Zayo Group, LLC Franchise Agreement CITY OF TIGARD, OREGON
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT ("Agreement's is made and entered into by and between the City of
Tigard, an Oregon municipal corporation, ("City's and Zayo Group, 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 a telecommunications services (the
"Utility System"),as defined in TMC 15.06.020,within the Franchise Area;and
3. The City has found that Franchisee meets all lawful 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.
3. PERFORMANCE - 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 TMC 15.06.200 and TMC Chapter 15.04, and the right-of-way
usage fee set forth in TMC 15.06.100, the provisions of which are incorporated herein as though
fully set forth.
4. CHANGE OF LAW,AMENDMENT OF FRANCHISE AGREEMENT
a. It is the intent 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
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such proposed amendments. This Agreement may be amended or terminated by the
mutual consent of the parties and their successors-in-interest.
b. To the extent any lawful City rule, ordinance or regulation, including any amendment to
the provisions of TMC Chapter 15.06,including any change to TMC 15.06.100,is adopted
on a jurisdiction-wide basis and is generally imposed 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.
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.
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 to avail itself 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
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superseded by the Constitution of the State of Oregon or the Constitution of the United
States.
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 required 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: Zayo Group,LLC
Attn. General Counsel
1805 29th Street
Boulder,CO 80301
(303) 381-4683
If to City: City of Tigard
Attention: Marty Wine,City Manager
13125 SW Hall Blvd.
Tigard,Oregon 97223
11. GOVERNING LAW - The law of the State of Oregon governs 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 party 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
By: By: " t V
Mayo
Date: c/ �' Title: V(��- >°✓ ��
Date: { ' y 1
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