Ordinance No. 93-05 CITY OF TIGARD,OREGON
• ORDINANCE NO.93 QJ
AN ORDINANCE GRANTING TO ELECTRIC LIGHTWAVE,INC.A DELEWARE CORPORATION,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 Electric Lightwave,
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 9 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!2d,flAftouS vote of all qpuncil members present after being read by number and
title only,this j(,4,,day of 1993.
C%�.hednd Wheatley,City Recorderj
APPROVED: Th 'Of
. Ards, Mayor
,wroved as to form:
M e.9:L-&—
City Attorney
1,�& -,3
Date
ORDINANCE No.93-_,,�9,5
Page 1
r EXHIBIT"A"
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A FRANCHISE AGREEMENT BETWEEN THE CITY OF TIGARD AND ELECTRIC LIGHTWAVE,INC.,A
DELAWARE CORPORATION(GRANTEE).
SECTION 1. The City of Tigard (City), grants to Electric Lightwave, Inc., a Delaware corporation,
(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
poles,wires,and other equipment for telecommunications purposes within City streets and
public ways. Such wires and other equipment must be laid 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 FWng and maintaining poles,or other
supports of conduits for wires and equipment,or repairing or replacing the same. All work
must be done in compliance with City ordinances, regulations or orders.
SECTION 3. The Grantee shall fife with the City Engineer or designee maps and materials showing all
proposed underground construction work to include the installation of additional facilities
or relocation of 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
riot 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 procures and in accordance with requirements of applicable federal laws,state
laws,or City ordinances. In emergencies,swffi filings shall be submitted within thi ,(30)
days of completion of emergency constnrction 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,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 w hirr which s-ch 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 preveni City from repairing,ai[ering or iffVFoving airy sweet or Pubiw
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,Graniee waist faWWe
the equipment at its own expense. j
C Ordinance No.93-05
Exhibit"A"
Page 1 of 5
eC«e.....>... ., ....,: .... .. . _:
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, nuic hinery or other
objects,grantee shall temporadly rearrange, remove, lower or raise. Its wires,cables or j
other plant as the necessities of the case require;provided. however,that the person or j
persons desiring to move any such builds, 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
quartet commencing with the quarter ending March 31, 1993, 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 in'cerest at the rate of one per cent over the existing prime
rate,compounded dairy.
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 Irterexcha,-Ge wirier,competitive carrier or
a telephone company providing local exchange services;
(2) connections between entities other than interexchange carriers,
wn4ernnre carriers or teiephone companies providing Wal exchange
services; j
Ordinance No.93-os
> Exhibit"A"
Page 2 of 5
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(3) design, engineering, constnrction and maintenance of fiber optic cable
links that are not otherwise connected to Grantee's telecommunications
system;
d. 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(lo) R(io)x(C/T),where
io M service between an address Inside the City and an
address outside the City, or within the City if through
another exchange,
R a total revenues earned by Grantee for that service,
C M linear feet of cable within City carrying that service,aMid
T total linear feet of cable carrying that service; and
e. City has the fight to expand the subsection(c)definition of gross revenues earned
on telecommunications services after 90 days written notice to Grantee 9 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 incloded
in the revenue base for franchise fees or privilege taxes on
telecommunications utilities;
r.:
� (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 lite of this agreement provided it has made such
notice in wfiting 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 We 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.
C Ordinance No.93:-
Exhibit W
Page 3 of 5
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SECTION 7. This franchise takes .. thirty(30)days atter the date Of Signature provided Grana
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a written acceptance of this ordinance with the City by that date. Such acoeptanc-
accept all terms,conditions and restrk tions contained In this ordinance. The failures of
Electric Lightwave,Delaware,to file this acceptance within 30 days prevents this ordinance
from grenting a franchise or any other rights.
SECTION . This franchise graved will be In force for ten(10)years,unless City or Grantee terminates
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the fraro"li-rami an c h Sections 12 and 13,
SECTION 9. The Grantee shall defend,indemnity and hold ham less,the City.Its officers,agents and
employees from any claim or Injury, damage, loss. Aabliity, cost or expense, ding
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 arty 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 casts of defense.
SECTION 11. This franchise shag 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.
SECTION 12. The City reserves the right to terminate this franchise and all of Grantee's rights herein,
a. Grantee violates any material tern 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
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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.
Ordinance No.93.aj
C Exhibit"A"
Page 4 of 5
x
A
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. 9 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
9imtation 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 ;V6 day of J 1993.
ELECTRIC LIGHTWAVE, INC. C O GA
a Delaware Corporation RE N,a
u pal rporation
By. 7� C �z B
(Signature) ✓t C kK�,� r Gerald R. Edwards
`�' ATTEST: _ C(,F.ILQIi c.,v�p 11)h�
(Printed Name) Catherine Wheatley
City Recorder
Position: ��� J-e ����
►_ By:
nature)
(Printed Name)
Position: e CEO
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Ordinance No.93-_OL_
Exhibit"A"
Page 5 of 5
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ACCEPTANCE OF FRANCHISE
WHEREAS,the CITY OF TIGARD,OREGON,under date of January 261993
passed ORDINANCE NO.93-06,entitled as follows,to wit:
AN ORDINANCE GRANTING TO ELECTRIC LIGHTWAVE, INC.,A DELAWARE CORPORATION,THE
RIGHT AND PRIVILEGETO CONDUCT A COMPETITIVE TELECOMMUNICATIONS BUSINESS WITHIN
THE CITY OF TIGARD,AND TO PLACE, ERECT,LAY,MPJNTAiN,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,Electric Lightwave,Inc-,the grantee named In said Ordinance,does
for itself and Its successors and assigns accept the terms, conditions and provisions of Ordinance No.
92-05 and agrees to be bound thereby and comply therewith.
IN WITNESS WHEREOF,,Elea !i 4htwave,Inc.has caused this instrument to be executed by Its officers
as below subscribed this II�V—� day of rein yJdQe-l4, 1993.
ELECTRIC LIGHTWAVE INC.
By
Received by the City of Tigard
this day of 1993.
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