HomeMy WebLinkAbout1999-123 Franchise Agrmt - AT&T City of Ashland
Limited Use
Telecommunications Franchise Agreement
Limited Use Franchise agreement authorized pursuant to Ashland Municipal Code
Title 16 between the City of Ashland (City) and AT&T Corp., a New York corporation
(AT&T) dated this / '7 day of (~/-Z~ ,1999.
1 Grant of franchise. City grants to AT&T, its successors and assigns, a limited
use franchise to construct, operate and maintain a telecommunications system,
with all necessary facilities under the surface of Dead Indian Memorial Road for
a distance of 400 linear feet, from State Highway 66 north to the city limits
(further referred to in this franchise as the "limited use franchise street."
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Term. The term of this franchise shall be five years from the date listed above
unless terminated sooner as provided in this agreement or as provided in
Title 16.
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Fee. Grantee shall pay as a franchise fee to the City, through the duration of this
franchise: (1) From October 1, 1998, to June 30, 2001, the greater of either:
(a) the minimum annual franchise fee of $4,000; or, (b) $1.22 per linear foot of
right of way occupied. Payment of the franchise fee shall be made annually in
advance before June 30 of each year, provided, however, the franchise fee for
the period October 1, 1998 to June 30, 1999, shall be paid upon execution of this
agreement. This fee shall increase annually in July of each year, by multiplying
the fee by a fraction, the numerator of which is the CPI Index Figure for the
month of March preceding the July in which the fee is to be increased and the
denominator of which is the Base CPI Index Figure. As used in this section,
"Index" refers to the All Urban Consumers (CPI-U), U.S. City Average, CPI index
published by the Bureau of Labor Statistics of the United States Department of
Labor. "Base CPI Index Figure" shall refer to the Index number indicated for the
month of March, 1998, and the "CPI Index Figure" for any other month shall refer
to the Index number for that month. (2) Beginning July 1, 2001, the fee shall be
the greater of the minimum annual franchise fee or $2.50 per linear foot. This fee
shall increase annually by the CPI Index as set forth above. (3) For the period
from October 1988 to September 1998, the total sum of $4,000 due 30 days
from the date of this franchise.
3.1.
Franchise fee payments not received by the City on or before the due
date shall be assessed interest at the rate of one percent over the existing
prime rate as set by the bank with which the City contracts for its banking
services, compounded daily. Interest shall be due on the entire late
payment from the date on which the payment was due until the date on
which the City receives the payment.
3.2.
No acceptance of any payment by Grantee shall be construed as an
accord that the amount paid is, in fact, the correct amount, nor shall
any acceptance of payments be construed as a release of any claim
the City may have for further or additional sums payable. All amounts
paid shall be subject to confirmation and recomputation by the City,
provided that such audit and computation is completed within three
years of the date any audited and recomputed payment is due. If no
such audit or financial review is conducted within the three year
period, then any claim that the City might have had for additional
compensation shall be forever waived and relinquished. The Grantee
agrees to reimburse the City for:
3.2.1.
The reasonable costs of such confirmation if the City's recomputation
discloses that the Grantee has paid 95 % or less of the franchise fees
owing for the period at issue upon receipt of an invoice from the City
showing such costs were actually incurred and directly related to the
audit; or
3.2.2.
One-half of the reasonable costs of such confirmation if the City's
recomputation discloses that the Grantee had paid more than 95%
but less than 98% of the franchise fees owing for the period at issue.
3.2.3.
The City's costs which may be reimbursed under this section shall not
exceed $5,000.00 per audit or financial review. Audits or financial
reviews subject to reimbursement under this section shall be
conducted no more frequently than once every three years.
3.2.4.
If the City determines that Grantee made any underpayment, and that
the underpayment exceeded 5 % of the amount due, Grantee shall
pay interest compounded at the rate of one percent (1%) over the
existing prime rate as set by the bank with which the City contracts for
its banking services, compounded monthly. Interest shall be due on
the entire underpayment from the date on which payment was due
until the date on which full payment is received.
3.3.
If the Grantee disputes the City's determination of underpayment, the
Grantee shall place the disputed amount in an escrow account until
final resolution.
3.4.
All Grantee's books, maps, and records directly concerning the
location within the right of way under this franchise and its calculation
of franchise fee payments to the City shall be open for inspection by
the proper officers or agents of the City, upon no less than 48 hours
prior written notice, during normal business hours to determine the
amount of compensation due the City under this franchise, and shall
be kept so as to accurately show the same.
3.5.
Payment of the franchise fee shall not exempt Grantee from the
payment of any license fee, tax or charge on the business,
occupation, property or income of Grantee that may be lawfully
imposed by the City or any other taxing authority, except as may
otherwise be provided in the ordinance or laws imposing such other
license fee, tax or charge.
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Title 16 Ashland Municipal Code, Charter and General Ordinances To
Apply.
4.1.
Unless the context requires otherwise, words and phrases used in this
franchise shall have the same meaning as defined in Title 16,
Telecommunications, Ashland Municipal Code. All of the provisions of
Title 16 are incorporated by reference and made a part of this franchise.
In the event of any inconsistencies in the terms of this franchise and Title
16, the more restrictive provisions of Title 16 shall take precedence over
franchise terms unless Title 16 specifically authorizes the franchise to
provide otherwise.
4.2.
The Charter of the City of Ashland and general ordinance provisions of
the City affecting matters of general City concern and not merely existing
contractual rights of Grantee, now in effect or adopted in the future, are
incorporated by reference and made a part of this franchise. Nothing in
this franchise shall be deemed to waive the requirements of the various
codes and ordinances of the City regarding permits, fees to be paid, or the
manner of construction.
General Financial and Insurance Provisions. Grantee shall not be required to
obtain the following which are otherwise required by Title 16, Ashland Municipal
Code.
5.1. Performance Bond (Section 16.12.190).
5.2. Insurance (Section 16.24.100).
5.3. Performance Bond (Section 16.24.120).
6 Covenant to Indemnify and Hold City Harmless.
6.1.
Grantee agrees and covenants to indemnify, defend and hold the City, its
officers, agents and employees, harmless from any claim for injury,
damage, loss, liability, cost or expense, including court and appeal costs
and attorney fees or expenses, arising from any casualty or accident to
person or property by reason of any construction, excavation or any other
act done under this franchise, by or for Grantee, its agents or employees,
or by reason of any neglect or omission of Grantee to keep its
telecommunications system in a safe condition, but not if arising out of or
by reason of any negligence or willful misconduct by the City, its officers,
agents or employees. The City shall provide Grantee with prompt notice of
any such claim which Grantee shall defend with counsel of its own
choosing and no settlement or compromise of any such claim will be done
by the City without the prior written approval of Grantee. Grantee and its
agents, contractors and others shall consult and cooperate with the City
while conducting its defense of the City.
6.2.
Grantee also shall indemnify the City for any damages, claims, additional
costs or expenses assessed against or payable by the City arising out of
or resulting, directly Or indirectly, from Grantee's failure to remove, adjust
or relocate any of its Facilities in the limited use franchise street in a timely
manner in accordance with a relocation schedule furnished to Grantee by
the City Engineer, unless Grantee's failure arises directly from the City's
negligence or willful misconduct.
Construction and Relocation.
7.1.
Subject to applicable regulations of the City, Grantee may perform all
necessary construction to construct, operate and maintain its
telecommunications system. All construction and maintenance of any and
all telecommunications system facilities within the limited use franchise
street subject to this franchise and incident to Grantee's provision of
telecommunications services shall, regardless of who performs installation
or construction, be and remain the responsibility of Grantee. Grantee shall
apply for and obtain all permits necessary for installation or construction of
any such facilities, and for excavation and laying of any
telecommunications system facilities within this limited use franchise
street. Grantee shall pay all applicable fees due for City construction
permits.
7.2.
Prior to beginning construction, Grantee shall provide the City with an
initial construction schedule for work in the limited use franchise street
and the estimated total cost of such work.
7.3.
7.4.
Grantee may make excavations in the limited use franchise street for any
facility needed for the maintenance or extension of the Grantee's
telecommunications system, subject to obtaining permits from the City.
Prior to doing such work, Grantee must apply for, and obtain, appropriate
permits from the City, and give appropriate notices to any other
franchisees, licensees or permittees of the City owning or maintaining
facilities which may be affected by the proposed excavation.
In the event that emergency repairs are necessary for Grantee's facilities
in the limited use franchise street, Grantee shall immediately notify the
City of the need for such repairs. Grantee may immediately initiate such
emergency repairs, and shall apply for appropriate permits the next
business day following discovery of the emergency. Grantee must comply
with all ordinance provisions relating to such excavations or construction,
including the payment of permit or license fees.
7.5.
Grantee is responsible for becoming familiar with, and understanding the
provisions of ORS Chapter 757, governing the location of underground
facilities (the "One-Call statutes"). Grantee shall comply with the terms
and conditions set forth in the One-Call statutes.
7.6.
Grantee shall at its own expense temporarily or permanently remove,
relocate, change or alter the position of any of its facilities when directed
to do so by City in compliance with Ashland Municipal Code Title 16.
7.6.1.
Whenever any person or entity, other than the City, requires the relocation
of Grantee's facilities to accommodate the work of such person or entity
within the franchise area; or whenever the City requires the relocation for
the benefit of any person or entity other than the City, then Grantee shall
have the right as a condition of such relocation to require such person or
entity to:
A. Make payment to Grantee, at a time and upon terms
acceptable to Grantee, for any and all reasonable costs and expenses
incurred by Grantee in the relocation of Grantee's facilities; and
B. Indemnify and save Grantee harmless from any and all
claims and demands made against it on account of injury or damage to
the person or property of another arising out of or in conjunction with the
relocation of Grantee's facilities, to the extent such injury or damage is
caused by the negligence of the person or entity requesting the relocation
of Grantee's facilities or the negligence of agents, servants or employees
of the person or entity requesting the relocation of Grantee's facilities.
7.6.2.
Whenever the City causes the grading or widening of the franchise area
(for purposes other than those described in section 7.6.1) and such
grading or widening requires the relocation of Grantee's then existing
facilities within the franchise area, the City shall:
A. Provide Grantee, within a reasonable time prior to the
commencement of such grading or widening, written notice requesting
such relocation; and
B. Provide Grantee with copies of any available plans and
specifications for such grading or widening.
After receipts of such notice and such plans and specifications, Grantee
shall relocate such facilities within the franchise area to a place or area
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provided by the City and such relocation shall be at no charge to the City.
Any condition or requirement imposed by the City upon any person or
entity, other than Grantee or the City (including, without limitation, any
condition or requirement imposed pursuant to any contract or in
conjunction with approvals or permits for zoning, land use, construction or
development) which requires the relocation of Grantee's facilities shall be
a required location for purposes of the above.
Nothing in sections 7.6.1 or 7.6.2, shall require Grantee to bear any cost
or expense in connection with the location or relocation of any facilities
then existing under benefit or easement or such other prior rights.
7.7
Grantee's telecommunications system shall be constructed and
maintained in such manner as not to interfere with City sewers, water
systems, electric systems or any other facilities of the City.
Reservation of City Street Rights; Requirements for Undergrounding.
8.1
Nothing in this franchise shall be construed to prevent the City from
constructing sewers, water systems, electric systems, grading, paving,
repairing or altering any limited use franchise street or constructing or
establishing any other public work or improvement.
8.2
If any of the Grantee's telecommunications system interferes with the
construction or repair of any City sewer, water or electric system, street or
public improvement, the Grantee's system shall be removed or replaced
in the manner the City shall direct. Any and all such removal or
replacement by Grantee shall be without expense to the City. Should
Grantee fail to remove, adjust or relocate its facilities by the date
established by the Public Works Director written notice to Grantee, the
City may cause or effect such removal, adjustment or relocation, and the
expense thereof shall be paid by Grantee, including all costs and
expenses incurred by the City due to Grantee's delay.
8.3
Grantee shall install its telecommunications facilities underground unless
the City specifically permits attachments to utility poles or other
aboveground facilities. Grantee shall install its telecommunications
facilities within an existing underground duct or conduit owned by it
whenever surplus capacity exists within such utility facility. If Grantee has
permission to install overhead facilities, Grantee shall install its
telecommunications facilities on pole attachments to existing utility poles
only, and then only if surplus space is available as determined by the
Department of Electric Utilities. Whenever any existing electric utilities are
located underground within a public right of way of the City, Grantee shall
also locate its telecommunications facilities underground. Whenever any
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overhead electric utilities are relocated underground, Grantee shall also
locate its telecommunication facilities underground.
City's Written Consent Required for Assignment, Transfer, Merger, Lease
or Mortgage. Ownership or control of a telecommunications system or franchise
may not, directly or indirectly, be transferred, assigned or disposed of by sale,
lease, merger, consolidation or other act of the Grantee, by operation of law or
otherwise, without the prior consent of the City, which consent shall not be
unreasonably withheld or delayed, and then only on such reasonable conditions
as may be prescribed in such consent.
9.1
Grantee and the proposed assignee or transferee of the grant or system
shall provide and certify the following information to the City not less than
120 days prior to the proposed date of transfer:
9.1.1 Complete information setting forth the nature, terms and
condition of the proposed transfer or assignment;
9.1.2
All information required of a telecommunications franchise
applicant pursuant this chapter with respect to the proposed
transferee or assignee;
9.1.3 Any other information reasonably required by the City.
9.2
No transfer shall be approved unless the assignee or transferee has the
legal, technical, financial and other requisite qualifications to own, hold
and operate the telecommunications system pursuant to this title.
9.3
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 a telecommunications franchise.
9.4
Any transfer or assignment of a telecommunications grant, system or
integral part of a system without prior approval of the City under this
section shall be void and is cause for revocation of the franchise.
Miscellaneous Provisions.
10.1
Both Grantee and the City shall comply with all applicable federal and
state laws. Grantee shall comply with all applicable City ordinances,
resolutions, rules and regulations adopted or established pursuant to the
City's lawful authority.
10.2
If any section, provision or clause of this franchise is held by a court of
competent jurisdiction to be invalid or unenforceable, or is preempted by
federal or state laws or regulations, the remainder of this franchise shall
not be affected, unless the city council determines such section, provision,
or clause was material to the City's agreement to issue a franchise to the
Grantee.
10.3
The city council or the city administrator shall be vested with the power
and authority to reasonably regulate the exercise of the privileges
permitted by this franchise in the public interest. Grantee shall not be
relieved of its obligations to comply with any of the provisions of this
franchise by reason of any failure of the City to enforce prompt
compliance, nor does the City waive or limit any of its rights under this
franchise by reason of such failure or neglect.
10.4
Any litigation between the City and the Grantee arising under or regarding
this franchise shall occur, if in the state courts, in the Jackson County
Circuit Court, and if in the federal courts, in the United States District
Court for the District of Oregon.
10.5
Any notice provided for under this franchise shall be sufficient if in writing
and (1) delivered personally to the following addressee or deposited in the
United States Mail, postage prepaid, certified mail, return receipt
requested, (2) sent by overnight or commercial air courier (such as
Federal Express), or (3) sent by facsimile transmission addressed as
follows, or to such other address as the receiving party shall specify in
writing:
If to the City: City Administrator, City Hall, 20 East Main Street,
Ashland, Oregon 97520; FAX 541-488-5311
If to the Grantee: Right-of-Way Engineer -~ State of Oregon, AT&T,
1200 Peachtree Street, NE- Prom Annex, Location PA168,
Atlanta, GA 30309; FAX 404-810-4444
Any such notice, communication or delivery shall be deemed effective and
delivered upon the earliest to occur of actual delivery, three business days after
depositing in the United States mail as aforesaid, one business day after
shipment by commercial air courier or the same day as facsimile transmission (or
the first business day thereafter if faxed on a Saturday, Sunday or legal holiday).
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Other Authority Superseded. Upon effectiveness of this franchise, any and all
authority to operate previously granted to Grantee by the City shall be
superseded by this franchise.
12.
Reservation by Grantee. Nothing in this agreement shall be construed as a
waiver by Grantee of its rights under applicable law. Grantee hereby reserves
the right (and in no way waives any right) to challenge the enforcement of the
requirements contained herein or in the City's Municipal Code as being
inconsistent with applicable law. City agrees to such reservation and non-waiver
by Grantee.
Grantee
city
Title~,..;3ulian K. Ingrain '
DistrictManager - OSP
Engineering and Process
By: q~_~a"~ ~2~
Don Laws
Gity Recorder, Barbara Ghdstensen
Content review by -__ on ,
LeEel renew by ~ on ~////FF