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HomeMy WebLinkAboutResolution 99-27 04/18/1999 . . . RESOLUTION --.2.L - ~ AUTHORIZING AND APPROVING THE ADVANCED TELCOM GROUP, INC. PUBLIC WAY USE AGREEMENT WHEREAS, Advanced TelCom Group, Inc, a Delaware Corporation, ("A TG") has been granted a telecommunications license, pursuant to Section 4.602 of the Springfield Municipal Code; and I WHEREAS, ATG, in its application indicates that it desires to use certain public ways ofthe City of Springfield to provide certain telecommunications services; and WHEREAS, Section 4.620 ofthe Springfield Municipal Code authorizes the City and a licensee to agree upon the compensation to be paid for use of the public ways; and WHEREAS, Resolution 98-28 fixed the fee for telecommunications services as seven (7) percent of gross revenue; and WHEREAS, the City and ATG have agreed that payments made by ATG to US. West Communications, Inc., pursuant to a certain Interconnection Agreement, are included by US. West Communications, Inc., as revenue for purposes of calculation of franchise fees owed to the City by US. West Communications, Inc.; and WHEREAS, the City and A TG have, accordingly, agreed that the amount of such payments should be a deduction from A TG revenues for the purposes of calculating fees due to the City from A TG; and WHEREAS, the City Manager has submitted the Advanced TelCom Public Way Agreement to the council for its review and approval in the form of a draft agreement dated April 13, 1999, (the "Draft Agreement"), a copy whereof, marked Exhibit A, is attached hereto and incorporated by reference herein, accompanied by certain material reviewing and commenting upon the Draft Agreement, and has recommended that the Advanced TelCom Public Way Agreement be approved; and WHEREAS, the Council has revie.wed the terms of the Advanced TelCom Public of Way Agreement and is fully informed as to the contents thereof, and has determined that it is in the public interest to enter into the Advanced TelCom Public Way Agreement; Page 1 of 2 ~ . . . NOW THEREFORE, BE IT RESOLVED, that the common Council of the City of Springfield .finds and determines that it is in the public interest to enter into the Advanced TelCom Public Way Agreement and the Advanced TelCom Public V(ay Agreement is hereby approved; and BE IT FURTHER RESOLVED, that the City Manager is hereby authorized and directed to execute the Advanced TelCom Public Way Agreement substantially in the form of the Draft Agreement, with such changes or amendments thereto as he shall determine to be necessary to effectuate the direction of the Council and give effect to the terms of the Agreement, such determination to be evidenced by his execution of the Advanced TelCom Public Way Agreement. Adopted by the Common Council ofthe City of Springfield, Oregon, this 19th April , 1999. day of Adopted by a vote of ~ for and ~ against. ~,~ Mayor s REVIEWED & APPROVED S TO FORM~ \ C:J"")\~v\- ....) ~~ DATE: <-1 I~ I ,,~ OFFICE OF CITY ATTORNEV Page 2 of 2 . . . PUBLIC WAY USE AGREEMENT THIS AGREEMENT entered into by and between Advanced TelCom Group, Inc., hereinafter referred to as the Grantee, and the CITY OF SPRINGFIELD, a municipal corporation organized and existing under the laws of the State of Oregon, hereinafter referred to as "Grantor" or "City" WITNESSETH: Section 1 Definitions 1.1 As used in this Agreement aU words ,and phrases shall have their customary usage and meaning, provided, however, that the terms defined in Section 4.600 of the Springfield Municipal Code shall have the meaning set forth therein, and the following terms shall be defined as follows: 1.1.1 "City" shall mean the City of Springfield and all areas within its corporate boundaries, including as those boundaries may be changed from time to time in the future. 1.1.2 "Council" shall mean the common council of the City as set forth in Article VII ofthe Springfield Charter. 1.1.3 "Person" shall include an individual, corporation, association, firm, or any other business entity having the legal authority to do business within the state of Oregon. 1.2 As used herein, the singular number may include the plural and the plural number shall include the singular. 1.3 Unless expressly provided to the contrary herein or in the Springfield Municipal Code, any action authorized or required to be taken by the City pursuant to this Agreement may be taken by the Councilor by the City Manager or any official or agent designated by the Councilor the City Manager. Section 2 Riehts Granted 2.1 Grantee, on or about April 13, 1999, was granted a telecommunications license by the City for the purpose of providing the services described in said license in the location or locations specified therein. A copy of such license is annexed hereto as Exhibit A, and incorporated by reference herein. 2.2 Subject to the conditions and reservations set forth herein, and the provisions of the Springfield Municipal Code, City grants to Grantee the right privilege and power to 1:\FRANCHIS\ATG\ATGPWUSE.WPD, April 13, 1999 Attachment B Page 1 of7 EXHIBI1 r A . . . construct, operate, and maintain a telecommunications system providing the services described herein on, in and under the public ways of the City, and to provide such services to the City and its residents, to the extent permitted by law; and further grants to Grantee all other rights, privileges and powers necessary or incident to the provision of such telecommunications services as defined herein. 2.3 Grantee shall, before using or occupying any public way, obtain the consent of the City for such occupation or use by securing such permit as shall be required by the provisions of Chapter 3 of the Springfield Municipal Code. 2.4 The rights granted herein shall not confer on Grantee any right, title or interest in any public way beyond that expressly conferred by the provisions of this Section 2, nor shall it confer any right or privilege to use or occupy any other property of the City or any other entity. Section 3 3.1 Reserved Rights. The City reserves the right, without limitation, to: 3.1.1 construct, install, maintain and operate any public improvement, work or facility in, on, over or under the public ways; 3.1.2 perform or authorize or direct the performance of any work that the City may find desirable or convenient in, on, over or under any public way; or 3.1.3 vacate, alter, or close any public way. . 3.2 Whenever the City shall perform or cause or permit to be performed, any work in the public way or the vicinity of the public way where such work may disturb or interfere with Grantee's facilities, the City shall, or shall require its permittee, to notify, in writing, Grantee sufficiently in advance of such contemplated work to enable Grantee to take such measures, including removal or relocation of such facilities, as m,ay be deemed necessary to protect such facilities, at its own expense. 3.3 Whenever the City shall vacate any public ways for the convenience or benefit of any person or governmental agency and instrumentality other than the City, Grantee's rights shall be preserved as to any of its facilities then existing in such public way. Section 4 Care of Facilities. 4.1 The facilities of the Grantee shall at all times be maintained and operated in a safe, substantial and workmanlike manner. 4.2 For the purpose of carrying out the provisions of this section, the City may provide such specifications relating thereto as may be necessary or convenient for the public health, safety and welfare, or for the orderly development of the City. The city may amend and add to such specifications from time to time. 1:\FRANCHIS\ATG\ATGPWUSE.WPD, April 13, 1999 Attachment B Page 2 of7 EXHIBI'J r A . . . Section 5 Activities in the Public 'Yay. 5.1 The Grantee shall obtain such permits as may be required by law prior to commencing the construction, extension or relocation of any of its facilities in the public way. 5.2 Prior to commencing any construction, extension or relocation of facilities in the public way, the Grantee shall file drawings, in such form as may be acceptable to the City Engineer, showing the location of existing facilities and facilities to be constructed maintained, or relocated. Following completion of such construction, extension, or relocation the Grantee shall file drawings and maps, in such form as may be acceptable to the City Engineer, showing the facilities as actually constructed, extended, or relocated. 5.3 Except in an emergency, the Grantee shall make no excavation, opening, or other intrusion into the public way without having first obtained such permit as may be required by law. 5.4 In performing all work in the public way, the Grantee shall, at all times, conduct such work in accordance with the Standard Construction Specifications of the City as they shall exist from time to time. 5.5 If at any time the Grantee shall make any opening, excavation or other intrusion into the public way, the Grantee shall 'promptly restore the public way to the same condition in which it was prior to the opening, excavation or intrusion, all in accordance with City Standard Construction specifications as then in effect; provided, however, that at anytime the City may effect such restoration and the full cost thereof shall be paid by the Grantee. 5.6 Should the Grantee fail to promptly make such restoration or fail to make such restoration in accordance with City Standard Construction Specifications, the City may, at its election, cause such restoration to be made. In such event the Grantee shall reimburse the City for the full cost of such restoration and, in addition, pay a penalty equal to two . times the full cost of such restoration. Section 6 Location and Relocation of Facilities. 6.1 All facilities of the Grantee shall be placed so that they do not unreasonably interfere with the use by the City and the public of the public way, and in accordance with the specifications of the City governing the location of facilities. 6.2 The City may require, in the public interest, the removal or relocation, temporarily or permanently, of facilities maintained by the Grantee in the public ways of the City. The Grantee shall remove and relocate such facilities within 120 days after receiving notice in writing to do so from the City. The cost of such removal or relocation shall be paid by the Grantee, provided, however, that when such removal or relocation is required for the I:\FRANCHIS\A TG\A TGPWUSE. WPD, April 13, 1999 Attachment B Page 3 of7 -, EXHIBI1 r A . convenience or benefit of any person, government agency or instrumentality other that the City, Grantee shall be entitled to reimbursement for the reasonable cost thereof from such person, agency or instrumentality, to the extent permitted by law. Section 7 Compensation. 7.1 As compensation for the privileges granted herein, the Grantee shall pay to the City an amount equal to seven percent (7%) of the Grantee's local exchange revenue; provided, however, that such amount shall be reduced by any amounts paid to US. West Communications, Inc., pursuant to the terms of a certain Interconnection Agreement which are on account of Grantee's use of US. West Communications, Inc. facilities or equipment to connect its facilities to the facilities of its customers. 7.2 The compensation required by this section shall be due and payable quarterly, and . shall be paid to the City by the 15th day of the month following the end of each quarter of each calendar year. Should any payment be received by the City after the 15th day of such month, the Grantee shall pay interest, at the rate of 9 percent per annum, compounded monthly, from the due date until the date paid. . 7.3 The Grantee shall furnish to the City, with each payment of compensation required by this section, a written statement, executed by an officer of Grantee showing the amount of gross revenue of the Grantee within the City for the period covered by the payment computed on the basis set out in this section, and any authorized deductions therefrom. The compensation for the period covered by the statement shall be computed on the basis of the gross revenue so reported. If the Grantee fails to pay the entire amount of compensation due the City through error or otherwise, the difference due the City shall be paid by the Grantee within fifteen (15) days fror:n discovery of the error or determination of the correct amount, with interest at the rate of 9 percent per annum, compounded monthly. Any overpayment to the City through error or otherwise shall be offset against the next payment due from the Grantee. 7.4 Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this Agreement occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due, or from collecting any balance due to the City. Section 8 Continuous Service. li The Grantee shall use due diligence to maintain continuous and uninterrupted 24- hour a day service which shall at all times conform at least to the standards common in the busi~ess and to the standards adopted by state authorities. Under no circumstances shall the Grantee be liable for an interruption or failure of service caused by act of God, unavoidable accident or other circumstances beyond the control of the Grantee through no . I:\FRANCHIS\A TG\A TGPWUSE. WPD. April 13, 1999 Attachment B Page 4 of7 EXHIBIj r A . . . fault of its own. Inability of Grantee's equipment to evaluate dates in the year 2000 or later, or failure properly to perform calculations involving the year 2000 or subsequent "" years, shall not be deemed an act of God, unavoidable accident or other circumstance, beyond the Grantee's control within the meaning ofthissection. Section 9 Safety Standards and Work Specifications. 9.1 The facilities ofthe Grantee shall at all times be maintained in a safe, substantial and workmanlike manner~ 9.2 For the purpose of carrying out the provisions of this section, the City may provide such specifications relating thereto as may be necessary or convenient for public safety or the orderly development of the City. The City may amend and add to such . specifications from time to time. Section 10 Books of Account and Reports. 10.1 The Grantee shall keep accurate books of account at an office in Oregon for the purpose of determining the amounts due to the City under Section 7 of this Agreement. The City may inspect the books of account at any time during business hours and may audit the books from time to time or require the Grantee to provide an audit report prepared by an independent accounting firm, at Grantee's expense. The Council may require periodic reports from the Grantee relating to its operations and revenues within the City. . Section 11 Collection Facilities. 11.1 The Grantee shall maintain facilities in the City where its customers may pay their bills for service during normal business hours. Section 12 . Supplvin~ Maps upon Request. " 12.1 The Grantee shall maintain on file, at an office in Oregon, maps and operational data pertaining to its operations in the City. The City may inspect the maps and data at any time during business hours. Upon request of the City the Grantee shall furnish to the City, without charge and on a current basis, maps, in such form as is acceptable to the' City Engineer, showing the location of the facilities of the Grantee in the City. . . Section 13 Indemnification. 13.1 The Grantee shall indemnify and save harmless the City and its officers, agents and employees from any and all loss, cost and expense arising from damage to property and/or injury to or death of persons due to any wrongful or negligent act or omission of the Grantee, its agents or employees in exercising the rights and privileges hereby granted. Section 14 Assienment of Rights I:\FRANCHIS\A TG\A TGPWUSE. WPD. April 13. 1999 Attachment B Page 5 of7 EXHIBlj r A . . . 14.1 . Except as provided in this section, Grantee shall not assign or otherwise transfer this Agreement or all or any portion of its rights or obligations hereunder to any entity, except an any entity wholly owned by Grantee or by any parent of Grantee, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed. Grantee shall give City not less than 30 days written notice of any such transfer or assignment. For the purpose of determining whether or not it will consent to such transfer or assignment, the City may, within 30 days of receiving notice of the proposed transfer or assignment, conduct a review of the financial or technical ability of the proposed transferee or assignee. 14.2 This Agreement and each ofthe parties' respective rights and obligations under this Agreement, shall be binding upon, and inure to the benefit of, the parties hereto and each of their successors and assigns. Section 15 Termination of Al!reement for Cause 15.1 ,Upon the failure ofthe Grantee, after sixty (60) days' notice and demand in writing, to perform promptly and completely each and every term, condition or obligation imposed upon it under or pursuant to this Agreement, t~e City may terminate this Agreement. Section 16 Remedies. 16.1 All remedies and penalties under this Agreement, including termination of the Agreement, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or enforcement of any other such remedy or penalty. The, remedies and penalties contained in this Agreement, including termination of the Agreement, are not exclusive, and the City reserves the right to enforce the provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon the Grantee by or pursuant to this Agreement. A specific waiver of a 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 or subsequent or future breach of the same or of any other term, condition or obligation, or a waiver of the term, condition or obligation itself. Section 17 17.1 Term. This agreement shall become effective as of , 1999, and shall expire , unless extended or modified by the parties hereto in writing. on 17.2 Either party, by written notice delivered not less than 90 days, nor more than one year, in advance of the termination date of this agreement, may request renewal, extension or modification of the Agreement. I:\FRANCHIS\A TG\A TGPWUSE. WPD, April 13, 1999 Attachment B Page 6 of7 EXHIBIj r A . . . 17.3 Either party, by written notice delivered not less than 90 days, nor more than 180 , ,days prior to the fifth anniversary of the effective date of this Agreement may request that the parties meet and confer with respect to changes to the Agreement. Unless otherwise agreed by the parties, any such changes agreed upon shall become effective onthe fifth anniversary date of this Agreement. Section 18 Complete Agreement 18.1 This Agreement represents the whole agreement between the parties and shall supersede all other agreements and understandings, whether oral or in writing, between the parties with respect to the subjects covered by this agreement. This Agreement may not be modified except by a writing executed by both parties to the Agreement. IN WITNESS WHEREOF, the parties, by their duly designated representatives have executed this Agreement as of this _ day of ,1999. FOR THE GRANTEE: FOR THE CITY: By: Title: By: Title: REVIEWED BY CITY OF SPRINGFIELD ISK M ENT q, ( L( _ ~ ! cOATE i;E\'lE\I\iEO & APPROVED ~\~~~~I --\_~~~ ". :, ."~', -- Y [1"7 J Q t:t ~ : .'':'' :4' I .;) I __.___, .._,,'.. , ,__,_ __n_.______. "--.-.. ~'. ; '.~' "", j --:: . I:\FRANCHIS\A TG\ROWDSE. WPD Page 7 of7 EXHIBlj r A