COT Ordinance No. 15-01_Broadband CITY OF TIGARD,OREGON
TIGARD CITY COUNCIL
ORDINANCE NO. 15-D I
AN ORDINANCE GRANTING A NON-EXCI,USI`'E FRANCHISE WITH ASTOUND BROADBAND,
I.I_C:PURSUANT TO 15.06.060 AND DECLARING AN I:I'fT'.0"I IVFi DATE.
WIJERF.AS, the Tigard Municipal Code ("T NIC") 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
WfIERF.AS, Astound Broadband, I.I.0 and the City of Tigard have negotiated a ten-year franchise agreement;
and
WFIEREAS, the City of Tigard requires an upgrade to its fbcr senting city properties and Astound Broadband,
11-C is providing cost savings to the city by installing the fiber at a reduce cost pursuant to an Agreement for
Instatlation of Clark Fiber between the City and Astound Broadband I1,(:;and
WHEREAS, the City of Tigard finds that.Astound Broadband, I1.0 meets all lawful requirements to obtain a
franchise.
NOW,11 II:RE ORI ,"1'I 1E CI'IY OF*11G ARD ORDAINS?IS FOLLOWS—
SECTION 1 The Mayor is authorized and directed to sign the ten-year franchise for Astound Broadband,
LLC ("Astound') substantially in the form attached as Exhibit A to this ordinance upon
successful negotiation and approval by the City Manager of an Agreement for Installation of
Dark Fiber.
SECTION 2: The Cite Council determines that the fee imposed by this franchise is not a tax subject to the
lurutations of.lrticle Xt, .election 11 (b) and 11 (19)of the Oregon Constitution and is not a
fee imposed on property or property owners by fact of ownership.
SECT"ION 3: This ordinance shall take effect thirty days from its passage by the Council and signature by
the Mayor,provided that Astound returns an executed original of the franchise to the City on
or before the effective date of this ordinance. If Astound fails to provide an executed
original on or before the effective date,this ordinance shall be null and void.
PASSED: By fli J2 g 4 vote of all council members present after being read by number and
tine only,this 27't'tday of /1 c , 2015.
Carol A. Krager,City Recorder
APPIt()VED: By Tigard City Council this 7 F/'day of Qf Act 1201 5.
Approved as to form: John q
Cook,Mayor
Special Counsel Date
gtiva-9EI a7, as/,s— �.
ORDINANCE No. 15--2-1— Page 1
Ordinance Exhibit 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 Astound Broadband, LLC a Washington 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 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.
ORDINANCE NO, 15-QL Exhibit A Page 1 of 4
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 TMC
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,pursuant to the Agreement for
Installation of Dark Fiber between the City and Franchisee dated —9—;;Ltl 15-7 attached hereto as
Exhibit A and incorporated herein as though fully set forth ("Dark Fiber Agreement"), Franchisee shall
receive a credit in the amount of thirty thousand dollars ($30,000.00) (the "Credit") that shall be applied
toward the right-of-way usage fee payments due pursuant to TMC 15.06.100, provided that Franchisee
complies with all terms and conditions of the Dark Fiber Agreement. The Credit shall apply to the right-
of-way usage fee payments due commencing on the date the executed Bill of Sale (as described in the Dark
Fiber Agreement) is delivered to the City, and thereafter for each consecutive right-of-way usage fee
payment due until the full amount of the Credit has been applied, except as provided in Section 11 of the
Dark Fiber Agreement. In the event the Bill of Sale is delivered to the City other than on the first day of a
payment period, Franchisee shall pay the prorated portion of the right-of-way usage fee due for the
payment period in which the Bill of Sale is delivered. Franchisee shall submit the reports required in TMC
15.06.100.E shoving its calculation of the right-of-way usage fee for the payment period and the credit
applied thereto. After the full amount of the Credit has been applied,Franchisee will pay the right-of-way
usage fee as required in TMC 15.06.100. In the event the Credit is insufficient to offset the full right-of-
way usage fee payment due, Franchisee shall pay the balance owed for that payment period as required in
TMC 15.06.100. The Credit shall expire and may not be used to offset any right of way usage fee
following the expiration of the original ten-year (10) term of this Agreement. Notwithstanding any other
provision of this Section, in the event Franchisee for any reason fails to install and convey to the City the
New City Network Facilities, as defined and required in the Dark Fiber Agreement, there shall be no
Credit applied to the right-of-way usage fee. Notwithstanding TMC 15.06.100, Franchisee shall pay an
+ annual right-of-way usage fee that is the greater of the applicable percentage set forth in TMC 15.06.100
(as amended from time to time) or four thousand dollars ($4,000), subject to any applicable limitation
under state or federal law.
All other provisions of TMC 15,06.100 shall apply to Grantee Franchisee as though fully set forth herein.
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 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 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.
ORDINANCE NO, 15-_L Exhibit A Page 2 of 4
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,
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 or City by or pursuant to this Agreement. A specific
waiver of a particular breach of any term, condition or obligation imposed upon Franchisee or City 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 required or expressly 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,
Notwithstanding the foregoing, Franchisee may transfer or assign the Credit once during the term of this
Agreement to a parent company or a wholly-owned subsidiary of Franchisee or its parent company; the
ORDINANCE NO. 15-QL Exhibit A Page 3 of 4
Credit is non-transferrable after such transfer or assignment and is non-transferrable to any third party.
Except as expressly provided in this Section, any transfer or assignment of this Agreement will require the
transferee or assignee to pay the full right-of-way usage fee required in Section 3 without the application of
the Credit.
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: Astound Broadband,LLC
Attn:Jim Penney,EVP
401 Kirkland Parkplace,Suite 500
Kirkland,WA 98033
If to City: City of Tigard
Attention: City Manager
13125 SW Hall Blvd.
'Tigard,Oregon 97223
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 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
z1'ij L-T( 0(,L L C-
By: By: .
May cRr r .c /-
Tide: V11Z Acs] .1•'
Date:
Date:
ORDINANCE NO. 15-01 Exhibit A Page 4 of 4
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