ORDINANCE NO. 2011
(Telecommunications Franchise – Axxis Communication, Inc.)
WHEREAS, Axxis Communication, Inc. is a regulated competitive telecom provider that provides telephone and internet services to the citizens of the City of Hood River (the “City”) and other surrounding areas;
WHEREAS, providing telecommunications services requires the installation, operation and maintenance of power poles and other related facilities to be located within the public ways of the City;
WHEREAS, Axxis Communication, Inc. is seeking permission to use the public rights of way in accordance with the Hood River Municipal Code (HRMC) Chapter 13.36 and compensate the City for use of the public rights of way in accordance with HRMC Chapter 3.32;
WHEREAS, the City Council may enter into a written franchise agreement to clarify, expand, waive or vary the provisions of HRMC Chapter 13.36 if the Council determines the public interest warrants;
WHEREAS, the City and Axxis Communication, Inc. desire to clarify their rights and obligations with respect to relocation of Axxis Communication, Inc. facilities; and
WHEREAS, the public interest warrants that the City and Axxis Communication, Inc. enter into this franchise agreement;
NOW, THEREFORE, THE CITY OF HOOD RIVER ORDAINS AS FOLLOWS:
SECTION 1. Grant of Franchise. Pursuant to HRMC Chapter 13.36, Axxis Communication, Inc. (Grantee) is hereby granted a telecommunications franchise. Unless otherwise specifically stated in this Agreement, the franchise granted under this Agreement and this Agreement are subject to all of the provisions of HRMC Chapters 3.32 and 13.36.
SECTION 2. Term of Grant. The franchise granted pursuant to this Agreement shall be in effect for a term of five (5) years, effective as of
SECTION 3. Franchise Territory. The specific rights of way or specific geographic area of the City to be served by Grantee, and the public rights of way necessary to serve such areas are the entire city.
SECTION 5. Facilities. Grantee shall provide the City with an accurate map or maps certifying the location of all telecommunications facilities within the public rights of way. The first of such maps shall be provided within 30 days after completion of facility installation in public rights of way. Grantee shall provide updated maps thereafter annually on the anniversary of the date the first map was provided.
SECTION 6. Insurance. Grantee shall secure and maintain the policies of insurance required under HRMC Chapter 13.36.
SECTION 7. Indemnification. The City shall in no way be liable or responsible for any loss or damage to property or any injury to, or death, of any person that may occur in the construction, operation or maintenance by Axxis Communication, Inc. of its facilities. Axxis Communication, Inc. shall indemnify, defend and hold the City, its officers, agents and employees harmless from and against claims, demands, liens and all liability or damage of whatsoever kind on account of Axxis Communication, Inc. use of the Public Ways within the City, and shall pay the costs of defense plus reasonable attorneys’ fees for any claim, demand or lien brought thereunder. The City shall give prompt written notice to Axxis Communication, Inc. of any claim, demand or lien with respect to which the City seeks indemnification hereunder. Axxis Communication, Inc. shall assume the defense of such claim, demand, or lien with counsel satisfactory to City. Notwithstanding any provision hereof to the contrary, Axxis Communication, Inc. shall not be obligated to indemnify, defend or hold the City harmless (a) to the extent any claim, demand or lien arises out of or in connection with any negligent or willful misconduct of the City or any of its officers, agents or employees; or (b) if the City notifies Axxis Communication, Inc. that a conflict of interest exists between Axxis Communication, Inc. and the City with respect to the claim, demand or lien.
SECTION 8. Planning, Design, Construction and Installation of Company Facilities.
8.1 All Telecommunications Facilities installed or used under authority of this Franchise shall be used, constructed and maintained in accordance with applicable federal, state and city laws, codes and regulations.
8.2 Subject to HRMC 13.36.030, Axxis Communication, Inc. shall, prior to commencing work in the public right of way, apply for a permit from the City which permit may be withheld, conditioned, or delayed pursuant to Chapter 13.36. Axxis Communication, Inc. will abide by all applicable ordinances and all reasonable rules, regulations and requirements of the City, and the City may inspect the manner of such work and require remedies as may be necessary to assure compliance.
8.3 All Telecommunication Facilities shall be located so as to cause no unreasonable interference with the Public Ways of the City and shall be constructed, installed, maintained, cleared of vegetation, renovated or replaced in accordance with applicable rules, ordinances and regulations of the City.
8.4 If, during the course of work on its Telecommunications Facilities, Axxis Communication, Inc. causes damage to or alters the Public Way or public property, Axxis Communication, Inc. shall (at its own cost and expense and in a manner approved by the City) replace and restore it to a condition equal or better to that which existed before the work commenced.
8.5 The City shall have the right without cost to use all poles and suitable overhead structures owned by Axxis Communication, Inc. within the Public Ways for City wires used in connection with its fire alarms, police signal systems, or other communication lines used for governmental purposes; provided, however, any such uses shall be for activities owned, operated or used by the City for public purpose and shall not include the provision of CATV, internet, or similar services to the public. Provided further, that Axxis Communication, Inc. shall assume no liability nor shall it incur, directly or indirectly, any additional expense in connection therewith, and the use of said poles and structures by the City shall be in such a manner as to prevent safety hazards or interferences with Axxis Communication, Inc. use of same.
8.6 Axxis Communication, Inc. shall have the right to excavate the public rights of way subject to HRMC Chapter 13.36. Before installing new underground conduits or replacing existing underground conduits, Axxis Communication, Inc. shall first notify the City of such work and shall allow the City, at its own expense, to share the trench of Axxis Communication, Inc. to lay its own conduit therein, provided that such action by the City will not unreasonably interfere with Axxis Communication, Inc. facilities or delay project completion.
8.7 Before the City commences any street improvements or other work within a public right of way that may affect Axxis Communication, Inc. Telecommunications Facilities, the City shall give written notice to Axxis Communication, Inc..
SECTION 9. Relocation of Telecommunications Facilities.
9.1 The City reserves the right to require Axxis Communication, Inc. to relocate overhead Telecommunications Facilities within the Public Ways in the interest of public convenience, necessity, health, safety or welfare at no cost to the City and in accordance with HRMC Chapter 13.36. Within a reasonable period of time after written notice, Axxis Communication, Inc. shall promptly commence the overhead relocation of its Telecommunications Facilities. Before requiring a relocation of Telecommunications Facilities, the City shall, with the assistance of Axxis Communication, Inc., make a reasonable effort to identify a reasonable alignment for the relocated Telecommunication facilities within the Public Ways of the City. The City shall assign or otherwise transfer to Company all right it may have to recover the cost for relocation work and shall support the efforts of Axxis Communication, Inc. to obtain reimbursement. In cases of capital improvement projects undertaken by the City, Axxis Communication, Inc. shall convert existing overhead distribution facilities to underground, so long as Axxis Communication, Inc. is allowed to collect the costs associated with conversion from overhead to underground distribution facilities consistent with OAR 860-022-0046, the Oregon Public Utility Commission rule on forced conversions.
9.2 Axxis Communication, Inc. shall not be obligated to pay the cost of any relocation that is required or made a condition of a private development. If the removal or relocation of facilities is caused directly or otherwise by an identifiable development of property in the area, or is made for the convenience of a customer, Axxis Communication, Inc. may charge the expense of removal or relocation to the developer or customer. For example, Axxis Communication, Inc. shall not be required to pay relocation costs in connection with a road widening or realignment where the road project is made a condition or caused by a private development. The City agrees that it shall reasonably cooperate with Axxis Communication, Inc. efforts to collect funds from such customers as described in this Section.
SECTION 10 Compensation In accordance with HRMC Section 3.32.040 B, Axxis Communication, Inc., shall pay a privilege tax to the City in an amount equal to 5% of gross revenues earned within the city, but in no event less than $1,000 per quarter. “Utility operations” as used in HRMC Chapter 3.32.020 with respect to Axxis Communication, Inc means the retail sale and use of telecommunications services within the municipal boundaries of the City.
SECTION 11 City’s Right to Adopt and Impose Privilege or utility/Business Tax. The city reserves its right to adopt and impose additional privilege or utility/business taxes pursuant to Oregon revised Statutes at any time during the life of the franchise.
SECTION 12 Renewal. At least 120 days prior to the expiration of this Franchise, Axxis Communication, Inc. and the City may agree to either extend the term of this Franchise for a mutually acceptable period of time or the parties shall use best faith efforts to renegotiate a replacement Franchise. Axxis Communication, Inc. shall have the continued right to use the Public Ways of the City as set forth herein in the event an extension or replacement Franchise is not entered into upon expiration of this Franchise, in accordance with HRMC Chapters 3.32 and 13.36.
SECTION 13 No Waiver. Neither the City nor Axxis Communication, Inc. shall be excused from complying with any of the terms and conditions of this Franchise by any failure of the other, or any of its officers, employees, or agents, upon any one or more occasions to insist upon or to seek compliance with any such terms and conditions.
SECTION 14 Transfer of Franchise. Axxis Communication, Inc. shall not transfer or assign any rights under this Franchise to another entity, except transfers and assignments by operation of law, unless the City shall first give its approval in writing, which approval shall not be unreasonably withheld; provided, however, inclusion of this Franchise as property subject to the Lien of Axxis Communication, Inc. mortgages(s) shall not constitute a transfer or assignment.
SECTION 15 Amendment. At any time during the term of this Franchise, the City through its City Council, or Axxis Communication, Inc. may propose amendments to this Franchise by giving thirty (30) days written notice to the other of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, will, within a reasonable time, negotiate in good faith in an effort to agree upon mutually satisfactory amendment(s). No amendment or amendments to this Franchise shall be effective until mutually agreed upon by the City and Axxis Communication, Inc. and formally adopted as an ordinance amendment. This provision does not affect the City’s right to adopt or amend any ordinances other than the one pursuant to which this Franchise Agreement is adopted.
SECTION 16 Non-Contestability—Breach of Contract.
16.1 Neither the City nor Axxis Communication, Inc. will take any action for the purpose of securing modification of this Franchise before either the Oregon Public Utility Commission or any Court of competent jurisdiction; provided, however, that neither shall be precluded from taking any action it deems necessary to resolve differences in interpretation of the Franchise nor shall Axxis Communication, Inc. be precluded from seeking relief from the Courts in the event Oregon Public Utility Commission orders, rules or regulations conflict with or make performance under the Franchise illegal.
16.2 In the event Axxis Communication, Inc. or the City fails to fulfill any of their respective obligations under this Franchise, the City, or Axxis Communication, Inc., whichever the case may be, will have a breach of contract claim and remedy against the other in addition to any other remedy provided by law, provided that no remedy which would have the effect of amending the specific provisions of this Franchise shall become effective without such action which would be necessary to formally amend the Franchise.
16.3 This provision does not affect the parties’ rights and remedies under any provision of the hood River Municipal Code.
Read for the first time: October 28, 2013.
Read for the second time and passed: November 12, 2013, to become effective thirty (30) days hence.
Arthur Babitz, Mayor
Jennifer Gray, City Recorder