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Ord 2501-DataVision FranchiseCOUNCIL BILL NO. 2920 ORDINANCE NO. 2501 AN ORDINANCE GRANTING A TELECOMMUNICATIONS FRANCHISE TO DATAVISION COMMUNICATIONS, LLC TO OCCUPY CERTAIN RIGHTS -OF -WAY WITHIN THE CITY OF WOODBURN AND DECLARING AN EMERGENCY. WHEREAS, Ordinance 2291 granted a franchise ( "the Existing Franchise ") to DataVision Communications, LLC to operate telecommunications services for a 5 year period within the corporate limits of the City of Woodburn; and WHEREAS, the parties to the Existing Franchise have been negotiating in good faith towards renewal; and WHEREAS, the parties have agreed to a new non - exclusive 5 -year franchise with an automatic 5 year renewal; 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 DataVision Communications, LLC ( "the Franchisee ") a telecommunications franchise ( "the Franchise ") to locate its facilities within the rights -of -way of the City. B. Such grant is subject to all of the laws and ordinances of the City of Woodburn and the State of Oregon. C. The scope of this grant allows the installation of facilities by the Franchisee in the City's rights -of -way. Such facilities shall be used by the Franchisee to provide telecommunications services consistent with the authority granted by the FCC. In the event either the location of the Franchisee's facilities or the nature of the services provided is proposed for modification, the Franchisee shall be required to obtain an additional or revised franchise from the City. Section 2. Construction Standards. A. The construction standards of the City of Woodburn, as well as any other applicable construction standards in existence at the time of the Franchise Page 1 - Council Bill No. 2920 Ordinance No. 2501 or hereafter enacted, shall apply to all work performed by the Franchisee in City rights -of -way. B. The Franchisee'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 Franchisee will compensate the provider of power directly for the cost of power consumed in support of the Franchisee's facilities, and shall hold the City completely harmless from any power cost. C. The Franchisee 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 the Franchisee's facilities upon poles, the Franchisee shall independently obtain prior written approval from the owner and /or operator of the poles on which its facilities shall be placed. Upon request, the Franchisee shall provide copies of such written approvals for City review. E. Where permission is granted by the City to locate the Franchisee's facilities upon poles, the Franchisee 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. The franchise fee payable to the City shall be 7% (seven percent) of the Franchisee's gross revenues earned within the corporate limits of the City. In the event no revenues are earned, but the Franchisee is actually occupying City rights -of -way, the Franchisee shall pay a minimum annual franchise fee of $1,000. Franchise fees shall be payable quarterly, on or before April 30, July 31, October 31 and January 31, for the preceding calendar quarter. Such payment made by the Franchisee will be accepted by the City from the Franchisee, as also in payment of any license, privilege or occupation tax or fee for revenue or regulation, or any permit or inspection fees or similar charges for street openings, installations, construction or for any other purpose now or hereafter to be imposed by the City upon the Franchisee during the term of the Franchise. Payments made more than ten calendar days beyond the due date shall bear interest at the rate of 9% per annum. Page 2 - Council Bill No. 2920 Ordinance No. 2501 Section 4. Term. The term of the Franchise shall be five (5) years. The 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. Section 5. Acceptance. The grant of Franchise herein is conditioned upon the Franchisee's acceptance of all terms and conditions hereof in writing in a form acceptable to the City. Section 6. Emeraency Clause. This ordinance being necessary for the immediate preservation of the public peace, health and safety so that franchised telecommunications services can continue, an emergency is declared to exist and this ordinance shall take effect immediately upon passage and approval by the Mayor. Approved as to form: City Attorney 0 3 2 I 2 13 Dat Figley, ay Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ILLcu Lt 3 7, J&'13 J �lL - rc%li 37,- ATTEST: ~ Heather Pierson, City Recorder City of Woodburn, Oregon Page 3 - Council Bill No. 2920 Ordinance No. 2501 ACCEPTANCE City Administrator City of Woodburn 270 Montgomery St. Woodburn, OR 97071 This is to advise the City of Woodburn, Oregon (the "Grantor ") that DataVision Communications, LLC (the "Grantee ") hereby accepts the terms and provisions of Ordinance No. 2501, passed by the City Council on March 25, 2013 (the Franchise) granting a Franchise for five (5) years and subject to one renewal on the same terms and conditions for an additional five (5) years to DataVision Communications, LLC. The Grantee agrees to abide by each and every term of the Franchise. DataVision Communications, LLC. BY: ` DATE: