HomeMy WebLinkAbout2007-077 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 1st day of July, 2007.
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."
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: From July 1, 2004, to June 30, 2012, the greater of either: (a) the
minimum annual franchise fee of $4,620; or, (b) $2.88 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. This fee shall increase annually in June of each
year, by multiplying the initial fee as set forth above, by a fraction, the numerator
of which is the CPllndex Figure for the month of March preceding the June 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 CPllndex Figure"
shall refer to the Index number indicated for the month of March, 2004, and the
"CPllndex Figure" for any other month shall refer to the Index number for that
month.
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
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additional compensation shall be forever waived and relinquished. The Grantee
agrees to reimburse the City for:
3.1 .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
3.1 .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.
3.1.3 . 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.
3.1.4 . 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.
3.2 . If the Grantee disputes the City's determination of underpayment, the
Grantee shall place the disputed amount in an escrow account until final
resolution.
3.3 . 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.
3.4 . 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.
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
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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. 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.
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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 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 . 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.
7.4 . 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
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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
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.
8 Reservation of City Street Rights; Requirements for Undergrounding.
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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 following written notice to and agreement by
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.
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
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;
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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 councilor 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
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writing:
If to the City: City Administrator, City Hall, 20 East Main Street,
Ashland, Oregon 97520; FAX 541-488-5311
If to the Grantee: Attention: Rights of Way, Room 162,3001 Cobb
Parkway, Atlanta, GA 30339, with a copy to: AT&T Services, Inc.
Law Department, 175 East Houston Street - 210, San Antonio, TX
Attention: General Attorney and Assistant General Counsel
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).
10.6 Notwithstanding any other provision of this agreement, in no event shall
either party be liable to the other for any special, incidental, indirect,
punitive, reliance or consequential damages.
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. 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
~it;e:\)~~~j
City
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By' . /-'.--\---C. ",.', ._-
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(Ma~n w. MorriS~j' ~
Attest: ~ ~
'City Recorder, Barbara Christensen
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