Ordinance No. 00-24 CITY OF TIGARD, OREGON
ORDINANCE NO. 00.2q
AN ORDINANCE GRANTING TO MCLEODUSA TELECOMMUNICATIONS SERVICES, INC.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;AND AUTHORIZING THE
MAYOR TO SIGN THIS AGREEMENT.
WHEREAS,The ten-year franchise for the communication facilities and services provided by
McLeodUSA Telecommunications Services Inc. (McLeodUSA), 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 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 UWAMvotepf all Counc' members present after being read by number
and title only,this_� day of 000.
A .
erne Wheatley, City Record
APPROVED:This day of ,2000.
Brian J. Moore - Council President
Approved as t)form,
V `
ty Attcrr-+ey
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Date
EXHIBIT"N'
A franchise agreement between the City of Tigard and McLeodUSA Telecommunications
Services, inc. (McLeodUSA).
SECTION 1. Subject to the other terns and conditions set forth in this document there is hereby
granted by the City of Tigard to McLeodUSA Telecommunications Services, 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 work.
SECTION 4. 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 dons in strict compliance with the 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. Provide and keep in force public liability insurance,with a thirty-day cancellation
clause,with a combined single limit of one million dollars, relating to a single
occurrence,which shall be evidenced by a certificate of insurance filed with the
City Recorder. The City shall be named as an additional insured on the policy.The
insurance shall indemnify and save the City harmless against liability or damage
which may arise or occur from any claim resulting from the franchisee's operation
under this chapter. In addition,the policy shall provide for the defense of the City
for any such claims.
SECTION 7. The City,by its properly constituted authorities,shall have the right to cause the
grantee to move the iucation 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 properly
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
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 bome by such private developer or development.
SECTION 8. All notices and approvals required under this Agreement shall be in writing. The
Grantee shall provide the City.vith 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.
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)639-4171
SECTION 9. 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 10. 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 11.. 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 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 o`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 12. The rights, privileges and franchise hereby granted shall continue to be in full force
for a period often(10)years from the date this ordinance becomes effective. Itis
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.
SECTION 13. 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 day of-," 2000.
CITY OF TIGARD
OREGON,a unicipal Corporation
By:_ �---
Council Pre dent Brian J.Moore
ATTEST: ,•
Catherine Wheatley
City Recorder
a
ACCEPTANCE OF FRANCHISE
WHEREAS,the CITY OF TIGARD, OREGON, under date of 12000
passed ORDINANCE NO. , entitled as follows,to wit:
AN ORDINANCE GRANTING TO MCLEODUSA TELECOMMUNICATIONS SERVICES, INC. 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, McLeodUSA Telecommunications Services, Inc.
(McLeodUSA),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, McLeodUSA Telecommunications Services, Inc. (McLeodUSA)has caused
this instrument to be executed by its officers as below subscribed this day of ,
2000.
By
Received by the City of Tigard
this day of ,2000.