Resolution No. 02-79 CITY OF TIGARD, OREGON
RESOLUTION NO. 02-
• RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT TO CONDUCT
• JOINT REVIEW OF QWEST AND VERIZON FRANCHISE FEES PAID AND TO
COLLECT BASE DATA NECESSARY TO A DETERMINATION OF THE FUTURE BASIS
OF CALCULATION OF QWEST AND VERIZON FRANCHISE FEES.
WHEREAS, the City of Tigard has granted franchises to Qwest and Verizon for use of the public
rights-of-way, and
WHEREAS, under the terms of the franchise, Qwest and Verizon are required to pay the City an
annual fee equal to 5%of their gross revenues generated within the City of Tigard, and
WHEREAS, Qwest's and Verizon's payments under these franchise agreements totaled over
5360.000 in FY 2001-02, and
WHEREAS, the City has never checked Qwest's and Verizon's records to make sure that they are
properly accounting for and reporting gross revenues generated within the City of Tigard, and
WHEREAS, it is appropriate to periodically check the calculations leading to this source of
revenue, and
WHEREAS, several other cities within Qwest's and Verizon's service areas also wish to review
franchise fees paid,and
WHEREAS, it is cost effective for several cities to conduct a joint review of Qwest's and Verizon's
franchise fees paid.
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The City of Tigard shall enter into an intergovernmental agreement with other
cities in the Qwest and Verizon service areas to conduct a joint review of Qwcst
and Verizon gross revenue calculations and customer.
SECTION 2: The Mayor is authorized to sign an intergovernmental agreement on behalf of
the City of Tigard in substantially the form included with this resolution as
Attachment A.
RESOLUTION NO. 02-
Page I
SECTION 3: This resolution shall become effective upon passage by the City Council.
PASSED: This I day 0 2002.
ayor-City o Tig d
ATTEST:
City Recorder-City of Tigard
RESOLUTION NO. 02- ,
Page 2
Attachment A
INTERGOVERNMENTAL AGREEMENT
This Intergovernmental Agreement ("Agreement") is entered into no later than
December 20, 2002 ("Effective Date") between all of the municipalities listed in
Exhibit A. Each of the municipalities listed in Exhibit A may be referred to
individually herein as a "Party" and collectively as the "Parties".
Recitals
A. The incumbent local exchange company(s) ("Franchisee"), which are the
subject of this "Telecommunications Financial Review Services" for the City
of Tigard are Qwest and Verizon.
B. The Parties desire to hire a consultant ("Consultant") to review and analyze
revenues received from incumbent local exchange carriers as compensation
for the rights and privileges to operate in the public right-of-way. The
specific incumbent local exchange carriers, and the mechanisms under
which these payments are made, may vary as between the Parties,
however, the revenue base is uniform throughout and consistent with state
statute.
C. There are savings available to the Parties by aggregating the review and
analysis, retaining a Consultant to assist them in such review and jointly
providing funds to pay such Consultant.
D. This Agreement is made under the provisions of Oregon Revised Statutes
(ORS) 190.003 to 190.030. ORS 190.010 authorizes municipalities to enter
into intergovernmental agreements for the performance of any or all
functions and activities that a Party to this agreement has the authority to
perform.
Agreement
The Parties agree to the following:
1. The Parties desire to retain a Consultant to work with the Parties in reviewing
and analyzing franchise fees paid by Franchisee to the Parties, including but
not limited to an evaluation of gross revenue calculations, and developing
procedures to be used by member Parties in comparing customer database
lists received from Franchisee with internal databases ("Consultant
Services"). In performing the services, the Consultant shall analyze
franchise, utility license, permit or other fees paid to the Parties by
Franchisee, pursuant to the Parties' respective telecommunications
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franchises, permits or licenses, for up to ten (10) calendar years. In addition,
the Consultant shall obtain Franchisee customer lists to assist the Parties in
the database comparison portion of the Consultant Services.
2. The Parties hereby delegate authority to the City of Hillsboro to enter into a
personal services contract with the Consultant on behalf of all of the Parties.
The Parties acknowledge and agree that the City of Hillsboro's standard
personal services contract will be used for the procurement of the Consultant
Services.
The Parties further delegate to the City of Portland and the City of Hillsboro
("Joint Lead Agencies") and the City of Hillsboro ("Managing Agency") the
authority to make administrative decisions on behalf of the Parties. The Joint
Lead Agencies and the Managing Agency shall make reasonable efforts to
keep the Parties informed of any decisions made on behalf of the Parties.
3. Each Party shall share in the cost of paying the Consultant to perform the
work as outlined in the RFP_
4. The amount in Exhibit A labeled Total Contract Cost for the Consultant
Services may only be modified through separate written agreement signed by
authorized representatives for each of the Parties to this Agreement.
S. The percentage used in Exhibit A to determine the amount of the Consultant
contract that is considered fixed may only be modified through separate
written agreement signed by authorized representatives for each of the
Parties to this Agreement.
6. Each Party shall be responsible for paying a share of the Fixed Costs relating
to the Consultant Services, as shown in Exhibit A. The Fixed Cost allocation
is non-refundable in the event a Party should withdraw from this Agreement.
7. Each Party shall be responsible for paying a share of the Variable Costs,
defined as the Total Cost of the Consultant Services less the Fixed Costs,
which shall he apportioned as shown in Exhibit A-
8. Each Party shall remit its share of the Fixed Cost to the Managing Agency
within thirty (30) days after executing this Agreement. Upon finalization of the
cost allocation for the Consultant Services, each Party shall remit any
remaining unpaid share of the total Fixed Cost to the Managing Agency. The
City of Hillsboro shall prepare and submit invoices to each Party immediately
after the Agreement is executed and the cost allocation is finalized.
9. The Managing Agency shall prepare and submit Variable Cost invoices to
each Party as soon as reasonably possible. The Managing Agency will
include, with each invoice, all back-up information reasonably related to the
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invoice. Each Party shall pay its pro-rata share of the Variable Costs within
thirty (30) days of the date of the invoice.
10. The Parties acknowledge and agree that in the event a Party withdraws from
this Agreement, Exhibit A, shall automatically be updated and revised to
reapportion the Variable Cost among the remaining Parties.
11. Any Party may terminate their participation in this Agreement so long as the
terminating Party meet all of the following requirements (a) the terminating
Party must provide seven (7) days prior written notice to both the Managing
Agency and the Joint Lead Agencies; (b) such notice must actually be
received by both the Managing Agency and the Joint Lead Agencies prior to
the inception of any Variable Costs; and (c)the terminating Party must submit
full payment to the Managing Agency of any Fixed Costs owed to date by the
terminating Party.
12. This Agreement shall terminate upon the earlier of five (5) years from the
Effective Date or until completion of the Franchisee Telecommunications
Financial Review. This Agreement may be terminated earlier upon mutual
written consent of the majority of the Parties.
15. The parties shall comply with all applicable laws and regulations regarding
the handling and expenditure of public funds. This Agreement shall be
construed and enforced in accordance with the laws of the State of Oregon,
even if Oregon's choice of law rules otherwise would require application of
the law of a different jurisdiction.
16.Time is of the essence in the performance of this Agreement.
17.This Agreement is for the benefit of the Parties only. Each Party agrees to
indemnify and hold harmless each other Party and its officers, officials,
employees, agents and volunteers, from and against all claims, demands and
causes of actions and suits of any kind or nature for personal injury, death or
damage to property on account of or rising out of services performed, the
omission of services or in any way resulting from the negligent or wrongful
acts or omissions of the indemnifying Party and its officers, officials,
employees, agents and volunteers. In addition, each Party shall be solely
responsible for any contract claims, delay damages or similar items arising
from or caused by the action or inaction of that Party under this Agreement.
18.No waiver, consent, modification or change of terms of this Agreement shall
be binding unless in writing and signed by authorized representatives for each
of the Parties.
19.Any Party may institute legal action to enforce any covenant or agreement
herein, or to enjoin any threatened or attempted violation of this Agreement.
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All legal actions shall be initiated in Washington County Circuit Court. The
Parties, by signature below of their authorized representatives, consent to the
in personam jurisdiction of that court.
20.Performance by any Party shall not be in default where delays or default is
due to war, insurrection, strikes, walkouts, riots, floods, drought, earthquakes,
fires, casualties, acts of God, governmental restrictions imposed or mandated
by governmental entities other than the Parties, enactment of conflicting state
or federal laws or regulations, new or supplementary environmental
regulation, litigation or similar bases for excused performance that are not
within the reasonable control of the Party to be excused.
21.If any one or more of the provisions contained in this Agreement is invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability
of the remaining provisions of this Agreement will not be affected or impaired
in any way.
22.This Agreement is the entire agreement of the Parties on its subject and
supersedes any prior discussions or agreements, oral or written, regarding
the same subject.
23.This Agreement may be executed in any number of counterparts by any one
or more of the Parties hereto, and all of these counterparts will be one
Agreement. To facilitate execution of this Agreement, the Parties may
execute by facsimile transmission the counterparts of the signature pages.
Signature Section for Intergovernmental Agreement for Consultant
Telecommunication Financial Review Services:
Name: City of Tigard
By:
James E. Griffith, Mayor
Date:
Franchisee subject to Telecommunication Financial Review Services:
Qwest
Verizon
XXX Both —Qwest and Verizon
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