ORDINANCE NO. 1214 LCOG AND MONROE TELEPHONE FRANCHISES

ORDINANCE NO. 1214
LCOG AND MONROE TELEPHONE FRANCHISES

AN ORDINANCE GRANTING NONEXCLUSIVE FRANCHISES FOR THE OPERATION OF TELECOMMUNICATIONS SERVICES TO LANE COUNCIL OF GOVERNMENTS AND MONROE TELEPHONE.

WHEREAS, Lane Council of Governments and Monroe Telephone have requested franchise agreements with the City of Junction City to provide Fiber Optic Broadband at a low cost to schools and public facilities; now, therefore

THE CITY OF JUNCTION CITY ORDAINS AS FOLLOWS:

Section 1. The City of Junction City does hereby grant to Lane Council of Governments a nonexclusive franchise for telecommunications services as set forth in Exhibit A.

Section 2. The City of Junction City does hereby grant to Monroe Telephone a nonexclusive franchise for telecommunications services as set forth in Exhibit B.

Read in full, for its first reading this 8th day of January, 2013

Read by title only, for its second reading this 8th day of January, 2013.

Passed unanimously by the City Council this 8th of January, 2013.

Approved by the Mayor this 8th day of January, 2013.

ATTEST:		APPROVED:

_________________________		________________________
Kitty Vodrup, City Recorder		David S. Brunscheon, Mayor

FRANCHISE AGREEMENT

This Franchise Agreement (hereinafter referred to as the “Franchise”) is between the City of Junction City, a municipal corporation, hereinafter referred to as the “City,” and Lane Council of Governments (“LCOG”), an ORS 190 Governmental Entity, hereinafter referred to as the “Grantee.”

SECTION 1

Definition of Terms

1.1. As used in this Franchise all words and phrases shall have their customary usage and meaning, provided, however, that the following terms shall be defined as follows:

1.1.1 “City” shall mean the City of Junction City and all areas within its corporate boundaries, including as those boundaries may be changed from time to time in the future.

1.1.2 “Council” shall mean the common council of the City.

1.1.3 “Person” shall include an individual, corporation, association, firm, or any other business entity having the legal authority to do business within the state of Oregon.

1.1.4 “Telecommunication System” or “Telecommunications Services” shall mean any service provided for the purpose of transmission of information including but not limited to: voice, video or data without regard to the transmission protocol employed, whether or not the transmission medium is owned by the provider itself, or whether or not the transmission medium is wire line. Telecommunications System includes all forms of telephone service and voice, video, data or information transport, but does not include:

• Cable service;

• Open video systems service as defined in 47 CFR 76;

• Private Telecommunications Systems services provided without using the public rights-of-way;

• Over the air radio or television broadcasting to the public at large from facilities licensed by the Federal Communications Commission; and

• Direct to home satellite service within the meaning of Section 602 of the Telecommunications Act.

1.1.5 “Gross Revenues” shall mean any and all compensation in whatever form (grant, subsidy, exchange or otherwise) received directly or indirectly by Grantee for Telecommunications Services provided to subscribers within the Franchise area. Gross Revenues does not include any taxes on services furnished by Grantee imposed directly on subscribers by any city, state or other governmental unit and collected by Grantee for such governmental unit.

1.1.6 “Facilities” means any tangible component of Grantee’s Telecommunication System operation.

1.2. As used herein, the singular number may include the plural and the plural number shall include the singular.

1.3 Unless expressly provided to the contrary herein or in the applicable City Ordinances, any action authorized or required to be taken by the City pursuant to this Franchise may be taken by the Council or by the City Administrator or any official or agent designated by the Council or the City Administrator.

SECTION 2

Grant of Franchise

2.1 Grant. The City by this Franchise hereby grants to the Grantee a nonexclusive franchise which authorizes the Grantee the right, privilege and power to construct, operate, and maintain a telecommunications system providing the services described herein on, in and under the public ways of the City, to the extent permitted by law; and further grants to Grantee all other rights, privileges and powers necessary or incident to the provision of such telecommunications services as defined herein. Nothing in this Franchise shall be construed to prohibit the Grantee from offering any service over its telecommunications system that is not prohibited by federal, State or local law. This Franchise does not provide Grantee with any interest in any particular location within the rights-of-way and it does not confer rights other than as expressly provided in this Franchise. It is subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title record that may affect the right-of-way. Nothing in this Franchise shall be deemed to grant, convey, create or vest in Grantee a real property interest in land including fee lease hold interest or easements.

Grantee shall, before using or occupying any public way, obtain the consent of the City for such occupation. Subject to the conditions and reservations set forth herein, and the provisions of applicable City Ordinances, this Franchise constitutes consent of the City to use and occupy those portions of the public way indicated in the drawings submitted pursuant to Section 9.1 of this Franchise, when such drawings have been reviewed and approved by the City.

The rights granted herein shall not confer on Grantee any right, title or interest in any public way beyond that expressly conferred by the provisions of this Section 2, nor shall it confer any right or privilege to use or occupy any other property of the City or any other entity.

Upon the annexation of any territory to the City, the rights granted herein shall extend from the annexed territory to the extent that the City has such authority. All facilities owned, maintained or operated by Grantee located within any public ways of the annexed territory should therefore be subject to all the terms hereof.

2.2 Term. This Franchise shall become effective as of February 7, 2013, and shall expire on January 31, 2023, unless extended or modified by the parties hereto in writing. Within thirty (30) days after the date of final approval of this Franchise by the Grantee, the Grantee shall file with the City its acceptance of the Franchise.

2.2.1 Either party, by written notice delivered not less than 90 days, nor more than one year, in advance of the termination date of this License, may request renewal, extension or modification of the License.

2.2.2 Either party, by written notice delivered not less than 90 days, nor more than 180 days prior to the fifth anniversary of the effective date of this Franchise may request that the parties meet and confer with respect to changes to the Franchise. Unless otherwise agreed by the parties, any such changes agreed upon shall become effective on the fifth anniversary date of this Franchise.

SECTION 3

Reserved Rights

3.1 The City reserves the right, without limitation, to:

3.1.1 Construct, install, maintain and operate any public improvement, work or facility in, on, over or under the public ways;

3.1.2 Perform or authorize or direct the performance of any work that the City may find desirable or convenient in, on, over or under any public way; or

3.1.3 Vacate, alter, or close any public way.

3.1.4 Exercise any non-regulatory power that the City currently holds or may hereinafter be authorized or granted by the laws of the state of Oregon or the City Charter or ordinances.

3.1.5 Abate any nuisance or dangerous condition.

3.1.6 In addition to the reservation of authority contained in this Franchise and existing and applicable ordinances, adopts such additional generally applicable regulations for the construction, maintenance and operation of Grantee’s Facilities as the City finds necessary in the exercise of its police powers or for the orderly development of the City (including but not limited to zoning, land use, historic preservation, ordinance, standards specifications, design standards and drawings, and other safety or construction standards) or for the protection of City Facilities.

3.2 Whenever the City shall perform, or cause or permit to be performed, any work in the public way or the vicinity of the public way where such work may disturb or interfere with Grantee’s facilities, the City shall, or shall require its permittee, to notify, in writing, Grantee sufficiently in advance of such contemplated work to enable Grantee to take such measures, including removal or relocation of such facilities, as may be deemed necessary to protect such facilities. Except where the City is performing or causing to have performed the work, and except as otherwise agreed to among the parties, the cost of removal and replacement, or relocation, shall be borne by the permittee.

3.3 Whenever the City shall vacate any public ways for the convenience or benefit of any person or governmental agency and instrumentality other than the City, Grantee’s rights shall be preserved as to any of its facilities then existing in such public way.

SECTION 4

Care of Facilities

4.1 The facilities of the Grantee shall at all times be maintained and operated in a safe, substantial and workmanlike manner.

4.2 For the purpose of carrying out the provisions of this section, the City may provide such specifications relating thereto as may be necessary or convenient for the public health, safety and welfare, or for the orderly development of the City. The City may amend and add to such specifications from time to time.

SECTION 5

Activities in the Public Way

5.1 The Grantee shall obtain such permits as may be required by law prior to commencing the construction, extension or relocation of any of its facilities in the public way.

5.2 Prior to commencing any construction, extension or relocation of facilities in the public way, the Grantee shall file drawings, in such form as may be acceptable to the City, showing the location of existing facilities and facilities to be constructed maintained, or relocated. Following completion of such construction, extension, or relocation the Grantee shall file drawings and maps, in such form as may be acceptable to the City, showing the facilities as actually constructed, extended, or relocated.

5.3 Except in an emergency, the Grantee shall make no excavation, opening, or other intrusion into the public way without having first obtained such permit as may be required by law. Grantee shall notify the City in the event that an emergency arises, and shall not proceed with any excavation, opening or other intrusion in the public way without at least verbal acknowledgement from the City that an emergency exists. Grantee and the City may work out a separate agreement covering certain emergency situations.

5.4 In performing all work in the public way, the Grantee shall, at all times, conduct such work in accordance with the Standard Construction Specifications of the City as they shall exist from time to time.

5.5 If at any time the Grantee shall make any opening, excavation or other intrusion into the public way, the Grantee shall promptly restore the public way to the same condition in that it was prior to the opening, excavation or intrusion, all in accordance with City Standard Construction specifications as then in effect; provided, however, that at any time the City may affect such restoration and the full cost thereof shall be paid by the Grantee or the Grantee’s bond. In the event that Grantee hires a contractor to do work involving an opening, excavation or other intrusion into the public way and the contractor fails to restore the public way to the condition that it was prior to the opening, the City may perform such restoration and may seek the full cost of any restoration from the contractor or the contractor’s bond as Grantee’s assignee of all such claims.

5.6 Should the Grantee fail to promptly make such restoration or fail to make such restoration in accordance with City Standard Construction Specifications, the City may, at its election, cause such restoration to be made. In such event the Grantee shall reimburse the City for the full cost of such restoration and, in addition, pay a penalty equal to two times the full cost of such restoration. Such reimbursement shall be paid by Grantee or Grantee’s bond.

SECTION 6

Location and Relocation of Facilities

6.1 All facilities of the Grantee shall be placed so that they do not interfere with the use by the City and the public of the public way, and in accordance with the specifications of the City governing the location of facilities.

6.2 The City may require, in the public interest, the removal or relocation, temporarily or permanently, of facilities maintained by the Grantee in the public ways of the City. The Grantee shall remove and relocate such facilities within 120 days after receiving notice in writing to do so from the City. The cost of such removal or relocation shall be paid by the Grantee, provided, however, that when such removal or relocation is required for the convenience or benefit of any person, government agency or instrumentality other that the City, Grantee shall be entitled to reimbursement for the reasonable cost thereof from such person, agency or instrumentality, to the extent permitted by law.

SECTION 7

Compensation

7.1 Franchise Fee and In-Kind Exchange. In consideration of the rights, privileges, and franchise hereby granted, Grantee shall pay to the City from and after the date of acceptance of this Franchise and until its expiration five percent (5%) per annum of its Gross Revenues derived from any services provided within the corporate limits of the City, less net uncollectibles. Gross Revenues shall include all such above-described revenue, except proceeds from the sale of bonds, mortgages or other evidence of indebtedness, securities or stocks, or sales at wholesale by one utility to another when the utility purchasing the services is not the ultimate consumer. Notwithstanding any provision to the contrary, the City hereby accepts Grantee’s franchise fee payment owing under this Section in an in-kind exchange, as long as the in-kind exchange continues to comply with the following requirements: (a) The in-kind exchange must have a value equal to or greater than the required compensation to be paid to the City under this Section of this Agreement; and (b) the in-kind exchange shall include at a minimum Grantee’s provision of the goods or services as detailed in Exhibit A. During the term of this Franchise, non-in-kind payments, if due, will be made by Grantee to City on an annual basis, on or before the first day of July, upon the gross operating revenues of the Grantee during the previous year. Notwithstanding the above, should Grantee provide local exchange access services, Grantee shall only pay five percent (5%) of any revenue derived from such services, as provided in the City’s telecommunications franchise ordinance.

7.2 No Waiver. Acceptance by the City of any compensation due under this Section shall not be deemed to be a waiver by the City of any breach of this Franchise or any applicable local, state or federal law.

7.3 Leased Capacity. Grantee intends to make the installed facilities available to telecommunications providers to allow for the possible use of the facilities for service to other customers within the City. In the event that Grantee enters into a lease of the installed facilities to another provider, Grantee will inform the City of the lease and provide assistance to the City in securing any necessary franchise or license from the leasing provider. The charges made to the public institutions, if they elect to purchase Telecommunications Services using the Grantee’s facilities, will not be considered part of the Gross Revenues for the purposes of calculating any Franchise Fees due and owing to the City.

7.4 Limited Franchise. In the event that Grantee or others wish to add other services, such as cable services, that are not listed in this Agreement, Grantee agrees that it must negotiate an additional agreement with the City setting forth the terms and conditions governing such services. The payment of franchise fees shall be in addition to and not in lieu of any local business license tax or other taxes and permit fees not within the scope of this Franchise Agreement unless expressly exempted by City ordinance, rule or regulation.

SECTION 8

Safety Standards and Work Specifications

8.1 The facilities of the Grantee shall at all times be maintained in a safe, substantial and workmanlike manner.

8.2 For the purpose of carrying out the provisions of this section, the City may provide such specifications relating thereto as may be necessary or convenient for public safety or the orderly development of the City. Grantee shall abide by all City safety standards and work specifications. The City may amend and add to such specifications from time to time.

SECTION 9

Supplying Maps upon Request

9.1 The Grantee shall maintain on file, at an office in Eugene, Oregon, maps and operational data pertaining to its operations in the City. The City may inspect the maps and data at any time during business hours. Upon request of the City the Grantee shall furnish to the City, without charge and on a current basis, maps, in such form as is acceptable to the City, showing the location of the facilities of the Grantee in the City.

SECTION 10

Indemnification and Insurance Requirements

10.1 The Grantee shall defend, indemnify and hold harmless the City, its elected and appointed officials, officers, agents and employees from any and all loss, cost, injury, liability or expense, including court and appeal costs and attorney fees or expenses, arising from damage to property and/or injury to or death of persons due to any wrongful or negligent act or omission of the Grantee, its agents or employees, including any failure of Grantee to keep its facilities in safe condition, in exercising the rights and privileges hereby granted.

10.2 Insurance. Grantee shall obtain and maintain in full force and effect, for the entire Term, the following insurance, or such additional amounts as may be commercially reasonable in the future, covering risks associated with Grantee’s ownership and use of Grantee Facilities and the Public ROW:

10.2.1 Commercial General Liability insurance covering all operations by or on behalf of Grantee for Bodily Injury and Property Damage, including Completed Operations and Contractors Liability coverage, in an amount not less than Two Million Dollars ($2,000,000.00) per occurrence and in the aggregate.

10.2.2 Business Automobile Liability insurance to cover any vehicles used in connection with its activities under this Franchise, with a combined single limit not less than Two Million Dollars ($2,000,000.00) per accident.

10.2.3 Workers’ Compensation coverage as required by law and Employer’s Liability Insurance with limits of One Million ($1,000,000). With the exception of Workers’ Compensation and Employers Liability coverage, Grantee shall name the City as an additional insured on all applicable policies. All insurance policies shall provide that they shall not be canceled or modified unless thirty (30) days prior written notice is provided to the City. Grantee shall provide the City with a certificate of insurance evidencing such coverage as a condition of this Franchise and shall provide updated certificates upon request.

10.2.4 Automobile liability for owned, non-owned, and hired vehicles with combined single limit coverage of not less than two million ($2,000,000) dollars per accident for bodily injury and property damages.

10.2.5 The limits of insurance provided for in this Section 10 shall be subject to any statutory and constitutional changes as to the limits and increases in the maximum limits of liability imposed on municipalities of the State of Oregon during the term of this Franchise. The insurance shall be without prejudice to coverage otherwise existing. The insurance shall provide that the insurance shall not be canceled or materially altered without thirty (30) days’ prior written notice first being given to the City. If the insurance is canceled or materially altered within the term of this Franchise, Grantee shall provide a replacement policy with the same terms as required by this Franchise. Grantee shall maintain continuous uninterrupted coverage, in the terms and amounts required, upon and after the effective date of this Franchise.

10.2.6 In Lieu of Insurance. In lieu of the insurance policies required by this Section 10, Grantee shall have the right to self-insure any and all of the coverage outlined hereunder. If Grantee elects to self-insure, it shall do so in an amount at least equal to the coverage requirements of this Section 10 in a form acceptable to the City and such coverage shall have the same protections for City and requirements of Grantee as provided in Section 10 above. Grantee shall provide proof of self-insurance to the City before this Franchise takes effect and thereafter upon request by the City.

SECTION 11

Assignment of Rights

11.1 The rights and obligations under this Franchise concern the location, maintenance and related duties affecting the physical facilities installed in the right of way pursuant to the authority of this Franchise. Without additional approval by the City, Grantee is the only entity that is granted or can exercise these rights or obligations under this Franchise. This Franchise shall not be assigned or transferred by the Grantee without the prior consent of the City, which consent shall not be unreasonably withheld or delayed. Any change in the control of Grantee through merger or other acquisition shall be deemed a transfer for purposes of this section.

11.2 Notwithstanding any inference that might be drawn from the foregoing paragraph, any entity that acquires from Grantee by way of sale, lease, grant of an Indefeasible Right of Use or other transfer of an interest in the facilities subject to this Franchise, without thereby altering Grantee’s sole right and obligation to physically enter or disturb the right-of-way, is not, by the acquisition of such interest in the facilities, required to obtain a separate license from the City. Grantee may, without further consent or charges from the City, transfer an interest in the facilities subject to this Franchise to another entity SO LONG AS the receiving entity does not acquire the right or obligation to physically enter or disturb the right of way.

11.3 Nothing in this section shall be construed as the City consenting to, approving by implication or giving effect to any arrangement between Grantee and any entity which, through the process of a joint use agreement, assignment of rights, succession, or other actions, including the actions of a bankruptcy court, could result in the other entity’s sharing of, acquisition of, or assumption of Grantee’s rights and obligations concerning the location and relocation of, maintenance of, and related duties affecting the physical facilities installed pursuant to this Franchise. Any alteration in the rights and obligations conferred upon Grantee, even if such alteration comes through the force of law, will not bind the City unless the City has been given notice of and has approved of such an alteration.

11.4 This Franchise shall be binding upon and inure to the benefit of the successors, legal representatives and assigns of the Grantee.

SECTION 12

Termination of Franchise for Cause and Removal of Facilities

12.1 Upon the willful failure of the Grantee, after sixty (60) days’ notice and demand in writing, to perform promptly and completely each and every term, condition or obligation imposed upon it under or pursuant to this Franchise, the City may terminate this Franchise. Subject to the above notice requirements, the City also reserves its right to terminate this Franchise under the following conditions:

12.1.1 Grantee is found by a court of competent jurisdiction to have practiced material fraud or deceit upon the City;

12.1.2 Grantee is unable or unwilling to pay its debts or is adjudged to be bankrupt.

12.2 If this Franchise is terminated or expires on its own terms and is not renewed or replaced by a new franchise or similar authorization, the City may determine whether Grantee’s facilities are to be removed at Grantee’s sole expense from the public right-of-way or may remain in place. The City shall provide written notice of any requirement to remove Grantee’s facilities and shall provide Grantee 60 days to comment on such requirement. Following consideration of any such requirement, the City Council may issue an order requiring removal of Grantee’s facilities no later than nine months after such order is declared.

SECTION 13

Remedies

13.1 All remedies and penalties under this Franchise, including termination of the Franchise, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or enforcement of any other such remedy or penalty. The remedies and penalties contained in this Franchise, including termination of the Franchise, are not exclusive, and the City reserves the right to enforce the provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a violation of any term, condition or obligation imposed upon the Grantee by or pursuant to this Franchise.

SECTION 14

Miscellaneous Provisions

14.1 Compliance with State and Federal Laws. Notwithstanding any other provisions of this Franchise to the contrary, the Grantee shall at all times comply with all laws and regulations of the State and federal government or any administrative agencies thereof which relate to the conduct of Grantee’s business.

14.2 Force Majeure. The Grantee shall not be held in default under, on in noncompliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default, where such noncompliance or alleged defaults occurred or were caused by circumstances reasonably beyond the ability of the Grantee to anticipate and control (“force majeure”). Examples of force majeure shall include, but shall not be limited to, alleged defaults caused by strike, riot, war, earthquake, flood, tidal wave, severe rain or snow, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, judicial or administrative order or regulation, acts of God or acts of terrorism.

14.3 Severability. If any section, subsection, sentence, clause, phrase, or portion of this Franchise is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Franchise.

14.4 No Waiver. No failure by either party to insist upon the strict performance of any provision of this Franchise, or to exercise any right upon a breach thereof, shall constitute a waiver of any such right or alter or affect this Franchise. Each and every provision of this Franchise shall continue in full force and effect with respect to any other then existing or subsequent breach thereof.

14.5 Entire Agreement. This Franchise sets forth the entire agreement between the parties respecting the subject matter hereof. All agreements, covenants, representations and warranties, express and implied, oral and written, of the parties with regard to the subject matter hereof are contained herein. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any party to another with respect to the matter of this Franchise. All prior and contemporaneous conversations, negotiations, possible and alleged agreements, representations, covenants and warranties with respect to the subject matter hereof are waived, merged herein and therein and superseded hereby and thereby.

14.6 Authority. Grantee represents and agrees to warrant that it has the corporate authority to enter into this Franchise, and that the persons signing on its behalf have received all necessary authorizations and approvals to execute this Franchise on behalf of Grantee. The City represents that this Franchise was approved by the City Council on the 8th day of January, 2013 and that the persons executing this Franchise have been duly authorized by the City Council to do so on behalf of the City.

14.7 No Joint Venture. When performing under this Franchise Grantee shall be an independent from City and is not an agent, partner, employee or representative of the City in the performance of work pursuant to this Franchise. No term or provision of this Franchise or act of the Grantee or its agent shall be construed as changing that status.

IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year first above written.

CITY OF JUNCTION CITY,

an Oregon Municipal Corporation

By:
	David S. Brunscheon, Mayor	Date

ATTEST:

Kitty Vodrup, City Recorder		Date

ACCEPTANCE:
LANE COUNCIL OF GOVERNMENTS:

By:
	Brenda Wilson, Executive Director	Date