AGENDA FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
November 6, 2001 – 7:00 p.m.
Civic Center Council Chambers, 1175 E. Main Street

I. PLEDGE OF ALLEGIANCE:

II. ROLL CALL:

III. APPROVAL OF MINUTES: Regular Council Meeting Minutes of October 16, 2001

IV. SPECIAL PRESENTATIONS & AWARDS:
1. Proclamation of November 10 – 17, 2001 as Recycling Awareness Week.

V. CONSENT AGENDA:
1. Minutes of Boards, Commissions and Committees.

Ashland Historic Commission Minutes - October 3, 2001
Forest Lands Commission Minutes - September 12, 2001
Airport Commission Minutes - August 13, 2001

2. Confirmation of Mayor’s appointment of Jason Burke to the Bicycle & Pedestrian Commission for a term to expire April 30, 2002.

3. .City of Ashland Limited Use Telecommunications Franchise Agreement with Sprint.

4. Quarterly Financial Report

VI. PUBLIC HEARINGS: (Testimony limited to 5 minutes per speaker, unless it is the subject of a Land Use Appeal. All hearings must conclude by 9:30 p.m. or be continued to a subsequent meeting)

VII. PUBLIC FORUM: Business from the audience not included on the agenda. (Total time allowed for Public Forum is 15 minutes. Speakers are limited to 5 minutes or less, depending on the number of individuals wishing to speak.)

VIII. UNFINISHED BUSINESS:

IX. NEW AND MISCELLANEOUS BUSINESS:
1. Update on water use.

2. Parks Commission Recommendation on Perozzi Property Sale by SOU.

X. ORDINANCES, RESOLUTIONS AND CONTRACTS:

1. Second Reading by title only of "An Ordinance Adding Chapter 6.42 to the Ashland Municipal Code to Regulate Vendors of Tobacco Products and Chapter 10.114 to Prohibit Smoking in Specific Outdoor Public Places."

XI. OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS:

XII. ADJOURNMENT:

In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Administrator's office at (541) 488-6002 (TTY phone number 1-800-735-2900). Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title I).

END of Agenda

Beginning of linked Agenda Items:

Council Communication
Title: Parks Commission Recommendation on Perozzi Property Sale by SOU
Dept: Legal Department
Date: November 6, 2001
Submitted By: Paul Nolte
Approved By: Greg Scoles

Synopsis:
The Ashland Parks and Recreation Commission no longer desires to pursue the appeal of the Perozzi subdivision - the appeal is scheduled to be heard before the County Commissioners on November 7. A petition for a writ of mandamus by the subdivision developers is to be filed with the circuit court prior to the county hearing. When the petition is filed, the County will cancel the hearing as the court obtains jurisdiction when the petition is filed. If the writ is determined to be valid, the court has the authority to order the county to approve the subdivision with or without the conditions already approved by the county.

Recommendations:
Staff recommends that the appeal filed with the Jackson County Board of County Commissioners be withdrawn.

Fiscal Impact:
The non-refundable filing fee for the appeal has already been paid as it was due at the time the appeal was filed.

Background:
The attorneys for Barbara Coffman, purchaser of the Perozzi property from Southern Oregon University, have advised that they will be filing a petition for a writ of mandamus requesting the Jackson County Circuit Court to order Jackson County to approve the subdivision. Since Jackson County failed to make a final decision within 150 days of the date the subdivision application was filed, the court has the authority to order the county to approve the subdivision. The petition for the writ is scheduled to be filed prior to the county hearing on November 7. Once the petition has been filed, the county loses jurisdiction and the hearing scheduled for November 7 will be cancelled. The court has jurisdiction to order the county to approve the subdivision and is not necessarily bound by the conditions of approval already imposed by the county. The attorneys for Coffman have agreed not to file the petition for the writ, if the city withdraws its appeal. By withdrawing the appeal and not having the petition for the writ filed, the City will ensure that the fire remediation and hillside development conditions of approval imposed by the county will be part of the project. Negotiations for a suitable trail through the property have been unsuccessful.

Council Communication

Title: Second Reading of "An Ordinance Adding Chapter 6.42 to the Ashland Municipal Code to Regulate Vendors of Tobacco Products"

Dept: Legal Department
Date: November 6, 2001
Submitted By: Paul Nolte
Approved By: Greg Scoles

Synopsis:
This ordinance differs from the one adopted at first reading in that it incorporates suggestions made by the council to relieve smoke shops from the requirement of vendor assisted sales. Those suggestions are incorporated in section 6.42.070 of the ordinance. Outdoor Smoking Restrictions have been removed from the ordinance as directed by the council at first reading.

Recommendation:
Should the council desire to regulate tobacco sales, then staff recommends adoption of the attached ordinance. The ordinance may be read by title only if the amendments in section 6.42.140 are read aloud.

Fiscal Impact:
The ordinance requires tobacco vendors to obtain a license to sell tobacco. The fee for the license is to be set by resolution of the council and should be set at a level to recoup the expense of processing and issuing such licenses. Enforcement costs for tobacco sale violations have not been calculated.

Background:
At first reading the council requested further research into what enforcement is available to remove a tobacco retailer's license for repeated sales to minors. Input was received by council suggesting that both the Oregon Liquor Control Commission (OLCC) and the Federal Bureau of Alcohol Tobacco and Firearms (ATF) could revoke a retailer's license for such sales. Neither OLCC nor ATF require retail tobacco licenses and neither agency is authorized to enforce any law regarding selling tobacco to minors. The Oregon Department of Revenue requires tobacco retailers to obtain a license. The license is strictly for revenue purposes to enable the department to collect the 65% tax on tobacco products. It does not enforce any law regarding selling tobacco to minors.

Mayor DeBoer has suggested that the ordinance should be further amended in order to repeal it if the state adopts similar legislation. If the council desires to incorporate such a provision the following section could be added at second reading:

6.42.110. Repeal of Chapter.  The council shall repeal this chapter upon the effective date of legislation adopted by the State of Oregon which:

A. Prohibits the sale of tobacco products at retail without a state-issued tobacco vending license, and

B. Provides for revocation of such license for repeat violations of sales of tobacco to minors.

===================================================================

ORDINANCE NO. (_____________)

AN ORDINANCE ADDING CHAPTER 6.42 TO THE ASHLAND MUNICIPAL CODE TO REGULATE VENDORS OF TOBACCO PRODUCTS

Annotated to show the deletion of section 2 (Outdoor Smoking Restrictions), which was deleted by the council at first reading on October 16, 2001, and to show amendments to section 6.42.070 which were suggested by the council at that meeting. Deletions are lined through and additions are underlined.

Recital:
Numerous research studies show that 90% of smokers begin before the age of eighteen and approximately 25% of Ashland middle and high school students use tobacco products. In addition, children are the targets of tobacco advertising campaigns and are frequently sold cigarettes by retailers. Tobacco use is the leading cause of preventable deaths in the United States and causes such health hazards as cancer, heart disease, and decreased respiratory function.

THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:

SECTION 1. The following Chapter 6.42 is added to the Ashland Municipal Code:

Chapter 6.42

Tobacco Control

SECTIONS:

6.42.010 Purpose
6.42.020 Definitions
6.42.030 License Requirement
6.42.040 License Fee
6.42.050 Non-Transferability of License
6.42.060 Sales to Minors
6.42.070 Vendor-Assisted Sales
6.42.090 Non-Retaliation
6.42.100 Penalties

SECTION 6.42.010 Purpose. The purpose of this chapter is to provide measures of controlling the access of tobacco products to adults only by licensing retailers of tobacco products.

SECTION 6.42.020 Definitions. For the purpose of this chapter the following definitions shall apply:

A. "Employee" means any person who is employed by any employer in consideration of direct or indirect monetary wages or profit, and any person who volunteers his or her services to a non-profit entity.

B. "Employer" means any person or entity who employs the services of one or more employees.

C. "License" means a license issued under this chapter for the retail sale of tobacco products.

D. "Licensee" means the holder of a valid license for the retail sale of tobacco products.

E. "Minor" means any person under 18 years of age.

F. "Self service display" means the open display of tobacco products to which the public has access without the assistance of a store employee.

G. "Tobacco product" means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, chewing tobacco, or any other form of tobacco which may be utilized for smoking, chewing, inhalation, or other means of ingestion.

H. "Vendor-assisted sale" means a sale where only the licensee or an employee of the licensee has access to the tobacco product and assists the customer by supplying the tobacco product and where the customer does not take possession of the tobacco product until after it is purchased.

6.42.030 License Requirement. No person may sell tobacco products unless such person is a licensee or is employed by a licensee. A license is required for each location in which tobacco products are to be sold. All licenses shall be renewed annually on or before June 30 of each year.

6.42.040 License Fee. No license shall be issued or continue to be valid unless the licensee has paid a fee, the amount of which is established by resolution of the city council, on or before June 30 of each year.

6.42.050 Non-Transferability of License. Licenses shall be non-transferable, except that a new license will be issued upon application to any licensee who changes the location of where tobacco products are sold.

6.42.060 Sales to Minors. No person shall sell, make available or otherwise provide, any tobacco product to a minor.

6.42.070 Vendor-Assisted Sales. No person shall sell, permit to be sold, offer for sale or make available any tobacco product by means of a self-service display or any means other than vendor-assisted sales, except for:

A. vVending machine sales in taverns, cocktail lounges, industrial plants as defined in ORS 308.408, hotels, and motels.

B. Smoke shops. For purposes of this section, a smoke shop is a store that sells primarily tobacco products and which prohibits minors to enter or remain upon the premises, unless the minor is accompanied by the minor's parent. To qualify for this exception, the smoke shop must post signs in the store, which are conspicuous upon entering, signs stating "No Minors Permitted Unless with a Parent." No store may qualify as a smoke shop under this section if the store is located on the same premises as an automobile service station, as defined in section 18.08.0751

6.42.090 Non-Retaliation. No employer shall discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment, or customer because such employee, applicant, or customer reports or attempts to prosecute any violation of this chapter.

6.42.100 Penalties. In lieu of the penalties specified in section 1.08.020:

A. Any person who violates any provision of this chapter, other than section 6.42.030, shall be subject to a fine or have a license suspended as follows:

1. In the case of a first violation within two years, the licensee shall be fined $200.00 and shall be notified in writing of penalties to be levied for further violations.

2. In the case of a second violation within a two-year period, the licensee shall be fined $350.00 and the license suspended for 45 days.

3. In the case of three or more violations within a two-year period, the licensee shall be fined $500.00 and the license revoked. Any person whose license has been revoked shall be ineligible to apply for a new license, at any location, for six months after the effective date of the revocation.

B. Any person who violates section 6.42.030 shall be subject to a fine of $500.00 for each day a violation occurs.

C. Failure to pay a fine levied under this chapter within 30 days of the date set by the court shall result in the suspension of the license until such fines are paid.

D. During any suspension or revocation of a license under this section, the licensee shall not sell tobacco products and must remove all tobacco products from all retail areas.

SECTION 2. The following Chapter 10.114 is added to the Ashland Municipal Code:

Outdoor Smoking Restrictions

10.114.010 Purpose
10.114.020 Definitions
10.114.030 Smoking Prohibited in Public Places
10.114.040 Smoking Prohibited Outside Entrances
10.114.050 Posting "No Smoking" Signs
10.114.060 Non-Retaliation
10.114.070 Penalties
10.114.080 Severability
10.114.090 Other Laws
10.114.010 Purpose. The purpose of this chapter is to protect the public health and welfare by prohibiting smoking in specific outdoor public places.

10.114.020 Definitions.

A. "Outdoor venue" means any place outdoors where members of the general public assemble to engage in physical exercise, participate in athletic exercise or witness community events including, but not limited to, parades, publicly-owned outdoor sports arenas, courts or fields, swimming pools, ice or roller rinks, skate parks, parks, playgrounds, including spectator areas associated with these venues and including the spectator area at the Butler Bandshell in Lithia Park during scheduled events, and outdoor theaters.

B. "Service line" means any outdoor lineon public property, or any portion of an indoor line that extends out of doors onto public property, at which one or more persons are waiting for or receiving services of any kind, whether or not such services involve the exchange of money.

C. "Smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, weed, plant, or other tobacco-like product or substance in any manner or in any form.

D. "Tobacco product" means any tobacco cigarette, cigar, pipe tobacco, smokeless tobacco, chewing tobacco, or any other form of tobacco which may be utilized for smoking, chewing, or inhalation, or other means of ingestion.

10.114.030 Smoking Prohibited in Public Places. Smoking is prohibited in all outdoor venues.

10.114.040 Smoking Prohibited Outside Entrances. Smoking outdoors shall be prohibited within ten feet of any entrance of any enclosed area where smoking is prohibited or within ten feet of any service line.

10.114.050 Posting "No Smoking" Signs.

A. "No smoking" signs or the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across the cigarette) shall be clearly and conspicuously posted in all outdoor venues. every area where smoking is prohibited by this chapter, by the owner, manager, or other person having control of such building or other area.

B. Every public place where smoking is prohibited by this section shall have posted at every entrance a conspicuous sign stating that smoking is prohibited.

10.114.060 Non-Retaliation. No person shall discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment, or customer because such employee, applicant, or customer reports or attempts to prosecute any violation of this chapter.

10.114.070 Penalties. Any person who violates any of the provisions of this chapter shall be subject to a fine as prescribed in Section 1.08.020.

10.114.080 Severability. If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable.

10.114.090 Other Laws. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the (_____) day of (__________________), 2001, and duly PASSED and ADOPTED this day of (____), 2001.

Barbara Christensen, City Recorder

SIGNED and APPROVED this day of (___), 2001.

Alan W. DeBoer, Mayor

Reviewed as to form:
Paul Nolte, City Attorney

END

Council Communication
Title: Quarterly financial report: July September, 2001D
Department: Finance Department
Date: November 6, 2001
Submitted By: Lee Tuneberg, Finance Director
Approved By: Greg Scoles, City Administrator

Attached is the City of Ashland financial report for the quarter ended September 30, 2001. The report includes revenues and expenditures of all departments and funds of the City and the Parks and Recreation Commission. It represents information from the internal accounting system, includes staff’s best estimates where necessary and is unaudited and unadjusted.

The report includes the following three presentations:

• Combined Statement of Financial Position
• Schedule of Departmental Expenditures
• Schedule of Budgetary Compliance

The Combined Statement of Financial Position is similar to presentations provided in the annual financial report. It is intended to provide the reader an overall sense of the City’s financial position at the present time. Changes in fund balance may not be a good indicator of where the City will be at year’s end due to seasonal influences on operations and revenue as well as construction timelines.

Resources:
Revenues and Budgetary Resources at September 30, 2001 total $16,673,647, as compared to total year-to-date requirements of $19,273,374 results in a $2.6 million decrease to Unappropriated Ending Fund Balance. Working Capital Carryover is estimated at $29.2 million or 5.91% above the budgeted amount. Taxes and Intergovernmental Revenues are low at this point since those revenues are received later in the year. Interest earnings have not been recorded or estimated in time for this report. Budgetary Resources including operational loans and transfers have been recorded as necessary.

Requirements:
All categories of expenditures and transfers are in keeping with first quarter activities and requirements. Debt Service, Interfund Loans and Operating Transfers have schedules of their own that do not adhere to a straight pro-rata (25%) measurement.

The other two formats are consistent with the departmental and fund presentations included in the adopted FY 2001-2002 budget document. The Schedule of Departmental Expenditures provides the information across fund types showing 1/4^th of a year activity for each department that is included in section three of this year’s budget document. The Schedule of Budgetary Compliance is intended to present expenditures on a budget basis by fund consistent with the resolution adopting appropriation levels in the budget compliance section of the document.

Since this is the first report for FY 2001-2002 and the audit of the prior year is not complete the information provided herewith is only an indication of this year’s financial position. However, some assumptions can be applied providing a measure of compliance on a budget basis. All things being equal, a 25% level of revenue and expenditure can be used to assess performance year-to-date. This information helps to provide the basis for projecting necessary transfers of appropriation or supplemental budgets prior to June 30.

Below are comments that address variations from that measure.

• Administrative Services’ low expenditure is from programs that will not be active until later in the year.
• Finance Social Service Grant expenditures are nearly complete for the year.
• Debt service, transfers, capital outlay & project and insurance claim expenditures generally do not follow a level activity through the year.

Unaudited, detailed balance sheets, revenues and expenditure reports are available for your review in the Finance Department office should you require any additional information. Investment activity is available from the City Recorder office.

Recommendation:
Staff recommends acceptance of this report.

Fiscal Impact:
No impact. This is an update on FY 2001-2002 operational activity as compared to budget.

Background:
There are three ways in which to change appropriations after the Budget is adopted.

1. A transfer of appropriations decreases an appropriation and increases another. This is the simplest budget change allowed under Oregon Budget law. This does not increase the overall budget. This is approved by a City council resolution. A supplemental budget of less than 10 percent of total appropriations within an individual fund follows a process similar to the transfer of appropriations. A supplemental budget in excess of 10 percent of total appropriations requires a longer process. This process includes a notice in the paper and a public hearing.
2. Only the first type of budget change is necessary and is incorporated into a single resolution for your approval. The recommended changes in the budget are explained after each request.
3. Staff is reviewing the need for a supplemental budget adjustment necessary by end of year per either item 2 or 3, above.

City of Ashland
Combined Statement of Financial Position
For the three months ended September 30, 2001

REQUIREMENTS BY CLASSIFICATION	2002 Adopted	Year To Date Actuals	Variance	% Collected \ Expended
Personal Services	16,093,464	3,882,833	12,210,631	24.13%
Materials and Services	25,699,636	4,015,263	21,684,373	15.62%
Debt Service	6,184,350	3,475,427	2,708,923	56.20%
Total Operating Expenditures	47,977,450	11,373,523	36,603,927	23.71%
Capital Construction Capital Outlay	22,556,949	3,115,851	19,441,098	13.81%
Interfund Loans	4,500,000	4,500,000	-	100.00%
Operating Transfers	864,000	284,000	580,000	32.87%
Contingencies	4,118,000	-	4,118,000	0.00%
Total Budgetary Requirements	9,482,000	4,784,000	4,698,000	50.45%
Total Requirements	80,016,399	19,273,374	60,743,025	24.09%
Excess(Deficiency) of Resources over Requirements	(17,176,740)	(2,599,727)	14,577,013	15.14%
Working Capital Carryover	27,545,323	29,172,565	1,627,242	105.91%
Unappropriated Ending Fund Balance	10,368,583	26,572,838	16,204,255	256.28%

COUNCIL COMMUNICAITON

Title: City of Ashland Limited Use Telecommunications Franchise Agreement With Sprint
Department: Legal Department
Date: November 5, 2001
Submitted By: Paul Nolte
Approved By: Greg Scoles

Synopsis: This franchise agreement addresses the use by Sprint Communications Company of over 14,000 feet of public right of way in the city. The franchise complies with the requirements of the telecommunication ordinance and is granted for a term of five years.

Recommendations: Staff recommends approval of the franchise agreement which may be adopted by motion of the council.

Fiscal Impact: Compensation for the use of public right of way has been set by resolution of the council and is measured, for this type of grantee, by the number of linear feet of public right of way occupied. The current rate is $2.50 a linear foot per year which Sprint has paid in advance. Unlike Qwest, Sprint pays it bills.

Background: The Sprint franchise is the second limited use franchise issued under the city's telecommunications ordinance. The other limited use franchisee is AT&T which was granted a similar franchise in 1999. A limited use franchise is granted to a telecommunications provider that does not directly serve customers within the city.

City of Ashland
Telecommunications Franchise Agreement
(Limited Use Franchise)

Franchise agreement authorized pursuant to Ashland Municipal Code Title 16 between the City of Ashland (City) and Sprint Communications Company, L.P. (Grantee) dated this day of , 2001.

1. Grant of franchise. City grants to Grantee, its successors and assigns, a franchise to construct, operate and maintain a telecommunications system, with all necessary facilities in, under, and over, for a distance of 14,525 linear feet, the following described public streets of the City:

See the attached three maps depicting, in green, the public streets used, beginning at Eagle Mill Road near the I-5 Freeway and proceeding along Oak, East Hersey, Mountain and East Main Streets generally southerly and easterly to where East Main Street intersects with Crowson Road.

This franchise is a limited use franchise as that term is used in Title 16 of the Ashland Municipal Code. This franchise does not authorize the use of public streets by Grantee to provide telecommunication services within the City of Ashland.

2. Term. The term of this franchise shall be five years from September 30, 2001, unless terminated sooner as provided in this agreement or as provided in Title 16 of the Ashland Municipal Code.

3. Fee. Grantee shall pay as a franchise fee to the City, through the duration of this franchise, the greater of either: (a) the minimum annual franchise fee of $4,000; or, (b) an amount equal to $2.50 per linear foot of right-of-way used. This fee will increase annually in July of each year, by multiplying the fee by a fraction, the numerator of which is the CPI Index Figure for the month of March preceding the July in which the fee is to be increased and the denominator of which is the Base CPI Index Figure. As used in this section, "Index" refers to the All Urban Consumers (CPI-U), U.S. City Average, CPI index published by the Bureau of Labor Statistics of the United States Department of Labor. "Base CPI Index Figure" will refer to the Index number indicated for the month of March, 1998, and the "CPI Index Figure" for any other month will refer to the Index number for that month.

Payment of the franchise fee shall be made annually on or before October 1 of each year beginning with October 2001.

3.1. Franchise fee payments not received by the City on or before the due date shall be assessed interest at the rate of one percent over the existing prime rate as set by the bank with which the City contracts for its banking services, compounded daily. Interest shall be due on the entire late payment from the date on which the payment was due until the date on which the City receives the payment.

3.2. Each payment shall be accompanied by a written report to the City, verified by an officer or other authorized representative of Grantee, containing an accurate statement in summarized form, as well as in detail, of Grantee's computation basis and method. Such reports shall be in a form satisfactory to the City.

3.3. No acceptance of any payment by Grantee shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the City may have for further or additional sums payable. All amounts paid shall be subject to confirmation and recomputation by the City, provided that such audit and computation is completed within three years of the date any audited and recomputed payment is due. If no such audit or financial review is conducted within the three year period, then any claim that the City might have had for additional compensation shall be forever waived and relinquished. The Grantee agrees to reimburse the City for:

3.3.1. The reasonable costs of such confirmation if the City's recomputation discloses that the Grantee has paid 95 % or less of the franchise fees owing for the period at issue upon receipt of an invoice from the City showing such costs were actually incurred and directly related to the audit; or
3.3.2. One-half of the reasonable costs of such confirmation if the City's recomputation discloses that the Grantee had paid more than 95% but less 3.3.3. The City's costs which may be reimbursed under this section shall not exceed $5,000.00 per audit or financial review.
3.3.4. If the City determines that Grantee made any underpayment, and that the underpayment exceeded 5 % of the amount due, Grantee shall pay interest compounded at the rate of one percent (1%) over the existing prime rate as set by the bank with which the City contracts for its banking services, compounded monthly. Interest shall be due on the entire underpayment from the date on which payment was due until the date on which full payment is received

3.4. If the Grantee disputes the City's determination of underpayment, the Grantee shall place the disputed amount in an escrow account until final resolution.

3.5. All Grantee's books, maps, and records directly concerning its calculation of franchise fee payments to the City shall be open for inspection by the proper officers or agents of the City, upon no less than 48 hours prior written notice, during normal business hours to determine the amount of compensation due the City under this franchise, and shall be kept so as to accurately show the same.

3.6. Payment of the franchise fee shall not exempt Grantee from the payment of any license fee, tax or charge on the business, occupation, property or income of Grantee that may be lawfully imposed by the City or any other taxing authority, except as may otherwise be provided in Title 16 of the Ashland Municipal Code or laws imposing such other license fee, tax or charge.

4. Title 16 Ashland Municipal Code, Charter and General Ordinances To Apply.

4.1. Unless the context requires otherwise, words and phrases used in this franchise shall have the same meaning as defined in Title 16 of the Ashland Municipal Code. All of the provisions of Title 16 are incorporated by reference and made a part of this franchise. In the event of any inconsistencies in the terms of this franchise and Title 16, the more restrictive provisions of Title 16 shall take precedence over franchise terms unless Title 16 specifically authorizes the franchise to provide otherwise. .

4.2. The Charter of the City of Ashland and general ordinance provisions of the City affecting matters of general City concern and not merely existing contractual rights of Grantee, now in effect or adopted in the future, are incorporated by reference and made a part of this franchise. Nothing in this franchise shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, fees to be paid, or the manner of construction.

5. General Financial and Insurance Provisions. Grantee shall be required to obtain the following which are otherwise required by Title 16 of the Ashland Municipal Code.

5.1. Performance Bond (Section 16.12.190) shall not be required.
5.2. Insurance (Section 16.24.100).
5.3. Performance Bond (Section 16.24.120) shall not be required.

6. Covenant to Indemnify and Hold City Harmless.

6.1. Grantee 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 attorney fees or expenses, arising from any casualty or accident to person or property by reason 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 neglect or omission of Grantee to keep its telecommunications system in a safe condition, but not if arising out of or by reason of any negligence or willful misconduct by the City, its officers, agents or employees. The City shall provide Grantee with prompt 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 consult and cooperate with the City while conducting its defense of the City. .

6.2 Grantee also shall indemnify the City for any 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 any of its facilities in the streets in a timely manner in accordance with a relocation schedule furnished to Grantee by the City Engineer, unless Grantee's failure arises directly from the City's negligence or willful misconduct or directly from any person who is not acting on behalf of the Grantee or is otherwise not the Grantee's agent, affiliate, subsidiary, contractor, licensee or invitee.

7. Construction and Relocation.

7.1. Subject to applicable regulations of the City, Grantee may perform all necessary construction to construct, operate and maintain its telecommunications system. All construction and maintenance of any and all telecommunications system facilities within streets incident to Grantee's provision of telecommunications services shall, regardless of who performs installation or construction, be and remain the responsibility of Grantee. Grantee shall apply for and obtain all permits necessary for installation or construction of any such facilities, and for excavation and laying of any telecommunications system facilities within City streets. Grantee shall pay all applicable fees due for City construction permits.

7.2. Prior to beginning construction, Grantee shall provide the City with an initial construction schedule for work in the streets and the estimated total cost of such work. The schedule shall be submitted at least two weeks in advance of construction.

7.3. Grantee may make excavations in the City streets for any facility needed for the maintenance or extension of the Grantee's telecommunications system, subject to obtaining permits from the City. Prior to doing such work, Grantee must apply for, and obtain, appropriate permits from the City, and give appropriate notices to any other franchisees, licensees or permittees of the City owning or maintaining facilities which may be affected by the proposed excavation.

7.4. In the event that emergency repairs are necessary for Grantee's facilities in the streets, Grantee shall immediately notify the City of the need for such repairs. Grantee may immediately initiate such emergency repairs, and shall apply for appropriate permits the next business day following discovery of the emergency. Grantee must comply with all ordinance provisions relating to such excavations or construction, including the payment of permit or license fees.

7.5. Grantee is responsible for becoming familiar with, and understanding the provisions of ORS Chapter 757, governing the location of underground facilities (the "One-Call statutes"). Grantee shall comply with the terms and conditions set forth in the One-Call statutes.

7.6. Grantee shall at its own expense temporarily or permanently remove, relocate, change or alter the position of any of its facilities when directed to do so by City in compliance with Title 16 of the Ashland Municipal Code.

7.7. Grantee's telecommunications system shall be constructed and maintained in such manner as not to interfere with City sewers, water systems, electric systems or any other facilities of the City.

8. Reservation of City Street Rights; Requirements for Undergrounding.

8.1. Nothing in this franchise shall be construed to prevent the City from constructing sewers, water systems, electric systems, grading, paving, repairing or altering any street or constructing or establishing any other public work or improvement.

8.2. If any of the Grantee's telecommunications system interferes with the construction or repair of any City sewer, water or electric system, street or public improvement, the Grantee's system shall be removed or replaced in the manner the City shall direct. Any and all such removal or replacement by Grantee shall be without expense to the City. Should Grantee fail to remove, adjust or relocate its facilities by the date established by the Public Works Director's written notice to Grantee, the City may cause or effect such removal, adjustment or relocation, and the expense thereof shall be paid by Grantee, including all costs and expenses incurred by the City due to Grantee's delay.

8.3. Grantee shall install its telecommunications facilities underground unless the City specifically permits attachments to utility poles or other aboveground facilities. Grantee shall install its telecommunications facilities within an existing underground duct or conduit owned by it whenever surplus capacity exists within such utility facility. If Grantee has permission to install overhead facilities, Grantee shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available as determined by the Department of Electric Utilities. Whenever any existing electric utilities are located underground within a public right of way of the City, Grantee shall also locate its telecommunications facilities underground. Whenever any overhead electric utilities are relocated underground, Grantee shall also locate its telecommunication facilities underground. Any and all such installation and relocation under this paragraph shall be without expense to the City.

9. City's Written Consent Required for Assignment, Transfer, Merger, Lease or Mortgage. Ownership or control of a telecommunications system or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, 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.

9.1. Grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the City not less than 120 days prior to the proposed date of transfer:

9.1.1. Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment;
9.1.2. All information required of a telecommunications franchise applicant pursuant this chapter with respect to the proposed transferee or assignee;
9.1.3. Any other information reasonably required by the City.

9.2. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant as provided in Title 16 of the Ashland Municipal Code.

9.3. 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 a telecommunications franchise.

9.4. Any transfer or assignment of a telecommunications grant, system or integral part of a system without prior approval of the City under this section shall be void and is cause for revocation of the franchise.

10. Miscellaneous Provisions.

10.1. Both Grantee and the City shall comply with all applicable federal and state laws. Grantee shall comply with all applicable City ordinances, resolutions, rules and regulations adopted or established pursuant to the City's lawful authority.

10.2. If any section, provision or clause of this franchise is held by a court of competent jurisdiction to be invalid or unenforceable, or is preempted by federal or state laws or regulations, the remainder of this franchise shall not be affected, unless the city council determines such section, provision, or clause was material to the City's agreement to issue a franchise to the Grantee.

10.3. The city council or the city administrator shall be vested with the power and authority to reasonably regulate the exercise of the privileges permitted by this franchise in the public interest. Grantee shall not be relieved of its obligations to comply with any of the provisions of this franchise by reason of any failure of the City to enforce prompt compliance, nor does the City waive or limit any of its rights under this franchise by reason of such failure or neglect.

10.4. Any litigation between the City and the Grantee arising under or regarding this franchise shall occur, if in the state courts, in the Jackson County Circuit Court, and if in the federal courts, in the United States District Court for the District of Oregon.

10.5. Any notice provided for under this franchise shall be sufficient if in writing and (1) delivered personally to the following addressee or deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, (2) sent by overnight or commercial air courier (such as Federal Express), or (3) sent by facsimile transmission addressed as follows, or to such other address as the receiving party shall specify in writing:

If to the City: City Administrator, City Hall, 20 East Main Street, Ashland, Oregon 97520; FAX 541-488-5311

If to the Grantee: Manager, Network Real Estate, Sprint Communications Company L.P., 6100 Sprint Parkway, Mailstop: KSOPHK0210 - 2A222, Overland Park, KS 66251

and

Sprint Legal Department, KSOPHT0101-Z2020, 6391 Sprint Parkway, Overland Park, KS 66251-2020, ATT: Real Estate Attorney

Any such notice, communication or delivery shall be deemed effective and delivered upon the earliest to occur of actual delivery, three business days after depositing in the United States mail as aforesaid, one business day after shipment by commercial air courier or the same day as facsimile transmission (or the first business day thereafter if faxed on a Saturday, Sunday or legal holiday).

11. Other Authority Superseded. Upon the beginning of the term of this franchise, effectiveness of this franchise, any and all authority to operate previously granted to Grantee by the City shall be superseded by this franchise.

12. Cable Authority. This franchise does not authorize the Grantee to operate a cable system or provide video programming, as defined by 47 U.S.C.A §522 (Supp. 1997).

END