Ordinance No. 13-13 CITY OF TIGARD,OREGON
TIGARD CITY COUNCIL
ORDINANCE NO. 13- /3
AN ORDINANCE GRANTING A RENEWAL OF THE NON-EXCLUSI`'E FRANCHISE WITH TW
TELECOM OF OREGON LLC TO PLACE AND OPERATE A TELECONMIUNICATION UTILITY
SYSTEM IN THE CITY OF TIGARD, OREGON, FIXING THE TERMS AND CONDITIONS FOR
SAID FRANCHISE, REPEALING ORDINANCE NO. 02-30, AND AUTHORIZING THE JvLAYOR
TO SIGN THIS AGREEMENT.
WHEREAS, the Tigard Municipal Code ("TMC") Section 15.06.060 allows the City Council to grant a non-
exclusive utility franchise to any person pro-viding utility services which meets the requirements of the TMC;
and
WHEREAS, tw telecom of oregon llc ("tw telecom") last held a 10-year franchise agreement with the City
from September 26,2002 through September 26,2012,to provide telecommunications in the City;and
WHEREAS, tw telecom has continued to comply with the terms of the expired franchise during the renewal
process;and
WHEREAS,tw telecom and the City of Tigard have negotiated a new 10-year franchise agreement;and
WHEREAS,the City of Tigard finds that tw telecom meets all lawfal requirements to obtain a franchise.
NOW,THEREFORE,THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1: A new,ten-year franchise for tw telecom of oregon llc("tw telecom")is hereby granted,
including all of the terms and conditions as set forth in the agreement attached as Exhibit
A to this ordinance.
SECTION 2: The Mayor is authorized and directed to sign the agreement attached to this ordinance as
Exhibit A 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 limitations of Article XI,Section 11 (b) and 11 (19) of the Oregon Constitution and is
not a fee imposed on property or property owners by fact of ownership.
SECTION 4: This ordinance shall replace and repeal the prior franchise with tw telecom,Ordinance
No.02-30,adopted on August 26,2002.
SEC'T'ION 5: This ordinance shall take effect thirty days from its passage,provided that tw telecom
returns an executed original of the franchise to the City on or before the effective date of
this ordinance. If tw telecom fails to provide an executed original on or before the
effective date,this ordinance shall be null and void.
ORDINANCE No. 13-.�3 {00337795;1
Page 1
PASSED: By U 0 0 r) ,M 0145 vote of All council members present after being read by number
and title only,thisc_�--eday of C,�Cr ak-,A .2013.
e—jr,e,ZA.0', !A� �2A���v
Catherine Wheatley,City Recorder
��r_id
APPROVED: By Tigard City Council this day of ,2013.
John Cook,Mayor
Approved as to form: Tj
Special Counsel
Date
ORDINANCE No. 13--] {00337795;1
Page 2
Ordinance Exbibit A
CITY OF TIGARD, OREGON
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT ("Agreement") is made and entered into by and between the City of
Tigard, an Oregon municipal corporation, ("City") and tw telecom of oregon llc a Delaware limited liability
company, ("Franchisee") qualified to do business in Oregon:
RECITALS
1. Pursuant to Federal law, State statutes, and City Charter and local ordinances, the City is
authorized to grant non-exclusive franchises to occupy the rights-of-way as defined in Chapter 15.06 of
the Tigard Municipal Code ("TMC"), in order to place and operate a Utility System within the municipal
boundaries of the City of Tigard ("Franchise Area");and
2. Franchisee has requested a franchise to place and operate telecommunications facilities and
services system(the"Utility System"),as defined in TMC 15.06.020,within the Franchise Area; and
3. The City has found that Franchisee meets all Iawfiil requirements to obtain a franchise, and
therefore approves the application.
NOW,THEREFORE,in consideration of the mutual promises contained herein, the parties agree
as follows:
AGREEMENT
1. GRANT OF AUTHORITY
The City grants Franchisee the non-exclusive right to occupy City rights-of-way to place and
operate a Utility System for a term of ten (10) years from and after the Effective Date of this Agreement
(the"Term"), except as set forth below.
2. AUTHORITY NOT EXCLUSIVE
This Agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements,
permits, easements or licenses granted by the City to any person to use the rights-of-way for any purpose
whatsoever, including the right of the City to use same for any purpose they deem fit,including the same
or similar purposes allowed Franchisee hereunder. The City may, at any time, grant to other persons
authorization to use the rights-of-way for any purpose. This Agreement does not confer on Franchisee
any right, title or interest in any right-of-way.
ORDINANCE NO. 13- 0 Exhibit A Page 1 of 4
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3. PERFORMANCE&FRANCHISE FEE
During the term of this Agreement, Franchisee agrees to comply with all lawful terms and conditions of
TMC Chapter 15.06,including but not limited to the permit and permit fee requirements set forth in ThIC
15.06.200 and TMC Chapter 15.04, the provisions of which are incorporated herein as though fully set
forth. Notwithstanding the foregoing or the provisions of TMC 15.06.100, Grantee shall pay a night-of-
wayusage fee that is the eater of i the applicable percentage of gross revenues set forth in TMC
g !� () PP P g
15.06.100 or (ii) ten thousand dollars ($10,000), subject to any applicable limitations imposed by federal
and state statutes. All other provisions of TMC 15.06.100 shall apply to Grantee as though fully set forth
herein.
4. CHANGE OF LAW;AMENDMENT OF FRANCHISE AGREEMENT
a. It is theintent of the parties that this Agreement may be amended from time to time to conform
to any changes in the controlling federal or state law or other changes material to this agreement. Each
party agrees to bargain in good faith with the other party concerning such proposed amendments. This
Agreement may be amended or terminated by the mutual written consent of the parties and their
successors-in-interest.
b. Except as set forth in Section 3 of this Agreement,.to the extent any lawful City rule, ordinance or
regulation, including any amendment to the provisions of TMC Chapter 15.06, is adopted on a
jurisdiction-wide basis and is generally unposed on similarly situated persons or entities,the rule, ordinance
or regulation shall apply* without need for amendment of this Agreement. The City shall provide
Franchisee notice of any such change in local law.
5. TAXES
Nothing contained in this Agreement shall be construed to exempt Franchisee from any license,
occupation, franchise or excise tax or assessment, which is or may be hereafter lawfully imposed on
Franchisee.
6. INSURANCE
By the Effective Date of this Agreement, Franchisee shall provide a certificate of insurance that
names the City as an additional insured and is otherwise consistent with the requirements of TMC
15.06.180.
7. SEVERABILITY
If any section, subsection, sentence, paragraph, term, or provision hereof is determined to be
invalid, or unconstitutional by any court of competent jurisdiction, such determination shall have no effect
on the validity of any other section,subsection,sentence,paragraph, term or provision hereof,all of which
will remain in full force and effect for the term of the Agreement. If any material portion of the
Agreement becomes invalid or unconstitutional so that the intent of the Agreement is frustrated, the
parties agree to negotiate replacement provisions to fulfill the intent of the Agreement consistent with
applicable law, or,if a replacement provision is not feasible, to negotiate a new agreement.
8. REMEDIES
a. This .'agreement shall be subject to termination as set forth in TMC 15.06.310, provided that the
City complies with the requirements set forth in TMC 15.06.320 and 15.06.330.
ORDINANCE NO. 13- 13 Exhibit A Page 2 of 4
(19385481 v6 0056259-000014)
b. All remedies under this Agreement,including revocation of the Agreement, are cumulative and not
exclusive, and the recovery or enforcement by one available remedy is not a bar to recovery or
enforcement by any other such remedy. The City- reserves the right to enforce the penalty provisions of
any ordinance or resolution, and both parties reserve the right to avail themselves of any and all remedies
available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term,
condition or obligation imposed upon Franchisee by or pursuant to this Agreement. A specific waiver of a
particular breach of any term, condition or obligation imposed upon Franchisee by or pursuant to this
Agreement shall not be a waiver of any other, subsequent or future breach of the same or of any other
term,condition or obligation,or a waiver of the term,condition or obligation itself.
C. The right is hereby reserved to the City to adopt, in addition to the reservations contained herein
and existing applicable ordinances, such additional regulations as it shall find necessary for the regulation
of the right-of-way,provided that such regulations, by ordinance or otherwise,shall be reasonable and not
in conflict with the rights herein granted. Franchisee shall,at all times during the life of this Agreement,be
subject to all lawful exercise of the police power by the City,and to such reasonable regulations as the City
may hereafter by resolution or ordinance provide. The City hereby reserves the right to exercise, with
regard to this Agreement, all authority now or hereafter granted to the City by state statute or City charter,
except where such authority may be modified or superseded by the Constitution of the State of Oregon or
the Constitution of the United States or any other applicable law that preempts City authority.
9. ASSIGNMENT
All rights and privileges granted and duties imposed by this Agreement upon Franchisee shall
extend to and be binding upon Franchisee's successors,legal representatives and assigns. This agreement
may not be transferred or assigned to another person unless such person is authorized under all applicable
laws to own or operate the Utility System and the transfer or assignment is approved by all agencies or
organizations requited or authorized under federal or state laws to approve such transfer or assignment.
Franchisee shall provide the City with written notice of any transfer or assignment of this Agreement
within twenty (20) days of requesting approval from any state or federal agency.
10. NOTICE
Unless specifically provided otherwise herein, all notices shall be mailed, postage prepaid, to the
following addresses or to such other addresses as Franchisee or the City may designate in writing:
If to Franchisee: tw telecom of oregon tic
Attn: Greg Diamond,`'ice President of Regulatory
10475 Park Meadows Drive
Littleton,CO 80124
Telephone: 206-676-8052
With a copy to: tw telecom of oregon 11c
Attn: Sr.VP&Deputy General Counsel
10475 Park Meadows Drive
Littleton, CO 80124
If to City: City of Tigard
Attention: City Manager
13125 SW Hall Blvd.
Tigard, Oregon 97223
ORDINANCE NO. 13- J,,? Exhibit A Page 3 of 4
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11. GOVERNING LAW
The laws of the State of Oregon, exclusive of choice of law rules, govern the validity of this
Agreement, and its interpretation, performance and enforcement. Any action or suit to enforce or
construe any provision of this Agreement by any parry shall be brought in the Circuit Court of the State of
Oregon for Washington County,or the United States District Court for the District of Oregon.
12, EFFECTIVE DATE
The effective date of this Agreement ("Effective Date'} shall be the date it is fully executed by the
City and Franchisee.
CITY OF TIGARD FRANCHISEE
tw telecom of oregon He
By: tw telecom holdings inc.
Its sole membeer�,I,
By: By:
Mayo
Tina Davis
Title:
II ZZ General Counsel
Date: l�:t�D� a�)�
Date: 111(pT�e)-3
ORDINANCE NO. 13--L3—Exhibit A Page 4 of 4
(19385481 v6 0056259-000014)