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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 Electric Lightwave LLC, a Delaware
limited liability company dba Integra Telecom ("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 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 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:
Integra Telecom Utility Franchise Agreement 2009 Page 1 of 4
City of Tigard, Oregon
3. PERFORMANCE
During the term of this Agreement, Franchisee agrees to comply with all lawful terms and
conditions of.Tigard Municipal Code (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 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.
Integra Telecom Utility Franchise Agreement 2009 Page 2 of 4
City of Tigard, Oregon
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
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: Electric Lightwave LLC dba Integra Telecom
Attn: V.P. Administration
1201 NE Lloyd Blvd., Suite 500
Portland, OR 97232
If to City: City of Tigard
Attention: City Manager
13125 SW Hall Blvd.
Tigard, Oregon 97223
Integra Telecom Utility Franchise Agreement 2009 Page 3 of 4
City of Tigard,Oregon
A Iii' eh ,
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 ELECTRIC LIGHTWAVE, LLC, dba
INTEGRA TELECOM
By: --
Mayor Dean Ryland
Title: Vp of Administration
Date:
Date: y- - i - �•, g
Integra Telecom Utility Franchise Agreement 2009 Page 4 of 4
City of Tigard, Oregon
CITY OF TIGARD, OREGON
TIGARD CITY COUNCIL
RESOLUTION NO. 09-,52-
A RESOLUTION GRANTING A NON-EXCLUSIVE UTILITY FRANCHISE TO ELECTRIC
LIGHTWAVE LLC PURSUANT TO TIGARD MUNICIPAL CODE SECTION 15.06.060.
WHEREAS, the Tigard Municipal Code ("TMC") Section 15.06.060 allows the City Council to grant a
non-exclusive utility franchise to any person providing utility services which meets the requirements of
the TMC; and
WHEREAS, Electric Lightwave LLC held a franchise agreement with the City from 1993 through 2003
at which time the franchise expired; and
WHEREAS, Electric Lightwave LLC has requested a new utility franchise and has met all necessary
requirements in TMC Chapter 15..06; and
WHEREAS, Electric Lightwave LLC has signed a standard Utility Franchise Agreement without
modification.
NOW, THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: Electric Lightwave LLC is hereby granted a non-exclusive utility franchise for a period
of 10 years from the date of this action.
SECTION 2: The Mayor is authorized to execute the attached franchise agreement with Electric
Lightwave LLC.
SECTION 2: This resolution is effective immediately upon passage.
PASSED: This 1 day of _ 2009.
MayorCity or-Tigard
ATTEST:
Cert to he a tme copy of the original docunvit
on f t Ci of Tigard City Hall s ��
City Recorder-City of Tigard By , i.,)kgAtAm
Cv Rer; C ty of Ti and "
Date - ; UL C
Date 7�
RESOLUTION NO. 09-
Page 1