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HomeMy WebLinkAbout2006-213 Agreement - Sprint City of Ashland Telecommunications Franchise Agreement (Limited Use Franchise) Franchise agreement authorized pursuant to Ashland Municipal Code Title 16 between the City of Ashland (City) and Sprint Communications Company, L.P. (Grantee) dated this '6 t-f\ day of OC{?lber, 2006. . ~O'J~\-\tRf' 1. Grant of franchise. City grants to Grantee, its successors and assigns, a franchise to construct, operate and maintain a telecommunications system, with all necessary facilities in, under, and over, for a distance of 12,999 linear feet, the following described public streets of the City: See the attached three maps depicting the public streets used, beginning at Eagle Mill Road near the 1-5 Freeway and proceeding along the following City of Ashland streets: Oak Street, East Hersey Street, North Mountain Avenue, and East Main Streets generally southerly and easterly to the easterly city limit line approximately 650 feet east of the centerline of Walker Avenue. This franchise is a limited use franchise as that term is used in Title 16 of the Ashland Municipal Code. This franchise does not authorize the use of public streets by Grantee to provide telecommunication services within the City of Ashland. 2. Term. The term of this franchise shall be five years from September 30,2006, unless terminated sooner as provided in this agreement or as provided in Title 16 of the Ashland Municipal Code. 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 $3.08 per linear foot of right-of-way used. This fee will increase annually in July of each year, by multiplying the fee by a fraction, the numerator of which is the CPllndex 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 CPllndex 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" will refer to the Index number indicated for the month of March, 2006, and the "CPI Index Figure" for any other month will refer to the Index number for that month. Payment of the franchise fee shall be made annually on or before October 1 of each year beginning with October 2006. 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 1- Limited Use Franchise G:\legaI\PAUL\Telecommunications\Forms\franchise Sprint (limited use) 2006.wpd Arl..N IfD1"7<;"t, f~!..J l[d~1;L '" I was due until the date on which the City receives the payment. 3.2. 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 computation basis and method. Such reports shall be in a form satisfactory to the City. 3.3. 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: 3.3.1. 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 3.3.2. 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. 3.3.3. The City's costs which may be reimbursed under this section shall not exceed $5,000.00 per audit or financial review. 3.3.4. 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. 3.4. If the Grantee disputes the City's determination of underpayment, the Grantee shall place the disputed amount in an escrow account until final resolution. 3.5. All Grantee's books, maps, and records directly concerning 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. 3.6. 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 2- Limited Use Franchise G:\Iegal\PAUL\Telecommunications\Forms\franchise Sprint (limited use) 2006.wpd Grantee that may be lawfully imposed by the City or any other taxing authority, except as may otherwise be provided in Title 16 of the Ashland Municipal Code or laws imposing such other license fee, tax or charge. 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 of the 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 be required to obtain the following which are otherwise required by Title 16 of the Ashland Municipal Code. 5.1. Performance Bond (Section 16.12.190) shall not be required. 5.2. Insurance (Section 16.24.100). 5.3. Performance Bond (Section 16.24.120) shall not be required. 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 streets in a timely manner in accordance with a relocation schedule 3- Limited Use Franchise G:\legal\PAUL\Telecommunications\Forms\franchise Sprint (limited use) 2006.wpd furnished to Grantee by the City Engineer, unless Grantee's failure arises directly from the City's negligence or willful misconduct or directly from any person who is not acting on behalf of the Grantee or is otherwise not the Grantee's agent, affiliate, subsidiary, contractor, licensee or invitee. 7. 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. 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 Title 16 of the Ashland Municipal Code. 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. 4- Limited Use Franchise G:\legal\PAUL\Telecommunications\Forms\franchise Sprint (limited use) 2006.wpd 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's 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 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 conditions 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. 5- Limited Use Franchise G:\legaI\PAUL\Telecommunications\Forms\franchise Sprint (limited use) 2006.wpd 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 as provided in Title 16 of the Ashland Municipal Code. 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 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 6- Limited Use Franchise G:\legal\PAUL\Telecommunications\Forms\franchise Sprint (limited use) 2006.wpd If to the Grantee: Manager, Network Real Estate, Sprint Communications Company L.P., 6100 Sprint Parkway, Mailstop: KSOPHK0210 - 2A222, Overland Park, KS 66251 and Sprint Legal Department, KSOPHT01 01-Z2020, 6391 Sprint Parkway, Overland Park, KS 66251-2020, ATT: Real Estate Attorney 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 the beginning of the term of this franchise, 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 9522 (Supp. 1997). Grantee City By: (ltUucn.1>>utir1 Title: 1v1tll1d,.q'A By: "'-... Title: ~ '" ... By: Title: City Recorder " Date: """ '" Legal Review by: 7- Limited Use Franchise G:\legal\PAUL\Telecommunications\Forms\franchise Sprint (limited use) 2006.wpd " ::JVI\3N' . I " ,~, ~l #/- ! .... ". ;;;1 gl -0 .. 0.. E ~ E",.L""'.ol "'" .~ tt rj ~ q ~ o U 't\ ( ~~'{.?D., . 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' ~. .. ~ ... ..... , I 'i:ol: Z ,>,"5' 4 1 ffi :i! :l w ~ <t ~ ,-1~~~~-t ~ ...i '~ t ~ -'1- ~ ' :l p , ~ -<--! a ~ ts ~ o ACORDTM CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DD/VY) 04/01/2008 10/17/2006 PRODUCER Lockton Companies THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 444 W. 47th Street, Suite 900 HOLDER. THA~lCERTIFICATE DOES NOT AMEND, EXTEND OR Kansas City Mo 64112-1906 ALTER THE VERAGE AFFORDED BY THE POLICIES BELOW. (816) 960-9000 INSURERS AFFORDING COVERAGE INSURED SPRINT COMMUNICATIONS CO., LP INSURER A : CONTINENTAL CASUALTY CO. (A XV) 14966 6480 SPRINT PKWY INSURER B AMERICAN CASUALTY CO.ofReadin2:,PA OVERLAND PARK KS 66251 INSURER C : TRANSPORTATION INSURANCE CO.(A XV) INSURER D : INSURER E : DE THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING COVERAGES IN~URERI~\' AllTHnRIZED REPRESENTATIVE nR PRnDIIt'ER AND THEr-ERTIFI~ATE HOLDER. THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I,N;;~ ~q,I,,!~Y EFFECTIVE POLICY EXPIRATION TYPE OF INSURANCE POLICY NUMBER LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 2 000 000 A ~M""" Gm"^, U'",UTI GL 20 7959 3819 04/01/2005 04/0 1/2008 FIRE DAMAGE 'Anyone fire) $ XXXXXXX - _ -- CLAIMS MADE W OCCUR MED EXP IAn v one oerson) $ XXXXXXX --- X CONTRACTUAl-.__ PER~()r-J'\L& AD\iINJUFjY --$----- 2,000,QOO ----.- X *TENANTS LEGAL LIAB GENERAL AGGREGATE $ 10,000,000 --il'L AGGREn LIMIT APn PER: PRODUCTS - COMP/OP AGG $ 3 000,000 -- X POLICY j:~T LOC ~TOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 2,000,000 A I--X_ ANY AUTO BUA 2079593836 04/0 I 12005 04/0 I 1200~ (Ea accident) 1--- ALL OWNED AUTOS BODIL Y INJURY $ XXXXXXX SCHEDULED AUTOS (Per person) I--- -- HIRED AUTOS BODILY INJURY $ XXXXXXX NON-OWNED AUTOS (Per accident) I - PROPERTY DAMAGE $ XXXXXXX (Per accident) RAGE LIABILITY AUTO ONL Y - EA ACCIDENT $ XXXXXXX ANY AUTO NOT APPLICABLE OTHER THAN EA ACC $ XXXXXXX AUTO ONL Y: AGG $ XXXXXXX EXCESS LIABILITY ~CCURRENCE $ XXXXXXX _J OCCUR [...J CLAIMS MADE NOT APPLICABLE AGGREGATE $ XXXXXXX .. --l 0 UMBRELLA ~------~- $ XXXXXXX -- DEDUCTIBLE FORM ---- $ XXXXXXX RETENTION $ $ XXXXXXX B WORKERS COMPENSATION AND WC 20 7959 3786 (AOS) 04/0 I 12005 04/0 I 12008 X T'f~D~T~~YT" I I~~H- C EMPLOYERS' LIABILITY WC 2079593772 (AZ,OR,WI) 04/0 I 12005 04/0112008 ~ACCIDENT $ 1,000,000 B WC 207959 3805 (CA) 04/01/2005 04/01/2008 E.L. DISEASE - EA EMPLOYEF $ 1 000 000 B N/A IN MONOPOLISTIC STATE EL DISEASE - POLICY LIMIT $ 1,000 000 OTHER DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS *FIRE DAMAGE IS INCLUDED IN BROADER TENANT'SLEGAL LIABILITY FORM WITH LIMITS OF $1,000,000 PER OCCURRENCE. ELECTED AND APPOINTED OFFICERS, OFFICIALS, AGENTS AND EMPLOYEES ARE ADDlTIONALlNSURED AS REQUIRED BY CONTRACT AND SUBJECT TO POLICY TERMS AND CONDITIONS. RE: INST ALLA TION,OPERA TION & MAINTENANCE OF TELECOMMUNICA TIONS EQUIPMENT. CERTIFICA TE HOLDER [ I ADDITIONAL INSURED' INSURER LETTER: CANCELLATION 2699825 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION CITY OF ASHLAND, OREGON DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL -1Q... DAYS WRITTEN ATTN: CITY ADMINISTRATOR CITY HALL, 20 EAST MAIN STREET NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL ASHLAND OR 97520 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ,0 _A.4../.-.J- _ I ACORD 25-S 7/97 For questions regarding this certificate, contact the number listed in the 'Producer' section above and specify the client code '$PRCOO1', .. @'lCORD CORPORATION 1988