HomeMy WebLinkAbout2000-021 Utility Franchise Agmt - US West City of Ashland
Telecommunications Utility Franchise Agreement
Franchise agreement authorized pursuant to Ashland Municipal Code Title 16 between
the City of Ashland (City) and U S WEST Communications, Incorporated (U S WEST or
Grantee) and dated this/(,, day of '~tj{zx~.~, 2000 but effective October 1, 1998.
1 Grant of Franchise. City grants to U S WEST, its successors and assigns, the
non-exclusive right and privilege to provide telecommunications service within
the City of Ashland and to place, erect, lay, maintain and operate in, upon, over
and under the streets, alleys, avenues, thoroughfares, and public highways,
within the City, poles, wires and other appliances and conductors for
telecommunications service. Such wires and other appliances and conductors
may be strung upon poles or other fixtures above ground, or where required to
by the City, must be laid underground, and such other apparatus may be used
as may be necessary or proper to operate and maintain the same.
2
Excavations. Grantee may make all necessary excavations in any of the streets,
alleys, avenues, thoroughfares and public highways in the City for the purpose
of placing, erecting, laying and maintaining poles or other supports or conduits
for such wires and appliances and auxiliary apparatus or repairing, maintaining,
renewing or replacing the same. The work must be done in compliance with the
necessary rules, regulations, ordinances or orders, which may during the
continuance of this franchise be adopted from time to time by the City.
3
Restoration. Whenever Grantee disturbs any of the streets for the purposes
stated in this agreement, it must restore the same to good order and condition as
soon as practicable without unnecessary delay, and failing to do so, the City has
the right to fix a reasonable time in writing within which such repairs and
restoration of streets must be completed, and upon failure of such repairs being
made by the Grantee, the City may cause the repairs to be made at the expense
of the Grantee. Restoration of the streets shall a~so be governed by Sections
16. t 2.170 and 16.12.180 of the Ashland Municipal Code.
4
I~elocation. Nothing in this agreement will be construed in any way to prevent
the proper authorities of the City from sewering, grading, planking, rocking,
paving, repairing, altering, or improving any of the streets, alleys, avenues,
thoroughfares and public highways within the City of Ashland in or upon which
the poles, wires or conductors of the Grantee are placed, but all such work or
improvements will be done if possible so as not to obstruct or prevent the free
use of these poles, wires, conductors, conduits, pipes, or other apparatus.
Grantee must, at no cost to City, temporarily remove, relocate, change or alter
the position of any of its facilities when reasonably necessary and directed to do
so by City in compliance with Ashland Municipal Code Title 16.
Page 1-Telephone Utility Franchise 1999 (DA0036Z2.411)
4.1
Grantee shall not be required to temporarily remove, relocate, change or
alter the position of any of its facilities when requested by the City if the
City requests such removal, relocation, change or alteration for the City's
provision of telecommunications services.
5
Moving Aerials. Whenever it becomes necessary to temporarily rearrange,
remove, lower or raise the aerial cables or wires or other apparatus of the
Grantee to permit the passage of any building, machinery or other object moved
over the roads, streets, alleys, avenues, thoroughfares and public highways
within the City, the Grantee will perform such a rearrangement within a
reasonable period after written notice from the owner or contractor-mover
desiring to move the building, machinery or other objects. The notice must bear
the approval of the City, must detail the route of movement of the building,
machinery, or other object, must provide that the costs incurred by the Grantee
in making such a rearrangement of its aerial facilities will be borne by the
contractor-mover and must further provide that the contractor-mover will
indemnify and save the Grantee harmless of and from any and all damages of
claims whatsoever kind or nature caused directly or indirectly from such
temporary rearrangement of the facilities of the Grantee, and if required by the
Grantee, must be accompanied by a cash deposit or a good and sufficient bond
to pay any and all such costs as estimated by the Grantee.
6
Payment by Grantee. Grantee will pay to the City seven percent per annum of
its gross revenues derived from exchange access services as defined in ORS
401.710 within the corporate limits of the City of Ashland less net uncollectibles.
Payment of this franchise fee is to be made quarterly or before April 30, July 31,
October 31 and January 31 for the calendar quarters immediately preceding.
Payment of this franchise fee shall be accepted by the City as payment of any
permit or inspection fees or similar charges for street openings, installations,
construction or maintenance imposed by the City upon the Grantee during the
term of this franchise.
61
No acceptance of any payment is be construed as an accord that the
amount paid is, in fact, the correct amount, nor is any acceptance of
payments be construed as a release of any claim the City may have for
further or additional sums payable. All amounts paid under section 6 are
subject to confirmation and recomputation by the City, provided that such
audit and computation is completed within two years of the date any
audited and recomputed payment is due. If no such audit is conducted
within the two year period, then any claim that the City might have had for
additional compensation will be forever waived and relinquished. The
Grantee agrees to reimburse the City for:
A. The reasonable costs of such confirmation if the City's
recomputation discloses that the Grantee has paid 95 % or less of the
Page 2-Telephone UtiJity Franchise 1999 (PAO03672.411)
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
B. 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.
C. The City's costs which may be reimbursed under this Section
6.1 shall not exceed $5,000.00.
D. If the City determines that Grantee made any underpayment,
and that the underpayment exceeded 5 % of the amount due, Grantee will
pay interest compounded 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 monthly. Interest will be due on the entire
underpayment from the date on which payment was due until the date on
which full payment is received.
E. If the Grantee disputes the City's determination of
underpayment, the Grantee will place the disputed amount in an escrow
account until final resolution.
F. All Grantee's nonconfidential books, maps, and records directly
concerning its gross revenues under this franchise and its calculation of
franchise fee payments to the City must 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 solely to determine the
amount of compensation due the City under this franchise, and must be
kept so as to accurately show the same. The information disclosed by
Grantee pursuant to this provision shall not be used by the City for any
purpose other than determining the amount of compensation due the City
and shall not be copied, reproduced, or otherwise duplicated by the City
without the express written consent of Grantee.
6.2
Notwithstanding Section 16.24.070 of the Ashland Municipal Code,
Grantee shall not be required to pay the City any fee other than the
franchise fee described in this Section 6.
7
Term. The rights, privileges and franchise granted in this agreement will
continue and be in force for the period of five years from and after October 1,
1998. The City may terminate this agreement subject to Section 16.20.170 of
the Ashland Municipal Code. Grantee may terminate this agreement upon 180
days' notice in writing. This agreement shall be subject to any and all State or
Federal legislative enactments.
Page 3-Telephone Utility Franchise 1999 (PA003672.411)
8
Indemnification. Grantee will defend, indemnify and hold the City and its
officers, employees, agents and representatives harmless from and against any
and all damages, losses and expenses, including reasonable attorney's fees and
costs of suit or defense, arising out of, resulting from or alleged to arise out of or
result from the negligent, careless or wrongful acts, omissions, failures to act or
misconduct of the Grantee or its affiliates, officers, employees, agents,
contractors or subcontractors in the construction, operation, maintenance, repair
or removal of its telecommunications facilities, and in providing or offering
telecommunications services over the facilities or network, whether such acts or
omissions are authorized, allowed or prohibited by this franchise agreement.
Nothing in this provision shall require Grantee to indemnify the City against the
negligent or intentional acts or omissions of the City, its Departments,
employees, agents, or representatives.
9
Hazardous Substances. Grantee must comply with all applicable state and
federal laws, statutes, regulations and orders concerning hazardous substances
relating to grantee's telecommunications facilities in the city streets. For
purposes of this section, "hazardous substances" has meaning given in ORS
465.200(15).
9.1
Grantee must maintain and inspect its facilities located in the city streets.
Upon reasonable notice to Grantee and in the presence of an authorized
representative of Grantee, the 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 facilities.
9.2
Whenever Grantee removes, relocates, changes or alters its facilities,
Grantee must also remove all residue of hazardous substances in
compliance with applicable environmental clean-up standards.
9.3
Grantee agrees to forever defend, indemnify and hold the City and its
officers, employees, agents and representatives harmless against any
claims, costs, and expenses, of any kind, whether direct or indirect,
incurred by the City arising out of the release or threat of release of
hazardous substances caused by Grantee's ownership or operation of a
telecommunications utility in the streets. Nothing in this provision shall
require Grantee to indemnify the City against the negligent or intentional
acts or omissions of the City, its Departments, employees, agents, or
representatives.
10
Assignment. Assignment of this agreement shall be governed by Sections
16.20, 150 and 16.20.160 of the Ashland Municipal Code.
11 Construction Standards. Construction standards shall be governed by Chapter
Page 4-Telephone Utility Franchise 1999 (PA003672.411)
12
13
14
16.12 of the Ashland Municipal Code, subject to the following:
11.1 Grantee shall not be required to pay a construction permit fee as
described in Section 16.12.070 of the Ashland Municipal Code.
11.2 Grantee shall not be required to obtain a construction and completion
bond as described in Section 16.12.190 of the Ashland Municipal Code.
11.3
As part of the construction permit application, Grantee shall submit
drawings, plans, specifications, or maps showing the general location of
facilities to be installed in the public right of way under the construction
permit. The drawings, plans, specifications, or maps may be hand-drawn
or computer-generated at Grantee's discretion.
Insurance. Grantee shall not be required to obtain insurance as described in
Section 16.24.100 of the Ashland Municipal Code.
Performance Surety. Grantee shall not be required to provide and maintain a
performance surety as described in Section 16.24.120 of the Ashland Municipal
Code.
Reservation of Rights. Grantee and the City disagree on the legality and
enforceability of several provisions of Title 16 of the Ashland Municipal Code.
Nothing in this Franchise Agreement, nor Grantee's acceptance thereof or
performance pursuant to its terms, shall be deemed a waiver by Grantee of the
rights of Grantee under applicable law. Grantee reserves and in no way waives
any right to challenge enforcement of these requirements and the City
acknowledges such reservation and non-waiver by Grantee.
City
Page 5-Telephone Utility Franchise 1999 (PA003672.411)
CITY OF ASHLAND
Office of the City Attorney
20 East Main, Ashland, OR 97520
(541) 488-5350 - ~
(541) 488-5311 - Fax
February 23, 2000
Paul Nolte, CIty Attorney
Sharlene P. Stephens, Legal Assistant
Greg Peden
Manager- Public Policy
U S West
421 Southwest Oak Street, Suite 8, South 8
Portland, OR 97204
RE: Telecommunications Utility Franchise Agreement
The City of Ashland Telecommunications Utility Franchise Agreement with U S West,
Inc., was approved by the Ashland City Council on February 15, 2000, and signed by
Mayor Shaw on February 16, 2000. Attached is one of the two signed ori~inals for your
records.
CITY ATTORNEY'S OFFICE
Sharlene P. Stephens
Legal Assistant
Attachment
F:\USER\PAUL%Telecommunications\Peden Itr 0200.wpd
E-Mail Addresses: paul@ashland.or.us ~'~ shaderie@ashland.or. us