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Ordinance No. 97-07 c � IL ��ss rF�v. y ` .:,. ., ._ <•.- _ ._ .,. _._.., ,. .—-- , _; .., r .', ha,.;'i' s. `A xs'c ' `- CITY OF TIGARD,OREGON 3, ORDINANCE NO.97-L AN ORDINANCE GRANTING TO FIRSTPOINT COMMUNICATIONS INC., THE RIGHT AND PRIVILEGE TO ` c` + CONDUCT A COMPETITIVE TELECOMMUNICATIONS BUSINESS WITHIN THE CITY OF TIGARD,AND TO ;�y r PLACE, ERECT, LAY,MAINTAIN,AND OPERATE IN, UPON, OVER,AND UNDER THE STREETS, ALLEYS, v r { ROADS, AND PUBLIC PLACES, POLES, WIRES, AND OTHER APPLIANCES FOR COMMUNICATION (. PURPOSES WITHIN THE CITY OF TIGARD. N` WHEREAS, the City Council has expressed the desire to enter into a franchise agreement with FIRSTPOIN7 COMMUNICATIONS 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 b this reference made a part hereof. x THE CITY OF TIGARD ORDAINS AS FOLLOWS: r SECTION 1. The terms and conditions of the attached franchise agreement,Exhibit"A",are hereby approved and f _ , adopted as part of this ordinance as if specifically set forth. k SECTION 2. The Mayor is authorized and directed to sign the attached agreement on behalf of the Council x 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. SECTION 4. The City Council determines that the fee imposed by this franchise does not require a vote under the provisions of Measure 50. PASSED: SyUfArlimCusvote of ail,Council members present after being read by number and title only,this 4 x VQla of 1997, y a 3 a t. /IAri-? o_ a r >� } Catherine a Wheatley,City Recorder g r P t APPROVED: This 1QQ _day of A97. ' " yo -City of Tigard �� g t F$ ; Approved as to form: ...... 9 • ity Attome Certified to be a True Copy of Original onfile y ; rt � , Datcj JT „ cAcim�noerwwor�.00c By I -; City Recorder-City Tigard Ewtl xFVVV c Datx t '' �3 ORDINANCE No.97-jQ7 �r PagelNQ `g s ;N,rrAac Rob t, � T EXHIBIT"N' a• ' 1 rim A FRANCHISE AGREEMENT BETWEEN THE CITY OF TIGARD AND FIRSTPOINT COMMUNICATIONS,INC.(GRANTEE). • SECTION 1. The City of Tigard (City),grants to FIRSTPOINT COMMUNICATIONS INC. (Grantee)a r franchise to operate as a competitive telecommunications provider as defined by ORS ,Illlb 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 wires and equipment,or F repairing or replacing the same. All work must be done in compliance with City ordinances, Y f � regulations or orders. ' UZ SECTION 3. The Grantee shall file with the City Engineer or designee maps and materials showing all #u ; f additional facilities proposed underground construction work to include the installation oor ; s ; relocation or extension of existing facilities within any street,alley,road,or other public way w . 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 r � the City of the location and general description of the work before beginning work. r. NI 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 s r 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 ; x condition to which it was prior to the excavation. All such work shall be done in strict rs3 . j comp iiance with the rules,regulations,ordinances or orders which may be adopted from time to time Burin 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 timend restoration shall be completed and upon failure of such within which such re1 irs repairs and re to ationabeing made by grantee,City shall cause such repairs to be made at the expense of grantee. PRx 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 asx t 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, r 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 i Ordinance No.97,W k ; Exhibit"A" Page 1 of 5 r; wN r S ry k. F s f dry '1 t :k 4 � y ; x fir xp l �r Sk 1 t l f t 1 J s S 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 plant 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 thannow 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 ow 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. j SECTION 6. The franchise granted is subject to the following conditions: a. If the City requests telecommunications services from Grantee, Grantee may k'; deduct the charges for such services from license fee payments upon prior written } .fG 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. r �Y '1A b. Grantee shall pay to the City$3,000 as an application fee to cover City costs of c preparing and issuing this franchise. Beginning with the date on which facilities were installed within City right of way, Grantee shall pay City a franchise fee of five r per cent of the gross revenues earned on telecommunications services in the City and one per cent on all other gross revenues from the sale or lease of o tical fiber ' or services to other telecommunication service providers. Payments shalPbe mala quarterly on or before 45 days after the preceding quarter commencing with the k ' 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 # t �x 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. P Payments not received by the 45th day of each quarter will be assessed interest at µs the rate of one per cent over the existing prime rate,compounded daily. R z� C. Gross revenues earned on telecommunications services means all revenues earned on services provided by Grantee including and limited to: 4 (1) connections between interexchange carriers or competitive carriers and ( a3 any entity other than another interexchange carrier,competitive carrier ora telephone company providing local exchange services; r (2) connections between entities other than interexchange carriers,competitive x - carriers or telephone companies providing local exchange services, (3) gross revenues derived from exchange access services,as defined in ORS 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, h� Ordinance No.97M Exhibit"A" j r Page 2 of 5 5 i. r5 ) "Z 1x f� Y r, ', rg M f. " x La PON, a r WR Ma zn"R Y (2) one end-point is located within the City and another is located outside the ; ` City calculated as follows: w. ' Elm G(io) = R(io)x(C/T),where v lo = service between an address inside the City and an address outside the City, or within the City if through ` another exchange, RR = total revenues earned by Grantee for that service, x: t ! C = linear feet of cable within City carrying that service,and , 4 + _ � € T ble total linear feet of cacarrying that service;and k a e. City has the right to expand the subsection(c)definition of gross revenues earned 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 t tie telecommunications services on revenues from services substantially , a. similar to those offered by Grantee, but ar_' tial within the current subsection(c)definition of gross revenues; ,`�a (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- 9 competitive telecommunications services. f. The City shall have the right to change the percentage of gross revenues set forth 4 above at any time during the life of this agreement provided it has made such notices. 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 F , revenues as defined herein. Any difference of payment due either the City or . I 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. i l " SECTION 7. This franchise takes effect thirty(30)days after the date of signature provided Grantee files t a written acceptance of this ordinance with the City by that date. Such acceptance must t accept all terms,conditions and restrictions contained in this ordinance. The failures of r t t Grantee to file this acceptance within 30 days prevents this ordinance from granting a � >s franchise or any other rights. < SECTION 8. This franchise granted will be in force for ten(10)years from the date of its passage,unless , rCity or Grantee terminates, and shall be subject to any and all City, State,and Federal r 3 legislative enactments. pf f V SECTION 9. The Grantee shall defend,indemnify and hold harmless,the City,its officers,agents and a. f a employees from any claim or injury, damage, loss, liability, cost or expense, including - �' w I litigation expenses and attorneys fees,arising from any act or omission under this franchise ` Ordinance No.97DJ F wFt s t Exhibit"A" r 1 x r dui Page 3 of 5NA r �'s! 5r ��� I` - a P<a i } L i r t �3v " a e ., mN ­gg 1AR j• }x n t by Grantee,its agents or employees. Grantee shall consult and cooperate with the City while taking any action in defense of the City. f SECTION110. During the period of this franchise,the Grantee must maintain public liability and property F damage insurance that names the Grantee and the City,its officers,agents and employees r j from all claims referred to in Section 9. The coverage must be at least$300,000 for injury to >FA 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 #x l ` ' less than$500,000 for all claims per occurrence,plus costs of defense. �r 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 r, corporate reorganization,financing or refinancing activity. Grantee must notify the City not :t later than 10 business days prior to any intended transfer,and City will not unreasonably withhold any consent required. Y SECTION 12. The City reserves the right to terminate this franchise and all of Grantee's rights herein,if: w " f f, z�rY�w a. Granted 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 f 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 y telecommunications services and adopts a schedule of franchise fees for the use of Y the public right of way, Should this occur,Grantee shall be entitled to issuance of a V f 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 a above. x 11i a g` s S ¢ -. 1� SSS ' A Y , 3 3 i K 4, �f!1 Q__ - - +t j Ordinance No.970? { Exhibit"A" a a r,�,xf Page 4of5x Zl cC.xr x Ltn• e ,r.vr r.1,..-„2.m.r- �, .: 4r�'y^��tir J r �. r Ev.?'x,�- Ui;, e r s );vl M PY 5" r a s rx �v r OR zs ON agg RVI ki�S Y. SECTION 13. The City will give Grantee at least 30 days written notice of intent to t x r ` - a terminate this franchise stating the reasons for such action. If Grantee either cures the stated reason within the 30 da period or initiates efforts satisfactory to the Cit to remedy day rY Y Y ? the stated reason,the City will not terminate this franchise. If Grantee fails to cure the statedAp reason within such 30 day period or fails to make efforts to remedy the stated reason z [• " satisfactory to City,City may declare this franchise terminated and extinguish all rights of �r F• ���� Grantee under the franchise. Yr 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 s similar to or different from those herein set forth. = ` ENz Y 4 � � DATED this n7t _day of ,1997. Exp y FIRSTPOINT COMMUNICATIONS INC. CITY OF TI RD OREGON,a f Municlpa rporatlon By: By: HrS rF (Signature) or James Nicoli Y ' (Printed Name)( ) ATTEST: t }, Catherine Wheatley,City Recorder � M1 F � � � (Position) By. (Signature) t (Printed Name) x c �. (Position) ,.. s I:Icilywi *arch.Cac 7� e . 1 4 Ordinance No.97 0 M1fAW 11111 EW11111Exhibit"A° m 4 ° Page 5 of 5 dt 't'1. WE 2` fis a ts� a, r ; } a "� ♦��� ^�, ,� f SAN) f ry a . � Lv Md� b fi 41 M®RIN M'0 � M21 40 9 ' Al l� "'a ACCEPTANCE OF FRANCHISE 08' ffi rX r WHEREAS, the CITY OF TIGARD, OREGON, under date of passed 7 ORDINANCE NO. entitled as follows,to wit: A Al t Y _i . - k + AN ORDINANCE GRANTING TO FIRSTPOINT COMMUNICATIONS INC.THE RIGHT AND PRIVILEGE TO CONDUCT A COMPETITIVE TELECOMMUNICATIONS BUSINESS WITHIN THE CITY OF TIGARD, , . ter£ f; AND TO PLACE, ERECT, LAY, MAINTAIN, AND OPERATE IN, UPON, OVER, AND UNDER THE y =I STREETS,ALLEYS,ROADS,AND PUBLIC PLACES,POLES,WIRES,AND OTHER APPLICANES FOR COMMUNICATION PURPOSES WITHIN THE CITY OF TIGARD. z z a 1 NOW, THEREFORE, the undersigned, Firstpoint Communications 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,Firstpoint Communications,Inc.has caused this instrument to be executed by its p i officers as below subscribed this day of 1997. � } FIRSTPOINT COMMUNICATIONS,INC. " r 42 a Ed s z ' Received by the City of Tigard this day of 1997. A r '�' ,:,:•,� - I:uTYWIDEIFRANCH.DOC r f y ��yhs i, tee. �"� •., 77 k' "b va fi X r