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2693 Effective Date: December 17, 2015 ORDINANCE No. 2693 AN ORDINANCE OF THE CITY OF LAKE OSWEGO GRANTING A NONEXCLUSIVE TELECOMMUNICATIONS SERVICES FRANCHISE TO ASTOUND BROADBAND, LLC D/B/A WAVE WHEREAS, it is in the best interest of the City and its citizens to promote the offering of competitive telecommunications services, subject to the City's lawful authority to regulate the use of its rights of way; and WHEREAS, the City has jurisdiction and exercises regulatory management over all public rights of way within the City under authority of the City Charter and state law; NOW,THEREFORE, THE CITY OF LAKE OSWEGO ORDAINS AS FOLLOWS: SECTION 1. Purpose. The purpose of this agreement is to determine terms and conditions upon which Astound Broadband, LLC d/b/a Wave may be permitted to occupy the streets, highways, and other public rights-of-way within the City, pursuant to the power of the City of Lake Oswego under its Home Rule Charter and ORS Chapter 221, except as to matters regulated by state or federal authorities. SECTION 2. Parties. The parties to this agreement are the City of Lake Oswego, an Oregon municipal corporation situated in the county of Clackamas, sometimes referred to herein as "the City" and Astound Broadband, LLC d/b/a Wave, a Washington limited liability company qualified to do business in the State of Oregon, sometimes referred to herein as "Grantee." All rights and privileges granted under this agreement to Grantee shall inure to its successors and assigns. The City of Lake Oswego reserves the right to refuse to accept the performance of any obligations imposed on Grantee under this agreement by any delegee of Grantee. SECTION 3. Grantee's Rieht to Occuov Rieht of Way. Subject to the other terms and conditions set forth in this document, and subject to any applicable ordinances and regulations of the City, including but not limited to ordinances and regulations regarding development, tree pruning or removal, erosion control and excavation in the public right-of-way, including applicable permit fees, and subject to any applicable state and federal laws, rules or regulations, the City hereby grants to Grantee, the right, privilege and franchise to occupy the streets, highways or other public right of way as may come within the jurisdiction of the City during the term of this agreement, for the purpose of construction, use, operation and maintenance of a system to provide telecommunication services. Without limiting the scope of activities that are not authorized, this grant specifically does not include or authorize construction, use, operation or provision of a cable system or provision of cable service, as any of those terms are defined in 47 USC 522. This franchise also specifically does not authorize video programming, meaning programming provided by, or that would generally be considered comparable to programming provided by, a television broadcast station or programming network. "Video programming" as used in this section does not include video programming provided solely as a part of and via a ORDINANCE 2693 Page 1 of 10 service that enables users to access content, information, electronic mail or other services offered over the public Internet. This grant includes the right to place and maintain poles,wires, and other equipment customarily associated with telecommunications systems. Such equipment must be laid underground unless the City specifically permits wires or cables to be strung upon poles or other fixtures above ground. Nothing in this agreement shall preclude Grantee from entering into a contract for the use of any portion of its telecommunication systems with any person or other entity for such person or entity to provide any retail or wholesale telecommunications services to its own customers, whether specified herein or not, provided that said person or entity is operating under a current franchise, license or permit issued by the City to the extent that the City requires such franchise, license, or permit consistent with applicable law. Additionally, Grantee shall include a provision in its agreements with such person or entity requiring them to comply with all City requirements and Grantee shall use good faith efforts to enforce such provisions. This franchise is expressly subject to the Charter of the City of Lake Oswego and the general ordinance provisions, resolutions, rules and regulations adopted or established pursuant thereto, now in effect or hereafter made effective. SECTION 4. Pre-Construction Approval. Prior to the commencement of any construction, extension or relocation of any of Grantee's facilities upon, over, under or across any of the streets, highways, or other public rights-of-way within the jurisdiction of the City, the Grantee shall advise the City's Engineering Division in writing of the location and shall obtain from the City Engineer written approval prior to commencement of such work. Not less than 48 hours prior to commencement of any work which might affect City utilities, Grantee shall give notice to City's Maintenance Department for purposes of utility location. The location of all such facilities shall be at places approved by the City. All work done by or for Grantee shall be in compliance with the applicable rules, regulations, ordinances or orders of the City then in effect. SECTION 5. Work within the Rieht of Way.Subject to the provisions of this agreement and current applicable regulations of the City,the Grantee may make necessary excavations within the rights- of-way of streets and highways for the purpose of installing, maintaining and operating its facilities. Except in an emergency causing prior notice and approval to be impossible, Grantee shall obtain from the City Engineer written approval of any excavation within the any street, highway, or other public right-of-way. The City Engineer shall have the authority to condition the excavation upon the provision of adequate manpower, materials, and machinery to protect the rights of the public to safe passage upon such street or highway. Grantee shall have the right to appeal to the City Council any condition imposed under this section which it reasonably believes to be contrary to law or applicable City rules or regulations, or hazardous, unreasonable, or unduly expensive under the circumstances. Grantee shall furnish the City with documents showing Grantee's facilities"as built"within the public right of way in an industry standard format acceptable to the City within 60 days after such work is complete. Grantee shall perform all work according to all federal, state and local requirements and in conformance with industry practice ORDINANCE 2693 Page 2 of 10 for workplace and public safety. Grantee shall allow the City access to and the right to inspect any of the Grantee's work within the right of way and shall insure against the risk of personal injury that may be incurred by any City agent or employee in the course of that person's access to and inspection of such work. Whenever Grantee, or anyone on Grantee's behalf, disturbs any portion of the right of way or any other public property or other public place,the Grantee shall properly and promptly restore the affected portion of the right of way or other public property to good order and condition as soon as practicable without unnecessary delay. Such restoration shall be done in strict compliance with City specifications and regulations in effect at the time of such activity. If Grantee fails to properly and promptly restore the affected portion of a street, highway or public property to good order and condition, the City may make the restoration and Grantee shall be liable to the City for the actual cost of making such restoration, including the costs of inspection, supervision, and administration. SECTION 6. City Improvements. Nothing in this agreement shall be construed to prevent or impair the City from grading, constructing, paving, altering, improving, sewering, repairing or maintaining any of the streets, highways or other public rights-of-way within the jurisdiction of the City which are occupied by fixtures,facilities, appliances or structures of Grantee, but all such work or improvements by the City shall be done in such a manner and by such means as to prevent or minimize impairment of use of said fixtures, facilities, appliances, or structures by Grantee to the extent practicable. If avoidance of obstructions or impaired use of Grantee's facilities and structures cannot reasonably be accomplished without additional costs to the City, the Grantee shall compensate the City for any such additional actual costs reasonably incurred by the City to undertake such work. SECTION 7. Relocation or Rearrangement of Grantee's Facilities. Whenever it becomes necessary to temporarily or permanently rearrange, relocate or remove any fixture, facility, appliance or structure belonging to Grantee to permit the passage of any structure, machinery, or other object over or upon any street, highway or other public right-of-way within the jurisdiction of the City, the Grantee will perform such rearrangement, relocation or removal within a reasonable period of time after written notice from the person desiring to move such structure, machinery, or object. Said written notice shall bear the acknowledgment of the City, and shall detail the route of movement of the structure, machinery or other object and shall provide that the costs incurred by Grantee in making such rearrangement, relocation or removal of its fixtures, facilities, appliances or structure will be borne by the applicant desiring to make such use of the street, highway or public right-of-way. The notice shall further provide that the applicant will indemnify and hold harmless the Grantee of and from any and all damages or claims of whatsoever kind or nature, to the extent allowed by law, caused directly or indirectly by such temporary or permanent rearrangement, relocation or removal of the fixtures, facilities, appliances or structures of Grantee. If required by the Grantee, the applicant shall deposit with Grantee cash or a good and sufficient bond to pay any and all ordinary and reasonable costs incurred by the Grantee. Temporary or permanent rearrangement of facilities required by the City or the Lake ORDINANCE 2693 Page 3 of 10 Oswego Redevelopment Agency for a public purpose shall be accomplished by Grantee without charge in the same manner as permanent relocations described in Section 8 of this agreement. SECTION 8. Public Relocation.The City, by its properly constituted authorities, shall have the right to cause the Grantee to move the location of any pole,wire,cable, appliance,conductor, conduit, or other plant whenever the relocation thereof shall be for public necessity, and the expense thereof shall be paid by the Grantee. Public necessity is deemed to include relocations required by a public urban renewal agency. The manner of removal or replacement shall be as directed by the City so it shall not interfere with the public work of the City. Public necessity shall be deemed to be whenever any pole, wire, cable, appliance, conductor, conduit, facility or plant of Grantee interferes with construction, reconstruction, renovation, or repair of any public improvement located in a street or any public right-of-way. SECTION 9. City Occupancy of Grantee's Poles and Innerduct: City Fiber. Where space is available, as determined by Grantee, the City shall be permitted to occupy Grantee's poles and underground innerduct for traffic signal interconnection circuits and other lawful municipal purposes. Such occupancy by the City shall be subject to standard Astound Broadband, LLC rates as well as all terms and conditions agreed to by the City and Grantee. SECTION 10. Franchise Not Exclusive. The franchise granted herein by the City of Lake Oswego to the Grantee is nonexclusive. SECTION 11. Modifications. Additions and Extensions. Whenever the City Council deems it reasonable or necessary in the interest of the public it may, by resolution, require Grantee to make modifications, additions and extensions to its physical equipment, facilities or plant or services within the jurisdiction of the City as provided by ORS Chapter 221, except as to matters regulated by state or federal authorities. SECTION 12. Compensation. In consideration of the rights, privilege and nonexclusive franchise herein granted, Grantee, its successors and assigns agree to pay to the City the greater of: 1. A minimum franchise fee of$1,500 per quarter; or 2. A sum equal to 5% of its gross revenues. Payment of this franchise fee shall be made on a quarterly basis on or before April 30, July 31, October 31 and January 31 for the calendar quarters immediately preceding. Grantee shall remain responsible for payment of any permit or inspection fees or similar charges for street openings, installations, construction or similar purposes. ORDINANCE 2693 Page 4 of 10 "Gross revenues" shall mean any and all gross revenues, net of bad debt, derived by Grantee for the provision of any services to customers within the corporate limits of the City of Lake Oswego, irrespective of where any invoices are billed or paid, and irrespective of whether the customers themselves are physically present within the City. Gross revenues shall also include any and all revenue from leases, licenses, permits, rental agreements, IRU's or any other use of any part of the Lake Oswego portion of Grantee's system for the provision of service to customers within the corporate limits of the City of Lake Oswego: Gross revenues shall also include: (A) Services interconnecting interexchange carriers, competitive carriers, and/or wholesale telecommunications providers for the purpose of voice, video, or data transmission; (B) Services connecting interexchange carriers and/or competitive carriers to telephone companies providing local exchange services for the purpose of voice, video, or data transmission; (C) Services connecting interexchange carriers or competitive carriers to any entity, other than another interexchange carrier, competitive carrier, or telephone company that provides local exchange services, for the purpose of voice,video, or data transmission;or (D) Services interconnecting any entities, other than interexchange carriers, competitive carriers, or telephone companies providing local exchange services, for the purpose of voice, video, or data transmission. (E) This Franchise does not authorize the Grantee to operate as a telecommunications provider. The Grantee represents that it has applied for and received all necessary regulatory authority. The City elects to initially forgo collection of the portion of the franchise fee derived from the portion of Grantee's gross revenues that result solely from the Grantee's provision of Internet access services. However, the City reserves the right to require payment of that portion of the franchise fee upon 120 days' written notice to Grantee. Grantee does not waive, and hereby reserves, the right to challenge the validity of such requirement under applicable law. "Indefeasible Right of User Interest (IRU)" means a form of acquired capital in a telecommunications system, in which the holder of the interest possesses a right to use the telecommunications system, but not the right to control, maintain, construct or revise the telecommunications system SECTION 13. Acceptance of Payment Not a Waiver. Acceptance by the City of any payment due from Grantee under this agreement shall not be deemed to be a waiver by the City of any other obligation of Grantee under this franchise agreement. Acceptance by the City of any payments shall not bar the City from establishing at a later time that the amount tendered was incorrect and collecting any balance due to the City as a result of any incorrect tender by the Grantee. SECTION 14. Grantee's Records. Grantee shall keep accurate record books of account for the purpose of determining the amounts due to the City under the provisions of this agreement. Such books of account shall be open to inspection, upon 30 days prior written notice, by the City, its ORDINANCE 2693 Page 5 of 10 attorney or other authorized agent at any time during Grantee's business hours. The City may audit said books of account from time to time, but no more than once per year. Should such an audit reveal that payments tendered by Grantee to the City are less than the amounts due under the terms of this agreement, Grantee shall promptly remit the amounts due City. Should such an audit reveal that payments tendered by Grantee to the City are more than the amounts due under the terms of this franchise, City shall promptly credit the amount of the overpayment against Grantee's future franchise fee payments. A claim for overpayment is deemed waived three years after the date the payment was due. Grantee shall maintain current maps showing the location of its facilities, fixtures, appliances and structures within the streets, highways or other public rights-of-way of the City. The City shall be allowed to inspect said maps at any time during Grantee's normal business hours. If requested by City, Grantee shall furnish, without charge and within a reasonable time, maps relating to specified areas of the City. SECTION 15. Indemnification. (A) Grantee hereby agrees and covenants to indemnify, defend and hold the City, its officers, agents and employees, harmless from any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorney fees or expenses, arising out of any construction, excavation or any other act done under this Franchise, by or for Grantee, its agents or employees, or by reason of any omission of Grantee to keep its telecommunications system in a safe condition, but not to the extent caused by any negligence or willful misconduct by the City, its officers, agents or employees. The City shall provide Grantee with prompt written notice of any such claim, which Grantee shall defend with counsel of its own choosing and no settlement or compromise of any such claim will be done by the City without the prior written approval of Grantee. Grantee and its agents, contractors and others shall reasonably consult and cooperate with the City while conducting its defense of the City. (B) Grantee also hereby agrees to indemnify the City for any third party damages, claims, additional costs or expenses assessed against or payable by the City arising out of or resulting, directly, or indirectly,from Grantee's failure to remove, adjust or relocate all or any portion facilities in a timely manner pursuant to Sections 7,8 and 9 of this agreement, except to the extent that Grantee's failure arises 1. directly from the City's or its agents or contractors negligence or willful misconduct, 2. as a result of other utilities not timely removing, adjusting or relocating its facilities necessary to accommodate Grantee's removal, adjustment or relocation or 3. from the negligent or willful misconduct of another user of the right-of-way. SECTION 16. Insurance. (A) The Grantee shall maintain public liability and property damage insurance that protects the Grantee and the City, as well as the City's officers, agents, and employees, from the claims referred to in Section 15. The insurance shall provide coverage at all times of not less than $2,000,000 combined single limit for bodily injury liability and property damage liability per occurrence with an annual aggregate limit of not less than $5,000,000. The ORDINANCE 2693 Page 6 of 10 limits of the insurance shall be increased at any time necessary so as not to be less than maximum limits of liability imposed on municipalities under the Oregon Tort Claims Act during the term of this Franchise. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing in this Section 16 (A) 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. The insurance shall provide that the insurance shall not be canceled or materially altered without (30) days prior written notice first being given to the City. If the insurance is canceled or materially altered within the term of this Franchise, Grantee shall provide a replacement policy with the same terms. Grantee shall maintain continuous uninterrupted coverage, in the terms and amounts required, upon and after the effective date of this franchise. (B) The Grantee shall maintain on file with the City Recorder a certificate of insurance certifying the coverage required above.The certificate of insurance shall be reviewed and approved as to form by the City Attorney. (C) In the alternative to providing a certificate of insurance to the City, certifying liability insurance coverage as required in this Section, Grantee may provide the City with a statement regarding its self-insurance. Grantee's self-insurance shall provide at least the same amount and scope of coverage for the Grantee and the City, its officers, agents and employees, as otherwise required under this Section. The adequacy of such self- insurance shall be subject to the City Attorney's review and approval. Upon Grantee's election to provide self-insurance coverage under this Section 16 (C), any failure by the Grantee to maintain adequate self-insurance shall be cause for termination of this Franchise under Section 17. SECTION 17. Termination of Franchise for Cause. On the failure of the Grantee, after 90 days written notice and demand,to perform promptly and completely each and every term, condition or obligation imposed upon it by this agreement,the City Council may, at its option and in its sole discretion,terminate this agreement by resolution. Upon termination, the Grantee shall remove its system from the public streets, highways and rights-of-way and restore all property impacted by such removal to good order and condition within the time reasonably determined by the City. SECTION 18. Duration. The rights, privileges and franchise herein granted shall continue and be in force for a period of five (5) years from and after the date this Ordinance becomes effective. The franchise shall automatically renew for one additional five (5) year period unless either party gives the other party notice of its intent not to renew the franchise at least one hundred eighty (180) days prior to the end of the initial five-year period. This Ordinance shall be subject to any and all State or Federal legislative enactments. ORDINANCE 2693 Page 7 of 10 SECTION 19. Assignment or transfer of system or franchise. Ownership or control of a majority interest in the franchise granted pursuant to this ordinance,or to the telecommunications system constructed under the authority of this franchise grant may not, directly or indirectly, be transferred, assigned, or disposed of by sale, lease, merger or consolidation, or other act of the grantee, by operation of law or otherwise, without the prior consent of the City, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent; provided, however,that (i)transfers to affiliates, subsidiaries or parent companies of Grantee, and (ii) pledges of the franchise or telecommunications system, solely for the purpose of securing indebtedness, shall not require prior consent of the City. a. Grantee and the proposed assignee or transferee of the franchise or system shall agree, in writing, to assume and abide by all of the provisions of this franchise. b. Grantee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering a request to transfer or assign this franchise, up to a maximum of$5,000. c. Any transfer or assignment of this franchise, or of the system or integral part of the system, without prior approval of the City or as otherwise permitted herein shall be void and is cause for revocation of the franchise. SECTION 20. Remedies. All remedies and penalties provided under this agreement, the common law, the statutes of this State, the statutes of the United States and the ordinances and regulations of the City, including termination of this franchise agreement, are cumulative and the enforcement or recovery of one is not a bar to the enforcement or recovery of any other remedy or penalty.The remedies and penalties contained in this agreement, including termination of this franchise agreement, are not exclusive, and the City reserves the right to enforce any penal provision and to avail itself of any and all remedies available at law or in equity. Failure to enforce any right accruing to or available to City whether arising under this agreement or otherwise, shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon Grantee by this agreement or a violation of any requirement of law imposed upon Grantee and available in favor of City. A specific waiver of any particular breach of any term, condition or obligation imposed upon the Grantee by or pursuant to this agreement shall not be a waiver of any other, subsequent or future breach of the same or of any other term, condition, or obligation or as a waiver of the term, condition or obligation itself. SECTION 21. Additional Remedies. In addition to any rights set out elsewhere in this Franchise, as well as its rights under the City Code, the City reserves the right at its sole option to apply any of the following, alone or in combination: (A) Impose a financial penalty of up to $1,000.00 per Franchise violation; provided that no such penalty shall be imposed without affording Grantee a reasonable opportunity to ORDINANCE 2693 Page 8 of 10 cure any such violation,which shall be no less than twenty(20) days; Where the violation consists of a condition of a continuing nature, each day that the condition persists shall constitute a separate violation, but the financial penalty imposed on Grantee for a continuing condition shall not exceed $30,000 in any consecutive 12-month period. (B) Suspend issuance of any permits and/or approvals to Grantee until the Grantee corrects or otherwise remedies the violation; or, (C) Suspend the Grantee's Franchise rights, until the Grantee corrects or otherwise remedies the violation. SECTION 22.Acceptance.This Ordinance shall, if accepted by Grantee,take effect and be in force 30 days from and after its passage and approval.Said Grantee shall,within 30 days of the passage and approval of this Ordinance, file with the Recorder of the City of Lake Oswego its written acceptance of all the terms and conditions of the Ordinance. SECTION 23. Severability. The provisions of this ordinance are severable. If any portion of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. SECTION 24. Renegotiation. In the event that any provision of this franchise becomes invalid or unenforceable and the City Council or the Grantee expressly finds that such provision constituted a consideration material to entering into this franchise,the City and the Grantee shall renegotiate the terms of this franchise.The party seeking renegotiation shall serve on the other party written notice of an offer to renegotiate. The parties shall have 90 days to conduct and complete negotiations. SECTION 25. No Recourse against City. Grantee shall not have any monetary recourse against the City or its officials, council, boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this Franchise or the enforcement thereof. The rights of the City under this Franchise are in addition to, and shall not be read to limit, any rights or immunities the City may enjoy under federal state or local law. Read by title and enacted at the regular meeting of the City Council of the City of Lake Oswego held on the 17th day of November, 2015. AYES: Mayor Studebaker, Buck, O'Neill, Gustafson, Manz, Collins. NOES: None. ABSTAIN: None. EXCUSED: Gudman. ORDINANCE 2693 Page 9 of 10 311-11,6. Kent Studebaker, Mayor Dated: 26) 219( 5 ATTEST: ": Y4/4YC oS,C OLfi k7k- Anne-Marie Simpson, City Recorder APPROVED AS TO FORM: David Powell, City Attorney ORDINANCE 2693 Page 10 of 10