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Ordinance No. 00-20 CITY OF TIGARD,OREGON ORDINANCE NO.00-A o .AN nttniNANCE GRANTING TO NEXTLINK OREGON,INC.,A WASHINGTON CORPORATION, A FRANCHISE TO CONDUCT A TELECOMMUNICATIONS BUSuvnSS u3 i pit, C1Ti ^i TIGARD, OREGON, INCLUDING THE RIGHT TO PLACE POLES, WIRES, AND OTHER APPLIANCES FOR TELECOMMUNICATION PURPOSES IN THE PUBLIC RIGHTS-OF-WAY; AUTHORIZING THE MAYOR TO SIGN THIS AGREEMENT; AND DECLARING AN EMERGENCY, WHEREAS,The ten-year franchise for the communication facilities and services provided by NEXTLINK Oregon,Inc.,described in the title of this ordinance is now before the City Council for approval. The Council believes that the franchise should be approved under the terms and conditions 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 is specifically set forth. SECTION 2. The Mayor is authorized to sign the attached agreement on behalf of the Council. SECTION 3. Because of the need to have stable telephone communication and the need to.have a stable revenue flow to the City from franchise fees, an emergency is declared and this ordinance shall take effect upon its passage. SECTION 4. 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 UhQrii`i'e wvote of all Council members present after being read by number and title only,this "' day of i l ,2000. Catherine Wheatley,City Record APPROVED: This c�S day of-- j ,2000. J J s Nicoli,Mayor Ap�'oved as to form: WityAttorney -----'-f- S 0 Date V=WCATHMOUNGUNEXT LINK ORD.DOC ORDINANCE No.00. 0 Pagel _ EXHIBIT"A" A franchise agreement between the City of Tigard and NEXTLINK Oregon, Inc., a Washington corporation. SECTION 1. Subject to the other terms and conditions set forth in this document there is hereby j granted by the City of Tigard to NEXTLINK Oregon, Inc., (herein referred to as "Grantee");its successors and assigns;subject to the development ordinances and regulations of the City, the right and privilege to conduct a telecommunications business within said City,or such other public property as may come within the jurisdiction of the City during the term of this agreement for the purpose of furnishing, telecommunications services as defined in State and Federal Law. This grant includes the right to erect,construct, place, replace,reconstruct, lay, maintain, and operate poles,wires,switching equipment,amplifying equipment, fixtures,facilities, appliances,structures and other devices including, but not limited to,electronic,optical and mechanical devices customarily associated with Grantee's function,and purpose of serving as a telecommunications utility. This franchise is granted solely for the privilege of providing telecommunications services as defined by State and Federal Law. This franchise does not include the right to conduct the business of providing a"cable system"as defined in applicable law. Should the Grantee desire to provide a cable system within the City, it must comply with the City's regulations relating to cable communications in force at that time. SECTION 2. It shall be lawful for Grantee to make all needful and necessary excavations in any of said streets,alleys,avenues,thoroughfares and public highways. 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 worts. SECTION 4. When any excavation shall be made pursuant to the provisions of this ordinance, s♦hn +goo+ anov road,or Public way or the Grantee snail restore IIIc NuieC,r��, .,,�,....,..., ...._,, .__._, place to the same condition to which it was prior to the excavation,reasonable wear and tear excepted. All such work shall be done in strict compliance with the written rules, regulations,ordinances or orders 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 5. The Grantee hereby agrees and covenants to indemnify,save harmless and defend the City and its officers, agents and employees from any and all damages, costs and expenses or claims of any kind whatsoever,or nature,arising from any injury to persons or property by reason of the negligent act or omission of the Grantee, its agents or employees in exercising the rights and privileges granted hereunder and by this franchise. SECTION 6. The City, by its properly constituted authorities,shall have the right to cause the Grantee to move the location of any pole, underground conduit or equipment • belonging to Grantee whenever the relocation thereof shall be for public necessity, and the expense thereof shall be paid by the Grantee. Such charges shall comply with state statutes and administrative rules. Whenever it shall be necessary for public necessity to remove any pole, underground conduit or equipment belonging to Grantee or on which any wire or circuit of the Grantee shall be stretched or fastened,the Grantee, shall, upon written notice from the City,or its properiy constituted authorities, meet with the City Engineer and agree in writing to a plan and date certain to remove such poles, underground conduit, equipment,wire or circuit,at Grantee's expense, and if the Grantee fails, neglects or refuses to do so, the City, by its properly constituted authorities,may remove the same at the reasonable and documented expense of the Grantee. The costs associated with the removal,relocation or extension of Grantee's facilities at the request of a private developer or development shall be borne by such private developer or development. SECTION 7. All notices and approvals required under this Agreement shall be in writing. The Grantee shall provide the City with the name,position and phone number of Grantee staff that can be contacted for administration of this Agreement and for contact with construction-related questions and comments. All notices and other communications to be given pursuant to this agreement shall be deemed to have been duly given (i)upon delivery, if personally delivered to the person served or to an officer of the corporate party being served; (ii)two(2)days after mailing,if mailed by United states certified mail, return receipt requested, postage prepaid;or(iii)one day after mailing,if delivered by overnight carrier, delivery receipt requesied to the parties at the foiiowlny addresess: Such notices and approval shall be directed to the City as follows: City Engineer,City of Tigard 13125 SW Hall Blvd.,Tigard,Oregon 97223 (503)6394171 Such notices and approval shall be directed to the Grantee as follows: NEXTLINK Oregon Inc. ATTN: General Manager 9000 SW Nimbus Beaverton,Oregon 97008-7131 Facsimile Number: 503-241-8156 Telephone Number: 503-972-6863 With a copy to: NEXTLINK Oregon, Inca ATTN: Legal Department 1000 Denny Way,Suite#200 Seattle,Washington 98109 Facsimile Number:206-315-6320 SECTION 8. Upon request of the City,the Grantee shall provide available plans and locate any underground conduit or equipment belonging to Grantee,as required for the preparation of construction drawings. SECTION 9. 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, 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 unnecessarily delayed or cause Grantee unnecessary expense or waste of time. SECTION 10. In consideration of the rights and privileges hereby granted, Grantee agrees to pay to the City five percent(5%)of the gross revenues derived from exchange access services,as defined in ORS 401.710 within the city limits less net uncollectibles. Such payments shall be made to the City every six months for the life of this agreement on or before March 15 for the six month period ended December 31, and September 15 for the six month period ended June 30. Such 5% payment will be accepted by the City from the Grantee also in payment of any license, privilege or occupation tax or fee charged for regulatory or revenue purposes. The 5% payment is not accepted in satisfaction of payments due to City for the failure of Grantee to perform any of Grantee's obligations pursuant to this franchise agreement including but not limited to Grantees' obligations to bear the cost of repairs under Section 4 and the cost of relocation under Section 6. The City shall have the right to change the percentage of gross revenues set forth above, on a non-discriminatory and competitively neutral basis,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. The City shall have the right to conduct,or cause to be conducted, an audit of gross revenues as defined herein. Such audits may be conducted at two year intervals beginning two years after the effective date of this agreement. The City shall conduct the audit at its own expense. 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 sixty(60)days after discovery of such error. SECTION 11. The rights, privileges and franchise hereby granted shall continue to be in full force for a period of ten(10)years from the date this ordinance becomes effective. It is understood and agreed that either party may terminate or renegotiate the terms of this agreement after 180 days notice in writing.This ordinance shall take effect and be in force on the day of its passage and approval. This ordinance shall be subject to any and all State or Federal laws and regulations. Grantee shall not assign or transfer this franchise without the written consent of the City,which consent shall not be unreasonably withheld;except that upon written notice to the City,Grantee may assign this franchise without the City's consent to any entity that Grantee controls, is controlled by,or is under common control with. If any section,sentence,clause,or phrase of this franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction,such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section,sentence, clause,or phrase of this franchise. This franchise is subject to the provisions of applicable law,rule,or regulation, including without limitation the Telecommunications Act of 1996,and any applicable law,rule,or regulation. SECTION 12. The Grantee shall,within thirty(30)days of the effective date of this ordinance,file with the Recorder of the City its written acceptance of all the terms and conditions of the ordinance and if not so accepted by the Grantee,this ordinance shall be void. DATED this o?j� day of 2000. Cl OF TIGARD GON,a Muni 'p Co r .ion By: James Nicoli ATT€ST: Catherine Wheatley City Recorder ACCEPTANCE OF FRANCHISE WHEREAS, the CITY OF TIGARD, OREGON, under date of ,2000 passed ORDINANCE NO. , entitled as follows,to wit: AN ORDINANCE GRANTING TO NEXTLINK OREGON, INC.,A WASHINGTON CORPORATION,A FRANCHISE TO CONDUCT A TELECOMMUNICATIONS BUSINESS IN THE CITY OF TIGARD, OREGON, INCLUDING THE RIGHT TO PLACE POLES,WIRES,AND OTHER APPLIANCES FOR TELECOMMUNICATION PURPOSES IN THE PUBLIC RIGHTS- OF-WAY;AUTHORIZING THE MAYOR TO SIGN THIS AGREEMENT;AND DECLARING AN EMERGENCY. NOW,THEREFORE,the undersigned, NEXTLINK 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. and agrees to be bound thereby and comply therewith. IN WITNESS WHEREOF, NEXTLINK Oregon, Inc. has caused this instrument to be executed by its officers as below subscribed this day of , 2000. NEXTLINK Oregon, Inc. By Received by the City of Tigard this day of ,2000.