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«Ordinance No. 2081 An ordinance of the City Council of the City of Milwaukie, Oregon, granting to Astound Broadband, LLC, a Washington limited ...»

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CITY OF MILWAUKIE

"Dogwood City ofthe West"

Ordinance No. 2081

An ordinance of the City Council of the City of Milwaukie, Oregon, granting to Astound

Broadband, LLC, a Washington limited liability company, a franchise to construct, operate and

maintain a telecommunications network within the City of Milwaukie, Oregon.

WHEREAS, Astound Broadband, LLC, an Oregon limited liability company provides

Telecommunications services within the City of Milwaukie, Oregon; and WHEREAS, Astound has applied for a Telecommunications Franchise pursuant to local ordinances relating to Telecommunications located in the publ ic rights of way, and the City of Milwaukie "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 herein.

Now, Therefore, the City of Milwaukie does ordain as follows:

Section 1. Council approves the Telecommunications Franchise attached to this Ordinance as Exhibit A and incorporated herein by this reference.

Section 2. Council authorizes the City Manager to sign the agreement attached to this ordinance as Exhibit A on behalf of the City of Milwaukie.

Section 3. This ordinance and the franchise attached as Exhibit A become effective 30 days after Council passage.

'7 /;s ftt.J Lf.' I Read the first time on and moved to second reading by vote of the City Council.

Read the second time and adopted by the City Council on f 5/tlj )?

Signed by the Mayor on

ATIEST:

Jordan Ramis PC Pat DuVal, City Recorder Page 1 of 1- Ordinance No. 2 0 81 Ordinance No. 2 0 8 1 Exhibit A

TELECOMMUNICATIONS

FRANCHISE AGREEMENT

between MILWAUKIE, OREGON and Astound Broadband, LLC Astound Broadband, LLC Telecommunications Franchise

1. PURPOSE AND INTENT

1.1 Authorization The City of Milwaukie, Oregon (hereafter City or City) is authorized to grant a Franchise Agreement to Astound Broadband, LLC (hereafter Grantee) for a non-exclusive seven (7)-year Franchise to construct, operate and maintain a Telecommunications System in the City. This Franchise Agreement is subject to the general lawful police power of City affecting matters of local government concern and not merely existing contractual rights of Grantee. Nothing in this Franchise Agreement waives the requirements of the other codes and ordinances of general applicability enacted, or hereafter enacted, by City.

This Franchise Agreement shall not be interpreted to prevent the City from imposing lawful additional conditions, including additional compensation conditions for use of the Streets and Public Ways should Grantee provide service other than Telecommunications Service. Nothing herein shall be interpreted to prevent Grantee from challenging the lawfulness or enforceability of any provisions of applicable law.

–  –  –

For the purposes of this Franchise Agreement and all exhibits attached hereto, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. The word "shall" is always mandatory and not merely directory.

–  –  –

means the City of Milwaukie, Oregon, a municipal corporation, and all of the territory within its corporate boundaries, as such may change from time to time.

–  –  –

means the non-exclusive and revocable Telecommunications authorization or renewal thereof for the construction or operation of a Telecommunications System such as is granted by this Franchise Agreement, whether such authorization is designated as a Franchise, license, resolution, contract, certificate, agreement or otherwise.

–  –  –

means any and all revenues derived by Grantee for the provision of any and all products, services, or charges originating or terminating in the City of Milwaukie billed to a circuit, switch, or address in the City of Milwaukie, including revenues from dedicated private networks. Gross

–  –  –

Revenues shall include any and all revenues from leases of Grantee's system in the City of Milwaukie. Gross Revenues may be adjusted for the net write-off of uncollectible amounts of such revenues.

–  –  –

means the surface of and the space above and below any public street, sidewalk, alley, or other public way of any type whatsoever, now or hereafter existing as such within the Franchise Area, and any easements, rights of way, or other similar means of access to the extent City has the right to allow Grantee to use them, excluding parks and publicly owned land.

–  –  –

means 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.

–  –  –





means infrastructure owned by Grantee utilizing one or more facilities located within the City's Streets and Public Ways including all types of equipment and facilities necessary or convenient for providing Telecommunications Service or dark fiber services and all appurtenances thereto, including, without limitation, fiber optics, wires, cables, ducts, conduits, vaults, poles, anchors, cabinets, fixtures, and transformers.

–  –  –

City hereby grants to the Grantee a non-exclusive, revocable Telecommunications Franchise for a seven (7)-year period from and after the effective date hereof, revocable as provided herein, to construct, operate and maintain a Telecommunications System within the Franchise Area including without limitation the right to maintain, repair, replace, extend or remove the Telecommunications System during the term of this Franchise Agreement. This Franchise Agreement constitutes the authority, right, privilege and obligation to provide Telecommunications Services. This Franchise Agreement is subject to the laws of the United States and the State of Oregon, and to the general ordinances of the City affecting any matter and not merely existing contractual rights of Grantee, whether now existing or hereinafter enacted. The City shall, upon request, supply the Grantee with copies of any City laws or regulations affecting Grantee's operations.

3.2 Use of Streets and Public Ways

For the purpose of constructing, operating and ma intaining a Telecommunications System in the Franchise Area, the Grantee may erect, install, audit, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the Streets and Public Ways w ithin the Franchise Area such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments, and other property and equipment as are necessary, convenient and appurtenant to the operation of the Telecommunications System. Prior to construction or alteration, however, the Grantee shall in each case file plans and obtain required permits as required with the appropriate agencies of City and in accordance with any agreements with utility providers and companies, pay applicable Telecommunications and permit fees, and receive approval as necessary before proceeding.

–  –  –

Except as otherwise provided herein for revocation, the term of this Franchise Agreement and all rights, privileges, obligations and restrictions pertaining thereto shall be seven (7) years from the effective date of this Franchise Agreement. Grantee may file an application to renew this Franchise no fewer than 180 days before expiration of this Franchise Agreement, in accordance with Milwaukie Municipal Code Section 3.13.060.

3.4 Franchise Nonexclusive

This Franchise shall be nonexclusive, and is subject to all rights, interests, agreements, permits, easements or licenses granted by City to any person to use any street, right-of-way, easements not otherwise restricted, or property for any purpose whatsoever, including the right of City to use same for any purpose it deems fit, including the same or similar purposes allowed Grantee hereunder. City may, at any time, grant authorization to use the Streets and Public Ways for any purpose not incompatible with Grantee's authority under this Franchise Agreement, and for additional franchises for Telecommunications systems.

3.5 Franchise Non-Transferable

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 Grantee, either by act of the Grantee or by operation of law, without the consent of the City Council, which may be expressed by resolution or other appropriate instrument; provided, however, that the Grantee may freely assign this Franchise to an Affiliate without prior written notice as part of any corporate financing, reorganization or refinancing or to any person that purchases all or substantially all of the assets or ownership interests of Grantee or its parent company. The granting of such consent in one instance shall not render unnecessary any subsequent consent in another instance.

Within thirty (30) days of any transfer or sale, if approved or deemed granted by the City, Grantee shall file with the City a copy of the deed, agreement, lease or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as correct by Grantee and the transferee. City shall invoice Grantee for the time and materials costs incurred by the City in considering the request to transfer this Franchise Agreement.

–  –  –

Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed void and of no effect unless Grantee shall within thirty (30) days after the same shall have been made, file such certified copy as is required.

The requirements of this section shall not be deemed to prohibit the use of the Grantee's property as collateral for security in financing the construction or acquisition of all or part of a Telecommunications System of the Grantee or any affiliate of the Grantee. 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 Agreement.

The requirements of this section shall not be deemed to prohibit sale of tangible assets of the Telecommunications System in the ordinary conduct of the Grantee'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 Grantee, a parent of the Grantee, or an affiliate a majority of whose beneficial ownership is held by a parent of the Grantee.

3.6 Franchise Agreement Acceptance

After City Council approves this Franchise Agreement, the City Manager shall promptly tender it to Grantee. Within sixty (60) days after Council approval, Grantee must file a written acceptance with the City Manager. An adequate form of acceptance is annexed to this Franchise Agreement. The Council-approved Franchise Agreement will lapse if Grantee fails to accept the Franchise Agreement in accordance with this section.

–  –  –

4. CONSTRUCTION, MAINTENANCE, AND REPAIR OF INFRASTRUCTURE

4.1 Grantee may make all reasonably necessary excavations in any Street or Public Way for the purpose of placing, erecting, laying, maintaining, or repairing Grantee's infrastructure, and shall repair, renew, or replace the same as reasonably possible to the condition that existed prior to such excavation. Grantee shall obtain all necessary City of Milwaukie permits for such excavation and construction and pay all applicable fees. Such work shall be done only in accordance with plans or designs submitted to, and approved by, the City. Such plans shall (1) be evaluated by the most current public works standards at the time of receiving the permit application for construction within the Streets and Public Ways in the City, and (2) be maintained by the City as confidential and exempt from public disclosure to the maximum extent allowed by law, this provision constituting an official request for such confidentiality under Oregon's public records laws.

4.2 Such work shall be performed in a good and workmanlike manner and in compliance with all rules, regulations, bonding requirements, and ordinances that may, during the term of this Franchise, be adopted or imposed from time to time by the City, or any other authority having jurisdiction over Streets and Public Ways.

4.3 Prior to commencing excavation or construction Grantee shall give appropriate notice to other franchisees, licensees, or permitees of the City owning or maintaining facilities that may be affected by Grantee's proposed excavation or construction.

4.4 If emergency repairs are necessary for Grantee's facilities, Grantee may immediately initiate such emergency repairs. Grantee shall notify the City's Engineering Department by telephone, e-mail, or other means reasonably calculated to provide prompt and effective notification as soon as practicable after commencement of work performed under emergency conditions. Grantee shall make such repairs in compliance with applicable ordinances and regulations. Grantee shall apply for any necessary permits no later than the business day next following the discovery of the need for such repairs.

4.5 Grantee shall construct and maintain its Telecommunications System in such a manner as to not interfere with City sewer or water systems, or other City facilities.



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