HomeMy WebLinkAboutOrdinance 1824ORDINANCE NO.__r t'~itf
AN ORDINANCE GRAN'T1NG "1~0 IIUN"I'ER COMMUNICATIONS, INC.,
DBA CORE DIGITAL SERVICES, TFIE NON-EXCLUSIVE PRIVILEGE
TO USE THE PUBLIC WAY TO CONSTRUCT' AND MAINTAIN
COMMUNICA"LION PACILI'T'IES W[TEIIN "FETE CITY OI~ CENTRAL POtN'f
'T'HE PEOPLE OF THE CITY OF CENTRAL POINT DO ORDAIN AS FOLLOWS:
Section 1. As used in this Ordinmtcc, the following words and phrases shall mean:
City: The City of Central Point, Oregon.
City Administrator: The City Adminish~ator of the City or his or her designee.
Grantee: Hunter Communications, Inc., dba Core Digital Services, its successors and assigns.
Gross Revenues: Revenue of the Grantee or any affiliate of the Grantee in whatever form accn~ed
from all sources in com~ection with operation of the communication facilities throughout the entire
franchise area, and includes any amount even if separately identified or accounted for by the Grantee
as franchise or other license fees, including but not limited to, revenues fi-om subscribers and
customers; installation fees, equipment fees, and other fees related to the conununicatious service;
advertising revenue; access and attachment charges paid to the Grantee by other communications
services or carriers; and revenue from the sale or lease of any wire, cable, facility, pole, duct, conduit
or similar transmission equipment.
Telecommunication Facilities: All wires, cables, conduits, poles, equipment, appliances, and
associated structures used by Grantee in providing its telecommunications services.
Telecommunications Services: Two-way switched access and transport of data, voice and/or video
communications, but does notinclude services provided by radio common carrier or the transmission
of television signals.
Public Wav: Any highway, street, road, alley, right-of--way, pedestrian or bicycle easement, park
area, utility easement for public use or other public property within the City.
Section 2. Subject to the provisions and restrictions of this ordinance and the Charter and the Code
of Central Point, the City ~nants to Grantee the non-exclusive privilege to use the public way to
construct and maintain telecommunication facilities within the corporate limits of the City.
Section 3. Grantee's telecommunication facilities shall be installed underground unless Grantee
contracts with another City of Central Point franchisee to employ that franchisee's above-gromxl
facilities in place at the time this franchise is granted. IC shall be lawful for Grantee to make all
necessary excavations in any public way for the purpose of constructing and maintaining its
telecommunication facilities. Provided, however, that Grantee's use of the public way shall be
subject to the City Administrator's authority to prescribe which public way will be used and the
location within the public wny, which authority is hereby expressly reserved by the City and
delegated to the City Administrator.
Grantee's use of the public way and al l construction by Grantee shall be sub,jcct to and steal I comply
with the standard specifications and special provisions fo the City, the Char(cr and ordinances ofthe
City, and al] other applicable federal, state, and local laws and regulations. No work affecting the
public way shall be done by Grantee without first obtaining the permits required by the City, which
may include plan submittal, approval and the payment of fees before work begins.
Section 4. WhereGrantecinstallsitstelcconununicationsfaciliticsundcroradjacenttoanycxisting
paved bicycle path, the path shall be overlaid with a new asphalt surface after construction. Where
Grantee installs its telecommunication facilities along the route of a planned bicycle path, the City
may require Grantee to construct the bicycle path as a condition ofplan approval. All such bicycle
path repair and construction shall be at Grantee's expense.
Section 5. Upon completion of construction of any new facilities, Grantee shall promptly furnish
the City with two (2) sets of"as built" plans showing the exact location and construction details of
all of Grantee's facilities. New plans will be furnished promptly for any additions or modifications.
Section 6. Nothing in this ordinance shall be constucd in any way to prevent the City from
constructing and maintaining any public improvement in any public way. In its construction and
maintenance of public improvements, the City steal I endeavor not to obstruct or prevent the free use
by Grantee of its telecommunication facilities.
Section 7. The City shall have the right to require Grantee to change the location of any
telecommunication facility within the publ is way when the public convenience requires such change;
and the expense thereof shall be paid by Grantee. Should Grantee fail to remove or relocate any such
facilities by the date established by the City, the City may effect such removal or relocation, and the
expense thereof shall by paid by Grantee, including all costs and expenses incurred by the City due
to Grantee's delay. Ifthe City requires Grantee to relocate its facilities located with the City, the City
will make a reasonable effort to provide Grantee with an alternate location for its facilities within
the public way. The City shall give Grantee written notice to relocate its facilities at least six (6)
months prior to the date established by the City as the deadline for relocation.
Section 8. Should it ever become necessary to temporarily rearrange or temporarily remove
Grantee's telecommunications facilities at the request of a private person or business, Grantee shall
perform such rearrangement or removal as expeditiously as possible upon receipt or reasonable
written notice from the business or person desiring the temporary change of the telecommunication
facilities. The notice shall:
(a) be approved by the City Administrator,
(b) detail the route of movement,
(c) provide that the costs incurred by Grantee in making the temporary change be bogie
by the person or business giving said notice.
(d) provide that the person or business giving the notice shall indcuu~ify and hold
harmless Grantee of and from any and all damages or claims of whatsocvca kind or
nature caused directly or indirectly from such temporary change of Grantee's
telecomulunications Facilities, and
(e) if required by Grantee, be accompanied by a cash deposit or a good and sufficient
bond to pay any and all of Grantee's estimated costs as cstinurtcd by Grautce.
Section 9. Grantee shall at all times maintain all of its telecomnnmicntio~~ facilities in a good stale
of repair. Motorized vehicles shall notbc allowed on any public bicycle paths and landscaped areas,
except when necessary to install, remove or repair Grantee's facilities. Except in an emergency,
permission shall be obtained from the City Public Works Department before using motorized
vehicles on any public bicycle paths and landscaped areas. Any damage to any public way caused
by Grantee shall be repaired by Grantee at no cost to the City. Grantee shall have a local
representative available atall times through the Rogue Basin Utilities CoordinatingCouncil tolocate
Grantee's facilities for persons who need to excavate in the public way.
Section 10. Grantee shall indemnify and hold the City harmless from any and all danr<igcs of any
kind orcharacter growing outoforarising byreasonoftheinstallation and maintenance ofGrantec's
teleconvnunicatiott facilities in the City, except when resulting from ^egligence or willful
misconduct of the City's officers, employees, or agents. Grantee also hereby agrees to indemnify
and hold the City harmless from 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 ofits facilities within a six (6) month period following written notice
from the City to relocate, unless Grantee's failure arises directly from the negligence or willful
misconduct ofthe City's officers, employees, or agents or from causes beyond Grantee's reasonable
control.
Section ll. hi any situation in which the City is found legally liable to Grantee for damage to
Grantee's facilities, the City's liability shall be limited to the cost of repair or replacement of
damaged facilities, whichever is less. The City shall not be liable to Grantee for lost revenue, lost
profits, incidental or consequential damages or claims of third parties arising from damage to
Grantee's facilities. Grantee covenants that it will not assert any claim against the City for any
liability, loss, or damage excluded under this section.
Section 12. In consideration of the rights, privileges and franchise hereby granted, Grantee shall pay
to the City from and after the effective date ofthe acceptance ofthis franchise, annually, five percent
(5%) of its gross revenues derived from its telecommunication facilities within the corporate limits
of the City, less net uncollectibles. The reasonable value of any of Grantee's facilities used or
reserved for use by the City without Grantee's prescribed charges may be credited toward any
payment due the City under this provision, in lieu of a direct payment to Grantee by City for such
use or reservation of use, upon the mutual consent of Grantee and City. Grantee shall make annual
pa}anents to the City on or before January 15 for the calendar year iimnediately preceding. Grantee
shall pay a pro rata fee for the last amoral payment to the date of termination in addition to any other
scans due the City and shall make such pa}nnent within thirty (30) days of termination. As used in
this section, "use" includes, but is not limited to, street openings, construction and maintenance of
fixtures or facilities by Grantcc. 'fo the extent that any scpara(c Ices arc imposed by the City on
Grantee for street openings, construction, inspection or maintenance of fixtures or facilities, such
fees may be deducted front the ii~anchisc fee paymeNs required by this section. Fiowcvcr, Grantcc
shall not deduct charges and penalties imposed by the City for noncompliance with Charter
provisions, ordinances, resolutions or permit conditions fi'om the franchise fee payments required
by this section. In the event that Grantee wishes (o add cable television services to the list of
services, as regulated by the Federal Connnunications Act of 1934, as amended, Grantcc agrees that
it must negotiate a^ additional agreement with the City setting tor(h the terms and conditions
governing such service. Other than as prescribed in Section l3 below, Grantcc shall not be required
to pay any additional fee, cou~pcnsation or consideration to the City for its use ofthe public way.
Ijowever, Grantee shall pay airy charges and penalties imposed by the City for noncompliance with
Charter provisions, ordinances, resolutions or permit conditions.
Section 13. The payment ofthe franchise fee shall be in addition to, not in lieu of, any local business
license tax, or other taxes and permit fees not within the scope of this fi anchise agreement.
Section 14. The privileges and franchise herein granted shall commence whcnauthorizcd by the City,
and be in force for a period of five (5) yews from and after that date. This franchise may be
terminated by the City at arty time upon thirty (30) days written notice for failure to comply with the
other provisions of this agreement or the Code of Central Point, uolcss such failure is remedied
within the thirty (30) day period. Otherwise, this agreement shall remain in effect.
Section I5. The Ciry shall have the right to annually audit the books and records of Grantee to verify
compliance withthetennsandcarditionsofthisfranchiseagreemeut. AttheCity'srequcst,Grantee
shall provide the City's auditors access to Grantee's book and records, as necessary, to conduct a
thorough audit.
Section 16. With each fi'anchise fee payment, Grantee shall furnish a sworn statement setting forth
the amount and calculation of the payment The statement shall detail the revenues received by
Grantee from its operations withinthe City, and shall specify the nature and amount of al] exclusions
and deductions from such revenues claimed by Grantee in calculating the franchise fee.
Section 17. City's consent shall be required for assignment, transfer, merger, lease or mortgage.
(a) Neither this franchise nor any property owned and operated by Grantee by authority
hereof shall be sold, leased, mortgaged, assigned or otherwise transferred without the
prior consent of the City as expressed by ordinance, except to entities that control,
are controlled by, or are under the conunon control with Grantee. Grantee shall
notify the City of any ri~ansfers to such entities within ten (10) days of such transfers.
The City's granting of consent in one instance shall not render unnecessary any
subsequent consent in any other instance. Nothing contained herein shall be deemed
to prohibit the mortgage, pledge, or assignment of fiber optic cable system tangible
assets for the purpose of financing the acquisition of equipment for or the
construction and operation of the system without the City's consent, buyt any such
mortgage, pledge or assignment shall be subject to the City's other rights contained
in this franchise agreement.
(b) Grantee shall notlcascorsublcascanyol'itspipcs,wires, conduits, orothcrfocilitics,
or the public right-of-way in which such arc contained, ~vithout the City's consent as
expressed by ordinance. 1 lowever, Grantee may dedicate or lease its f iberoptic cable
system or any portion thereof, or otherwise make its fiber optic cable system
available in the ordinary conduct of its business as a telccouununications company,
so long as Grautce remains solely responsible for locating, servicing, repairing,
relocating or removing its fiber optic cable system, and so long as the City's
bandwidth or access speed m-c not diminished.
Section 18. Grantee shall provide City with a performance bond, in the amount of$10,000,
acceptable in form and substance to City, as security for the full and complete
performance of the fi'anchise agreement, including costs, expenses, damages or loss
City pays or incurs because of any failure attributable to Grantee to comply with the
codes, ordinances, rules, regulations or permits of City.
Section 19. Grantee shall secure and maintain the following liability insurance policies inswing
both Grantee and City, its elected and appointed officers, officials, agents vui
employees as coinsured during the term of the fi'anchisc agreement:
Bodily Injury/Death $3,000,000
Property Damage $3,000,000
Automobile Liability $ (,000,000
Workers Compensation $1,000,000
Explosion, Collapse, Product Hazard $3,000,000
In lieu of the above, Grantee may provide evidence of self-insurance subject to
review and acceptance by City.
Section 20. Grantee shall adopt customer service standards, acceptable in form and substance to
City, that are at least as comprehensive as those standards required by City of other
franchise utility service providers.
Section 21. Following the initial conshuction of its telecommunications system, Grantee shall
extend its telecommunications services upon request, provided that such estensiai
is technically feasible, and if it will not adversely affect the operation, financial
condition or market development of its telecommunications system
Section 22. The City Administrator is authorized to act for the City in all matters pertaining to this
franchise agreement. Grantee may appeal any action of the City Administrator to the City Council
by giving written notice thereof within twenty-one (21) days after Grantee was notified of such
action. The City Council will hear the appeal and render a final decision within thirty (30) days after
the notice of appeal is given.
Section 23. Whenever anynotice is given pursuant to this ordinance, it steal] be effective on the date
it is sent in writing by registered or certified mail, addressed as follows:
To the City: City Administrator
City of Central Point
155 S. 2"`' St.
Central Point, OR 97502
To Grantee: Richard W. Ryan, Principal
Hunter Communications, Inc.
dba Core Digital Services
801 Enterprise Drive, Stc. I Ol
Central Point, OR 97502
Notice of change of address may be given in the same wanner as any other notice.
Section 24. Grantee shall, within thirty (30) days of the passage ofthis ordinance, file with the City
Administrator its written acceptance of all the terms and conditions of this ordinance.
Section 25. An emergency is hereby declared for the purpose of ensuring that competition within
the telecommunications field for the citizenry of Central Point is accomplished in a timely mamier
and, accordingly, this ordinance shall take effect immediately upon its passage.
Passed by the Council and signed by me in authentication of its passage this ~~day of
~~ e c e (,,, e ~ , 2001. /.---
~~-.,Mayor Bill Walton
ATTEST:
r
1
,~~
L,c~w.
City Representative
A roved b me this a1~
pp y ~ ~ day of ~ ec Pm~~e~ , 2001.
~Ct ~`~~'y f' ~ i\L ~
A4ayor Bill W 81ton
801 Enterprise Drive Ste. 101 Central Point, Oregon 97502 (541) 772-9282 Fax (541) 772-4805
CCB #99481 CLE #15-237 www.huntercommunications.net