Metropolitan Fiber Systems of Oregon, Inc. - Telephone CITY OF TIGARD, OREGON
ORDINANCE NO.97- /(D
AN ORDINANCE GRANTING TO METROPOLITAN FIBER SYSTEMS OF OREGON, INC., THE RIGHT AND
PRIVILEGE TO CONDUCT A COMPETITIVE TELECOMMUNICATIONS BUSINESS WITHIN THE CITY OF
TIGARD, AND TO PLACE, ERECT, LAY, MAINTAIN, AND OPERATE IN, UPON, OVER, AND UNDER THE
STREETS, ALLEYS, ROADS, AND PUBLIC PLACES, POLES, WIRES, AND OTHER APPLIANCES FOR
COMMUNICATION PURPOSES WITHIN THE CITY OF TIGARD.
WHEREAS, the City Council has expressed the desire to enter into a franchise agreement with Metropolitan Fiber
Systems of Oregon, Inc.to provide competetive telecommunications services within the City, and
WHEREAS,the terms and conditions of such franchise agreement are set forth in Exhibit"A"attached hereto, and by
this reference made a part hereof.
THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1. The terms and conditions of the attached franchise agreement, Exhibit"A", are hereby approved and
adopted as part of this ordinance as if specifically set forth.
SECTION 2. The Mayor is authorized and directed to sign the attached agreement on behalf of the Council.
SECTION 3. The City Council determines that the fee imposed by this franchise is not a tax subject to the
property tax limitations of Article XI,Section 11 (b)of the Oregon Constitution.
PASSED: By U n fl)Wrote of all Co ncil members present after being read by number and title only,this
/, th day of 1997.
a herine Wheatley, City Recor er
APPROVED: This day of
l fr/
Mayor-City of Tigard `
i
Approved as to form: LI
City Attorney Certified to be a True Copy of
eA� /f Original on filea.� d�,.�
Date
13,
City e,.,order-City of Tigard
Date:
ORDINANCE No. 97- 10
Pagel
EXHIBIT"A"
A FRANCHISE AGREEMENT BETWEEN THE CITY OF TIGARD AND METROPOLITAN FIBER
SYSTEMS OF OREGON, INC. (MFS) (GRANTEE).
SECTION 1. The City of Tigard (City), grants to Metropolitan Fiber Systems of Oregon, Inc. (MFS)
(Grantee) a franchise to operate as a competitive telecommunications provider as defined
by ORS 759.005 within the City of Tigard. Grantee has the right to place and maintain
wires, and other equipment for telecommunications purposes within City streets and public
ways. Such wires and other equipment must be laid or located underground unless the City
specifically permits wires to be strung upon poles or other fixtures above ground.
SECTION 2. After receiving applicable City permits, Grantee may make needed excavations in any street
or public way in the City for the purpose of placing and maintaining conduits for wires and
equipment, or repairing or replacing the same. All work must be done in compliance with
City ordinances and regulations.
SECTION 3. The Grantee shall file with the City Engineer or designee maps and materials showing all
proposed underground construction work to include the installation of additional facilities or
relocation or extension of existing facilities within any street, alley, road, or other public way
or place within the corporate limits of the City. The City will review the materials submitted
and notify the Grantee of any City requirements. For repair work or other work not
considered underground construction as stated above, the Grantee shall, if possible, notify
the City of the location and general description of the work before beginning work.
All work shall be done in a reasonably safe manner taking into account City-standard traffic
control procedures and in accordance with requirements of applicable federal laws, state
laws, or City ordinances. In emergencies, such filings shall be submitted within thirty (30)
days of completion of emergency construction work.
When any excavation shall be made pursuant to the provisions of this ordinance, the
Grantee shall restore the portion of the street, alley, road, or public way or place to the same
condition to which it was prior to the excavation. All such work shall be done in strict
compliance with the rules, regulations and ordinances which may be adopted from time to
time during the continuance of this franchise by the City Council or City Engineer or as may
be otherwise provided by law. The City shall have the right to fix a reasonable time within
which such repairs and restoration shall be completed and upon failure of such repairs and
restoration being made by grantee, City shall cause such repairs to be made at the expense
of grantee.
SECTION 4. This license does not prevent City from repairing, altering or improving any street or public
way within the City, whether or not they contain poles, wires, underground conduit or other
equipment of Grantee. If possible, all such City work or improvements will be done so as
not to obstruct or prevent the free use of such equipment by Grantee. If City work or public
improvements require the relocation of Grantee's equipment, Grantee must relocate the
equipment at its own expense.
SECTION 5. Whenever it becomes necessary to temporarily rearrange, remove, lower or raise the wires,
cables or other plant of grantee for the passage of buildings, machinery or other objects,
Ordinance No. 97 0
Exhibit"A"
Page 1 of 5
grantee shall temporarily rearrange, remove, lower or raise, its wires, cables or other plant
as the necessities of the case require; provided, however, that the person or persons
desiring to move any such buildings, machinery or other objects, shall pay the entire actual
cost to grantee of changing, altering, moving, removing or replacing its wires, cables or other
plan so as to permit such passage, and shall deposit in advance with grantee a sum equal
to such cost as estimated by grantee and shall pay all damages and claims of any kind
whatsoever, direct or consequential, caused directly or indirectly by changing, altering,
moving, removing or replacing of said wires, cables or other plant, except as may be
occasioned through the sole negligence of grantee, grantee shall be given not less than
ninety-six (96) hours written notice by the party desiring to move such building or other
objects. Said notice shall detail the route of movement of such building or other objects over
and along the streets, alleys, avenues, thoroughfares and public highways and shall bear
the approval of the City. Such moving shall be with as much haste as possible and shall not
be necessarily delayed or cause grantee unnecessary expense or waste of time.
SECTION 6. The franchise granted is subject to the following conditions:
a. If the City requests telecommunications services from Grantee, Grantee may
deduct the charges for such services from license fee payments upon prior written
approval of the City. Grantee shall charge the City at Grantee's most favorable rate
charged for a similar service within two years of providing services to the City.
Other terms and conditions of such services may be determined by separate
agreement.
b. Grantee shall pay to the City $3,000 as an application fee to cover City costs of
preparing and issuing this franchise. Beginning with the effective date of this
franchise until its expiration, Grantee shall pay City a franchise fee of five per cent of
the gross revenues earned on telecommunications services in the City. Payments
shall be made quarterly on or before 45 days after the preceding quarter
commencing with the quarter ending September 30, 1997, and continuing for each
quarter for the term of this franchise. Payments shall be accompanied by a
statement of how the total due amount was calculated, including an explanation of
gross revenue for services to each customer for whom one end-point of service was
located outside of the City. Payments not received by the 45th day of each quarter
will be assessed interest at the rate of one per cent over the existing prime rate,
compounded daily.
C. Gross revenues earned on telecommunications services means all revenues
earned on services provided by Grantee including and limited to:
(1) connections between interexchange carriers or competitive carriers and
any entity other than another interexchange carrier, competitive carrier or a
telephone company providing local exchange services;
(2) connections between entities other than interexchange carriers, competitive
carriers or telephone companies providing local exchange services;
(3) design, engineering, construction and maintenance of fiber optic cable links
that are not otherwise connected to Grantee's telecommunications system;
(4) gross revenues derived from exchange access services, as defined in ORS
Ordinance No. 97—
Exhibit"A"
Page 2 of 5
401.710 within the City limits.
d. For subsections c(1)&(2)above, gross revenues will be calculated when:
(1) both end-points are located within the City;
(2) one end-point is located within the City and another is located outside the
City calculated as follows:
G(io) = R(io)x(C/T),where
io = service between an address inside the City and an
address outside the City, or within the City if through
another exchange,
R = total revenues earned by Grantee for that service,
C = linear feet of cable within City carrying that service, and
T = total linear feet of cable carrying that service; and
e. City has the right to expand the subsection (c) definition of gross revenues earl-led
on telecommunications services after 90 days written notice to Grantee if any of the
following occur:
(1) the City collects franchise fees or privilege taxes from any other provider of
telecommunications services on revenues from services substantially
similar to those offered by Grantee, but are not within the current
subsection (c)definition of gross revenues;
(2) state law changes concerning the telecommunications services included in
the revenue base for franchise fees or privilege taxes on
telecommunications utilities;
(3) state law changes concerning the definition of competitive and non-
competitive telecommunications services.
f. The City shall have the right to change the percentage of gross revenues set forth
above at any time during the life of this agreement provided it has made such notice
in writing at least 180 days prior to the effective date of any change.
g. The City shall have the right to conduct or cause to be conducted, an audit of gross
revenues as defined herein. Any difference of payment due either the City or
Grantee through error or otherwise as agreed upon by both the City and Grantee,
shall be payable within thirty(30)days after discovery of such error.
SECTION 7. This franchise takes effect thirty (30) days after the date of signature provided Grantee file
a written acceptance of this ordinance with the City by that date. Such acceptance must
accept all terms, conditions and restrictions contained in this ordinance. The failures of MFS
to file this acceptance within 30 days prevents this ordinance from granting a franchise or
Ordinance No. 97— /U
Exhibit"A"
Page 3 of 5
any other rights.
SECTION 8. This franchise granted will be in force for ten (10)years from the date of its passage, unless
City or Grantee terminates, and shall be subject to any and all City, State, and Federal
legislative enactments.
SECTION 9. The Grantee shall defend, indemnify and hold harmless, the City, its officers, agents and
employees from any claim or injury, damage, loss, liability, cost or expense, including
litigation expenses and attorneys fees, arising from any act or omission under this franchise
by Grantee, its agents or employees. Grantee shall consult and cooperate with the City
while taking any action in defense of the City.
SECTION 10. During the period of this franchise, the Grantee must maintain public liability and property
damage insurance that names the Grantee and the City, its officers, agents and employees
from all claims referred to in Section 9. The coverage must be at least $300,000 for injury to
each person, $500,000 personal injury for each occurrence, and $500,000 for each
occurrence involving property damages plus costs of defense, or a single limit policy of not
less than $500,000 for all claims per occurrence, plus costs of defense.
SECTION 11. This franchise shall not be sold, leased, assigned or otherwise transferred without the prior
written consent of the City. Grantee may pledge or encumber this franchise as part of a
corporate reorganization, financing or refinancing activity. Grantee must notify the City not
later than 10 business days prior to any intended transfer, and City will not unreasonably
withhold any consent required, however, Grantee may assign this franchise in whole or in
part to a parent, subsidiary or affiliated corporation without such consent.
SECTION 12. The City reserves the right to terminate this franchise and all of Grantee's rights herein, if:
a. Grantee violates any material term of the franchise, or
b. Grantee fails to complete construction of an initial telecommunications system
within 36 months of the effective date of this franchise, or
C. Grantee fails to pay the franchise fee to City, or
d. Grantee is found guilty of any fraud, or deceit, or
e. Grantee fails to obtain or maintain any permit required by federal or state law.
f. The City adopts an ordinance regulating use of the public right of way for
telecommunications services and adopts a schedule of franchise fees for the use of
the public right of way, Should this occur, Grantee shall be entitled to issuance of a
franchise under the provisions of the new ordinance without payment of an
additional application fee provided the Grantee is in good standing with respect to
subsections a through e above.
Ordinance No. 97- K�)
Exhibit"A"
Page 4 of 5
SECTION 13. The City will give Grantee at least 30 days written notice of intent to
terminate this franchise stating the reasons for such action. If Grantee either cures the
stated reason within the 30 day period or initiates efforts satisfactory to the City to remedy
the stated reason, the City will not terminate this franchise. If Grantee fails to cure the stated
reason within such 30 day period or makes efforts to remedy the stated reason satisfactory
to City, City may declare this franchise terminated and extinguish all rights of Grantee under
the franchise.
SECTION 14. The franchise hereby granted shall not be exclusive and shall not be construed as any
limitation on the City to grant rights, privileges and authority to other persons or corporations
similar to or different from those herein set forth.
DATED this day of `se ale� , 1997.
METROPOLITAN FIBER SYSTEMS CITY OF TI ARD OREGON,a
OF OREGON, INC. I nicip orporation
By: t By:
Signature) ayor James Nicoli
(Printed Name) ATTEST:
Catherine Wheatley,City Recorder
(Position)
By:
(Signature)
(Printed Name)
(Position)
lAcitywideVranch.doc
Ordinance No. 97-/D
Exhibit"A"
Page 5 of 5
ACCEPTANCE OF FRANCHISE
WHEREAS, the CITY OF TIGARD, OREGON, under date of 997 passed
ORDINANCE NO. /O , entitled as follows, to wit:
AN ORDINANCE GRANTING TO METROPOLITAN FIBER SYSTEMS OF OREGON, INC. THE RIGHT
AND PRIVILEGE TO CONDUCT A COMPETITIVE TELECOMMUNICATIONS BUSINESS WITHIN THE
CITY OF TIGARD, AND TO PLACE, ERECT, LAY, MAINTAIN, AND OPERATE IN, UPON, OVER, AND
UNDER THE STREETS, ALLEYS, ROADS, AND PUBLIC PLACES, POLES, WIRES, AND OTHER
APPLICANES FOR COMMUNICATION PURPOSES WITHIN THE CITY OF TIGARD.
NOW, THEREFORE, the undersigned, Metropolitan Fiber Systems of Oregon, Inc., the grantee named in
said Ordinance, does for itself and its successors and assigns accept the terms, conditions and provisions
of Ordinance No.92-1z,and agrees to be bound thereby and comply therewith.
IN WITNESS WHEREOF, Metropolitan Fiber Systems of Oregon, Inc. has caused this instrument to be
executed by its officers as below subscribed this�day of To-1-err,6Pr , 1997.
METROPOLITAN FIBER SYSTEMS OF OREGON, INC.
1-21,7
By:
J
,,Ohr1 L. '5(32ran0
Received by the City of Tigard this /Z� day of11997.
1ACI7YWIDETRANCKDOC