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HomeMy WebLinkAbout1989-072 Acceptance - US SprintACCEPTANCE U S SPRINT Communications Company, A Delaware Limited Partnership, unconditionally accepts the terms of this franchise and promises to comply with and abide by all of its provisions, terms and conditions. U S SPRINT COMMUNICATIONS CO. A Delaware Limited Partnership State of ~ ) coun ss: ' Personally appeared the above named who being duly sworn, did say that he is th ~.~ of U S SPRINT CO~UNICATIONS COMPLY, A Delaware Limited Partnership, and acknowledged said instr~ent to be the free act and deed of said joint venture. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. Notary Public for the State of My Commission Expires O DIN CE No. AN ORDINANCE GRANTIN~ TO US SPRINT COMMUNICATIONS COMPANY, A DELAWARE LIMITED PARTNERSHIP, ITS SUCCESSORS, ASSIGNS, LESSEES AND AGENTS, THE RIGHT, PRIVILEGE, AUTHORITY AND FRANCHISE TO CONSTRUCT, OPERATE, MAINTAIN, REPLACE ~ REMOVE SUCH COMMUNICATIONS EQUIPMENT AS MAY, FROM TIME TO TIMEr BE REQUIREDv CONSISTING OF UNDERGROUND C~tBLES~ WIRES, CONDUITS~ MANHOLES~ DRAINS, SPLICING BOXES, SURFACE LOCATION NARKERS AND OTHER FACILITIES FOR SIMILAR USES, IN, UPON, OVER, UNDER, ALONG~ ACROSS ~ THROUGH THE FR]tNCHISE AREA FOR THE PURPOSE OF OPERATING AS A CARRIER OF LONG DISTANCE TELECOMMUNICATIONS TRAFFIC. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Definitions. Where used in this franchise (the "Franchise"), the following terms shall mean: "City" means the City of Ashland, a municipal corporation of the State of Oregon. "Franchise area" means: Any, every and all of the roads, streets, avenues, alleys and highways of the City now laid out, platted, dedicated or improved; and any, every and all roads, streets, avenues, alleys and highways that may hereafter be laid out, platted, dedicated or improved within the present limits of the City and as such limits may be hereafter extended. PROVIDED, HOWEVER, that nothing herein shall be intended or construed to include within the Franchise area any property of rights not under the exclusive control and jurisdiction of the City. "Facilities" means poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, braces, guys, anchors, vaults and all necessary or convenient facilities and appurtenances thereto, whether the same be located Over or under ground. "Ordinance" means this ordinance and any amendments thereto which sets forth the terms and conditions of this franchise. SECTION 2. FACILITIES WITHIN FRANCHISE AREA. The City does hereby grant to US Sprint the right, privilege, authority and franchise to: set, erect, bury, construct, support, attach, connect and stretch facilities between, maintain, repair, replace, operate and use facilities, in, upon, over, under, along, across and through the franchise area for purposes of all operations as may be required to operate as a carrier of long distance telecommunications traffic. Underground placement of cable is strongly encouraged, and in all sections of the City where facilities of other public utilities are placed underground, US Sprint shall place its facilities underground at its expense. However, this requirement shall not apply to existing facilities unless such facilities are being replaced or rebuilt. -1- SECTION 3. NONINTERFERENCE OF FACILITIES. US Sprint's facilities shall be installed and maintained within the franchise area so as not to unreasonably interfere with other facilities and or utilities already located in the franchise area previously authorized by the City, and the free passage of traffic. Subject to the provisions of Chapter 13.12 of the Municipal Code, whenever it shall be necessary for US Sprint, in the exercise of its rights under this franchise, to make any excavation in the franchise area, US Sprint shall, upon completion of such excavation, restore the surface of the franchise area, as nearly as practicable, to the same condition it was in prior to such excavation. The work shall be done in compliance with the necessary rules, regulations, ordinances, orders, and fees, which may during the continuance of this franchise be adopted from time to time by the City. SECTION 4. RELOCATION OF FACILITIES. Whenever any person or entity, other than the City, requires the relocation of US Sprint'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 US Sprint shall have the right as a condition of such relocation to require such person or entity to: (a) Make payment to US Sprint, at a time and upon terms acceptable to US Sprint, for any and all costs and expenses incurred by US Sprint in the relocation of US Sprint's facilities; and (b) Indemnify and save US Sprint 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 US Sprint's facilities, to the extent such injury or damage is caused by the negligence of the person or entity requesting the relocation of US Sprint's facilities or the negligence of the agents, servants or employees of the person or entity requesting the relocation of US Sprint's facilities. Whenever the City causes the grading or widening of the franchise area (for purposes other than those described above) and such grading or widening requires the relocation of US Sprint's then existing facilities within the franchise area, the City shall: (a) Provide US Sprint, within a reasonable time prior to the commencement of such grading or widening, written notice requesting such relocation; and (b) Provide US Sprint with copies of any available plans and specifications for such grading or widening. (c) After receipt of such notice and such plans and specifications, US Sprint shall relocate such facilities within the franchise area to a place or area provided by the City and such relocation shall be at no charge to the City. -2- Any condition or requirement imposed by the City upon any person or entity, other than US Sprint 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 US Sprint's facilities shall be a required location for purposes of the above. Nothing in this Section (Relocation of facilities), shall require US Sprint 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. SECTION 5. INDEMNIFICATION. US Sprint shall indemnify and save the City harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence or intentional act of US Sprint or its agents~ servants or employees in exercising the rights granted US Sprint in this franchise; provided however, that in the event any such claim or demand be presented to or filed with the City, the City shall promptly notify US Sprint thereof, and US Sprint shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand, provided, further, that in the event any suit or action is begun against the City based upon any such claim or demand, the City shall likewise promptly notify US Sprint thereof, and US Sprint shall have the right, at its election and its sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own election. SECTION 6. INSURANCE AND INDEMNIFY. US Sprint shall comply with all regulations of the City regarding insurance and indemnifications for contracts with the City as they may apply. US Sprint shall expressly agree to indemnify, defend and save the city harmless from all liabilities, claims, demands or expenses on account of or arising out of any injury or loss resulting from the exercise of this franchise. US Sprint shall save the City harmless from any losses, expenses or lost revenues incurred by US Sprint, other than the reasonable cost of repair, as a result of negligent injury or damage to US Sprint's property by the City. SECTION 7. DEFAULT. If US Sprint shall fail to comply with the provisions of this franchise, the city may serve upon US Sprint a written order to so comply within forty-five (45) days from the date such order is received by US Sprint. If US Sprint is not in compliance with this franchise after expiration of said forty-five (45) day period, the City may, by City Council action, declare an immediate forfeiture of this franchise, provided, however, if any failure to comply with this franchise by US Sprint cannot be corrected with due diligence within said forty-five (45) day period (US Sprint's obligation to comply and to -3- proceed with due d~ligence being subject to unavoidable delays and events beyond its control), then the time within which US Sprint may so comply shall be extended for such time as may be reasonably necessary and so long as US Sprint commences promptly and diligently to effect such compliance. In the event of such forfeiture, US Sprint shall have no further rights hereunder and this franchise shall immediately end. SECTION 8. NONEXCLUSIVE FRANCHISE. This franchise is not and shall not be deemed to be an exclusive franchise. This franchise shall not in any manner prohibit the City from granting other and further franchises, over, upon, and along the franchise area which do not unreasonably interfere with US Sprint's rights under this franchise. This franchise shall not prohibit or prevent the city from using the franchise area or affect the jurisdiction of the City over the same or any part thereof. SECTION 9. FRANCHISE TERM. This franchise is and shall remain in full force and effect for a period of twel___~v~9. (12) Years from and after the effective date of the ordinance; provided, however, US Sprint shall have no rights under this franchise nor shall US Sprint be bound by the terms and conditions of this franchise unless US Sprint shall, within sixty (60) days after the effective date of the ordinance, file with the City its written acceptance of the ordinance. SECTION 10. ASSIGNMENT. The rights granted by this ordinance inure to the benefit of US Sprint, and any parent, subsidiary, affiliate or any successor entity now or hereafter existing. The rights shall not be assignable without the express written consent of the governing body of the City, except US Sprint may assign its rights under this ordinance to a parent, subsidiary, affiliate or successor entity without such consent so long as (1) such parent, subsidiary, affiliate or successor assumes all obligations of US Sprint hereunder, and (2) is bound to the same extent as US Sprint hereunder. Any required consent is to be evidenced by an ordinance or resolution of the governing body of the City that fully recites the terms and conditions, if any, upon which consent is given. SECTION 11. MISCELLANEOUS. If any term, provision, condition or portion of this franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining portions of this franchise which shall continue in full force and effect. The headings of sections and paragraphs of this franchise are for convenience of reference only and are not intended to restrict, affect or be provisions of such sections or paragraphs. This franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this franchise and is approved and executed in accordance with the laws of the State of Oregon. Without limiting the generality of the foregoing, this franchise (including without limitation, section 5 above), shall govern and supersede and shall not be changed, modified, deleted, added -4- to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise) by US Sprint of any and all rights, benefits, privileges, obligations or duties in and under this agreement to other document, specifically: (a) references this franchise; and (b) states that it supersedes this franchise to the extent it contains terms and conditions which change, modify, delete, add to, supplement or otherwise amend the terms and conditions of this franchise. In the event of any conflict or inconsistency between the provisions of this franchise and the provisions of any such permit, approval, license, agreement to other document, the provisions of this franchise shall control. US Sprint, in exercising any rights granted hereunder, shall at all times comply with any applicable Federal, state or local law and regulation. US Sprint shall be required to compensate the City for any damage to existing utility services caused by the installation or relocation of US Sprint facilities under this franchise agreement. In addition, US Sprint shall be required to restore any and all sidewalks and/or streets on franchise right-of-way to City specifications. It is understood and agreed that US Sprint shall be solely responsible for all costs involved with such repairs to damaged utilities, and restoration of sidewalks and/or streets including the costs of wages paid to City employees while inspecting and insuring compliance with this franchise ordinance. SECTION 12. EFFECTIVE DATE. This ordinance shall, if accepted by US Sprint, take effect and be in force thirty (30) days from and after its passage and approval. US Sprint shall, within thirty (30) days of the passage and approval of this ordinance, if it accepts such ordinance, file with the City Recorder its written acceptance of all the terms and conditions of this ordinance. SECTION 13. FRANCHISE FEE. In consideration of the rights, privileges and franchise hereby granted, said Grantee, its successors and assigns shall, for the first three (3) years of this franchise, pay to the City of Ashland, Oregon, the sum of one dollar ($1.00) per lineal foot of cable (presently $13,689.00 annually), the first payment to be paid within thirty (30) days after the passage of this ordinance, and a like payment on the same day for two years thereafter. For successive three year periods thereafter for the duration of this franchise, the annual payment shall be increased by the National consumer price index for all urban workers (CPI-W), July to July, over the preceding three year period. If the City annexes land which includes cable facilities of US Sprint, the City will notify US Sprint and the next annual payment by US Sprint shall be increased to reflect said annexation. -5- In addition to such franchise fee, US Sprint shall promptly pay to the City the amount necessary to reimburse City for reasonable expenses incurred by the City in assisting and/or facilitating the exercise of US Sprint's rights under this franchise including but not limited to utility line location and/or right-of-way designation performed by the City. The foregoing ordinance was first read on the /~-~day of ~~ , 1989, and duly PASSED and ADOPTED this ~t- day of City Recorder SIGNED and APPROVED this ~0'~- day of , 1989. Mayor -6- September 18, 1989 Mr. Brian L. Almquist City Administrator City Hall Ashland, Oregon 97520 Re: Franchise Ordinance No. 2529 Dear Mr. Almquist: Attached is the signed and notarized acceptance for Franchise Ordinance No. 2529 and a copy of the Ordinance. The check for $13,689.00 is being processed and will be forwarded to you. Si ncerel~, B-fi-~n C. J~rdan Netwbrk P1Snner Cont~a~i~_s ~nd Real Property Admi ni strati on BCJ:le/psO046 Attachment