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HomeMy WebLinkAbout1999-017 Franchise Agrmt - AFN City of Ashland Telecommunications Franchise Agreement Franchise agreement authorized pursuant to Ashland Municipal Code Title 16 between the City of Ashland (City) and the Ashland Fiber Network, a component of the City of Ashland by and through the Department of Electric Utilities (Grantee) and dated this ~ f,8._ day of ~ , 1999. Grant of franchise. City grants to AFN, its successors and assigns, a franchise to construct, operate and maintain a telecommunications system, with all necessary facilities in, under, and over the surface of the City's public streets. 2 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. 3 Fee. Grantee shall pay as a franchise fee to the City, through the duration of this franchise, the greater of either: (a) the minimum annual franchise fee of $4,000; or, (b) an amount equal to five percent of the Grantee's gross revenues. Payment of the franchise fee shall be made quarterly or before April 30, July 31, October 31 and January 31 for the calendar quarters immediately preceding. 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. 3.1 Each payment shall be accompanied by a written report to the City, verified by an officer or other authorized representative of Grantee, containing an accurate statement in summarized form, as well as in detail, of Grantee's gross revenues and the computation basis and method. Such reports shall be in a form satisfactory to the City. 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 two 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: Page 1 -AFN Franchise (F:\USER\PAUL\Telecommunications\Forms\franchise AFNwpd) 3.3 3.4 3.5 3.6 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. 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. If the Grantee disputes the City's determination of underpayment, the Grantee shall place the disputed amount in an escrow account until final resolution. All Grantee's books, maps, and records directly concerning its gross revenues 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. 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. Grantee shall make its telecommunications services available to the City at its most favorable rate offered at the time of the request charged to a similar user within Oregon for a similar volume of service, subject to any of Grantee's tariffs or price lists on file with the OPUC. Grantee may deduct the applicable charges from franchise fee payments. Other terms and conditions of such services may be specified in a separate agreement between the City and Grantee Page 2 - AFN Franchise (F:\USER\PAUL\Telecommunications\Forms\franchise AFN.wpd) 4 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. 5 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 5.2 5.3 Performance Bond (Section 16.12.190). Insurance (Section 16.24.100). 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. P a g e 3 - AF N F ran chise (F:\USER\PAUL\Telecommunications\Forms\franchise AFN .wpd) 7 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 streets 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 streets 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 City streets. 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 streets and the estimated total cost of such work. The schedule shall be submitted at least two weeks in advance of construction. 7.3 Grantee may make excavations in the City streets 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. 7.4 In the event that emergency repairs are necessary for Grantee's facilities in the streets, 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. Page 4 - AFN Franchise (F:\USER\PAUL\Telecommunications\Forms\franchise AFN.wpd) 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. 7.7 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. 8 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 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 overhead electric utilities are relocated underground, Grantee shall also locate its telecommunication facilities underground. Any and all such installation and relocation under this paragraph shall be without expense to the City. 9 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 P age 5 - AF N F ran chise (F:\USER\PAU L\Telecommunications\Forms\franchise AFN.wpd) 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. 10 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 Page 6 - AFN Franchise (F:\USER\PAUL\Telecommunications\Forms\franchise AFN.wpd) 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: Director, Ashland Fiber Network, 90 North Mountain Avenue, Ashland, Oregon 97520; FAX 541-488-5320 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). 11 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 Cable Authority. This franchise does not authorize the Grantee to operate a cable system or provide video programming, as defined by 47 U.S.C.A §522 (Supp. 1997). Grantee City r~ or Page 7 - AFN Franchise (F:\USER\PAUL\Telecommunications\Forms\franchise AFN.wpd)