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Ord 2469 - Lightspeed Telecommunications FranchiseCOUNCIL BILL NO. 2836 ORDINANCE NO. 2469 AN ORDINANCE GRANTING A TELECOMMUNICATIONS FRANCHISE TO LIGHTSPEED NETWORKS, INC. TO OCCUPY CERTAIN RIGHTS-OF-WAY WITHIN THE CITY OF WOODBURN AND DECLARING AN EMERGENCY. WHEREAS, the City regulates the placement of telecommunications facilities within the City rights-of-way pursuant to Ordinance 2284, which governs the construction and franchising of telecommunications utilities operating within the City and desiring to occupy City rights-of-way; and WHEREAS, the City received a request from Lightspeed Networks, Inc. dba LS Networks, an Oregon Corporation, to place telecommunications facilities in certain rights-of-way within the City in order to provide service within the City, which facility locations are shown on the attached Exhibit "A"; and WHEREAS, the City has reviewed the request and application filed by LS Networks and finds that the company has the requisite authority to provide these services from the Oregon Public Utility Commission ("OPUC") and that the level of impact on the City's rights-of-way will be acceptable, and the City Council therefore desires to issue a franchise; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Franchise Grant. A. Subject to the terms and conditions contained herein, the City of Woodburn does hereby grant to Lightspeed Networks, Inc., (hereinafter "Grantee") a telecommunications franchise to locate its facilities within the rights-of-way of the City, as shown on Exhibit "A" and described in Grantee's application for a franchise. B. Such grant is subject to all of the laws and ordinances of the City of Woodburn and to applicable state and federal law. Except as otherwise specifically provided by this Franchise Ordinance, all requirements and conditions of Ordinance 2284, the Telecommunications Franchise Ordinance, shall apply to Franchisee. C. The scope of this grant allows the installation of facilities by Grantee in the City's rights-of-way as depicted in Exhibit "A". Such facilities shall be used by Grantee to provide telecommunications services consistent with the authority granted by the OPUC. In the event either the location of Grantee's facilities or the nature of the services provided is proposed for modification, Grantee shall be required to obtain an additional or revised franchise from the City. Section 2. Construction Standards. Page 1 - Council Bill No. 2836 Ordinance No. 2469 A. The construction standards of the City of Woodburn, as well as any other applicable construction standards in existence at the time of this franchise grant or hereafter enacted, shall apply to all work performed by the Grantee in City rights-of- way. B. The Grantee's facilities shall not interfere in any way with any of the City's communications or other public and city -permitted facilities, including other franchised facilities, either as installed or during operation. The Grantee will compensate the provider of power directly for the cost of power consumed in support of Grantee's facilities, and shall hold the City completely harmless from any power cost. C. The Grantee shall locate below the surface of the ground all wiring and physical improvements within City rights-of-way, unless it is physically impossible to do so. Placement of any improvements above ground, or on poles shall only be with the prior review and approval of the City. D. Where permission is granted by the City to locate Grantee's facilities upon poles, Grantee shall independently obtain prior written approval from the owner and/or operator of the poles on which its facilities shall be placed. Upon request, Grantee shall provide copies of such written approvals for City review. E. Where permission is granted by the City to locate Grantee's facilities upon poles, Grantee shall undertake all wiring and physical improvements required by the owner of each pole to which its facilities are to be attached. In the case of City - owned poles or fixtures, such work shall be performed subject to the approval of the City Engineer or his designee. Section 3. Franchise Fee. Subject to any restrictions imposed by federal law, the franchise fee payable to the City shall be 7% (seven percent) of the Grantee's gross revenues earned within the corporate limits of the City. Notwithstanding the type of telecommunications services provided, Grantee shall pay a minimum annual franchise fee of $1,000 for the privilege of using the City's rights-of-way. Franchise fees shall be payable quarterly, on or before April 30, July 31, October 31 and January 31, for the preceding calendar quarter. Payments made more than ten calendar days beyond the due date shall bear interest at the rate of 9% per annum. With each franchise fee payment, the Grantee shall furnish a sworn statement setting forth the amount and calculation of the payment. The statement shall detail the revenues received by the Grantee from its operations within the City, and shall specify the nature and amount of all exclusions and deductions from such revenues claimed by the Grantee in calculating the franchise fee. Section 4. Audit. The City shall have the right to annually audit the books and records of the Grantee to verify compliance with the terms and conditions of this Page 2 - Council Bill No. 2836 Ordinance No. 2469 franchise. At the City's request, the Grantee shall provide the City's agents access to the Grantee's books and records, as necessary, to conduct a thorough audit. Section 5. Term. The term of this franchise shall be five (5) years. This franchise shall be subject to one automatic renewal on the same terms and conditions for an additional period of five (5) years unless notice is given by either party 180 days in advance of the expiration of the franchise of its intention to terminate or renegotiate the franchise. This franchise shall be effective upon the date of Grantee's written acceptance of this grant. Section 6. Indemnification. To the extent permitted by law, the Grantee shall defend, indemnify and hold the City and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the 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 offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this Ordinance or by a franchise agreement made or entered into pursuant to this Ordinance. Section 7. Acceptance. The grant of franchise herein is conditioned upon Grantee's acceptance of all terms and conditions hereof in writing in a form acceptable to the City. Section 8. Emergency Clause. This ordinance being necessary for the public peace, health and safety, in that it is important that the Franchisee is able to apply for a right-of-way permit and begin construction, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the Council and approval by the Mayor. Approved as to form: City Attorney Appr Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder Page 3 - Council Bill No. 2836 Ordinance No. 2469 - k L, Z C �'D I Zolb 8 li' �Zel o $� (( 12d/d ATTEST Page 4 - Council Bill No. 2836 Ordinance No. 2469 Cl) `payer' JqS 2j ':9r: 3 Y€i ¢7 0 U W O H Wai nai z O W c J OO,,; WUp u Q Z sirs us< z b� N w'd¢o azQz� wawa wtF � DO' u°U t>w-O W Q i r ,, Li r Z�QQ�ZZ 4°�O O zUiO tWm 3 W � O W 3r u�z, N r co LLirx rrz,� z$3 h wzoo° ;��� Lr) E So O Z Q N a ('') ,— z = J n U Q Q ; ,9479 � U 0, /v W i � O Cl) To: City of Woodburn Re: Telecommunications Franchise Ordinance No. 2469 The above Ordinance that was approved by the City of Woodburn, including all the terms and conditions of the Franchise granted therein to Franchisee, is hereby accepted by the Franchisee. DATED this le day of G�..yr,..�Z� ,2010. FRANCHISEE: By LIGHTSPEED NETWORKS, INC. An Oregon Corporation DBA "LS Networks"