Lightspeed Networks, Inc., dba LS Networks, an Oregon Corporation,
provides Telecommunications services within the City of Port Orford,
Oregon; and Franchisee has applied for a five-year Telecommunications
Franchise pursuant to local ordinances relating to Telecommunications
located in the public rights-of-way, and the City of Port Orford "City"
has reviewed said application and has determined that it meets the
requirements of the City's Ordinance subject to the terms and conditions
stated within this chapter.
(Ord. 2013-03, 2013)
Any and all compensation, of any kind, nature, or form (grant,
subsidy), received directly or indirectly by Grantee for any Communications
Services (as defined in this section) provided within the franchise
areas or in any way connected with the operation of Grantee's facilities,
including, but not limited to: revenues from customers; any fees related
to Grantee's Communications Services; use, access, or attachment charges
paid to the Grantee by other communications services or carriers;
and revenue from the sale or lease of and Grantee Facilities, including
wire, cable, facility, pole, duct, conduit or similar transmission
equipment. All such revenues remain subject to applicable FCC rules
and regulations, which exclude revenues from internet access services
while prohibited by law. Gross Revenues do not include any taxes or
services furnished by Grantee imposed directly on subscribers by any
city, state or other governmental unit and collected by Grantee for
such governmental unit. Gross Revenues shall also not include uncollectible
accounts or any taxes, fees, or assessments imposed or assessed by
any governmental authority.
Telecommunications:
The transmission between and among points specified by the
user, of information of the user's choosing, without change in the
form or content of the information as sent and received.
Telecommunications network:
Infrastructure owned by Franchisee utilizing one or more
facilities located within the City's Rights-of-Way, including, but
not limited to, lines, poles, anchors, wires, cables, conduit, laterals,
and other appurtenances, necessary and convenient to the provision
of access to the Internet and Telecommunications service.
Telecommunication service:
The offering of Telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities' uses.
(Ord. 2013-03, 2013)
There is hereby granted by the City of Port Orford, hereinafter
referred to as "City," to LightSpeed Networks, Inc. hereinafter referred
to as "LS Networks," an Oregon corporation authorized to conduct business
in Oregon, their successor and assigns, hereinafter each referred
to as "Franchisee," the nonexclusive right and privilege to conduct
business as a telecommunications carrier as that term is defined in
ORS 133.721(8) within the City and to place, erect, lay, maintain
and operate in, upon, over and under streets, alleys, avenues, thoroughfares
and public highways, places and grounds within the City, poles, wires
and other appliance and conductors for all telephone, telegraph and
other communication purposes. Such wires and other appliances and
conductors may be strung upon poles or other fixtures above ground,
or at the option of the Franchisee, its successors or assigns, may
be laid underground, and such other apparatus may be used as may be
necessary to properly operate and maintain the same. Notwithstanding
the foregoing, the City Council or their designee shall have the authority
or prescribe which public ways will be used and the location of the
communications facilities within the public ways as may be necessary
to minimize public inconvenience.
(Ord. 2013-03, 2013)
The Franchise granted herein (the "Franchise") is not exclusive,
and shall not be construed as any limitation upon the right of the
City to grant to other persons or corporations, including itself,
rights, privileges or authority the same as, similar to or different
from the rights, privileges or authority herein set forth, in the
same or other Rights-of-Way, by Franchise, permit or otherwise; provided,
however, that any such grant shall be done in a competitively neutral
and non-discriminatory manner with respect to the rights, privileges
and authorities afforded Franchisee.
(Ord. 2013-03, 2013)
The term of this Franchise shall be five years, commencing with
the effective date of the ordinance codified in this chapter. Thereafter,
this Franchise shall continue in full force and effect for an additional
five years unless notice is given by either party 90 days before expiration,
of its intention to terminate or renegotiate the Franchise. Upon termination
or expiration of the Franchise, Grantee shall, within 180 days, remove
all its facilities from the City's Rights-of-Way. Should the Grantee
fail to remove its facilities within the 180-day period, the City
may remove.
(Ord. 2013-03, 2013)
1.
Nothing
in this Franchise shall in any way be construed or interpreted to
prevent, or in any way limit, the City from modifying or performing
any work in its Rights-of-Way, or granting other franchises for use
of Rights-of-Way, or of adopting general ordinances regulating use
of or activities in the Rights-of-Way, or of otherwise abrogating
or limiting any rights, privileges or property interest the City now
has in its Rights-of-Way, whether now owned or hereinafter acquired.
2.
In the
event that any portion of the Franchisee's infrastructure interferes
with any present or future use the City desires to make of its Rights-of-Way,
Franchisee shall, upon request, and at its sole expense, promptly
relocate such infrastructure, and restore the area where such relocation
occurs to as good a condition as existed before the work was undertaken,
unless otherwise directed by the City.
3.
Except
as otherwise provided by law, nothing in this Franchise shall be construed
to give the Franchisee any credit or exemption from any nondiscriminatory,
generally applicable business tax, or other tax now or hereafter levied
upon Franchisee's taxable real or personal property, or against any
permit fees or inspection fees required as a condition of construction
of any improvements upon Franchisee's real property and imposed under
a generally applicable ordinance or resolution.
4.
In addition
to the reservations contained in this Franchise and existing applicable
ordinances, adopt such additional generally applicable regulation
for the construction, maintenance, and operation of the Grantee's
Facilities as the City find 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 ordinances, standard
specifications, design standards and drawings, other safety or construction
standards, and other applicable requirements), or for the protection
of City Facilities.
(Ord. 2013-03, 2013)
1.
It shall
be lawful for Franchisee to make all needful excavations in any of
such streets, alleys, avenues, thoroughfares and public highways,
places and grounds in the City for the purpose of placing, erecting,
laying and maintaining poles, or other supports or conduits for said
wires and appliances and auxiliary apparatuses or repairing, renewing,
or replacing the same. Said work shall be done in compliance with
State and Federal laws as well as local rules, regulations, ordinances
and orders, which may during the continuance of this franchise be
adopted from to time by the City. Franchisee shall obtain from the
City all applicable permits, which will require plan submittal, approval,
and the payment of fees before work begins. The Franchisee shall file
with the City maps showing the location of any constructions, extension,
or relocation or any of the facilities of the Franchisee and shall
obtain the City's approval of the location and plans prior to the
commencement of the work. All transmission and distribution structures,
lines and equipment erected by the Franchisee within the City shall
be so located as to cause minimum interference with the rights or
reasonable convenience of property owners who adjoin any of the streets,
bridges, or other public ways or places. Franchisee shall, protect,
support, temporarily disconnect or relocate any of its equipment as
required to do so by the City by reason of traffic conditions or public
safety in a timely manner in order to protect the public. Franchisee
shall protect, support, temporarily disconnect or relocate any of
its equipment as required to do so by the City by reason of street
vacation, highway and street construction, change or establishment
of street grade, installation of sewers, drains, water pipes, power
lines, signal lines, and tracks, or any other type of structures or
improvements by the City. This work shall be completed within 120
days of notice from the City. When any excavation is made by the Franchisee,
the Franchisee shall promptly restore the affected portion of the
street, bridge, easement area, or public place to the reasonably same
conditions in which it was prior to the excavation. The restoration
shall be done in compliance with City specifications, requirements,
and regulations in effect at the time of such restoration. If the
Franchisee fails to restore promptly the affected portion of the street,
bridge, or public place to the same condition in which it was prior
to the excavation, the City may make the restoration; and the reasonable
costs of making the restoration, including the cost of inspection,
supervision, and administration shall be paid by the Franchisee.
2.
In the
event emergency repairs are necessary for Franchisee's facilities,
Franchisee may immediately initiate such emergency repairs. Franchisee
shall give notice to the City's Department of Public Works by telephone,
electronic data transmittal or other appropriate means as soon as
is practicable after commencement of work performed under emergency
conditions. Franchisee shall make such repairs in compliance with
applicable ordinances and regulations, and shall apply for any necessary
permits no later than the business day next following the discovery
of the need for such repairs.
3.
The
City reserves the right to construct, install, maintain, and operate
any public improvement, work or facility, to do any work that the
City may find desirable on, over, or under any street, bridge or public
place, and to vacate, alter or close any street, bridge or public
place. Nothing in this chapter shall be construed in any way to prevent
the proper authorities of the City from sewering (sanitary and storm),
providing water service, grading, planking, rocking, paving, repairing,
altering, or improving any of the streets, alleys, avenues, thoroughfares,
and public highways, places and grounds within the City in or upon
which the poles, wires or other conductors of Franchisee shall be
placed, but all such work or improvements shall be done if possible
so as not to obstruct or prevent the free use of said poles, wires,
conductors, conduits, pipes, or other apparatus, and the moving of
company facilities, where required due to such work by the City, will
be done by Franchisee within 120 days of notice by the City without
cost to the City. The Franchisee shall furnish maps or drawings to
the City or contractor, as the case may be, showing the approximate
location of all its structures in the area involved in such proposed
work. Any such work done for or at the request of a private individual,
entity, developer or development shall be done at the expense of such
private individual, entity, developer or development. Franchisee shall
construct and maintain its Telecommunications system in such a manner
so as to not interfere with City sewer or water systems, or other
City facilities.
(Ord. 2013-03, 2013)
If the Franchisee goes out of business or withdraws service
from the area and as a consequence refuses to renew the agreement,
all rights to the use of the connection media revert to the City who
may sell, lease or otherwise use the connection media at its sole
discretion. The connection media shall be left in working order and
not be intentionally cut or destroyed. The City may require the media
be removed from all posts and underground conduits by the former Franchisee
at its own expense.
(Ord. 2013-03, 2013)
1.
General.
At all times during the term of this Franchise, Franchisee, at its
own cost and expense, shall provide the insurance specified in this
section.
2.
Evidence
Required. Within 30 days of the effective date of this Franchise,
Franchisee shall provide the City with a certificate of insurance
executed by an authorized representative of the insurer or insurers,
evidencing that Franchisee's insurance complies with this section.
3.
Notice
of Cancellation, Reduction, or Material Change in Coverage. Policies
shall include a provision requiring written notice by the insurer
or insurers to the City not less than 30 calendar days prior to cancellation,
reduction, or material change in coverage. If insurance coverage is
canceled, reduced or materially changed, Franchisee shall, prior to
the effective date of such cancellation, reduction or material change,
obtain the coverage required under this section, and provide the City
with documentation of such coverage. Franchisee shall be responsible,
to the extent not caused by the City's negligence or intentional misconduct,
for the costs of any damage, liability, or injury, which are not otherwise
covered by insurance or because of a failure to comply with this section.
4.
Insurance
Required. During the term of this contract, Franchisee shall maintain
in force, at its own expense, the following insurance:
(A)
Workers' compensation insurance for all subject workers; and
(B)
General liability insurance with a combined single limit, or the
equivalent, of not less than $500,000 for each person, and $1,000,000,
for each occurrence of bodily injury and $1,000,000 for property damage,
which coverages shall include contractual liability coverage for the
indemnity provided under this contract, and naming the City, its officials,
officers, employees and agents as additional insureds with respect
to Franchisee's activities pursuant to this Franchise.
(Ord. 2013-03, 2013)
1.
Transfer.
This Franchise shall not be sold, leased, assigned or otherwise transferred,
nor shall any of the rights or privileges herein granted or authorized
be leased, assigned, mortgaged, sold or transferred, either in whole
or in part, nor shall title hereto, either legal or equitable, or
any right, interest or property herein, pass to or vest in any person,
except the Franchisee, either by act of the Franchisee or by operation
of law, without the consent of the City, expressed in writing, such
consent not to be unreasonably withheld. If the Franchisee wishes
to transfer this Franchise, the Franchisee shall give City written
notice of the proposed transfer, and shall request consent of the
transfer by the City.
2.
Any
transfer of ownership affected without the written consent of the
City shall render this Franchise subject to revocation. The City shall
have 60 days to act upon any request for approval of a transfer. If
the City fails to render a final decision on the request within said
60 days, the request shall be deemed granted unless the Franchisee
and the City agree to an extension of time.
3.
The
Franchisee, upon any transfer, shall within 60 days thereafter file
with the City a certified statement evidencing the transfer and an
acknowledgment of the transferee that it agrees to be bound by the
terms and conditions contained in this Franchise.
4.
The
requirements of this section shall not be deemed to prohibit the use
of the Franchisee's property as collateral for security in financing
the construction or acquisition of all or part of a Telecommunications
System of the Franchisee or any affiliate of the Franchisee. However,
the Telecommunications System franchised hereunder, including portions
thereof used as collateral, shall at all times continue to be subject
to the provisions of this Franchise.
5.
The
requirements of this section shall not be deemed to prohibit sale
of tangible assets of the Franchisee in the ordinary conduct of the
Franchisee's business without the consent of the City. The requirements
of this section shall not be deemed to prohibit, without the consent
of the City, a transfer to a transferee whose primary business is
Telecommunications System operation and having a majority of its beneficial
ownership held by the Franchisee, a parent of the Franchisee, or an
affiliate, a majority of whose beneficial ownership is held by a parent
of the Franchisee.
(Ord. 2013-03, 2013)
1.
The
Franchisee shall defend, indemnify, and hold harmless the City, its
agents, officers and employees from any and all claims demands, and
damages of any kind, including attorney's fees which may arise, from
any negligent act or omissions of the Franchisee, its agents, officers
or employees, in connection with the Franchisee's operations pursuant
to this franchise.
2.
In any situation in which the City is found legally liable to Grantee for damage to Grantee's facilities, City's liability shall be limited to the cost of repair or replacement of the damaged facilities, whichever is less. 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 Section 3.22.080.
(Ord. 2013-03, 2013)
1.
Franchise
Fee. In consideration of permission to use the streets and Rights-of-Way
of the City for the construction, operation, and maintenance of a
Telecommunications system within the Franchise area the Franchisee
shall pay to City during the term of this Franchise an amount equal
to seven percent of the Franchisee's Gross Revenues ("Franchise Fee").
Any net uncollectibles, bad debts or other accrued amounts deducted
from Gross Revenues shall be included in Gross Receipts at such time
as they are actually collected. Revenue from point to point or multi-point
services is based on the pro-rata share of the revenue from those
services.
2.
Modification
Resulting from Action by Law. Notwithstanding any provision to the
contrary, at any time during the time of this Franchise, City may
elect to increase the Franchise fee amount as may then be allowed
by State Law. City shall provide Grantee written notice of such increase
following the adoption of the change in percentage by City. The increase
shall be effective 30 days after City has provided Grantee with such
notice.
3.
Payment
of Franchise Fees. Payments due under this provision shall be computed
and paid quarterly for the preceding quarter, as of March 31, June
30, September 30, and December 31, each quarterly payment due and
payable no later than 45 days after such dates. Not later than the
date of each payment, the Franchisee shall file with the City a written
statement, in a form satisfactory to the City and signed under penalty
of perjury by an officer of the Franchisee, identifying in detail
the amount of gross revenue received by the Franchisee, the computation
basis and method, for the quarter for which payment is made.
4.
The
payment of the 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 Franchise agreement. Grantee shall pay
all generally applicable permit or licensing fees for the construction,
maintenance, or inspection of street openings or any other Grantee
work on its Facilities. Grantee shall not deduct charges and penalties
imposed by the City for noncompliance with charter provisions, ordinances,
resolutions or permit conditions from the Franchise fee payments required
by this section. The Franchise Fee shall not be deemed to be in lieu
of or a waiver of any ad valorem property tax which the City may now
or hereafter be entitled to, or to participate in, or to levy upon
the property of Franchisee.
5.
If at
any time, Grantee installs infrastructure on a route consistent with
serving City Hall and/or the Visitor Center, Grantee will install
at no charge to City, two connections to City Hall and one connection
to the Visitor's Center.
6.
In the
event that Grantee wishes to add cable services or any other services
not listed in this agreement to its list of services, Grantee agrees
that it must negotiate an additional agreement with the City, setting
forth the terms and conditions governing such services.
7.
Other
than any fees payable due to additional services offered or provided
by Grantee in 6. above, or the generally applicable permit and licensing
fees, Grantee shall not be required to pay any additional fee, compensation
or consideration to the City for its use of the Right-of-Way. However,
Grantee shall pay any ad valorem property taxes now or hereafter levied
against real or personal property within the City.
(Ord. 2013-03, 2013)
Upon the annexation of any territory to the City, the rights
granted herein shall extend to the annexed territory to the extent
the City has such authority. All Facilities owned, maintained, or
operated by Grantee located within any public Rights-of-Way of the
annexed territory shall be subject to all of the terms of this Ordinance.
(Ord. 2013-03, 2013)
In order to manage the Franchisee's use of Rights-of-Way pursuant
to this Franchise, and to determine and verify the amount of compensation
due to the City under this Franchise, the Franchisee shall provide,
upon request, the following information in such form as may be reasonably
required by the City: maps of the Franchisee's Telecommunications
System; the amount collected by the Franchisee from users of Telecommunications
Service provided by Franchisee via its Telecommunications network;
the character and extent of the Telecommunications Service rendered
therefor to them; and any other related financial information required
for the exercise of any other lawful right of Franchisee under this
Franchise. The City agrees that such information is confidential and
that the City will use such information only for the purpose of managing
its Rights-of-Way, determining compliance with the terms of this Franchise,
and verifying the adequacy of Franchisee's Fee payments. The City
further agrees to protect such information from disclosure to third
parties to the maximum extent allowed by Oregon law.
(Ord. 2013-03, 2013)
In addition to all rights granted under Section 3.22.130, the City shall have the right to have performed, a formal audit or a professional review of the Franchisee's books and records by an independent private auditor, for the sole purpose of determining the Gross Receipts of the Franchisee generated through the provision of Telecommunications Services under this Franchise and the accuracy of amounts paid as Franchise Fees to the City by the Franchisee; provided, however, that any audit or review must be commenced not later than three years after the date on which Franchise Fees for any period being audited or reviewed were due. The cost of any such audit or review shall be borne by the City. The City agrees to protect from disclosure to third parties, to the maximum extent allowed by State law, any information obtained as a result of its rights pursuant to this Section, or any compilation or other derivative works created using information obtained pursuant to the exercise of its rights hereunder.
(Ord. 2013-03, 2013)
The City or its representatives shall have the right to inspect
all construction or installation work performed pursuant to this Franchise
and to make such tests as it shall find necessary to ensure compliance
with the terms of this Franchise and other pertinent provisions of
law relating to management of the City's Rights-of-Way.
(Ord. 2013-03, 2013)
Venue for any proceeding brought to enforce any term or condition
of this Franchise shall be the local Circuit Court for the City; provided,
however, that should any proceeding be brought in a Federal forum,
such proceeding shall be brought in the U.S. District Court of Oregon
in Eugene, Oregon, with the parties stipulating to trial in Eugene,
Oregon.
(Ord. 2013-03, 2013)
The City and the Franchisee agree that neither shall be liable
to the other for any indirect, special, or consequential damages,
or any lost profits, arising out of any provision or requirement contained
herein, or, in the event this Franchise, or any part hereof, is determined
or declared to be invalid.
(Ord. 2013-03, 2013)
Franchisee shall comply with all applicable Federal, State,
and local laws, ordinances, and regulations, whether now in existence
or hereinafter enacted. Nothing contained in this Franchise shall
be construed as authorizing the Franchisee, its officers, employees
or agents, to violate any Federal, State or local law, whether now
in existence or hereinafter enacted, including, by way of illustration
but not of limitation, any provision of Oregon anti-trust law, ORS
646.750-646.836, or the Oregon Unlawful Trade Practices Act, ORS 646.650-646.652.
Nothing contained in this section shall be construed as requiring
Franchisee to comply with any Federal, State or local law that is
repealed or otherwise rendered unenforceable subsequent to the adoption
of this Franchise.
(Ord. 2013-03, 2013)
Any notice provided for under this Franchise shall be sufficient
if in writing and (1) delivered personally to the other party or deposited
in the U.S. Mail, postage prepaid, certified mail, return receipt
requested; (2) sent overnight by commercial air courier; or (3) sent
by facsimile transmission, provided receipt of such facsimile is confirmed,
in writing, on the first business day following the date of transmission.
Notice shall be sent to the following address, or such other address
as each party may specify in writing:
|
Name: City of Port Orford, ATTN: Mike Murphy
Title: City Manager
Address: P.O. Box 310
Port Orford, OR 97465
Phone: (541) 332-3681
Facsimile: (541) 332-3830
|
Name: Contracts Administration
Title: LS Networks
Address: 921 SW Oregon St., STE 370
Portland, OR 97205
Phone: (503) 294-5300
Facsimile: (503) 227-8585
|
Notice shall be deemed effective upon the earliest date of actual
delivery; three business days after deposit in the U.S. mail as provided
herein; one business day after shipment by commercial air courier;
or the same day as transmitted by facsimile, provided transmission
of such facsimile is confirmed in writing as provided herein.
(Ord. 2013-03, 2013)
The captions to sections of this Franchise are intended solely
to facilitate reading and reference of the sections and provisions
contained herein, and shall not affect the meaning or interpretation
of any section or provision of this Franchise.
(Ord. 2013-03, 2013)
If any part of this Franchise becomes or is held to be invalid
for any reason, the determination will affect only the invalid portion
of this Franchise. In all other respects this Franchise will stand
and remain in full force and effect as if the invalid provision had
not been part of this Franchise.
(Ord. 2013-03, 2013)
1.
The
City is vested with the power and authority to reasonably regulate,
and manage, its Rights-of-Way in a competitively neutral and non-discriminatory
manner, and in the public interest. Franchisee shall not be relieved
of its obligations to comply with any provision of this Franchise
by reason of the 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.
2.
No provision
of this Franchise will be deemed waived unless such waiver is in writing
and signed by the party waiving its rights. However, if Franchisee
gives written notice of a failure or inability to cure or comply with
a provision of this Franchise, and the City fails to object within
a reasonable time after receipt of such notice, such provision shall
be deemed waived.
(Ord. 2013-03, 2013)
