantee shall at all times maintain and allow City, with reasonable notice, f access and the right to review a full and complete set of plans, records and as built" maps showing the exact location of all Cable System equipment installed or in use in the Franchise Area, exclusive of electronics, Subscriber drops and equipment provided in Subscribers' homes. These € maps shall include computer maps and shall be maintained in a standard format and medium specified by the city, in sufficient detail to agreed upon by the City and the Grantee. City's review of the plans, records, and as-built maps, shall occur at the Grantees local office, or, if the Grantee has no office within the city, then at a location within the city specified by the City. 7.1.3. The ability for City to obtain records and information from Grantee is critical to i the administration of this agreement Grantee's failure to comply with the requirements of this section may result in fines as prescribed in section 13.2. 7.2. Confidentiality. Subject to the limits of the Oregon Public Records Law, City agrees to treat as confidential any books and records that constitute proprietary or confidential information under federal or state law, to the extent Grantee makes City aware, whether verbally or in wilting, of such confidentiality. If City believes it must release any such confidential books and records in the course of enforcing this agreement, or for any other reason, it shall advise Grantee in advance so that Grantee may take appropriate steps to protect its interests. If City receives a demand from any Person for disclosure of any information designated by Grantee as confidential, City shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction, City agrees that, to the extent permitted by state and federal law, it shall deny access to any of Grantee's books and records that are deemed to be confidential as set forth above to any Person. 7.3. Copies of Federal and State Documents. Grantee shall submit to City a list, or copies of actual documents, of all pleadings, applications, notifications, communications and documents of any kind, submitted by Grantee or its parent corporations or affiliates to any federal, state or local courts; regulatory agencies or other government bodies if such documents specifically relate to the operations of Grantee's Cable System within the Franchise Area. Grantee shall submit such list or documents to City no later than 30 days after their filing, mailing or publication. Grantee shall claim confidential, privileged or proprietary rights to such documents unless under federal, state, or local law such documents have been determined to be confidential by a court of compete jurisdiction, or by a federal or state agency. To the extent allowed by law, any such confidential and material determined to be exempt from public disclosure shall be retained in confidence by City an its duly authorized agents and shall not be made available for public inspection. RFP -Television Services, October 11, 2010, Page 54 or 83 . i e 1 7.~. Inspection of Facilities. City may inspect upon request any of Grantee s facilities and i equipment to confirm performance under this agreement at any time upon at least 24 hours notice, ice. or, in case of an emergency, upon demand without prior not _ l - 7.5. False Statements. Any intentional false or misleading statement or representation in any report required by this agreement may be deemed a material violation of this agreement and may subject Grantee to all remedies, legal or equitable, which are available to City under this agreement or otherwise. 7.6. Report Expense. All reports and records required under this or any other Section shall be furnished, without cost, to City. 8. PUBLIC, EDUCATIONAL AND GOVERNMENTAL (PEG) ACCESS. 8.1. General Definitions. With respect to purposes of this section, the following definitions will apply with respect to PEG use of the Cable System. 8.1.1. "Access Channel" means any Channel, or portion of any Channel, designated mu Access for non-commercial Access purposes or otherwise made available MHbl to facilitate be capable of programming or service. Each Access Channel shall be s transmitting a standard analog video signal. The capacity can be used to transmit non-commercial signals in any format, and can be used to transmit: audio only, video, or other information (including, by way of example and not limitation, secondary audio, text, digital information, high- definition signals, and compressed signals.) A nonstandard NTSC use shall be subject to the Grantee's prompt prior review and approval to ensure that the use will not cause unreasonable technical interference with other Channels. Such uses must be in furtherance of PEG uses. Additionally, there shall not be commercial use or lease of such PEG capacity without the express written permission of the Grantee. 8.1.2. "Digital Access Channel", as used in this Section, means a Channel carrying PEG continuous full-motion video programming in a digital format. Digital Access Channels shall have the same compression ratio and transmission quality as is used to carry any of the each commercial Channels that deliver programming to the City in a similar format for delivery to Subscriber. ' i 8.1.3. "Origination Point" means a location, where PEG programming is delivered to the Grantee for Downstream transmission. i 8.2. Management and Control of Access Channels. i 8.2,1. City or its designee may control and manage the use of any and/or all Access Facilities provided by Grantee under this agreement, including, without limitation, the operation of Access Channels. The City or its designee shall have sole and exclusive responsibility for operating and managing such Access Facilities. The City or its designee may formulate rules for the operation of the PEG Access Channels, consistent with this agreement; such rules shall not be designed to control the content of Public Access programming. Nothing in this section shall prohibit the City from authorizing itself or others to manage or co-manage PEG Access Channels and facilities. 8.2.2. Grantee shall cooperate with the City or its designee in the use of the Cable System and Access facilities for the provision of PEG Access. Grantee shall enter into such operating agreements with the City or its designee as may be necessary to facilitate and coordinate the provision of PEG Access, provided that such operating agreements shall not be inconsistent with the terms of this agreement and shall be subject to approval by the City. 8.2.3. The Grantee shall cooperate with the City or its designee regarding RFP Television Services, October 11, 2010, Page 55 or 83 i allocations of Access resources. 8.2.4. Grantee shall give the City notice of its intent to utilize PEG channels not being used for PEG programming for its own commercial use ninety (90) days before Grantee intends to begin using the PEG channel. Subject to prior written authorization from the City, the Grantee shall have the right to use temporarily any Channel, or portion of any Channel, which is allocated under this section for PEG uses pursuant to section 611(d) of the Cable Act. 6 8.3. Channel Capacity and Use. 8.3.1. Upon the effective date of this agreement, all Access Channels provided for in ~ r r this agreement are administered by the City or designee. 8.3.2. Upon the effective date of this agreement, the Grantee shall provide five E Access Channels for distribution of PEG Access programming on the residential Cable System with provisions for an additional channel for public and government access uses. Such additional channel shall be made available when all channels granted pursuant to this paragraph are used for access purposes with locally produced programming 70% of the available broadcast time. The programming of additional channels required shall be distinct and non-repetitive of the previous f. channels. A program may be repeated no more than three times for purposes of the trigger calculation. For purposes of this computation, all time allocated to character generated or similar programming shall be excluded for the determination of when such channel is in use and programmed with public and governmental access programming. g 8.3.3. The Grantee shall provide connection of all PEG Access Channels required b this agreement to and from the Grantee's Head-end and the City's, or its designee's, Head-ends by as of the effective date of this agreement. Grantee agrees to provide reconnection for the City's, or its designee's, Head-end if it is relocated within 12 months of the effective date of this agreement, at no charge to City or its designee. 8.3.4. If video programming is delivered in'a digital format or the City requests that PEG Channels be digitized, then, in lieu of the Access Channels provided for in section 8.3.2, there shall be a maximum of 18 PEG continuous, full-motion video programming Digital Channels ("Digital Access Channels"). The City shall determine the number of Digital Access Channels to be activated, not to exceed 18. 8.4. Relocation of Access Channels. Grantee shall provide City with a minimum of 60 days' notice, and use its best efforts to provide 120 days notice, prior to the time PEG Access Channel designations are changed. Grantee shall consult with City prior to making a final determination. regarding any changes in PEG Access Channel designations/assignments. Any new Channel designations for the PEG Access Channels provided pursuant to this agreement shall be in full compliance with FCC signal quality and proof of performance standards. 8.5. Origination Points. 8.5.1. Additional permanent Origination Points required by the City or its designee shall be provided by Grantee within 90 days following receipt of written notice from City at the. expense of City or its designee. 8.5.2. By mutual agreement by City and Grantee, upon six weeks written notice in advance of the scheduled cablecast, and provided that an active drop is available at the desired , a location, Grantee shall provide additional Origination Points on a short term basis for the live i s cablecast of Access Programming. The incremental, out-of-pocket costs to Grantee shall be paid for by City or its designee. Grantee shall not be required to facilitate more than one such Origination j Points in any one week period. i RFP -Television Services, October 11, 2010, Page 56 or 83 I 8.5.3. There shall be no charge to the City, nor to any other person for the use of the upstream capacity from the program origination locations described in this section, so long as the transmissions are designed for rerouting and distribution on any PEG Channels. f 8.6. Access Interconnections. 1 8.6.1. The Grantee shat maintain for the duration of this agreement any and all k existing Interconnections of Access Channels with contiguous cable systems. E i 8.6.2. Grantee shall be capable of interconnection of PEG Access Channels in the Cable System and Cable Systems in Franchise Areas that are geographically adjacent to City, i provided that City has secured the written permission for such Interconnection from the regulatory authority for the adjacent Franchise Area. The cost of such Interconnections shall be Grantee's so long as Grantee or Grantee's affiliate owns the adjacent Cable System. If the adjacent Cable System is not owned by Grantee, the cost for interconnection shall be equally shared by the two r Cable Systems. A m d 8.6.3. All Interconnections shall have the capability of transmitting and receiving PEG programming. All Interconnections shall be accomplished in a manner that permits the transmission of signals for Access Programming channels to be distributed to subscribers with the same original audio and video quality as provided by the PEG facility. Installation of all interconnect capacity shall be completed at the Grantee's expense, except as otherwise provided in this 5 agreement. 8.6.4. The City, or-its designee, shall have the right to control and schedule the operation of all interconnected Access Channels and capacity. In addition, the City, or its designee, shall have the right to use, at its sole discretion and at no cost, any Access Channels and capacity provided under this agreement for non-commercial purposes, in,furtherance of PEG use. However, _ the requirement to interconnect PEG programming with adjacent Cable Systems of willing franchise authorities shall not result in an increase in the number of PEG Channels beyond the number of Access Channels provided for in section 8.3. u ate 8.6.5. The Grantee shall take all necessary steps to ensure that technically adequate signal quality in compliance with FCC requirements are initially and continuously provided for Access Interconnections and Origination Points. 8.7. Access Channels on Lowest Available Tier. All Access Channels provided to of Subscribers under this agreement shall be included by the Grantee, without limitation, as a pad the lowest available tier offered by the Grantee on its Cable System. 8.8. Change in Technology. In the event the Grantee makes any change in the Cable System and related equipment and Facilities or in the Grantee's signal delivery technology, which directly or indirectly substantially affects the signal quality or transmission of Access services or programming, the Grantee shall, at its own expense, take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, and full training of the City's or Access personnel to ensure that the capabilities of Access services are not diminished or adversely affected by such change. 8.9. Technical Quality. The Grantee shall maintain all Upstream and Downstream Access services, Channels and Interconnections ensuring that Access Programming channels will not be subject to any signal deterioration, and that the signal will be distributed to subscribers with the same original audio and video quality as provided by the PEG facility, and required by all other applicable laws, rules and regulations for Residential Subscriber Channels. The Grantee shall provide routine maintenance and shall repair and replace all transmission equipment, including associated cable and equipment in use upon the effective date of this agreement, necessary to carry a quality signal to and from the City's or its designee's facilities. City and Grantee agree that RFP -Television Services, October 11, 2010, Page 57 or 83 'r the point of demarcation will be the input RF connection to Grantee's Fiber Optics Laser Transmitter, with Grantee responsible for repair and maintenance from the point of demarcation to Grantee's head-end. 8.10. Promotional Services. The Grantee shall allow the City to include two bill stuffers per year. The City or its designee shall be responsible for the cost of printing its bill stuffers, the costs of inserting the information into Grantee's bills, and for any incremental postage costs. Bill stuffers must conform to Grantee's mailing requirements. Grantee shall be provided an opportunity to review and approve all PEG bill stuffers. 8.11. Channel Identification. If requested by the City or its designee, at City's or its designee's costs, the Grantee will identify the PEG Channels in its printed and electronic programming guides, by the general type of programming carried on the Channel. Grantee will bill the City or its designee for the costs of these listings. I 9. GENERAL STREET USE AND CONSTRUCTION. - 1 9.1. Construction. 9.1.1. Subject to applicable laws, regulations and ordinances of City and the provisions of this agreement, Grantee may perform all construction necessary for the operation of I its Cable System. All construction and maintenance of any and all facilities within Streets incident to Grantee's Cable System shall, regardless of who performs the construction, be and remain Grantee's responsibility. Grantee shall apply for, and obtain, all permits necessary for construction or installation of any facilities, and for excavating and laying any facilities within the Streets. I Grantee shall pay, prior to issuance, all applicable fees of the requisite construction permits. 9.1.2. Prior to beginning any construction, Grantee shall provide City's Department of Public Works with a construction schedule for work in the Streets. All construction shall be performed in compliance with this agreement and all applicable City Ordinances and Codes, 16.12.090. When obtaining a permit, Grantee shall especially AMC MC-Chapter 16.12 and section inquire in writing about other construction currently in progress, planned or proposed, in order to investigate thoroughly all opportunities for joint trenching or boring. Whenever it is possible and reasonably practicable to joint trench-or share bores or cuts, Grantee shall work with other providers, grantees, permittees and franchisees so as to reduce as far as possible the number of Street cuts. 9.13. City shall have the right to inspect all construction or installation work performed within the franchise area as it shall find necessary to ensure compliance with the terms of this agreement and other pertinent provisions of law. 9.2. Location of Facilities. Within 48 hours after notification of any proposed Street excavation, Grantee shall, at Grantee's expense: 9.2.1. Mark on the surface ail of its underground facilities within the area of the proposed excavation; 9.2.2. Notify the excavator of any un-located underground facilities in the area of the a } I proposed excavation; or ' 9.2.3. Notify the excavator that Grantee does not have any underground facilities in the vicinity of the proposed excavation. 9,3. Relocation. City shall have the right to require Grantee to change the location of any part of Grantee's Cable System within the Streets when the public convenience requires such change, and the expense shall be paid by Grantee. Should Grantee fail to remove or relocate any RFP -Television Services, October 11, 2010, Page 58 or 83 i 3 4 such facilities by the date established by City, City may effect such removal or relocation, and the expense shall be paid by Grantee, including all costs and expenses incurred by City due to Grantee's delay. If City requires Grantee to relocate its facilities located within the Streets, City shall make a reasonable effort to provide Grantee with an alternate location within the Streets. 9.4. Restoration of Streets. r 9.4.1. Whenever Grantee disturbs the surface of any Street for any purpose, Grantee shall promptly restore the Street to at least its prior condition. When any opening is made by Grantee in a hard surface pavement in any Street, Grantee shall refill within 24 hours the opening and restore the surface to a condition satisfactory to City. ; i 9.4.2. If Grantee excavates the surface of any Street, Grantee shall be responsible for restoration in accordance with applicable regulations of the jurisdiction within the area affected by the excavation. City may, after providing notice to Grantee, refill or repave any opening made by Grantee in the Street, and the expense shall be paid by Grantee. City may, after providing notice to Grantee, remove or repair any work done by Grantee that, in the determination of City, is inadequate. The cost, including the costs of inspection and supervision, shall be paid by Grantee. All excavations made by Grantee in the Streets shall be properly safeguarded for the prevention of accidents. All of Grantee's work under this agreement, and this section in particular, shall be done in strict compliance with all rules, regulations and ordinances of City. Prior to making any Street or right-of-way cuts or openings, Grantee shall provide written notice to City. k E 9.5. Maintenance and Workmanship. 9.5.1. Grantee's Cable System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of City, or with any other pipes, wires, conduits, pedestals, structures, equipment or other facilities that may have been laid in the _ Streets by, or under, City's authority. 9.5.2. Grantee shall provide and use any equipment necessary to control-and carry Grantee's cable television signals so as to prevent injury to City's property or property belonging to any Person. Grantee, at its own expense, shall repair, change and improve its facilities to keep them in good repair, and safe and presentable condition. 9.6. Reservation of City Street Rights. Nothing in this agreement shall prevent City or utilities owned, maintained or operated by public entities other than City, from constructing sewers; a grading, paving, repairing or aitering any Street; 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 not to obstruct, injure or prevent the use and operation of Grantee's Cable ~ System. However, if any of Grantee's Cable System interferes with the construction or repair of any Street or public improvement, including construction, repair or removal of a 'sewer or water main, Grantee's Cable System shall be removed or replaced in the manner City shall direct, and City shall in no event be liable for any damage to any portion of Grantees Cable System. Any and all such removal or replacement shall be at the expense of Grantee. Should Grantee fail to remove, adjust or relocate its facilities by the date established by City's l written notice to Grantee, City may effect such removal, adjustment or relocation, and the expense thereof shall be paid by Grantee, including all reasonable costs and expenses incurred by City due i to Grantee's delay. 9.7. Street Vacation. If any Street or portion of any Street used by Grantee is vacated by City during the term of this agreement, unless City specifically reserves to Grantee the right to continue its installation in the vacated Street, Grantee shall, without delay or expense to City, 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 City. In the event of failure, neglect or refusal of Grantee, after 30 days notice by City, to restore, repair or RFP -Television Services, October 11, 2010, Page 59 or 83 I t i reconstruct such Street, City may do such work or cause it to be done, and the reasonable cost, as found and declared by City, shall be paid by Grantee within 30 days of receipt of an invoice and documentation, and failure to make such payment shah be considered a material violation of this s i agreement. 9,8. Discontinuing Use of Facilities. Whenever Grantee intends to discontinue using any facility within the Streets, Grantee shall submit for City's approval a complete description of the facility and the date on which Grantee intends to discontinue using the facility. Grantee may remove the facility or request that City allow it to remain in place. Notwithstanding Grantee's request that any such facility remain in place, City may require Grantee to remove the facility from the Street or modify the facility to protect the public health, welfare, safety, and convenience, or otherwise serve the public interest. City may require Grantee to perform a combination of modification and removal of the facility. Grantee shall complete such removal or modification in accordance with a reasonable g schedule set by City. Until such time as Grantee removes or modifies the facility as directed by City, 1 or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Grantee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the Street, in the- same manner and degree as if the facility were in active use, and Grantee shall retain all liability for such facility. If Grantee abandons its facilities, City may choose to use such facilities for any purpose whatsoever including, but not limited to, public, governmental, or educational purposes. 9.9. Hazardous Substances. 9.9.1. Grantee shall comply with all applicable local, state and federal laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's Cable System in the Streets. 9.9.2. Grantee shall maintain and inspect its Cable System located in the Streets. Upon reasonable notice to Grantee, City may inspect Grantee's facilities in the Streets to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as provided in this agreement- Grantee shall also remove all residue of hazardous substances. 9.10. Undergrounding of Cable, 9.10.1. Wiring. A. Where all utility lines are installed underground at the time of Cable System construction, or when such lines are subsequently placed underground, all Cable System lines or wiring and equipment shall also be placed underground on a nondiscriminatory basis with other utility lines services at no additional expense to the City or Subscribers, to the extent permitted by law and applicable safety codes. Cable must be installed underground where: (1) all existing utilities are placed underground, (2) statute, ordinance, policy, or other regulation requires utilities to be placed' underground, or (3) all overhead utility lines are placed underground. Related Cable System equipment such as pedestals must be placed in accordance with applicable Code requirements and underground utility rules as interpreted by each City's appropriate public works official. In areas where electric or telephone utility wiring is aerial, the Grantee may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the reasonable additional cost in excess of aerial installation. i B. The Grantee shall utilize existing poles and conduit wherever possible. C. This agreement does not grant, give or convey to the Grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the City or any other Person without their permission. Copies of agreements for use of poles, conduits or other RFP --Television Services, October 11, 2010, Page 60 or 83 fj f 1 r f utility facilities must be provided upon request by the City upon demonstrated need and subject to protecting Grantee's proprietary information from disclosure to third parties. f 9.10.2. Repair and Restoration of Property. l A, Grantee shall protect public and private property from damage. If damage occurs the Grantee shall promptly notify the property owner within 24 hours in writing. B. If public or private property is disturbed or damaged, the Grantee shall restore the property to its former condition, normal wear and tear excepted.. Public right-of-way or y other City property shall be restored, in a manner and within a timeframe approved by the City's Director of Public Works or other appropriate designated official, If restoration of public right-of-way or other property of the City is not satisfactorily performed within a reasonable time, the Director of Public Works or other appropriate designated official may, after prior notice to the Grantee, or without notice where the disturbance or damage may create a risk to public health or safety, or cause delay or added expense to a public project or activity, cause the repairs to be made at the Grantee's expense and recover the cost of those repairs from the Grantee. Within 30 days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the Grantee shall pay the City. If suit is brought upon Grantee's failure to pay for repair or restoration, and if judgment in such a suit is entered in favor of the City, then the Grantee shall pay all of the City's actual costs and expenses resulting from the non-payment, including penalties, interest from .the date the bill was presented, disbursements, attorneys' fees and litigation-related costs. Private property must be restored promptly, considering the nature of the work that must be performed and in no event later than 72 hours. C, Prior to entering onto private property to construct, operate or repair its Cable System in a manner in which it is assumed that temporary property damage will occur or the work will be of a duration exceeding four hours, Grantee shall give the Person residing on or using the property adequate written notice (such as a door hanger which clearly identifies the anticipated construction) that it intends to work on the property, a description of the work it intends to perform j and a name and phone number the Person can call to protest or seek modification of the work. Work shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners, residents and users. Such notification is not required when Grantee is performing connection, disconnection and/or repair of its drop system or in times of emergency restorations of its plant. 3 9,10.3. Movement of Cable System For and By City. The City may remove, replace, modify or disconnect Grantee's facilities and equipment located in the public right-of-way or on any other property of the City in the case of fire, disaster, or other emergency, or when a project or activity of the City's makes the removal, replacement, modification or disconnection necessary or less expensive for the City. Except during an emergency, the City shall provide reasonable notice to Grantee prior to taking such action and shall, when feasible, provide Grantee with the opportunity to perform such-action, Reasonable notice to Grantee includes notice by telephone. Following notice by the City, Grantee shall remove, replace, modify or disconnect any of its facilities or equipment within any public right-of-way, or on any tither property of the City, except that the City shall provide at least 60 days' written notice of any major capital improvement project which would require the removal, replacement, modification or disconnection of Grantee's facilities or equipment. If the Grantee fails to complete this work within the time prescribed and to the City's satisfaction, the City may cause such work to be done and bill the cost of the work to the Grantee. Within 30 days of receipt of an itemized list of those costs, the Grantee shall pay the City. 9.10.4. Movement for Other Franchise Holders. If any removal, replacement, modification or disconnection is required to accommodate the construction, operation or repair of the facilities or equipment of another Franchise holder, Grantee shall, after at least 30 days' advance written notice, take action to effect the necessary changes requested by the responsible entity. Those Persons shall determine how costs associated with the removal or relocation shall be RFP Television Services, October 11, 2010, Page 61 or 83 f allocated. 9.10.5. Movement for Other Permittees. At the request of any Person holding a valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The permit holder must pay the expense of such temporary changes, and Grantee may require a reasonable deposit of the estimated payment in advance. 9.10.6. Tree Trimming. Subject to acquiring prior written permission of the City, the Grantee shall have the authority to trim trees that overhang a public right-of-way of the City so as to prevent the branches of such trees from coming in contact with its Cable System, in accordance i with applicable codes and regulations and current, accepted professional tree trimming practices. i 9.11. Codes. Grantee shall strictly adhere to all building and zoning codes currently in effect F or in effect in the future. Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to not cause unreasonable interference with the use of said public or private property by any Person. In the event of such interference, City may require the removal or relocation of Grantee's lines, cables, and other appurtenances at Grantee's cost, from the property in question. 9.12. Standards. 8.12.1. All work authorized and required shall be done in a safe, thorough and worker-like manner. The Grantee must comply with all safety requirements, rules, and practices and employ all necessary devices as required by applicable law during construction, operation and , repair of its Cable System. By way of illustration and not limitation, the Grantee must comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards. 9.12.2, Grantee shall ensure that individual Cable System drops are properly bonded to the electrical power ground at the home, and are consistent, in all respects, with the requirements of the National Electric Code and the National Electrical Safety Qode. 10. TEST AND COMPLIANCE PROCEDURES. Upon request, Grantee shall advise City of schedules and methods fqr testing the Cable System on a regular basis to determine compliance with the provisions of applicable FCC technical standards. Representatives of City may witness tests, and written test reports may be made available to City upon request. As required by FCC Rules, Grantee shall conduct proof of performance tests and cumulative leakage index tests designed to demonstrate compliance with FCC requirements. In addition, an annual Fly Over signal leakage test will be performed as specified according to 47 CFR 76.601 regarding Technical Standards Performance Tests. Grantee shall provide City summary i written reports of the results of such tests. i I 11. SERVICE EXTENSION, CONSTRUCTION, AND INTERCONNECTION 11.1. Equivalent Service. It is Grantee's general policy that all residential dwelling units in 1 the Franchise Area have equivalent availability to Cable Service from Grantee's Cable System under nondiscriminatory rates and reasonable terms and conditions. Grantee shall not arbitrarily refuse to provide Cable Service to any Person within its Franchise Area. 11.2. Service Availability. 11.2.1. Grantee shall provide Cable Service in new subdivisions upon the earlier of either of the following occurrences: (A) Within 60 days of the time when foundations. have been installed in 50% percent of the dwelling units in any individual subdivision; or (B) Within 30 days RFP -Television Services, October 11, 2010, Page 62 or 83 s I E I following a request from a resident. For purposes of this section, a receipt shall be deemed to be made on the signing of a service agreement, receipt of funds by the Grantee, receipt of a written request by Grantee, or receipt by Grantee of a verified verbal request. Grantee shall provide such service: (i) With no line extension charge except as specifically authorized elsewhere in this agreement; (ii) At a nondiscriminatory installation charge for a standard installation, consisting of a drop no longer than 25 feet, with additional charges for non-standard installations computed according to a nondiscriminatory i methodology for such installations, adopted by Grantee and provided in writing to City; and at nondiscriminatory monthly rates for Residential Subscribers. 1 .3. Required Extensions of Service. Whenever the Grantee shall receive a request for service from at least ten residences within 1320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its Cable System to such Customers at no cost to the Customers for Cable System extension, other than the usual connection fees for all Customers within 90 days, provided that such extension is technically feasible, and if it will not adversely affect f the operation, of the Cable System, or as provided under section 2.6. i 11.3.1. No Customer shall be refused service arbitrarily. However, for unusual circumstances, such as a Customer's request to locate a cable drop underground, existence of C more than 125 feet of distance from distribution cable to connection of service to Customers, or a density of less than ten residences per 1320 cable-bearing strand feet of trunk or distribution cable, service may be made available on the basis of a capital contribution in aid of construction, including I cost of material, labor, and easements, For the purpose of determining the amount of capital contribution in aid of construction to be borne by the Grantee and Customers in the area in which service may be expanded, the Grantee will contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of residences per 1320 cable-bearing strand feet of its trunks or distribution cable and whose j denominator equals ten residences. Customers who request such service will bear the remainder of the construction and other costs on a pro rata basis. The Grantee may require that the payment of s y the capital contribution in aid of construction borne by such potential Customers be paid in i advance. `i 11.3.2. Failure to meet these standards shall subject grantee to enforcement actions on a per Subscriber basis in section 13. 11.3.3. Connection of Public Facilities. Grantee shall, at no cost to City, provide one outlet of Basic and expanded basic programming to City' public use buildings, as designated by City, and all libraries and Schools. In addition, Grantee agrees to provide, at no cost, one outlet of Basic and expanded basic programming to all such future public buildings if the drop line to such building does not exceed 125 cable feet or if City agrees to pay the incremental cost of such drop line in excess of 125 feet, including the cost of such excess labor and materials. Outlets of Basic and expanded basic programming provided in accordance with this subsection may be used to distribute Cable Service throughout such buildings, provided such distribution can' be accomplished without causing Cable System disruption and general technical standards are maintained. Cost for any additional outlets shall be the responsibility of City. 12. STANDBY POWER. Grantee shall provide standby power generating capacity at the Cable System Head-end capable of providing at least 12 hours of emergency operation. Grantee shall maintain standby power system supplies, to the node, rated for at least two hours duration. In addition, throughout the term of this agreement, Grantee shall have a plan in place, along with all resources necessary for implementing such plan, for dealing with outages of more than two hours. This outage plan and evidence of requisite implementation resources shall be presented to City no later than 90 days following the effective date of this agreement. i 13, FRANCHISE VIOLATIONS; REVOCATION OF FRANCHISE. 'RFP -Television Services, October 11, 2010, Page 63 or 83 I 13,1, Procedure For Remedying Franchise Violations. 13.1.1. If City believes that Grantee has failed to perform any obligation under this agreement or has failed to perform in a timely manner, City shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged violation. i 13.1.2. The City must provide written notice of a violation. Upon receipt of notice, the E Grantee will have a period of 30 days to cure the violation or 30 days to present to the City a I reasonable remedial plan. The City shall, with Grantee's consent, decide whether to accept, reject, or modify the remedial plan presented by the Grantee. Fines shall be assessed only in the event i that either a cure has not occurred within 30 days or the City rejects the remedial plan. The procedures provided in section 13 shall be utilized to impose any fines. The date of violation will be I the date of the event and not the date Grantee receives notice of the violation provided, however, that if City has actual knowledge of the violation and fails to give the Grantee the notice, then the date of the violation shall be no earlier than ten business days before the City gives Grantee the notice of the violation. Grantee shall have 30 calendar days from the date of receipt of such notice to: 13.1.2.1. Respond to City, contesting City's assertion that a violation has occurred, and requesting a hearing in accordance with subsection 13.1.5, or i i 13,1,2.2. Cure the violation, or; 13,1,2.3. Notify City that Grantee cannot cure the violation within the thirty o (30) days, and notify the City in writing of what steps the Grantee shall take to cure the violation including the Grantee's projected completion date for such cure. In such case, City shall set a hearing date within 30 days of receipt of such response in accordance with section 13.1.3. 13.1.3. In the event that the Grantee notifies the City that it cannot cure the violation within the 30 day cure period, City shall, within thirty 30 days of City's receipt of such notice, set a hearing. At the hearing, City shall review and determine whether the Grantee has taken reasonable steps to cure the violation and whether the Grantee's proposed plan and completion date for cure are reasonable. In the event such plan and completion date are determined by mutual consent to be reasonable, the same may be approved by the City, who may waive all or part of the fines for such extended cure period in accordance with the criteria set forth in section 13.1.7. i 13.1.4. In the event that the Grantee fails to cure the violation within the 30 day basic cure period, or within an extended cure period approved by the City pursuant to section 13.1.3, the City shall set a hearing to determine what fines, if any, shall be applied. 13.1.5. In the event that the Grantee contests the City's assertion that a violation has occurred, and requests a hearing in accordance with section 13.1.2.1., the City. shall set a hearing within 60 days of the City's receipt of the hearing request to determine whether the violation has occurred, and if a violation is found, what fines shall be applied. 13,1.6. In the case of any hearing pursuant to this section, City shall notify Grantee of the hearing in writing and at the hearing, Grantee shall be provided an opportunity to be heard, r examine City's witnesses, and to present evidence in its defense. The City may also hear any other person interested in the subject, and may provide additional hearing procedures as City deems appropriate. 13.1.7. The fines set forth in section 13.2 may be reduced at the discretion of the City, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: RFP -Television Services, October 11, 2010, Page 64 or 83 i F i (A) Whether the violation was unintentional; fr (B) The nature of the harm which resulted; (C) Whether there is a history of prior violations of the same or other requirements; E I (D) Whether there is a history of overall compliance, or; t (E) Whether the violation was voluntarily disclosed, admitted or cured. 13.1.3. If, after the hearing, City determines that a violation exists, City may use one remedies: or more of the following (A) Order Grantee to correct or remedy the violation within a reasonable time frame as City shall determine; (B) Establish the amount of fine set forth in section 13.2, taking into consideration the criteria provided for in section 13.1.7 of this section as appropriate in City's discretion; s (C) Revoke this agreement, or (D) Pursue any other legal or equitable remedy available under this agreement or any applicable law. R 13.2. Fines. I 13.2.1. Failure to comply with provisions of the agreement may result in Injury to City. It wilt be difficult to accurately estimate the extent of such injury. Therefore, the financial enalty provisions of this agreement are intended as a reasonable forecast of compensation to City p for the harm caused by violation of this agreement, including but not limited to administrative expense, legal fees, publication of notices, and holding of a hearing or hearings as provided in this agreement. The fine for violating any provision of this agreement shall be $250 per day for every I day the violation continues with a cap of $10,000. I I 13.2.2. Collection of Fines. The collection of fines by the City shall in no respect g affect: (A) Compensation owed to Subscribers; or I (B) The Grantee's obligation to comply with all of the provisions of this agreement or applicable law; or 3 (C) Other remedies available to the City. i 13.3. Revocation. In addition to all other rights and powers retained by the City under this agreement or otherwise, the City reserves the right to forfeit and terminate this agreement and all rights and privileges of the Grantee, in whole or in part, in the event of a material violation of its terms and conditions. A material violation by the Grantee shall include, but shall not be limited to the following: 13.3.1. Violation of any material provision of this agreement or any other agreement between City and Grantee, or any material rule, order, regulation, standard or determination of the City or authorized agent made pursuant to this agreement or other agreement; RFP -Television Services, October 11, 2010, Page 65 or 83 13.3.2. Attempt to evade any material provision of this agreement or to practice any fraud or deceit upon the City or its Subscribers or customers; 13.3.3. Failure to restore service after 48, consecutive hours of interrupted service E system-wide, except when approval of such interruption is obtained from the City; 13.3.4. Material misrepresentation of fact in the application for or negotiation of this agreement, or 13.4. Relationship of Remedies. 13.4.1. Remedies are Non-exclusive. The remedies provided for in this agreement l are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of 1 another remedy, or the exercise of any rights of the City at law or equity provided that the cumulative remedies may not be disproportionate to the magnitude and severity for the breach for which they are imposed. By way of example and not limitation, the collection of fines by City shall in no respect affect: (A) Compensation owed to subscribers; or (B) Grantee's obligation to comply with the provisions of this agreement or applicable law, 13.4.2. No Election of Remedies. Without limitation, the recovery of amounts under the insurance, indemnity or penalty provisions of this agreement shall not be construed as any of the following: an election of remedies; a limit on the liability of Grantee under the agreement for fines or otherwise; or an excuse of faithful performance by Grantee. 13.5. Removal. 13.5.1. In the event of termination, expiration or revocation of this agreement, City may order the removal of the above-ground Cable System facilities and such underground facilities as required by City in order to achieve reasonable engineering or Street-use purposes, from the Franchise Area at Grantee's sole expense within a reasonable period of time as determined by s City. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall leave all Streets, public places and private property in as I 3 good a condition as that prevailing prior to Grantee's removal of its equipment. 13.5.2. If Grantee fails to complete any required removal to the satisfaction of City, City may cause the work to be done and Grantee shall reimburse City for the reasonable costs incurred within 30 days after receipt of an itemized list of the costs. 13.6. No Recourse Against City. Grantee shall not have any monetary recourse against City or its officials, boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this agreement or its enforcement, in l accordance with the provisions of applicable federal, state and local law. The rights of the City under this agreement are in addition to, and shall not be read to limit, any rights or immunities the City may enjoy under federal, state or local law. 13.7. Non-enforcement by City. Grantee is not relieved of its obligation to comply with any of the provisions of this agreement by reason of any failure of City to enforce prompt compliance, to City's forbearance or failure to enforce any provision of this agreement shall not serve as a basis stop any subsequent enforcement. The failure of the City on one or more occasions to exercise a right or to require compliance or performance under this agreement or any applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, of such right has been specifically waived in writing. Any waiver of a violation is not a waiver f any RFP -Television Services, October 11, 2010, Page 66 or 83 i E a other violation, whether similar or different from that waived. l 14. ABANDONMENT 14.1. Effect of Abandonment. If the Grantee abandons its System during the agreement term, or fails to operate its Cable System in accordance with its duty to provide continuous service, the City, at its option, may operate the Cable System; designate another entity to operate the Cable E System temporarily until the Grantee restores service under conditions acceptable to the City or until the agreement is revoked and a new Franchise is selected by the City; or obtain an injunction requiring the Grantee to continue operations. If the City is required to operate or designate another entity to operate-the Cable System, the Grantee shall reimburse the City or its designee for all i reasonable costs, expenses and damages incurred, 14.2. What Constitutes Abandonment. The City shall be entitled to exercise its options and obtain any required injunctive relief if: 14.2.1. The Grantee fails to provide Cable Service in accordance with this agreement to the Franchise Area for 96 consecutive hours, unless the City authorizes a longer interruption of service, except if such failure to provide service is due to a force majeure occurrence, as described I in section 4.5; or 14.2.2. The Grantee for any period willfully y and without cause refuses to provide ~ Cable Service in accordance with this agreement. 15. FRANCHISE RENEWAL AND TRANSFER. 15.1. Renewal. 1 15.1.1. Any proceedings undertaken by the City that relate to the renewal of Grantee's agreement shall be governed by and comply with the provisions of the Cable Act (47 USC §546), unless the procedures and substantive protections there set forth shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law. 15.12 Notwithstanding anything to the contrary set forth in this agreement, City and a Grantee agree that at any time during the term of the then current agreement, while affording the public adequate notice and opportunity for comment, City and Grantee may agree to undertake and I finalize negotiations regarding renewal of the then current agreement and the City may grant a a renewal, Grantee and City consider the terms set forth in this section to be consistent with-the express provisions of the Cable Act, 15.2. Transfer of Ownership or Control. ` a 15.2.1. The Cable System and this agreement shall not be sold, assigned, transferred, leased, or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger, consolidation, nor shall the title, either legal or equitable, or any right, interest, or property pass to or vest in any Person or entity, without the prior written consent of the City, which consent shall not be unreasonably withheld. Grantee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering a request to transfer or assign the Cable System or this agreement. 15.2.2. The Grantee shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of control of the Grantee. The word "control" as used is this section is not limited to majority stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise on the acquisition or accumulation by any Person or group of Persons of 10% of the shares or RFP -Television Services, October 11, 2010, Page 67 or 83 i( I i the general partnership interest in the Grantee, except that this sentence shall not apply in the case of a transfer to any Person or group already owning at least a 10% interest of the shares or the general partnership interest in the Grantee. Every change, transfer or acquisition of control of the Grantee shall make this agreement subject to cancellation unless and until the City shall have consented. 15.2.3. The parties to the sale or transfer shall make a written request to the City for its approval of a sale or transfer and furnish all information required by law and the City. 15.2.4. The City shall render a final written decision on the request within 120 days of the request, provided it has received all requested information. Subject to the foregoing, if the City fails to render a final decision on the request within 120 days, such request shall be deemed granted unless,the requesting party and the City agree to an extension of time. 15.2.5. Within 30 days of any transfer or sale, if approved or deemed granted by the City, Grantee shall file with the City a copy of the deed, agreement, lease or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as E correct by Grantee and the transferee. l , f 15.2.6. In reviewing a request for sale or transfer, the City may inquire into the legal, technical and financial qualifications of the prospective controlling party or transferee, and Grantee i shall assist the City in so inquiring. The City.may condition said sale or transfer upon such terms and conditions as it deems reasonably appropriate, provided, however, any such terms and conditions so attached shall be related to the legal, technical, and financial qualifications of the prospective controlling party or transferee and to the resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of this agreement by Grantee. S 15.2.7, The consent or approval of the City to any transfer by the Grantee shall not l constitute a waiver or release of any rights of the City, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this agreement. 15.2.8. Notwithstanding anything to the contrary in this section, the prior approval of the City shall not be required for any sale, assignment or transfer of the agreement or Cable System for cable television system usage to an entity controlling, controlled by or under the same common control as Grantee provided that the proposed assignee or transferee must show financial E responsibility as may be determined necessary by the City and must agree in writing to comply with all provisions of the agreement. ; 16. MISCELLANEOUS PROVISIONS. 16.1. Alternative Remedies. If any section, subsection, paragraph, term, or provision of 1 this Franchise agreement or any ordinance, law, or document incorporated by reference is determined to be illegal, invalid, unenforceable or unconstitutional by a court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction determination shall be { confined in its operation to the section, subsection, paragraph, term, or provision directly involved in the controversy in which such determination shall have been rendered, and shall not in any way affect the validity of any other section, subsection, paragraph, term, or provision. Under such a j circumstance the Grantee shall, upon the City's request, meet and confer with the City to consider amendments to the Franchise agreement. The purpose of the amendments shall be to place the parties, as nearly as possible, in the position that they were in prior to such determination, consistent with applicable law. In the event the parties are unable to agree to a modification of this agreement within 60 days either party may (1) seek appropriate legal remedies to amend the agreement, or (2) shorten the agreement to 36 months, at which point either party may involve the renewal procedures under 47 U.S.C. Subsection 546. Each party agrees to participate in up to 16 hours of negotiation during the 60 day period. UP - Television Services, October 11, 2010, Page 68 or 83 I 'l i i 16.x. Preferential or Discriminatory Practices Prohibited. Grantee shall not discriminate in hiring, employment or promotion on the basis of race, color, creed, ethnic or national origin, religion, age, sex, sexual orientation, marital status, or physical or mental disability. Throughout the term of this agreement, Grantee shall fully comply with all equal employment or nondiscrimination provisions and requirements of federal, state and local law and, in particular, FCC rules and regulations. E i I 16.3. Dispute Resolution. Should a dispute arise between the parties concerning any aspect of this agreement which is not resolved by mutual agreement of the parties, and unless either party believes in good faith that injunctive relief is warranted, the dispute will be submitted to F. mediated negotiation prior to any party commencing litigation. in such event, the City and Grantee agree to participate in good faith in a non-binding mediation process. The mediator shall be selected by mutual agreement of the parties, in the absence of such mutual agreement, each party shall select a temporary mediator, and those mediators shall jointly select a permanent mediator. If the parties are unable to successfully conclude the mediation within 45 days from the date - of the selection of the mediator, either party may terminate further mediation by sending written notice to the other. After written notice has been received by the other party, either party may pursue whatever legal remedies exist. All costs associated with mediation shall be borne, equally and separately, by the parties. f 16.4. Notices. Throughout the term of the agreement, Grantee shall maintain and file with City a designated legal or local address for the service of notices by mail. A copy of all notices from ~ City to Grantee shall be sent, postage prepaid, to such address and such notices shall be effective upon the date of mailing, At the effective date of this agreement, such addresses shall be: [SUCCESSFUL PROPOSER] [SUCCESSFUL PROPOSER ADDRESS] Ashland, Oregon 97520 All notices to be sent by Grantee to City under this agreement shall be sent, postage prepaid, and such notices shall be effective upon the date of mailing. At the effective date of this agreement, such address shall be: City Administrator City of Ashland 20 East Main Street Ashland, Oregon 97520 - Either party may with 30 days prior written notice to the other party, change the address(es) to which notice shall be sent pursuant to this section 17.3. 16.5. Binding Effect. This agreement shall be binding upon the parties, their successors and assigns. 16.6. Authority to Amend. This agreement may be amended at any time by written agreement between the parties. 16.7. Governing Law. This agreement shall be governed in all respects by the laws of the State of Oregon. 16.8. Captions. The captions and headings of this agreement are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of any _ provisions of this agreement. 16.9. Entire Agreement. This agreement contains the entire agreement between the RFP -Television Services, October 11, 2010, Page 69 or 83 parties, supersedes all prior agreements or proposals except as specifically set forth in this agreement, and cannot be changed orally but only by an instrument in writing executed by the parties. ► 16.10 Construction of Agreement. The provisions of this agreement shall be liberally construed to promote the public interest. Agreed to this day of , 20[##]. I By: [SUCCESSFUL PROPOSER] By: City of Ashland f f Title: Mayor Attest: City Recorder E Reviewed as to Content By: i Richard Appicello, City Attorney Rob Lloyd, CIO/Director of IT i i I s . t i EE i t p7 Q "t 1ZPP --Television Services, October 11, 2010, Page 70 or 83 I EXHIBIT J-Base Lease Agreement and Contract TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT BETWEEN ~ CITY OF ASHLAND, OREGON AND E [SUCCESSFUL PROPOSER] r TELEVISION HEAD-END SYSTEM LEASE AGREEMENT AND CONTRACT ("Agreement") ' entered this day of , 2044, between the City of Ashland, Oregon, ("City") by and through its Ashland Fiber Network division ("AFN"), and [Successful Proposer], a [State Corporation], hereinafter. referred to as "[Proposer Abbreviation]". WHEREAS, on November 20##, the AFN issued a request for proposals ("RFP," attached hereto as Exhibit A) for the lease of the television head-end (as defined below) and the provision of cable television services over the television head-end, which was then operated by AFN; and WHEREAS, [Proposer Abbreviation] submitted a proposal in response to an RFP issued by AFN (the "Proposal," attached hereto) on [Date]; and WHEREAS, after reviewing [Proposer Abbreviation]'s proposal and proposals submitted by other offerors, the RFP Evaluation Committee selected [Proposer Abbreviation] to lease AFN's television head-end and provide television services as described in the RFP; and WHEREAS, [Proposer Abbreviation] wishes provide services to the Ashland, Oregon, community as described in the RFP for the incentives negotiated with AFN; and WHEREAS, AFN and [Proposer Abbreviation] this Lease Agreement and Contract serves as a lease for the television head-end and contract for services; and WHEREAS, [Proposer Abbreviation] must execute a Franchise Agreement with the City because AFN is no longer a cable operator and will not be renewing its franchise; and WHEREAS, the AFN and [Proposer Abbreviation] wish to enter into this Agreement to clarify terms to ensure that the Agreement reflects the intent and current practices-of the parties, NOW, THEREFORE, THE CITY AND [Proposer Abbreviation] HEREBY AGREE AS FOLLOWS: 1. LEASE OF TELEVISION READ-END: AFN hereby leases to [Proposer Abbreviation] a television head-end and all the associated equipment located at the City of Ashland Service Center, 90 N. Mountain Avenue, Ashland, Oregon 97520, as set forth in the RFP and attached hereto, and 450 MHz and 860 MHz WAN bandwidth provided by and through AFN's hybrid fiber coax network (the "Network") as required to provide cable television service to residents of the City of Ashland, subject to the limitations set forth herein (hereinafter referred to as the "television head-end"). The television head-end does not include outside plant. 2. PAYMENTS 2.1. BASE OPERATING FEES: [Proposer Abbreviation] shall pay AFN, as rent and for the cost of basic operations of the.television head-end, the sum of [at least two hundred thousand dollars ($200,000 USD)] per year, due and payable no later than the first day of January, April, July, and October of each year. Base operating fees shall be paid in advance for the subsequent three-month period, without deduction or setoff of any kind, and be addressed to AFN at the RFP -Television Services, October 11, 2010, Page 71 of 83 address set forth in this Agreement. Base operating fees shall increase annually by [?S%], I effective the beginning of each fiscal year during this Lease Agreement and Contract. 2.2. MISCELLANEOUS CHARGES AND FEES: [Proposer Abbreviation] shall pay AFN for services rendered per the table in this section. Payments for services are due and payable no . later thirty (30) days after the invoice date listed on billings sent by AFN, Payments shall be made by [Proposer Abbreviation] without deduction or setoff of any kind, and be addressed to AFN at the address set forth in this Agreement. Fees, hourly rates, and miscellaneous charges will apply from the effective date of this contract and lease and last through December 31, p 2011; after which they may be amended provided 90-days notice by AFN. ! - r e e ` ATE. Installation Fee (Additional charges for parts and supplies apply. May be waived [szo.oo] by AFN.) Disconnect Fee [,o.oo] Standard Outlet Fee Maybe waived b AFN. [zo.oo] ( by ) Field Technician Hourly Rate (Non-standard work such as advanced troubleshooting, [$40.00] nonstandard outlets, wall fishing, etc.) Add/Remove Trap Fee [$10.00] Consulting and Technical Support-- Hourly Rate (Charge applies to support for issues not related to AFN [$70.00] infrastructure performance and reliability.) Staff Screening Fee (Charge for each employee submitted for authorization to [$3.5o.oo] access AFN and City Service Center facilities.) C 2.3. REVENUE SHARING: Revenue sharing payment shall be made quarterly, for the,previous quarter's total, submitted to Ashland Fiber Network prior to the first day of January, April, July, and October of each year. Revenue sharing shall be for the following services and calculated and described: 2.3.1. [IP-Based Television] per [measure] at [Percentage of revenue or recurring commission as determined from negotiations] 2.3.2. [IP-Based Television] per [measure] at [Percentage of revenue or recurring commission as determined from negotiations] i 2.3.3. [lP-Based Television] per [measure] at [Percentage of revenue or recurring commission as determined from negotiations] 2.3.4. [Service to be determined from negotiations] per [measure] at [Percentage of revenue or recurring commission as determined from negotiations] 2.3.5. [Service to be determined from negotiations] per [measure] at [Percentage of revenue or recurring commission as determined from negotiations] 3. AUDITING, [Proposer Abbreviation] agrees that the City or AFN may initiate an audit its finances to confirm accuracy of payments at any time. Audits shall not exceed one per year and shall be paid for equally by [Proposer Abbreviation] and the City or AFN. In the event of an audit, [Proposer Abbreviation] must and shall make all files, materials, and staff fully available to the assigned auditors. 3.1. Scope. The scope of any audits will be limited to service proposed by the vendor in their response to this RFP. 3.2. Selection. Auditors shall be selected by AFN's management. RFP -Television Services, October 11, 2010, Page 72 or 83 ff~ 6 4. TERM OF AGREEMENT: The initial term of this Lease Agreement and Contract shall commence on the date noted above and continue through June 30, 2014. Technical Review Operating Review Dates Term Basis Basis F _ Services & i January 2911 to December 20.3 Three years Compliance Financial & Marl<eting i First one-year Services & January 2014 to December 2-014 extension Compliance Financial & Mari<eting Second one-year Services & January 2935 to December 2025 extension Compliance Financial & Marl<eting y c 4.1. AFN may, at its sole discretion, extend the term of this Agreement for two additional one year terms. Extensions shall be communicated in writing by AFN and sent to_ [Proposer Abbreviation] at least ninety (90) days prior to the end date of this Lease Agreement and ¢ Contract. 4.2. AFN and [Proposer Abbreviation] may also extend the term of this Lease Agreement and Contract on a month-to-month basis, if mutually agreed, Month-to-month extensions shall be communicated in writing by AFN and confirmed by [Proposer Abbreviation] at least seven (7) days prior to the end date of this Lease Agreement and Contract. 5. USE OF PROPERTY: [Proposer Abbreviation] shall be granted use of and access to the AFN television head-end for the provision of television services to residents of the Ashland, OR, pursuant to the RFP, Proposal and Cable Franchise. As used herein, "television services" means (A) the one- way transmission to subscribers of analog video programming, (B) the one-way transmission to subscribers of digital video programming, [Proposer Abbreviation] is not permitted under this Agreement to use the television head-end to provide any non--television services or for any other 3 a purposes except as specifically granted tinder this Lease Agreement and Contract. 6, STOREFRONT LOCATION: [Proposer Abbreviation] agrees to maintain a commercial storefront location within the City of Ashland's urban growth boundary throughout the term of this Lease Agreement and Contract, Said offices shall be equipped and staffed to handle on-site customer visits for connects, disconnects, and equipments and parts pick-up. 6.1. Hours of Operation. Storefront facility shall be open to the public standard business days and hours, minus national and State of Oregon holidays. 6.2. Service Standard, Customer support staff must be courteous and professional. 7. WHOLESALE TELEVISION PRODUCTS: [Proposer Abbreviation] agrees to make its television products available to AFN and its partners at reduced wholesale prices, 7.1. Packages and Prices. [To be negotiated] 7.2. Amendments to Packages and Prices. [To be negotiated] 7.3. Billing. [Proposer Abbreviation] shall manage accounting and billing for its wholesale sales. 8. CONDITIONS OF USE: 8.1. Ownership of Customers. Without exception, [Proposer Abbreviation] agrees it and AFN shares full and mutual interest in all customers obtained under the duration of this Lease Agreement and Contract. 8.1.1. [Proposer Abbreviation] shall share customer data openly, fully, and exclusively, Customer data shall be maintained in a secure fashion and shall not be shared, transmitted, or otherwise revealed to third parties without the consent of AFN. 8.1.2. [Proposer Abbreviation] shall not sell or otherwise transfer customer accounts, nor sell or transition customers to alternative services, without mutual agreement and 1 addendum to this contract. ° 8.2. Cable ]franchise, Without exception, [Proposer Abbreviation] must obtain and maintain a valid Cable Franchise Agreement with the City of Ashland for the duration of this Lease Agreement and Contract, as well as any extensions. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. i RFP --Television Services, October 11, 2010, Page 73 or 83 8.3. Business License. Without exception, [Proposer Abbreviation] must obtain and maintain a valid Business License with the City of Ashland for the duration of this Lease Agreement and Contract, as well as any extensions. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein. 8.4. Co Marketing. [Proposer Abbreviation] agrees to cooperatively market all services and products under this Lease Agreement and Contract with AFN. This includes inclusion of the AFN logo and brand in all marketing efforts and providing AFN management opportunity to 3 review and control use of its logo and brand. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions E set forth herein. 8.5. Use of Facilities. [Proposer Abbreviation]'s use of the television head-end shall be conditioned upon its compliance with the requirements and obligations set forth in the RFP, Proposal, Lease Agreement and Contract, and Cable Franchise Agreement. Failure to comply with these requirements and obligations may result in termination of this Agreement pursuant to the termination provisions set forth herein, AFN agrees to provide all information, documents, materials and services that are within its possession or control and are required by [Proposer Abbreviation] for performance of the requirements and obligations set forth in the RFP, Proposal and Cable Franchise. c 8.6. Reliability. [Proposer Abbreviation]'s Lease Agreement and Contract shall be conditioned l upon maintaining access for subscribers to channels and content at least [99.90%, or as determined in negotiations] of all available hours. 8.7. Compliance. [Proposer Abbreviation]'s Lease Agreement and Contract shall be conditioned upon receiving no more than [36, or as determined in negotiations] notices of violations from j the Federal Communications Commission (FCC), Public Utilities Commission (PUC), or other j regulating bodies. [ 8.8. Minimum Customers. [Proposer Abbreviation]'s Lease Agreement and Contract shall be ~ conditioned upon maintaining market penetration of at least two thousand (2000) customer accounts in Ashland, Oregon. For all purposes in this Lease Agreement and Contract, Customer Accounts are defined and will be calculated as unique customer addresses, as determined by Ashland Electric Department utility billing records. 8.9. New Customers. [Proposer Abbreviation]'s Lease Agreement and Contract shall be conditioned upon acquiring at least [0] New Customers per year in Ashland, Oregon. For all purposes in this Lease Agreement and Contract, New Customers are defined and will be calculated as those customers switching to television entertainment services with the successful proposer, who had not purchased those services from an AFN--affiliated service provider in the i previous twelve calendar months, and who remain customers for no less than six full calendar months. 8.10. Customer Churn. [Proposer Abbreviation]'s Lease Agreement and Contract shall be conditioned upon achieving a Customer Churn (turnover rate) of no more than [20%] per year in Ashland, Oregon. For all purposes in this Lease Agreement and Contract, Customer Churn is defined as deactivated customer accounts in the twelve months preceding the date of an inquiry. i Maintenance of Assets. [Proposer Abbreviation]...[To be negotiated] 8.11. 8.12. Customer Service Surveys. [Proposer Abbreviation] shall conduct at least [1, or.as i determined in negotiations] customer service survey per year, which must be reviewed and approved by AFN prior to sending to subscribers. [Proposer Abbreviation]'s Lease Agreement and Contract shall be conditioned upon maintaining a customer satisfaction rating of at least [65%, or as determined in negotiations] of customer ratings overall services and "Good" to "Excellent" on a five-point Likert scale. 8.13. Taxes. [Proposer Abbreviation] shall be responsible for all applicable taxes including, but not limited to, franchise fees and PEG fees due pursuant to the Cable Franchise. [Proposer RFP - Television Services, October 11, 2010, Page 74 or 83 k Abbreviation] shall not deduct from rent due under this Agreement any such taxes or fees paid by [Proposer Abbreviation]. 8.14. Permits and Licenses. [Proposer Abbreviation] shall obtain all necessary permits and licenses required to operate the television head-end and to provide cable television services over the television head-end. 8.15. Coordination of Use. [Proposer Abbreviation] acknowledges that the television head-end is located in the same facility as AFN's network and that the network capacity provided to [Proposer Abbreviation] u nder this Agreement is also used by AFN to provide internet access F f. services over its Network. [Proposer Abbreviation] acknowledges and agrees that the terms of limit AFN's access to that facility for any purpose associated with the this Agreement do not operation, maintenance, repair or use of the Network, nor does it grant [Proposer Abbreviation] E the exclusive use of the Network or otherwise place any limitations on AFN's of the City of Ashland's use of the Network. € 8.16. Other Conditions. [Proposer Abbreviation] further agrees to the following conditions on access to and use of the television head-end: 816.1. The City of Ashland and its agents shall at all times (upon reasonable notice to [Proposer Abbreviation]) have access to the television head-end for the purpose of inspecting it and assessing its condition and state of repair, 8.16.2. [Proposer Abbreviation] shall, at its own expense, operate, maintain, and repair the television head-end and keep it in proper operating condition during the term of this Agreement, 8.16.3. [Proposer Abbreviation] may not operate the television head-end in a manner that fails to maintain the signal integrity of AFN's Network or to meet ingress and signal to noise specifications to AFN's standards. 8,16.4. [Proposer Abbreviation] may upgrade the television head-end pursuant-to the RFP; provided that any alteration, improvement, or addition(s) to the television head-end F shall be conducted by [Proposer Abbreviation] with AFN's prior written permission, and such changes, additions or alterations shall be at the sole expense of [Proposer F Abbreviation]. All alterations, improvements, or additions to the television head-end shall become property of AFN after installation. 8.16.5. Notwithstanding the grant of use in Section 2.2 of the franchise, Grantee shall not be w permitted to erect, install, construct, repair, replace, reconstruct and retain the television head-end, or any part thereof, without AFN's written permission. 8.16.6. [Proposer Abbreviation] shall only allow access to the television head-end by designated staff who have passed background checks by the Ashland Police Department and any other law enforcement entities deemed necessary by the Ashland Police Department. i _ 8.16.7. [Proposer Abbreviation] shall not store any equipment or supplies on City property, and shall not park vehicles on City property other than in authorized parking spaces. s 8.16.8. [Proposer Abbreviation] shall not access the network equipment or any other area 3 within City's property, or use City property for any reason other than as permitted 7 herein or in the RFP. 9. EFFECT ON PREVIOUS .AGREEMENTS AND FRANCHISE AGREEMENT: Upon execution of this Agreement by both parties, this Agreement shall supersede and render null and void all previous leases, agreements, and contracts between AFN and [Proposer Abbreviation] for 1 television services. 10. COMPLIANCE WITH ]LAWS: 10.1. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon. [Proposer Abbreviation] shall promptly observe and comply with all present and Y future laws, orders, regulations, rules and ordinances of federal, state and local governments 9 with respect to the lease of the television head-end and the requirements and obligations of the RFP and Proposal, including but not limited to provisions of ORS 279B.220, 279B.230 and 279B.235. RFP -Television Services, October 11, 2010, Page 75 or 83 6 10.2. [Proposer Abbreviation] is a "subject employer" as defined in ORS 656.005 and shall comply with ORS 656.017. If it has not already done so as required by the Cable Services Agreement, within 10 business days of the execution of this Agreement, [Proposer Abbreviation] shall certify to City that it has workers' compensation coverage required by ORS Chapter 656. If [Proposer Abbreviation] is a carrier insured employer, [Proposer Abbreviation] shall provide City with a certificate of insurance. If [Proposer Abbreviation] is a self-insured employer, rovide City with a certification from the Oregon Department of [Proposer Abbreviation] shall provide,-City- Insurance and Finance as evidence of [Proposer Abbreviation]'s status. 11. INSURANCE: 11.1. [Proposer Abbreviation] shall, at its own expense, at all times during the term of this Agreement, maintain in force: 11.1.1. A comprehensive general liability policy including coverage for contractual liability for obligations assumed under this contract, blanket contractual liability, products and completed operations and owner's and contractor's protective insurance; and 11.1.2. A comprehensive automobile liability policy including owned and non-owned automobiles. 11.1.3. The coverage under each liability insurance policy shall be equal to or greater than the limits for claims made under the Oregon Tort Claims Act with minimum coverage of [$1,000,000, or higher] per occurrence (combined single limit for bodily injury and property damage claims) or [$500,000, or higher] per occurrence for bodily injury and [$100,000, or higher] per occurrence for property damage. Liability coverage shall be provided on an "occurrence" basis. "Claims made" coverage is not acceptable, except for the automobile liability policy coverage required by Section 6(b). 11.1.4. Certificates of insurance acceptable to City shall be filed with City within 10 business days of the execution of this Agreement, if not already on.file with City. Each certificate shall state that coverage afforded under the policy cannot be cancelled or reduced in coverage until at least thirty (30) days prior written notice has been given to City. A certificate that states merely that the issuing company "will endeavor to mail" written notice is unacceptable. 12. INDEMNIFICATION: [Proposer Abbreviation] shall defend, indemnify and hold City, its officers, agents, and employees harmless from any and all claims, actions, costs, judgments, damages or other expenses resulting from injury to any person (including injury resulting in death), or damage to property (including loss or destruction), of whatsoever nature arising out of or incident to the negligent performance.of this Agreement by [Proposer Abbreviation] (including but not limited to, the negligent acts or omissions of [Proposer Abbreviation]'s employees, agents and others designated by [Proposer Abbreviation] to access the television head-end, provide cable television services or to perform work or services attendant to this Agreement). [Proposer Abbreviation] shall not be held g responsible for any claims, actions, costs, judgments, damages or other expenses, directly and proximately caused by the negligence of City. 13. DEFAULT: There shall be a default under this Agreement if any of the following occur: 13.1. Either party fails to perform any act or obligation required by this Agreement within 10 days after the other party gives written notice specifying the nature of the breach with reasonable particularity. If the breach specified in the notice is of such a nature that it cannot be completely cured within the 10 day period, no default shall occur if the party receiving the € notice begins performance of the act or obligation within the 10 day period and thereafter proceeds with reasonable diligence and in good faith to effect the remedy as soon as practicable. 13.2. Notwithstanding Section 9a, either party may declare a default by written notice to the other party, without allowing an opportunity to cure, if the other party repeatedly breaches the terms of this Agreement. I 13.3.1f a default occurs, the party injured by the default may elect to terminate this Agreement and z pursue any equitable or legal rights and remedies available under Oregon law. All remedies shall be cumulative. RFP -Television Services, October 11, 2010, Page 76 or 83 i Y 13.4. Any litigation arising out of this Agreement shall be conducted in Circuit Court of the State of Oregon for Jackson County. 13.5. Misrepresentations of experience, staff, references, or other qualification of material importance to accurately rating the ability of proposers in the RFP process is discovered. 14, TERMINATION WITHOUT CAUSE: In addition to the right to terminate this Agreement under Section 9, City may terminate without cause by giving [Proposer Abbreviation] 90 days prior written notice. If City terminates without cause under this Section, [Proposer Abbreviation] shall be paid all fees earned and costs incurred prior to the termination date set forth in the notice. [Proposer Abbreviation] shall not be entitled to be compensated for lost profits, 15. WAIVER: Failure of City or [Proposer Abbreviation] in any one or more instances to insist upon the performance of any of the terms of this Agreement, or to exercise any right or privilege conferred herein, or the waiver of any breach of any term of this Agreement should not thereafter be construed as a waiver of such term, which shall continue in force as if no waiver had occurred, 16. NOTICES: Any notice required to be given under this Agreement or any notice required to be given by law shall be in writing and may be given by personal delivery or by registered or certified mail, or by any other manner prescribed by law. 16.1. Notices to City shall be sent to: CIO/Director of Information Technology = City of Ashland 90 N. Mountain Avenue Ashland, Oregon 97520 = With a copy to: City Administrator City of Ashland 20 East Main Street Ashland, Oregon 97520. 16.2. Notices to [Proposer Abbreviation] shall be sent to: [Company Name] [Company Street Address] [City, State Zip-Code] 17. ASSIGNMENT: City and [Proposer Abbreviation] and the respective successors, administrators, assigns and legal representatives of each are bound by this Agreement to the other party and to the partners, successors, administrators, assigns and legal representatives of the other party. [Proposer Abbreviation] shall not assign or subcontract [Proposer Abbreviation] [Proposer Abbreviation]'s rights or obligations under this Agreement without prior written consent of City. Except as stated in this Section, nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City or [Proposer Abbreviation]. 18, MODIFICATION: No modification of this Agreement shall be valid unless in writing and signed i by the panties, IN WITNESS WHEREOF, the parties have executed this Agreement at Ashland, Oregon, on this day of , 200. f E By: City of Ashland By: [Successful Proposer] € F Rob Lloyd, CIO/Director of IT President RFP -Television Services, October 11, 2010, Page 77 or 83 ORDER The governing body hereby approves and.authorizes the terms of this lease as set forth above. Mayor/Mayor's Designee, City of Ashland Date s = K - E r - . I 1 i q "r - a 2 t I F j! i - RFP - Television Services, October 11, 2010, Page 78 or 83 i EXI-11BIT K-historical Customer Counts 3 Note: Figures are approximate year-end counts. Services since October 20o6 (period when AFN stopped offering television services directly to customers) have been analog only. L Oct 06 2007 2008 2009 estimated estimated estimated Community 253 N.A. N.A. N.A. Basic 1027 575 550 475 fi! Expanded 1815 1625 1425 1375 Digital 346 N.A. N.A. N.A. i Total'system subs 3095 2200 1975 1850 i HBO 275 20 20 20 Showtime 40 N.A. N.A. N.A. , Starz 55 N,A. N.A. N.A. i; 3500 - - _ 3000 t'. 2500 2000 - - - - - _ n 2007 1,500 Ej 2007 estimated 1.000 -i i r, 2008 estimated 500 01 2008 estimated l' 0 ~~~a ~ay~u ~a~~ •~~O~a` Jay h>La~ti /\o~ • ICI 1 I i I • i 1 ' i i I~ d RFP -Television Services, October 11, 2010, Page 79 or 89 4 'I i EXHIBIT L--Evaluation Matrix ` Scoring worksheet is for reference, only. t Weight Score Of past five years providing some mix of service of similar in scope p and size as described in this RFP, - 2 Years Pass/Fail including television operations management, sales, and customer support Accepts Accepts franchise included In RFP Franchise Yes and agrees to maintain it Pass/Fail Agreement :1 throughout the contract term Agrees to obtain a City of Ashland, - Yes business license and maintain it Pass/Fall throughout the contract term Accepts customers are owned by i. Yes City/AFN and proposer without Pass/Fail ~j exception Agrees to advertise services and • Yes products with.AFN logo and brand Pass/Fall f' without exception ' Agrees to offer cable television ' packages to AFN partners for Yes Pass,~Fall competitive resale (MUST include estimated wholesale prices) - ' >$200,000 Annually, Paid Per Quarter Pass/Fall i Agree to maintain at least one commercial storefront location in _ Yes Ashland, OR, city limits; Agree Pass/Fail I hours of operation shall be standard j business hours and days Agree that all liability associated with the management and operation of television services • Yes during the term of their contract Pass/Fail 'i shall belong solely to them, including liquidated damages, except as due to force majeure Agree that the City of Ashland/AFN may initiate an audit of the proposer's finances, notto exceed Yes one peryear, paid for equally by the Pass/Fall successful proposer and the City; Agree to make all files, materials, and staff fully available to the assigned auditors. - All required proposal components Included s 0 and signatures provided Sample f1 Billing Statements and included Sample statements and reports o provided ep a RFP -Television Services, October 11, 2010, Page 80 or 83 ~i I I Reference companies for which the proposer has directly provided those services Contact information must be provided 1 - i Proposal notesthe companies representative for final decisions Yes and commitments for negotiations o and contract Indicate acceptance of the City of Ashland's contract provisions Yes and/or proposes reasonable ' o alternatives Current and audited Balance Sheet; Yes Statement of Cash Flows, 7 0 Statement of Income included Financial reports show positive Yes status and indicate ability to meet 7 0 terms and length of RFP g 480 MHz Channel List by E Package/Tier and cost (Must include local news and Included 4 o publicleducational/government); ' Will packages appeal to Ashland residents and business C' 86o MHz Channel List by i r included Package/Tier and cost; Will o packages appeal to Ashland 4 residents and business 1 ooo Total Channel Availability/Uptime o 99'9 in Year Total FCC and PUC Violation per . <36 4 o Year Accepts requirementto maintain customer data in a secure fashion; Agrees to not sell or otherwise = Yes release customer data without o a approval by the City of Ashland and its AFN Division ,r Provides a communications protocol as part of response, Included detailing escalation, and meeting 4 0 24x7x36S+ gg.go% uptime i standards TrIN110"I ('1111"NIM i Percentage of gross non- . >SNa advertising revenues for customers - 3,001-3,500 Percentage of gross non- , >2% advertising revenues for customers 10 0 # 3,50 -4,500 Percentage of gross non- _ >I% advertising revenues for customers r: 4,50 o Percentage of advertising revenues j _ >0% to share 2 0 • >235o Minimum Number of Customers 5 0 ~J RFP - Television Services, October 11, 2010, Page 81 or 83 s I I 4 I Customer <200/0 Maximum Annual Customer Churn 5 0 i 3-Month i Minimum Number Customer Customer 2,000 Accounts within First Three Months f Acquisition of Contract Year:L New Minimum Number of New Customer t 350 Customers Acquired in Year 1 of Acquisition Contract Year 2 New Minimum Number of New 5 0 Customer 250 Customers Acquired in Year z of Acquisition Contract Year 3 New Minimum Number of New Customer 250 Customers Acquired in Year 2 of Acquisition Contract ff Customer Service surveys perYear Y! x (Coordinated with and approved by x o r AFN) • Average Overall Annual >65% Positive 5 0 • + Satisfaction' Rating(s) I Project plan with timelines and work breakdown for at least I Included customer transitions, technical 5 0 • coordination with AFN, and programming contracts Minimum percentage of existing l` • AFN cable television customers to >So% o • • - - successfully retain and carry into 5 jj new contract Marketing Plan that details sales and customer retention goals, how new customers will be obtained Included S o i! and what advertising resources will be allocated to sell services and products I' Strategic direction detailing what advanced video entertainment ff'' h • . - services will be provided and when, a Included as well as how their company will 5 0 respond to the emergence of IP- based television Scoring 100 0 li • Included Services proposed for offering Ashland customers ! • • • - Equitable revenue sharing model' Included between proposer and AFN Included Services proposed for offering Ashland customers Included Equitable revenue sharing model 1I • - between proposer and AFN lj • Services proposed for offering 20 0 Includedi • Ashland customers • • Included Equitable revenue sharing model l between proposer and AFN k Included Services proposed for offering n • Ashland customers On-Net Included Equitable revenue sharing model Revenue • between proposer and AFN RF1' -Te1evision Services, October 11, 2010, Page 82 or 83 - A • j r Included Services proposed for offering • • r Ashland customers r • • - Included Equitable revenue sharing model between proposer and AFN r Included Services proposed for offering • Ashland customers ~r • r • • Equitable revenue sharing model Included between proposer and AFN Services proposed for offering - Included Ashland customers • - Equitable revenue sharing model included between proposer and AFN Scoring 20 0 Available Score Points 5e Total For Care • ,100 0 Additional/Alternative.Services.or Products 20 0 l 1 i I' '1 is i 1 f E I' I RFF - Television Services, October 11, 2010, Page 83 or 83 CITY OF ASHLAND Council Communication January 3, 2017, Business Meeting Annual Appointment Citizen Budget Committee FROM: Barbara Christensen, City Recorder, christeb@ashland.or.us SUMMARY Annual appointment of two positions on the Citizen Budget Committee with 4-year terms ending December 31, 2020. BACKGROUND AND POLICY IMPLICATIONS: The deadline for submission of applications ended on November 11, 2016 and notice of these vacancies were published in the local newspaper and placed on the city website. At the December 6, 2016 meeting, council requested additional time to contact and interview candidates. Selection of appointment was moved to the January 3, 2017 meeting. Budget Committee members William Gates and David Runkel terms expired on December 31, 2016. William Gates is not seeking reappointment. David Runkel is requesting reappointment. New applications were received from Paula Hyatt, Saladin Amery and Sharon Harris. COUNCIL GOALS SUPPORTED: N/A FISCAL IMPLICATIONS: N/A STAFF RECOMMENDATION AND REQUESTED ACTION: None SUGGESTED MOTION: I move to appoint/reappoint and to the Citizen Budget Committee with term ending of December 31, 2020. ATTACHMENTS: Applications Page 1 of 1 mill City Recorder's Office c/o Barbara Christensen 20 East Main Street Ashland, OR 97520 November 9, 2016 Subject: Letter of Intent, Applying for Citizen's Budget Committee Dear Ms. Christensen, I am writing to express my interest, and request consideration for, the vacancy on the Ashland Citizen's Budget Committee. My professional experience in budgeting, valuation modeling, and project management, combined with my enjoyment of community involvement, lend themse-l-v"es well to the Citizen's Budget Committee. My family and I moved to Ashland six months ago, and currently I stay home with my young daughter. Subsequently I am in a unique position to draw from over 15 years of business experience and advanced education, while bringing a fresh perspective and flexible schedule availability to the committee. Additionally, Ashland's model of citizen inclusivity in the budget process, and provisions for soliciting feedback from the community appeals greatly to me. In my experience, collaborative processes yield strong comprehensive plans and I would welcome the opportunity to contribute. Please find my application form and resume attached and thank you for your consideration of my qualifications for the position. It would be a privilege to lend my time and professional knowledge in support of a community my family and I have quickly come to love. Sincerely, Paula M. Hyatt CITY of ASHLAND APPLICATION FOR APPOINTMENT TO CITE' COMMISSION/COMMITTEE Please type or print answers to the following questions and submit to the City Recorder at City Hall, 20 E Main Street, or email ch1-is eb-t-i- ss i'l~~ d.or.us. If you have any questions, please feel free to contact the City Recorder at 488-5307. Attach additional sheets if necessary. Name Paula A,1 Hyatt Requesting to serve on: -Citizens Budget C.'ominittee_ (Commission./Committee) Address 625 11"an Sant Street Ashland, OR 97520 Occupation: financial Analyst, Account Algr.Phone: Home: 518-253-2749 Work: Email: paulamannyghotrnail. com Fax 1. Education Background What schools have you attended? The George Washington University (Graduated 2000) State University of A'ew Fork at Albany (Graduated 2007) What degrees do you hold? Bachelors in Business Administration and Alasters in Business Administration What additional training or education have you had that would apply to this position? Please see attac=hed resume 2. Related Experience What prior work experience have you had that would help you if you were appointed to this position? Please see attached resume Do you feel it would be advantageous for you to have further training in this field, such as attending conferences or seminars? Why? My finance education anti business experience will help me contribute to the committee immediately however I always welcome educational opportunities. I would especially be interested in city budget and governance specific training. V ILAI 3. Interests Why are you applying for this position? Ashland's model of citizen inclusivity in the budget process, and provisions for soliciting feedback from the community appeals greatly to me. This process lends itself well to my professional skill set and desire to serve my community. 4. Availability Are you available to attend special meetings, in addition to the regularly scheduled meetings? Do you prefer day or evening meetings? Yes, I am available to attend special meetings. My preference for meetings would he evening but I have daytime flexibility as well. 5. Additional Information How long have you lived in this community? 6 Months Please use the space below to summarize any additional qualifications you have for this position Date 1 Signature Paula M. Hyatt • 625 Van Sant Street, Ashland, OR 97520 • (518) 253-2749 • paulamanny rl,hotinail.com PROFESSIONAL EXPERIENCE: Senior Account Manager Accredo Health Group, Inc., Memphis, TN Jan. 2012- May 2014 - Actively managed and grew key accounts, across a diverse suite of services, generating revenue greater than $25M annually - Responsible for creating new products and services in support of key client needs resulting in upselling opportunities of $3M - Coordinated and conducted orientation of new Account Managers to job roles, responsibilities and expectations - Developed curriculum, and facilitated comprehensive training sessions, educating peers and senior management on Accredo Intake, Clearance and Pharmacy Processes Product Development Analyst Nov. 2011 - Jan. 2012 - Provided project management leadership required to execute on client-focused products and associated marketing strategies - Responsible for financial modeling necessary to articulate economic benefits, across all stakeholders, for new products and services - Developed a standardized initiation and diligence process to efficiently examine product development requests and opportunities Project Manager Sept. 2010 - Oct. 2011 - Successfully met project milestones and completion dates due to excellent organization and time management skills, as well as timely initiation of troubleshooting measures when warranted - Managed the vendor relationship with consulting services inclusive of deliverable prioritization and contract administration - Provided Executive Management with key success factors for growth initiatives including project plan development, status updates, financial reporting, successful on-time completion of three site closures, and direct communication with stakeholders Business Development Senior Financial Analyst May 2008- Sept. 2010 - Conducted valuation modeling and due diligence in support of over twenty Business Development project initiatives - Facilitated deal closings, drove team to achieve an aggressive close dates, and aided in integration of business functions - Supplied comprehensive analysis on capital projects to determine the project benefits and return on investment of proposed projects Senior Multi Function Financial Analyst Lockheed Martin, San Diego, CA 2006-2008 - Selected for, and graduated from, the elite three year Lockheed Martin, Financial Leadership and Development Program (FLDP) - Successfully implemented and maintained Earned Value Management on programs with combined assets greater then $ l OOM - Composed, executed and revised actionable sales, orders and profit forecasts contributing to overall corporate performance Financial Analyst Lockheed Martin, Schenectady, NY 2005-2006 Clearance: Department of Energy - Coordinated, prepared and presented monthly financial reviews and analysis for use by the CFO and key management - Demonstrated skill for quantitative analysis and forecasting necessary for execution of overhead functions and facilities work plans - Team lead responsible for coordination and composition of the Finance Department 2007 Strategic Business Plan Accounting Operations Analyst 2003-2005 - Chaired the Laboratory's Travel Council responsible for management, execution and reporting of a $3.OM travel budget - Accountable for cash ledger and banking activities including ledger entries, transfers, cash deposits, draw downs and reconciliations Senior Analyst Lehman Brothers, New York, NY 2000-2002 - Promoted to Senior Analyst of the Retail Account desk after nine months in the Operations Analyst role - Coordinated settlement instruction data clean-up project and created cost savings by improving information efficiencies EDUCATION: Masters Business Administration State University of New York at Albany, Albany, New York Fall 2007 Bachelors Business Administration The George Washington University, Washington, DC Spring 2000 - Graduated Summa Cum Laude from the School of Business with concentrations in Finance and International Business - Recipient of the John Henry Cowels award for outstanding academic achievement in the International Business Program Study Abroad Oxford University, Oxford, England 1998 - Studied business practices of Great Britain through interactive case studies with top international firms VOLUNTEER EXPERIENCE: - Treasurer, Billings Ranch Home Owners Association, Ashland, OR Sept. 2016 - Present - Group Coordinator, Strolling Moms, Charleston, SC 2014 - 2015 i 2011 -2013 - Liturgy Committee Chair and Pastoral Council Member, St. Peter's Church, Memphis, T Q9 IS L n CITY OF ASHLAND APPLICATION FOR APPOINTMENT TO CITY COMMISSION/COMMITTEE Please type or print answers to the following questions and submit to the City Recorder at City Hall. 20 E Main Street. or email christeb rc,ashland.onus. if you have any questions, please feel free to contact the City Recorder at 488-5307. Attach additional sheets if necessary. Name Saladin Amery Requesting to serve on: Citizen Budget Committee (Commission/Committee) Address 419 Waterline Road Ashland OR 97520 Occupation self employed Phone: Home 970-274-6937 Work Email samery26@amail.com Fax 1. Education Background Ithaca College NY What schools have you attended`? What degrees do you hold`? BA English Literature Minor in Psychology What additional training or education have you had that would apply to this position? I worked in finance for over 20 years in various managerial capacities, buildnq trading, sales and structureing platforms that required producing and managing business plans and budget allocations 2. Related Experience What prior work experience have you had that would help you if you were appointed to this position? I have held the position of President of Bank of America Securities Japan, along with Managing Director positions responsible for a multitude of people and business lines that had to deliver a return on investment each year. These positions reguried that I not only produce sound business plans, but also the ability to understand and decipher the budgets necessary to accomplish them, in delivering to the bottom line. Do you feel it would be advantageous for you to have further training in this field, such as attending conferences or seminars' Why? Yes if the training makes sense and my schedule permits then I would be happy to attend ~l fr Q BY.-74-4 rrrrr.rrrr 3. Interests Why are you applying for this position? I feel I have the necessary skill set and the time to allow me to make myself avai a e o e comma ee. can imagine e respond i i y a e committee bears and wish to be a part of that process and contribute to the community t at ave c osen to ive m an rase my c i ren. 4. Availability Are you available to attend special meetings, in addition to the regularly scheduled meetings`? Do you prefer day or evening meetings? Yes I can be available, evening meetings would likely be best 5. Additional Information How long have you lived in this community? I moved to Ashland in November 2014 Please use the space below to summarize any additional qualifications you have for this position I hold financial licenses as per the following, US Series License 3, UK Financial License FSA (Equivalent to the US Series 7), JSDA Financial _ License for Japan, HKMA License 1 for Hong Kong and the STMA Financial License for Singapore and Australasia. I have lived, worked and traveled in multiple contries across the world and I believe along with my work experience, I would be a strong addition to the committee Oct 28th, 2016 Date Signature 1W rJAM11 3. Interests Why are you applying for this position? _I feel I have the necesra skill set and the time to allow me to make myself avai to the comm ee, can Imagine the responcalq a e committee bears and wish to be a part of that process and contribute to the community " have sen to ive in an rase m c ren. that I Y 4. Ab ~ A yoiF~availa, e to attend special meetings, in addition to the regularly scheduled Jr y meetV Do you prefer day or evening meetings? Yes I can be available, evening meetings would likely be best 5. Additional Information Haw long have you lived in this community? I moved to Ashland in November 2014 { Please use the space below to summarize any additional qualifications you have for this position I hold financial licenses as per the following, US Series License 3, UK Financial License FSA (Equivalent to the US Series 7), JSDA Financial License for Japan, HKMA License 1 for Hong Kong and the STMA Financial License for.Sin9apore and Australasia. 1 have lived, worked and traveled in . multiple corrtries across the world and I believe along with my work experience,, I would be a strong addition to the committee L Oct 28th, 2016------ Date Signature x= "'r ; w SALADIN AMERY Page ? - - - - Saladin Amerv V PERSONAL Name SALADIN AMERY Date of Birth/(Age) February 24, 1966 Nationality British Marital Status/Children Married /Two children Address 419 Waterline Road Ashland OR 97520 USA Telephone (mobile) US 970-274-6937 EDUCATION & QUALIFICATIONS Ithaca College, Ithaca NY B. A. English Literature 1987 Minor: Psychology Licenses SFA JSD Series 3 HKMA License I Languages English, Farsi & some Japanese Interests: Skiing, squash, golf; tennis, mountain biking, writing, politics, arts and adventure 1'(10C 7 Saladin Amery CAREER SUMMARY Peris Capital Advisors Pte, Ltd. Mana(Ou Director. Established the company, Peris Capital Sept 2008 ti Present Advisors, in Singapore. The Company engages in advisory work, origination and capital raising out of Asia, for third party funds and individual projects. Aug 2004 - Jan 2008 Bank of America Asia Ltd, Managing Director, [lead of Global Structured Products & Principal Finance for all of Asia. Managing and participating in, and actively marketing, originating and structuring, while overseeing the groups, originating, marketing, structuring and trading of GSP products, which included, credit cash & synthetic, loans, ABS/MBS, project finance etc . Also a member of the Asia Senior- Management Committee Sep 2001 - Aug 2004 BANC OF AMERICA SECURITIES JAPAN, INC President and board member of, Banc of America Securities Japan and Managing Director, Head of Global Structured Products for all of Asia, and member of Global Mana2ement Committee for GSP. As President and board member of Banc of America Securities Japan, I oversaw all individuals and managed all the activities under the Banc of America Securities umbrella, ranging from trading, sales, marketing, structuring, compliance, risk, administration, licensing, regulatory, etc within Japan. As Head of GSP & Principal Finance for all of Asia, 1 managed and participated in and acted as a marketer, originator and structurer, while overseeing and managing the groups, marketing, origination, structuring, and trading of the products, which included, credit cash & synthetic, loans, ABSIMBS, project finance etc throughout Asia. While at the same time, overseeing the overall activities of the companies securities business in Japan. Page 4 - Saladin Amery UBS Warburg Japan Ltd, Oct 2000 Sep 2001 Director, responsible for building Structured Credit Products team to focus on CDOICLO, ABS and Structured Funds, throughout Asia. PaineWebber Asia {Japan} Inc Jan 199 Sep 2000 Senior Vice President, responsible for Structured Products for all of Asia. CBO/CI,O;'ABS, Structured Funds, Credit Derivatives, Securitization, Rates, Equity & FX Derivatives, etc. Including trading the US Corp book during Asia hours. Kidder Peabody International (Japan) Iti1ar I99J Dec 199 Vice President, focussed on building a Structured Products Group in Asia, on all aspects of derivatives, from structured notes and repackaged derivative instruments, credit, tax, interest rates, equity and FX related. Kidder Peabody International (London) Sep 1987 Feb 1993 Sr Trader & Head of the US Government trading desk. Responsible for all Cash, Strips, OTC Options and Agency products. Running a proprietary book, that also serviced institutional and retail clients. CITY OF -.S H Lam, N D APPLICATION FOR APPOINTMENT TO CITY CONINIISSIONICONINIITTEE Please type or print answers to the following questions and submit to the City Recorder at City Hall, 20 E Main Street, or email ci,ro bf,r asi- lanktorms. if you have any questions, please feel free to contact the City Recorder at 488-5307. Attach additional sheets if necessary. Name- o N~ ,P.-Als Requesting to serve on~1 )l I LC `S 3bA4) ~ (Commission/Committee) Address_ ('I~S #-s ~ j ~ - c SZy Occupatio ; ✓ Phone: Home 2 O(S - Z 14S" 1 ~ Work Email SAP S (a b , Y RtA Fax I. Education Background What schools have you attended? ?-DhL~LAi J I )1 V 1 AK rt~ tC5 U1~1^~ GG . 5Wio UAttc- trvVer-&~4,~L c, What degrees do you hold? )Ybat additional training or education have you had t at would apply to this position? Save vS ~ ~a'i ~ 5ti., ~ b~n~-c. ~ rt /4'lc n~i.~n.~,. ~c ~Z Sc1C bw►~ ~t n ~u,c~,i t-±~ - 2. Related Experience What prior work experience have you had that would help you if you were appointed to A .4 A-i 0. '4- VIA this position? r~Do you feel it would be advantageous for you to have further training in this field, such kwk as attending conferences or seminars? Why? (P40 VA~ rr 3, inter"ts Sri ~ > L.i c~~.(y v.. i ~ ~ ~ -.i'1 i ti L.~^ # i. . ,,.p ~ ~ , _ ` ~ . '1! w-;` ~ ~ `l S. l Cj4,I.A. t5 .1 IN 4. Availabillty Are you available to a, -nd . -iat in meetings? Do you prefer day or. e~ ~^n • _L v 5. Additional Information How long have you fived in this co=unir.-`' Please use the space below to summarize anN- a1htio,ral aliti.a.i~~ \-'ou h;« foT thit position - 165, r Date Sid naturr !!sill CITY OF ASHLAND Council Communication January 3, 2017, Business Meeting Adoption of Selection Criteria and Discussion of Selection Process for Administrative Services/Finance Director FROM: Tina Gray, Human Resources Manager, tina.gray( ashland.or.us SUMMARY The City Council will be conducting interviews of the top 2-3 finalists for Administrative Services/Finance Director in an executive session on Tuesday, January 10, 2017, that will be closed to the public. In order to ensure transparency and comply with Oregon public meeting laws, staff proposes that Council adopt and discuss the selection criteria and recruitment process in a regular business meeting and invite public comment prior to conducting interviews. BACKGROUND AND POLICY IMPLICATIONS: Lee Tuneberg retired September 30, 2016 as the Administrative Services/Finance Director. The City has been fortunate to have Bev Adams serving as Interim Finance Director until a successor could be hired. Wendi Brown Consulting Partners (WBCP Recruiting) was selected to conduct a national search for Administrative Services/Finance Director. Five semi-finalists been invited to Ashland to participate in a 2-day interview and selection process January 9th and 10th. A mix of city staff, the Interim City Administrator, Department heads, Mayor and an outside public sector finance professional will conduct interviews in two separate panels on Monday, January 9, 2017. Staff anticipates 2-3 finalists will be invited back the next day for an interview with the Mayor and City Council in executive session. Staff is recommending that finalists be interviewed by the Mayor and Council in a closed session. As a quorum of the Council will be present, the interviews are considered a public meeting. Under ORS 192.660 (2) (a), a public body may discuss employment of a public officer, employee or agent in executive session, as long as the general public has been afforded the opportunity to comment on the criteria and selection process that will be used by the public body in the executive session. Staff has posted the selection criteria on the City's website as a topic on Open City Hall and invites public comment on the selection criteria to be used by the Council when interviewing the finalists. Staff has provided an outline of the selection process, and recommends the Council formally discuss and adopt the selection process for the purpose of transparency and open government. The Council intends to make a job offer to the top candidate contingent on background and reference checks. Once the confidential portion of the background screening is complete, the name and candidate bio will be released by the City in advance of the formal appointment by Mayor with confirmation of the City Council. Page 1 of 2 CITY OF ASHLAND COUNCIL GOALS SUPPORTED: N/A FISCAL IMPLICATIONS: N/A STAFF RECOMMENDATION AND REQUESTED ACTION: Staff recommends Council adopt the selection criteria and discuss the selection process to be used for Administrative Services/Finance Director allowing opportunity for public comment prior to the selection process on January 9-10, 2017. SUGGESTED MOTION: I move approval of the selection criteria and selection process for Administrative Services/Finance Director. ATTACHMENTS: • Recruitment Brochure • Selection Criteria • Selection Process Page 2 of 2 ~r r r Y C •L' o yaT, ~ ,y sr v v . t. ';a mow" .~7;. u ?s ADMINISTRATIVE SERVICES/ FINANCE DIRECTOR U, U I T% F A S H LAI"N"' R E G U The City of Ashland seeks an Administrative Services/Finance Director who has organizational leadership, financial acumen, strategic business thinking, and effective leadership and communication skills. In this role you will be the City Administrator's strategic financial partner, lead a staff of 17 and play a leading C I T Y O F role in supporting the great work the City of Ashland p~ ovides its citizens. ASHLAND 4 •9.. j''Rr 1 ."/%41 r,iZ i ,r. ~,C~,' Y 1 l T - r .c • ~ , 'mil K "fr 4 ~ - p ,r _ F'" ~ ` _ ~ ' µ ' - ~::-tip' ~ ~ \ .r _ y ` ~ , r . f. + vi~ Y 1 f ~ •T ^Y a 4. 7 ~'Yt~ ~A :1 YY Y Yt+' ' Jr dU1fl ',7at .h dv~~ \ w _ Ss S r.. . jl r Syr" i - ...Y: P,. . . 1 1. i V I _ r . , 4 -'Y ✓ 1 d '"'thy jOtipQrt}{ C " ~.j' Orr } W< The City of Ashland is located in Southern Oregon, which is known for the Oregon Shakespeare Festival, Southern Oregon University, sustainable practices, Lithia Park, a wonderful climate and a host of outdoor activities including rafting, skiing, boating, fishing, camping, and more. The City of Ashland offers magnificent landscapes, rich culture, world-class theaters and an excellent public school system. For the fourth year, Ashland High School was awarded US News & World Report's Silver Medal as one of the best high schools in America. The "Heart of Ashland" is its world-class parks and recreation system which includes 93-acre Lithia Park, designed by John McLaren of Golden Gate Park fame. The park attracts more than one million visitors a year. y t " ,I - Irv i r a ,v . Incorporated in 1874, the City of Ashland operates under its own charter and applicable state laws. Ashland's population is slightly more than 20,000. The City provides a full range of municipal services, including police and fire protection, ambulance services, parks and recreation facilities/activities, streets, airport, planning and building, senior programs and general administrative services. The City also provides water, wastewater, electric and telecommunications utility services. The City has approximately 260 employees, a diverse revenue base, and a biennial budget of $237 million (CLICK HERE TO REVIEW THE 2015-17 BIENNIUM BUDGET). Ashland operates under a Council-Administrator form of government. The City government is led by a mayor who is directly elected to a four-year term and a six-member City Council whose members are elected at-large to four-year, overlapping terms. Other elected officials are the City Recorder, Municipal Judge and the five-member Parks & Recreation Commission. Much of the City's business evolves through over 20 advisory boards and commissions that enhance public support and political stability. The Mayor, with confirmation by the City Council, appoints the City Administrator and all the department heads, whose appointments are recommended by the City Administrator. The Administrative Services/Finance Director will lead a staff of 17 in the Administrative Services Department, oversee budget of $16 million, and support the great work the City of Ashland provides its citizens in other departments. In addition to overseeing the Finance, Accounting and Customer Service Divisions in the department, this position may manage special projects, policy and programs, and other divisions and departments as assigned. This position is at-will and is part of the executive team. The incumbent will assist the City Administrator with overseeing the City's central services, strategic plans, and coordinate all city departments. The City of Ashland has a Citizens' Budget Committee with which the Administrative Services/Finance Director will work closely. This Committee is comprised of 14 members including the City Council, Mayor and seven appointed citizen members. The Budget Committee conducts public hearings, reviews the budget, listens to input from constituents, and revises and approves the proposed budget. The Administrative Services/Finance Director may be asked to serve as acting City Administrator in the City Administrator's absence. Implementing a new financial software Update and modernize the City's purchasing conversion in 2016/17 (Munis) and procurement program Financing major improvement projects for Evaluate financial policies and update City codes the City Transition treasury and banking from the City Addressing the budget challenges with Recorder's office to Finance increased PERS costs Addressing affordable housing needs and Implementation of climate change energy plan urban design issues • C r J f The City of Ashland seeks an Administrative Services/Finance Director who has organizational leadership, financial acumen, strategic business thinking, and effective leadership and communication skills. Our ideal candidate enjoys working closely with staff, and is great with budget development, forecasting, crunching numbers, and ideally has a solid investment experience. v~ r PACKGPOUNDAND EDUCATION; `x Bachelor's degree in public: and/or business administration, finance, accounting, or related field. Progressively responsible experience in upper-level management. Y " Public sector accounting/financial management experience. Combination of experience and training demonstrating the knowledge, skills and abilities needed to perform the duties of the position. Possession of or ability to obtain a valid Oregon driver's license. Master's degree in public/business administration or related field and financial management experience in a municipal government that is similar to or larger than the city of Ashland is desirable. d k Y. THI IDEAL CANDIDATE WILL BE ABLE TO: Financial Acumen: Provide fiscal oversight and accountability of $237 million biennial budget. Serve as the primary resource for the City's financial planning and management. Perform long-term financing for the City's operational and capital needs. Provide financial analysis forthe City Administrator, executive team, and Budget Committee. Oversee budget development, revenue forecasting, grants and loans. Assist in overseeing the health benefits self-insurance program. Provide recommendations on issues that impact financial, auditing and investment operations. Monitor and assess changes in laws and regulations impacting accounting and treasury practices. =y Have knowledge of government accounting financial principles and practices (GASB) Oversee utility billing and tax collection. Operate with a strong ethical framework and uphold public trust. I~N~ Leadership and Communication s Support and oversee the work of others, and provide staff opportunities for professional growth. Promote interdepartmental teamwork and collaboration. = Engage and motivate staff. Design work schedules that address staff's need for work-life balance. Oversee staff and organizational performance. r Inspire a transparent, inclusive and empowering culture. Lead with confidence and assurance, work well with elected officials, and perform well under pressure. ~x Y = Demonstrate excellent communication and people skills at all levels of r` z an organization. Present well in public hearings and presentations. Manage employee relations effectively. r ~ Business Acumen & Technology Improve business processes and develop approaches to doing business better. t =y Understand political challenges and use business savvy to navigate appropriately. rT+ Be a big picture, organizational and administrative problem solver. Use superior interpersonal skills to build trust and develop relationships. Champion change, and successfully manage priorities. Keep up with new business technology to provide best practice ~ z recommendations. Ensure the organization `s technology, accounting, database systems and programs are functional and relevant. =y Ensure tools and training are available for staff to be successful using the fi new technology. Analyze and recommend changes to financial systems. _ r X - VIII +f"~ ..,~'4 ~ M . , F~A n,-ty - SALARY: $96,971 - $130,106 DOE/DOQ and an attractive benefits package including: medical, dental and vision benefits, an automobile allowance, a generous retirement plan through the State of Oregon, a deferred compensation program, an HRA VEBA account, life insurance, paid leave and other competitive benefits. r, ^r 4 , ,ICI V ' r , F s~ A , r° . c .r' Selection Criteria to be considered for Administrative Services/Finance Director: Ideal candidate - OVERALL • We are looking for an experienced professional with organizational leadership, financial acumen, strategic business thinking, and effective leadership and communication skills. • Someone who enjoys working closely with staff, and is great with budget development, forecasting and ideally has solid investment experience. Also, ability to successfully: Financial Acumen: provide fiscal oversight and accountability of a $237 million budget; serve as the primary resource for the City's financial planning and management; perform long-term financing for the City's operational and capital needs; provide financial analysis and oversee budget development, revenue forecasting, grants and loans; assist in overseeing the health benefits self-insurance program and provide recommendations on issues that impact financial, auditing and investment operations. Leadership and Communications: provide support and professional growth for staff; promote interdepartmental teamwork and collaboration; engage and motivate staff; inspire a transparent, inclusive and empowering culture; lead with confidence and assurance; work well with elected officials, and perform well under pressure; demonstrate excellent communication; and present well in public and uphold public trust. Business Acumen and Technology: provide improve business processes and develop approaches to doing business better; understand political challenges and use business savvy to navigate appropriately; be a big picture, organizational and administrative problem solver; use superior interpersonal skills to build trust and develop relationships; champion change, successfully manage priorities; and keep up with new business technology to provide best practice recommendations. Background and Education: • Bachelor's degree in public and/or business administration, finance, accounting, or related field. • Progressively responsible experience in upper-level management. • Public sector accounting/financial management experience. • Combination of experience and training demonstrating the knowledge, skills and abilities needed to perform the duties of the position. • Possession of or ability to obtain a valid Oregon driver's license. • Desirable: Master's degree in public/business administration or related field and financial management experience in a municipal government that is similar to or larger than the city of Ashland. Administrative Services/Finance Director Selection Process Sunday, January 8, 2017 • Five semi-finalists arrive in Ashland for a 2-day interview and selection process. Monday, January 9, 2017 • Candidates interview with 2 separate panels comprised of: The Mayor, key finance staff, Interim City Administrator, Interim Finance Director, outside public sector finance professional, and several department heads. • Each candidate will be asked to give an oral presentation at the start of her/his interview, and complete a writing exercise to actively demonstrate verbal presentation skills and writing capabilities. • Panels will debrief and rank candidates based on their performance during the 3 phases: interview, verbal presentation and written exercise. Tuesday, January 10, 2017 • 2-3 Finalists attend a meet and greet with finance staff • Finalists are paired with a host and are taken on a tour of the City • City Council interviews 2-3 finalists in a closed executive session Once Council members agree on a preferred candidate, background and reference checks will be conducted. Depending on the results of such screening, the name and bio of the preferred candidate will be made public, prior to consideration of formal appointment at a subsequent Council meeting, probably in February. CITY OF ASHLAND Council Communication January 3, 2017, Business Meeting Second Reading of an Ordinance Amending AMC 2.50.070 and AMC 2.28.045 Public Contracting Delegated Officer Authority for Intergovernmental Agreements FROM: Dave Lohman, City Attorney, david.lohman@ashland.onus SUMMARY: To streamline approval of routine intergovernmental agreements (IGAs) and reduce the time Council and staff spend on them, staff proposes that the City Administrator be delegated authority to approve new intergovernmental agreements and renewal of intergovernmental agreements that are limited in scope or that do not require substantial investments, obligations, or risks to be undertaken by the City. BACKGROUND AND POLICY IMPLICATIONS: At its December 20, 2016 regular session, the City Council approved first reading of an ordinance amending AMC 2.50.070 and AMC 2.28.045 as presented. Under the current Ashland Municipal Code: • Any proposed new intergovernmental agreement that binds the City must be specifically approved by City Council if it is an intergovernmental agreement, no matter how minor. • Renewal of any existing intergovernmental agreement must be approved by City Council if it contains any proposed changes, no matter how small. • The City Administrator is authorized to approve renewal of an existing intergovernmental agreement only if it contains no changes. • The City Administrator is authorized to approve contracts for materials, supplies, equipment, services and public improvements in an amount up to $100,000 and for personal services in an amount up to $75,000 and nevertheless has no delegated authority to approve new intergovernmental agreements and or intergovernmental agreement renewals. • Substantial time and effort is spent by City staff in preparing for City Council consideration new intergovernmental agreements and intergovernmental renewals, even in the typical cases where the potential benefits are substantial and the likely financial and other consequences to the City are minimal. • Intergovernmental agreements and intergovernmental agreement renewals are presently approved generally by City Council by en bloc voting on the consent agenda, except in rare cases where financial or other consequences to the City could be substantial. The proposed changes would delegate authority to the City Administrator to approve routine intergovernmental agreements of up to $25,000 and renewal of intergovernmental agreements that are Page 1 of 2 ,Vital CITY OF ASHLAND modified in accordance with the agreement or that do not increase annual costs to the City by more than 25% above those in the initial agreement. COUNCIL GOALS SUPPORTED: N/A FISCAL IMPLICATIONS: N/A STAFF RECOMMENDATION AND REQUESTED ACTION: Staff recommends Council approval of second reading of this ordinance. SUGGESTED MOTION: I move to approve the second reading of an ordinance titled, "An Ordinance Amending AMC 2.50.070 and AMC 2.28.045 Public Contracting Delegated Officer Authority for Intergovernmental Agreements" as presented. ATTACHMENTS: Ordinance Page 2 of 2 ORDINANCE NO. AN ORDINANCE AMENDING AMC 2.50.070 AND AMC 2.28.045 PUBLIC CONTRACTING DELEGATED OFFICER AUTHORITY FOR INTERGOVERNMENTAL AGREEMENTS Annotated to show de et o s and additions to the code sections being modified. Deletions are bold lined through and additions are bold underlined. WHEREAS, Article 2. Section 1 of the Ashland City Charter provides: Powers of the City. The City shall have all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession. WHEREAS, under the current Ashland Municipal Code, any proposed new agreement that binds the City must be specifically approved by City Council if it is an intergovernmental agreement, no matter how minor. WHEREAS, under the current Code, renewal of any existing intergovernmental agreement must be approved by City Council if it contains any proposed changes, no matter how small. WHEREAS, under the current Code, the City Administrator is authorized to approve renewal of an existing intergovernmental agreement only if it contains no changes. WHEREAS, under the current Code, the City Administrator is authorized to approve contracts for materials, supplies, equipment, services and public improvements in an amount up to $100,000 and for personal services in an amount up to $75,000 and nevertheless has no delegated authority to approve new intergovernmental agreements and or intergovernmental agreement renewals. WHEREAS, substantial time and effort is spent by City staff in preparing for City Council consideration of new intergovernmental agreements and intergovernmental renewals, even in the typical cases where the potential benefits are substantial and the likely financial and other consequences to the City are minimal. WHEREAS, intergovernmental agreements and intergovernmental agreement renewals are typically approved by City Council by en bloc voting on the consent agenda, except in rare cases where financial or other consequences to the City could be substantial. Ordinance No. Page 1 of 4 WHEREAS, City Council wishes to delegate authority to the City Administrator to approve intergovernmental agreements and intergovernmental agreement renewals that are routine or that do not require substantial investments, obligations, or risks to be undertaken by the City. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Ashland Municipal Code 2.50.070 Public Contracting Officer Authority and Ashland Municipal Code 2.28.045 City Administrator - Delegated Duties are amended to read as follows: 2.50.070 Public Contracting Officer Authority A. Except as otherwise provided by this code, the Public Contracting Officer shall have authority to: 1. Purchase and contract for all materials, supplies, equipment, services and public improvements for which funds have been appropriated by the City Council and the contract price does not exceed $100,000; 2. Contract for all personal services as long as the contract price does not exceed $75,000; 3. Sell or dispose of all personal property of the city in accordance with AMC 2.54; and 4. Enter into any intergovernmental agreement as long as the annual cost to the City does not exceed 525,000 and the agreement does not create a new intergovernmental entity. Contracts approved under this section require no further approvals by the Local Contract Review Board. B. Except when this Chapter, or the Oregon Public Contracting Code and Model Rules, specifically requires the Local Contract Review Board to take action or exercise its discretion and delegation is not allowed, any act required or permitted to be performed by an "agency," "head of a contracting agency," "local contract review board" or the "director" under the Model Rules or Oregon Public Contracting Code shall be performed by the Public Contracting Officer. C. The Public Contracting Officer may develop such forms that are convenient to the administration of the City' s contracts and may promulgate procedures reasonably necessary to accomplish the purposes of this Chapter, the Model Rules, and the Oregon Public Contracting Code. The City Attorney may promulgate standard forms for use by the Public Contracting Officer. Section 2.28.045 City Administrator - Delegated Duties A. Acceptance of real property, or interest therein. Except when a public hearing before the governing body is required by state or local law, the City Council hereby authorizes and delegates to the City Administrator the authority to indicate, for purposes of recording in Official Deed records, the City of Ashland's acceptance of real property title or an interest in real property pursuant to ORS 93.808. The City Administrator may execute an instrument Ordinance No. Page 2 of 4 conveying fee title to the City or conveying any interest in real property to the City, after approval of the form by the City Attorney and approval of the description of the property by the City Surveyor. City acceptance shall be in substantially the following form: CITY ACCEPTANCE (ORS 93.808): CITY OF ASHLAND. Grantee By: City Administrator City of Ashland, Oregon STATE OF OREGON) ) ss. Jackson County ) The foregoing instrument was acknowledged before me this day of 20 , by as City Administrator of the City of Ashland. Notary Public for Oregon My commission expires: B. Renewal of intergovernmental agreements. The City Council hereby delegates its authority to renew intergovernmental agreements to the City Administrator when: 1) state or local law does not require a public hearing before the governing body.;.-,-*" 2) the terms of the intergovernmental agreement will be modified in accordance with the initial al4reement, or the annual costs to the City will not be more than twenty-five percent (25%) treater than those in the initial al4reement, and other terms will remain the same; or- be modified in aeeor- anee with the agreement, and 3) the renewal is approved by the City Attorney and the department head that is affected by the renewal. C. Execute Real Property Leases. The City Council hereby delegates its authority to enter into month to month leases of real property to the City Administrator, including but not limited to airport hangar leases, provided the written order entering into the lease of real property is approved by the City Attorney and the department head that is affected by the order. The City Council retains its authority to enter into all other real property leases of any duration. D. Waiver of Penalties and Interest for Late Tax Payments. The City Council hereby delegates its authority to waive penalties and interest for certain late tax payments to the City Administrator under only the following circumstances: 1) the waiver of penalties and interest concerns either a tax owed under AMC 4.24 [Transient Occupancy tax] or under AMC 4.34 [Food and Beverage tax], and 2) the operator submits a report that is complete and paid in full no more than seventy-two (72) hours or three work days delinquent, whichever is longer, and 3) the operator has reported and paid all monies(including food and beverage and transient occupancy tax) due to the City on or before the due date for each reporting period for the each of the prior twenty-four (24) consecutive months or eight (8) consecutive quarters, and Ordinance No. Page 3 of 4 4) the operator has not been the subject of a Food and Beverage tax or Transient Occupancy tax audit where the City found the operator' s record keeping, reporting or remitting deficient, during the prior twenty-four (24) consecutive months or eight (8) consecutive quarters, and 5) the written order granting the waiver is approved by the City Attorney and the department head that is affected by the order. E. The City Administrator shall biannually report to the City Council on the matters executed pursuant to this Chapter. SECTION 2. Savings. Notwithstanding this amendment/repeal, the City ordinances in existence at the time any criminal or civil enforcement actions were commenced, shall remain valid and in full force and effect for purposes of all cases filed or commenced during the times said ordinances or portions thereof were operative. This section simply clarifies the existing situation that nothing in this Ordinance affects the validity of prosecutions commenced and continued under the laws in effect at the time the matters were originally filed. SECTION 3. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. SECTION 4. Codification. Provisions of this Ordinance shall be incorporated in the City Code, and the word "ordinance" may be changed to "code", "article", "section", or another word, and the sections of this Ordinance may be renumbered or re-lettered, provided however, that any Whereas clauses and boilerplate provisions (i. e., Sections 2-4] need not be codified, and the City Recorder is authorized to correct any cross-references and any typographical errors. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the day of 2017, and duly PASSED and ADOPTED this day of , 2017. Barbara M. Christensen, City Recorder SIGNED and APPROVED this day of , 2017. John Stromberg, Mayor Reviewed as to form: David H. Lohman, City Attorney Ordinance No. Page 4 of 4