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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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As permitted by law, administrative rule, or regulation, the City may require Grantee to remove any overhead facilities and replace those facilities with underground facilities at the same or different locations subject to Grantee's engineering and safety standards. The expense of such a conversion shall be paid by Grantee, and Grantee shall recover its costs from its customers in accordance with state law, administrative rule, or regulation. Nothing in this paragraph prevents the City and Grantee from agreeing to a different form of cost recovery consistent with applicable statutes, administrative rules, or regulations on a case-by-case basis.

4.6.C Temporary Relocation at Request of Third Parties

Whenever it is necessary to temporarily relocate or rearrange any facility of Grantee to permit the passage of any building, machinery or other object, Grantee shall perform the work on thirty ( 30) business days' written notice from the persons desiring to move the building, machinery or other object. The notice shall: (1) bear the approval of the City Engineer; (2) detail the route of movement of the building, machinery, or other object; (3) provide that the person requesting the temporary relocation shall be responsible for Grantee's costs; (4) provide that the requestor shall indemnify and hold harmless the City and Grantee from any and all damages or claims resulting either from the moving of the building, machinery or other object or from the temporary relocation of Grantee's facilities; and (5) beaccompanied by a cash deposit or other security acceptable to Grantee for the costs of relocation.

Grantee, in its sole discretion, may waive the security. The cash deposit or other security shall be in an amount reasonably calculated by Grantee to cover Grantee's costs of temporary relocation and restoration.

4.6.0 Temporary Relocation at Request of the City

In accordance with ORS 221.420 and Milwaukie Municipal Code Section 3.13.050, the City may require the Grantee to remove and relocate facilities maintained by the Grantee in any Streets or Public Ways, property or place of the City by giving notice to Grantee. Prior to such relocation, the City agrees to attempt to provide a 586819-8 Astound Broadband, LLC Telecommunications Franchise suitable a Iter nate location for Grantee's facilities with the Streets and Pu~lic Ways, which includes a minimum or maximum square footage set by the Grantee. The cost of removal or relocation of its facilities for public projects shall be paid by the Grantee; however when the City requires more than one temporary relocation and both the initial and subsequent relocations are for public projects and not at the request of or to accommodate a private party, the initial relocation shall be at the expense of the Grantee and subsequent relocations occurring less than two (2) years after the initial relocation shall be at the expense of the City. In the event that any relocation is requested by or is to accommodate a private party, Grantee shall seek reimbursement from the private party and not from the City. The City and the Grantee agree to cooperate to minimize the economic impact of such tempora ry relocation on each party.

4.6.E Notice

The notice required by Section 4.6 (A), (B), (C) and (D) shall be in writing and shall be provided at least thirty ( 30) business days before the date that Grantee is required to move its facilities. The City will endeavor to provide as much notice as possible. The notice shall specify the date by which the existing facilities must be removed. Nothing in this provision shall prevent the City and Grantee from agreeing, either before or after notice is provided, to a schedule for relocation. In the event that Grantee fails to comply with a notice to relocate and the City and Grantee have not reached agreement on a schedule for relocation, the City may remove or relocate Grantee's facilities that were the subject of the relocation notice at Grantee's expense.

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Grantee shall defend, indemnify, and hold City and its officers, officials, agents, employees, and volunteers harmless from any and all costs, injuries, damages, losses, suits, or liabilities of any nature including attorneys' fees in connection with any claims arising out of failures to act, or misconduct of Grantee or its affiliates, officers, employees, agents, contractors, or subcontractors, in the construction, operation, maintenance, repair, or removal of its Telecommunications facilities, and in providing or

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Grantee agrees to forever indemnify City, its officers, employees, agents, and representatives, from and against any claims, costs, and expenses of any kind, whether direct or indirect, pursuant to any state or federal law, statute, regulation, or order, for the removal or remediation of any leaks, spills, contamination, or residues of hazardous substances, directly attributable to Grantee's facilities. Hazardous substances has the meaning given by ORS 465.200.

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to each, but nothing herein shall operate to increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy.





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The insurance shall provide that the insurance shall not be canceled or materially altered so as to be out of compliance with the requirements of this Section without thirty (30) days written notice first being given to the City. If the insurance is canceled or materially altered so as to be out of compliance with the requirements of this Section within the term of this Franchise Agreement, Grantee shall provide a replacement policy. Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts required, for the duration of this Franchise Agreement.

5.4.0 Certificate

Grantee shall maintain on file with the City a certificate of insurance certifying the coverage required above and an endorsement naming City as an additional insured, which certificate shall be subject to City's approvals to the adequacy of the certificate and ofthe insurance certified under the requirements ofthis section.

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Failure to maintain adequate insurance as required under this Section shall be cause for immediate termination of this Franchise Agreement by the City.

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The Grantee shall also indemnify, defend and hold harmless the City and its officers, agents and employees for any and all claims for damages or personal injury which exceed the limits of insurance provided for in this Section.

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The City shall have the right to perform, or cause to have performed, a formal audit or a professional review of the Grantee's books and records and, for the specific purposes determining the Gross Revenues derived from the operation of the Telecommunications System to provide Telecommunications Services within the Franchise Area, to determine the accuracy of amounts paid as franchise fees to the City by the Grantee, provided that any audit or review must be commenced not later than three (3) 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, except that if it is established that the Grantee has made underpayment of 3% or more in franchise fees than required by this Franchise Agreement, then the Grantee shall, within thirty (30) days of being requested to do so by the City, reimburse the City for the reasonable cost of the audit or review.

6.3 Right of Inspection of Construction

The City or its representatives shall have the right to inspect all construction or installation work performed pursuant to the provision of this Franchise Agreement and to make such tests as it shall find necessary to ensure compliance with the terms of this Franchise Agreement and other pertinent provisions of law.

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At the expiration of the term for which the Franchise Agreement is granted, providing no renewal is granted, or upon its forfeiture or revocation, as provided for in this Franchise Agreement, the City may require the Grantee to remove, at Grantee's own expense, all or any part of the Telecommunications System from all Streets And Public Ways within the Franchise Area. If the Grantee fails to remove such equipment, the City may perform the work and collect the cost thereof from the Grantee. Notwithstanding the other provisions of this section, the Grantee, by written notice to the City, may elect to abandon underground Telecommunications equipment in place, in which event the Grantee shall have no further obligation hereunder as to the abandoned equipment; except that the City may nevertheless, with GO-days' notice, require the Grantee to remove or otherwise properly abandon such equipment.

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In addition to any rights set out elsewhere in this document, the City reserves the right to declare a forfeiture or otherwise revoke this Franchise Agreement, and all rights and privileges pertaining thereto, in the event that : (a) the Grantee is in violation of any material provision of the Franchise Agreement and fails to correct the violation after written notice of the violation and proposed forfeiture, and a reasonable opportunity thereafter to correct the violation; (b) the Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt;

(c) the Grantee is found to have engaged in fraud or deceit upon the City, persons or subscribers; (d) the Grantee fails to obtain and maintain any permit required by any federal or state regulatory body, relating to the construction, maintenance and operation of the system;

provided, however, that the Grantee shall be allowed a reasonable time to cure failure to obtain any permit; (e) the Grantee fails to maintain the full amount of its insurance or to post a performance bond, and letter of credit, as required under the terms of this Franchise Agreement; or (f) any other grounds exist for revocation as set forth in Milwaukie Municipal Code Section 3.13.060 (N).

Upon the occurrence of one of the events set out above, following thirty {30) days written notice to Grantee of the occurrence and the proposed forfeiture and an opportunity for Grantee to be heard before City Council, the City may by resolution declare a forfeiture.

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In addition to its other rights and remedies as set forth in this Franchise Agreement, the City shall have the right, subject to federal law, to declare a forfeiture of this Franchise Agreement one hundred and twenty (120) days after the appointment of a receiver or trustee to take over and conduct the Grantee's business, whether in receivership, reorganization, bankruptcy or other similar action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred and twenty (120) days, or unless: (a) Within one hundred and twenty (120) days after such appointment, the receiver or trustee shall have fully complied with all provisions of this Franchise Agreement and remedied any and all violations or defaults, as approved by a City Council resolution; and (b) Within said one hundred and twenty (120) days, such receiver or trustee shall have executed an agreement with the City, duly approved by the City and the court having competent jurisdiction, in which such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise Agreement.

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Upon expiration of the Franchise Agreement, in the event there is no forfeiture or revocation of the Franchise Agreement, and if the Grantee desires to renew the Franchise Agreement, both the Grantee and the City shall discuss renewal in good faith under the requirements of Milwaukie Municipal Code Section 3.13.060.

7.4 Survival of Terms

Upon the termination without renewal, or forfeiture of the Franchise, Grantee's obligations to restore Streets and Public Ways under Section 6 and maintain insurance coverage under Section 5 shall survive. These obligations shall continue notwithstanding any expiration, forfeiture, or revocation of the Franchise, except to the extent that a City-approved Transfer of the Telecommunications System is completed, and another entity has assumed full and complete responsibility for the Telecommunications System and for any relevant acts or omissions.

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The Grantee shall comply with applicable federal and state laws and regulations, including regulations of any administrative agency thereof, as well as all generally applicable ordinances, resolutions, rules and regulations of the City heretofore or hereafter adopted or established during the entire term of this Franchise Agreement, provided that any such ordinances, resolutions, rules and regulations of the City hereafter adopted or established shall not conflict or interfere with the existing rights of the Grantee hereunder. Upon request, the City shall make a good faith effort to provide copies to the Grantee of all general ordinances, resolutions, rules, regulations, and codes, and any amendments thereto, to which the Grantee is subject under this Franchise Agreement.

8.3 Extension of City Limits

Upon 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 Telecommunications facilities owned, maintained, or operated by Grantee located within any Streets and Public Ways of the annexed territory shall be subject to all terms of this Franchise Agreement.

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City and Grantee 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 Agreement, or any part hereof, is determined or declared to be invalid.

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