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City Council Packet - 10/24/2000 CITY OF TIGARD OREGON TIGARD CITY COUNCIL MEETING OCTOBER 24, 2000 COUNCIL MEETING WILL BE TELEVISED H:yeannie%docs%ccpkt3 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 * *Revised 10/20/00 n . ~rrGAt~n >cr~r couNCrl..; , ~ ~ t . ~ 'eus~NESS ~~ETrN~ : QCTOBER 2.4; 2000 , 6;30 PM CITY OF TIGARD STIGARM, HALL ' '13125 sWhHALL.BBLVD TIGARD, OREGON 97223.. PUBLIC NOTICE: Anyone wishing to speak on an agenda item should sign on the appropriate sign-up sheet(s). If no sheet is available, ask to be recognized by the Mayor at the beginning of that agenda item. Visitor's Agenda items are asked to be two minutes or less. Longer matters can be set for a future Agenda by contacting either the Mayor or the City Manager. Times noted are estimated; it is recommended that persons interested in testifying be present by 7:15 p.m. to sign in on the testimony sign-in sheet. Business agenda items can be heard in any order after 7:30 mm. Assistive Listening Devices are available for persons with impaired hearing and should be scheduled for Council meetings by noon on the Monday prior to the Council meeting. Please call 503-639-4171, Ext. 309 (voice) or 503-684-2772 (TDD - Telecommunications Devices for the Deaf). Upon request, the City will also endeavor to arrange for the following services: • Qualified sign language interpreters for persons with speech or hearing impairments; and Qualified bilingual interpreters. Since these services must be scheduled with outside service providers, it is important to allow as much lead time as possible. Please notify the City of your need by 5:00 p.m. on the Thursday preceding the meeting date at the same phone numbers as listed above: 503-639- 4171, x309 (voice) or 503-684-2772 (TDD - Telecommunications Devices for the Deaf). SEE ATTACHED AGENDA COUNCIL AGENDA - OCTOBER 24, 2000 - PAGE 1 AGENDA TIGARD CITY COUNCIL BUSINESS MEETING OCTOBER 24, 2000 6:30 PM • STUDY SESSION > EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), (f) 8z (h) to discuss labor relations, real property transactions, exempt public records, and current and pending litigation issues. As you are aware, all discussions within this session are confidential; therefore nothing from this meeting may be disclosed by those present. Representatives of the news media are allowed to attend this session, but must not disclose any information discussed during this session. > City Attorney Review 7:30 PM 1. BUSINESS MEETING 1.1 Call to Order - City Council 8z Local Contract Review Board 1.2 Roll Call 1.3 Pledge of Allegiance 1.4 Council Communications 1.5 Call to Council and Staff for Non-Agenda Items 2. VISITOR'S AGENDA (Two Minutes or Less, Please) , 3. CONSENT AGENDA: These items are considered to be routine and may be enacted in one motion without separate discussion. Anyone may request that an item be removed by motion for discussion and separate action. Motion to: 3.1 Approve Council Minutes: September 26 and October 10, 2000 3.2 Approve the purchase of a 1997 Ford F800 Lift Truck with Telelect Model XT52 Aerial Device and Chip Body 3.3 Approve a Training Request for Councilor Joyce Patton to Attend the 51 Annual Conference on Oregon Land Use Law 3.4 Approve TGM Intergovernmental Agreement COUNCIL AGENDA e OCTOBER 24, 2000 - PAGE 2 • Consent Agenda - Items Removed for Separate Discussion: Any ite,ns requested to be removed from the Consent Agenda for separate discussion will be considered immediately after the Council has voted on those items which do not need discussion. 4. RECOGNITION OF TIGARD KOREAN WAR VETERANS a. Staff Report: Administration Staff S. CONSIDER A RESOLUTION TO MODIFY THE BOARD AND COMMITTEE APPOINTMENT PROCESS a. Staff Report: Administration Staff b. Council Discussion, Questions, Comments C. Council Consideration: Resolution No. 00- Col 6. CONSIDER A ORDINANCE GRANTING PORTLAND GENERAL DISTRIBUTION COMPANY A FRANCHISE TO CONDUCT A TELECOMMUNICATIONS BUSINESS IN THE CITY OF TIGARD a. Staff Report: Finance Department b. Council Discussion, Questions, Comments C. Council Consideration: Ordinance No. 00- 7. CONSIDER A ORDINANCE GRANTING RCN CORPORATION A NON- EXCLUSIVE CABLE AND BROADBAND ACCESS SERVICES FRANCHISE a. Staff Report: Finance Department b. Council Discussion, Questions, Comments C. Council Consideration: Ordinance No. 00- 8. REVIEW COUNCIL LIAISON APPOINTMENTS a. Staff Report: Administration Department b. Council Discussion, Questions, Comments C. Council Motion: Should Council adopt the revised appointments? COUNCIL AGENDA - OCTOBER 24, 2000 - PAGE 3 9. REVIEW COUNCIL MEETING DATES a. Staff Report: Administration Department b. Council Discussion, Questions, Comments 10. COUNCIL LIAISON REPORTS 11. NON AGENDA ITEMS 12. EXECUTIVE SESSION: The Tigard City Council will go into Executive Session under the provisions of ORS 192.660 (1) (d), (e), (f) 8t (h) to discuss labor relations, real property transactions, exempt public records, and current and pending litigation issues. As you are aware, all discussions within this session are confidential; therefore nothing from this meeting may be disclosed by those present. Representatives of the news media are allowed to attend this session, but must not disclose any information discussed during this session. 13. ADJOURNMENT 1: \AD M\CAT HY\C CA\001024. D OC COUNCIL AGENDA - OCTOBER 24, 2000 - PAGE 4 Agenda Item No.-j-L. Meeting of I l • !4 DD TIGARD CITY COUNCIL MEETING MINUTES - OCTOBER 24, 2000 • STUDY SESSION Mayor Griffith called the Study Session to order at 6:31 p.m. Council present: Mayor Griffith; Councilors Hunt, Moore, Patton, and Scheckla. Staff Present: City Manager Monahan, Assistant to the City Manager Newton, Legal Counsel Ramis, Finance Director Prosser and City Recorder Wheatley. City Attorney Review City Manager Monahan introduced this agenda item. He referred to a letter received today from Mr. Dayle Beach, which was distributed to the City Council. Mr. Beach's letter was a follow-up to earlier concerns he expressed about hiring outside legal counsel that represents private clients as well as the City. City Manager Monahan advised that Mr. Beach did not appear to have a particular concern about Tigard's City Attorney's office. Legal Counsel Ramis then overviewed the services of his law firm and proposal for continuation of the contract with the City of Tigard. He thanked the City Council for the opportunity to serve Tigard, noting that they had done business with the City for close to 20 years. Key points in Mr. Ramis' discussion included: o The plan is that Mr. Ramis will continue to take the lead in providing services to Tigard, including attendance at Council meetings. 8 If Mr. Ramis was not available for a meeting, then Mr. Steve Crew would ,4 plan to attend. Mr. Crew will also be involved in litigation issues as well. ® No rate increase is requested. Mr. Ramis noted that legal costs for Tigard are in the low-range for city attorney services when comparing to other cities. 1 9 in-house v. out-of-house legal services were compared. Mr. Ramis said their philosophy was that a law firm could bring depth of service by being 3 able to provide legal counsel personnel familiar with a number of specialty areas. COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 1 • Mr. Ramis reviewed how conflict-of-interest situations are avoided. Client files are reviewed at the beginning to determine If a conflict may exist. The City Attorney's office does not take work from other clients that involve the City. If an individual or firm has business before the City, which has been represented by the City Attorney's office in some other capacity, this is disclosed. Potential conflicts are brought before the Council to ask for a waiver. Another option would be that the City Attorney steps aside and another attorney represents the City's interests. • Mr. Ramis commented on a past concern expressed by the Council that legal counsel be more participatory in meetings. He said that in a quasl- judicial proceeding, he will be more involved to explain terms and to monitor the record. • Mr. Ramis asked that the City Council renew the City Attorney contract for a five-year term. The contract would still be "at-will" insofar as either party can give appropriate notice to end the contract. • While no rate increase is requested at this time, Mr. Ramis said the firm might propose a review of fees during the City's budget process. Council discussed the suggestion that the Budget Committee review a request for a rate increase. Councilor Scheckla questioned whether the citizen members of the Budget Committee would have enough background to make a recommendation about legal fees. City Manager Monahan suggested that if rate increases are proposed by the City Attorney's office, then the Council could review the rates before sending the information to the Budget Committee. Councilor Patton agreed with Councilor Scheckla's concern and suggested that information should be made available to the Budget Committee so they could understand why the request was being made. Councilor Patton supported either following the process that City Manager Monahan outlined or being prepared with an explanation to the Budget Committee if a rate increase is requested. Council discussed the City Attorney contract and services provided. In the previous contract review, the Council asked not to have a number of different attorneys attend meetings. Councilors Hunt and Patton noted they appreciated that Mr. Ramis was usually the representative attending from the attorney's office. One other area of comment from last contract renewal was a to have the attorney participate more in the meeting. Councilor Hunt said that a the general consensus of the Council was that this has improved but he would like the attorney to speak up even more. Mr. Ramis agreed he would look for s ways to do this. Mr. Ramis explained that the City Attorney must balance between assisting with process and becoming too involved in policy making. COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 2 Council consensus was to support a renewal of the City Attorney contract with a five-year term. Administrative Items Saturday, October 28, 2000 City Manger Monahan reminded the Council of the Make-a-Difference Day activities on Saturday, October 28, as well as the Ribbon Cutting Ceremony for the pedestrian bridge over Fanno Creek near Main Street. SW Hawks Beard at 130' Avenue Task Force City Manager Monahan asked for comments about his letter requesting names for the Task Force for SW Hawks Beard at 130' to review traffic issues. Councilors discussed City Manager Monahan's memo and potential additional names. Council agreed that Mark Mahon and Ted Spence should be asked if they would serve on the Task Force. Council members will contact staff with names of any other potential Task Force members. _Mayoral Election - March 13, 2001 City Manager Monahan noted that information about how to run for Mayor in the March election is now available. Council requested that this information be added as a non-agenda item during the business meeting to make the public aware of the process. Franchise Ordinance - Portland General Distribution Comaanv Councilor Moore advised that he would not participate in Agenda Item No. 61 which was a proposed ordinance granting Portland General Distribution (PGD) Company a franchise to conduct a telecommunication business in the City of Tigard. PGD is a subsidiary of Councilor Moore's employer, Portland General Electric (PGE). Councilor Moore asked Legal Counsel Ramis what would happen if a vote were 2-2 on an issue. Mr. Ramis advised that a 2-2 vote means the same as a no vote in the City of Tigard. He pointed out that if the no votes were because of specific issues, then an option would be to send the item back to staff for renegotiation. New Library Construction Committee Interview Mayor Griffith advised that he and Councilor Scheckla had interviewed 14 candidates for the New Library Construction Committee. He noted how pleased he was with the applicants noting the variety of backgrounds they represented. Six people will be added to the Committee. Recommendations for these six individuals to be added as members of the Committee will be forwarded to the Council. COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 3 Councilor Hunt urged Council to consider an election other than the November General Election when placing ballot measures before voters that request funding. He noted that the November ballot usually has a number of money measures and that might overwhelm voters. City Manager Monahan noted that strong, supportive efforts from community members are needed. Tigard-Tualatin School District Growth Planning Councilor Moore noted that he and Mayor Nicoll had served on the School District's Committee 2000 planning group. Councilor Moore received an e- mail request for participation from the City for the next future growth planning effort. Councilor Hunt advised he was concerned that literature published would show the City as a participant and thereby be construed as a City endorsement. After discussion, most Council members supported City participation as long as it was understood that the City's presence was for information sharing; however, the City's representative would not be authorized to endorse on behalf of the City. Councilor Moore advised that he would send a return e-mail advising that the City would be interested in a liaison role for the planning committee. Councilor Moore would ask that the committee organizers contact City Manager Monahan when they are ready to formally ask for City participation. Remove Council Liaison Appointments At the request of Councilor Hunt, Agenda Item No. 8, Review Council Liaison Appointments, was removed from the agenda. This item will be rescheduled after the November 7, 2000, election. Council meeting recessed at 7:26 p.m. 1. BUSINESS MEETING The Council and Local Contract Review Board meeting was called to order at 7:34 p.m. 2. VISITOR'S AGENDA ➢ Mr. Jack Polaris, 16000 SW Queen Victoria Place, King City, Oregon, noted that he had requested information from Shelia Greenlaw Fink of Community Partners for Affordable Housing when she was at a recent Council meeting. He said Ms. Fink has not contacted him. City Manager Monahan said staff COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 4 Emma would contact Ms. Fink to gather information on affordable housing rental rates and get this information to Mr. Polans. Mr. Polans also noted a desire to have copies of videotapes of the Council meetings available for check out at the Library. City Manager Monahan said that recently the Tigard Police Department purchased equipment which made videotape copying easier. Tapes will be made available in the Library. 3. CONSENT AGENDA: Motion by Councilor Scheckla, seconded by Councilor Patton to approve the Consent Agenda: 3.1 Approve Council Minutes: September 26 and October 10, 2000 3.2 Approve the purchase of a 1997 Ford F800 Lift Truck with Telelect Model XT52 Aerial Device and Chip Body 3.3 Approve a Training Request for Councilor Joyce Patton to Attend the St' Annual Conference on Oregon Land Use Law 3.4 Approve Transportation Growth Management (TGM) Intergovernmental Agreement The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes • Non Agenda City Recorder Wheatley advised that the special election for the Mayor's position would be held on March 13, 2001. The City of Tigard nominates candidates for Mayor and Council through the petition process. Packets for nomination to the ballot are now available from the City Recorder. The filing deadline is December 11, 2000. 4. RECOGNITION OF TIGARD KOREAN WAR VETERANS City Manager Monahan introduced this agenda item. The City of Tigard, on behalf of the citizens of Tigard, recognized several individuals as representatives of local veterans who served during the Korean War. The City also recognized families of veterans. COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 5 Members of Tigard American Legion Post 158 were present. Legion Commander Bernie Healy Introduced members who gave a brief talk to the City Council: • Dorsie Olds, Army infantry, 2nd Division, was in combat while stationed in Korea from October 1952 until the war ended. • Patsy Nestor, a native of Bend, Oregon, served in the Women Army Corps as a dental technician In Washington at Camp Hanford and Fort Lawton near Seattle. • Chuck Woodard enlisted in the Navy Air Corps, which provided radar operations for a squadron. He was stationed In Alameda, California, Hawaii, ]apan, and Guam. While In Japan, he flew coastal patrols as far north as Vladavostok, Russia. Mr. Woodard noted that the Korean War didn't generate much publicity and has been called the "forgotten" war. However, he noted, it was a `real war' especially for those who became involved and never returned. Patsy Nestor presented to City Manager Monahan for the Tigard Library a book entitled Forgotten Heroes: The Medal of Honor. Korea 1950-1953. 5. CONSIDER A RESOLUTION TO MODIFY THE BOARD AND COMMITTEE APPOINTMENT PROCESS Assistant to the City Manager Newton presented the staff report. The resolution before the City Council would revise the board and committee appointment process by clarifying the role of the staff liaison. City Manager Monahan noted that this change has been tested in the recent interview process for selection of members to the New Library Construction Committee. Mayor Griffith and Councilor Scheckla agreed that the staff liaison role was helpful to them. Motion by Councilor Patton, seconded by Councilor Hunt to approve *Resolution No. 00-61-A The City Recorder read the following: *RESOLUTION NO. 00-61-A - A RESOLUTION SUPERSEDING RESOLUTION NO. 95-60 TO MODIFY THE ROLE OF THE STAFF LIAISON IN THE BOARD i AND COMMITTEE APPOINTMENT PROCESS. *City Recorder note: City Recorder assigned the number 00-61during the meeting, which was in error. Resolution for Agenda Item No. 5 will be indexed as o0-61-A. COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 6 The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes 6. CONSIDER A ORDINANCE GRANTING PORTLAND GENERAL DISTRIBUTION COMPANY A FRANCHISE TO CONDUCT A TELECOMMUNICATIONS BUSINESS IN THE CITY OF TIGARD Finance Director Craig Prosser gave the staff report and reviewed the proposed franchise agreement, which was based on the City's master telecommunications franchise agreement with some modifications. Karen Lee of Portland General Distribution and Gary Markeson of Portland Broadband (both listed address as 121 SW Salmon Street, Portland, Oregon) answered questions. Lines if not utilized by a franchise operator, have value and would likely either become the property of the City or would be purchased by another franchise. For new development, lines are usually placed underground. Pavement surface, after installation of the lines, is to be restored to original condition. Councilor Scheckla noted concerns that he has seen instances in other areas where the condition of the pavement restoration was not good. City Attorney Ramis noted the provisions in the franchise agreement requiring good quality repair work and, if such work is not to the satisfaction of the City, then the City can do the work and charge the franchisee. Ms. Lee noted that PGD hires subcontractors who are known for their good work. In response to a question from Councilor Scheckla, Ms. Lee noted that work in the Tigard area might take longer than in other areas. The reason is that the first phase will concentrate on new construction and Tigard is largely built out. Motion by Councilor Scheckla, seconded by Councilor Patton, to adopt Ordinance No. 00-29. The City Recorder read the following: ORDINANCE NO. 00-29 - AN ORDINANCE GRANTING TO PORTLAND GENERAL DISTRIBUTION CO. A FRANCHISE TO CONDUCT A TELECOMMUNICTIONS BUSINESS IN THE CITY OF TIGARD, OREGON, INLCUDING THE RIGHT TO PALCE POLES, WIRES, AND OTHER APPLIANCES FOR TELECOMMUNICATION PURPOSES IN THE PUBLIC RIGHTS-OF-WAY; AND AUTHORIZING THE MAYOR TO SIGN THIS AGREEMENT. COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 7 The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes 7. CONSIDER A ORDINANCE GRANTING RCN CORPORATION A NON- EXCLUSIVE CABLE AND BROADBAND ACCESS SERVICES FRANCHISE Finance Director Craig Prosser gave the staff report. The proposed franchise agreement would establish a new franchise agreement for cable television services provided by RCN. RCN Corporation plans to offer "bundled" cable and telecommunications services in the Portland Metropolitan area. This franchise agreement and issues associated were presented to the Council at the October 17, City Council Workshop. As indicated during the discussion on October 17, 2000, RCN has requested that the ordinance be adopted and implemented immediately (emergency clause). The ordinance states that Tigard's approval of this ordinance must be coordinated with 1 1 other jurisdictions. All other jurisdictions have already given approval to this franchise. The City of Tigard therefore declares that an emergency exists so that this ordinance will take effect upon passage, thereby allowing RCN to begin construction to serve all participating Metropolitan Area Communications Commission (MACC) jurisdictions. The proposed agreement is not the standard City franchise agreement because it was negotiated and will be administered by MACC. Franchise fees are shared with the City based on the services within the City. Sarah Hackett of MACC and Jim Coppidge of RCN were present to answer questions. Motion by Councilor Hunt, seconded by Councilor Moore, to adopt Ordinance No. 00-30. The City Recorder read the following: ORDINANCE NO. 00-30 - AN ORDINANCE GRANTING A NON-EXCLUSIVE CABLE AND BROADBAND ACCESS SERVICES FRANCHISE AGREEMENT TO RCN CORPORATION DOING BUSINESS AS RCN TELECOM SERVICES OF OREGON, INC., AND DECLARING AN EMERGENCY Council Discussion: Mayor Griffith asked if the work by RCN could be coordinated with others doing similar work. Mr. Jim Coppidge of RCN advised that they would attempt to coordinate with others. COUNCIL MEETING MINUTES - OCTOBER 24, 2000 - PAGE 8 In response to a question from Councilor Scheckla, Finance Director Prosser noted that if lines are abandoned, the agreement provides that the City could remove the lines and charge the franchisee. City Attorney Ramis also noted, and Mr. Coppidge confirmed, that it would be likely that the fines would be of value and could be sold to a successor. The motion was approved by a unanimous vote of Council present: Mayor Griffith Yes Councilor Hunt Yes Councilor Moore Yes Councilor Patton Yes Councilor Scheckla Yes 8. REVIEW COUNCIL LIAISON APPOINTMENTS: Canceled. 9. REVIEW COUNCIL MEETING DATES City Manager Monahan introduced this agenda item. After discussion, Council consensus was that there would be two business meetings held in December: December 12 and 19. December 12 will be videotaped and shown live and replayed on the regular schedule; however, the December 19 meeting will be videotaped and replayed, but there will be no live broadcast because it conflicts with other regular programming scheduled for that night. 10. COUNCIL LIAISON REPORTS - None. 11. NON AGENDA ITEMS - None. 12. EXECUTIVE SESSION: Canceled. 13. ADJOURNMENT: 8:39 p.m. L4 , y Attest: Catherine Wheatley, City ecor er 0 fatayWorL, City ori% e: : / ~1 D a a 1:1ADMICATHMCK001024.DOC COUNCIL MEETING MINUTES - OCTOBER 24, 2000. PAGE 9 CITY OF TIGARD, OREGON AFFIDAVIT OF POSTING In the Matter of the Proposed STATE OF OREGON ) County of Washington ) ss. City of Tigard ) begin first duly sworn, on oath, depose an say: That I posted in the following public and conspicuous places, a copy of Ordinance Number (s) -QnCi Ct-) - which were adopted at the Council Meeting dated fQ L) copy(s) of said ordinance(s) being hereto attached and by reference made a part hereof, on the _ A day of 2000 1. Tigard City Hall, 13125 SW Hall Blvd., Tigard, Oregon 2. Tigard Library, 13125 SW Hall Blvd., Tigard, Oregon 3. Tigard Water Department, $777 SW Burnham, Tigard, Oregon Subscribed and sworn to before me this'day of QVC4t 1 , 20 C~ i i i i Notary Public for Oregon Bear, 21;- OFFICIAL SEAL JJ~~ s 0 L1MSE My Commission Expires: NOTARY PUBLIC-OREGON COMMISSION 140.320882 MY COMMISSION EXPIRES FEB.11, 20M CITY OF TIGARD, OREGON ORDINANCE NO.00- -7q AN ORDINANCE GRANTING TO PORTLAND GENERAL DISTRIBUTION CO. A FRANCHISE TO CONDUCT A TELECOMMUNICATIONS BUSINESS IN THE CITY OF TIGARD, OREGON, INCLUDING THE RIGHT TO PLACE POLES, WIRES, AND OTHER APPLIANCES FOR TELECOMMUNICATION PURPOSES IN THE PUBLIC RIGHTS-OF-WAY; AND AUTHORIZING THE MAYOR TO SIGN THIS AGREEMENT. WHEREAS, The ten-year franchise for the communication facilities and services provided by Portland General Distribution Co. (doing business as Portland General Broadband), described in the title of this ordinance is now before the City Council for approval. The Council believes that the franchise should be approved under the terms and conditions set forth in Exhibit A, attached hereto, and by this reference made a part hereof. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1. The terms,pnd conditions of the attached franchise agreement, Exhibit A, are hereby approved and adopted as part of this ordinance as if specifically set forth. SECTION 2. The Mayor is authorized and directed to sign the attached agreement 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 property tax limitations of Article XI, Section 11 (b) of the Oregon Constitution. PASSED: By UnQnlirnous vote of all Council members present after being read by number and title only, this day of +0be4--, 2000. CdVPlUvi-4 Catherine Wheatley, City R order APPROVED: This a1/1:~day of Oc;ty 42a-t-, 2000. mes Gri ith, Approved as to form- City Attorney Lo 0 Date EXHIBIT "A" A franchise agreement between the City of Tigard and Portland General Distribution Co. (doing business as Portland General Broadband). SECTION 1. Subject to the other terms and conditions set forth in this document there is hereby granted by the City of Tigard to Portland General Distribution Co., a wholly-owned subsidiary of Portland General Holdings II, inc. and doing business as Portland General Broadband, (herein referred to as "Grantee"); its successors and assigns; subject to the development ordinances and regulations of the City, the right and privilege to conduct a telecommunications business within said City, or such other public property as may come within the jurisdiction of the City during the term of this agreement for the purpose of furnishing telecommunications services as defined in State and Federal Law. This grant includes the right to erect, construct, place, replace, reconstruct, lay, maintain, and operate poles, wires, switching equipment, amplifying equipment, fixtures, facilities, appliances, structures and other devices including, but not limited to, electronic, optical and mechanical devices customarily associated with Grantee's function in public rights of way and in public property for the purpose of serving as a telecommunications utility. This franchise is granted solely for the privilege of providing telecommunications services as defined by State and Federal Law. This franchise does not include the right to conduct the business of providing a "cable system" as defined in applicable law. Should the Grantee desire to provide a cable system within the City, it must comply with the City's regulations relating to cable communications in force at that time. SECTION 2. It shall be lawful for Grantee to make all needful and necessary excavations in any of said streets, alleys, avenues, thoroughfares, public highways, and public parks. SECTION 3. The Grantee shall file with the City Engineer or designee maps and materials showing all proposed underground construction work to include the installation of additional facilities or relocation or extension of existing facilities within any street, alley, road or other public way or place within the corporate limits of the City. The City will review the materials submitted and notify the Grantee of any City requirements. For repair work or other work not considered underground construction as stated above, the Grantee shall, if possible, notify the City of the location and general description of the work before beginning work. All work shall be done in a reasonably safe manner taking into account City standard traffic control procedures and in accordance with requirements of applicable federal laws, state laws, or City ordinances. In emergencies, such filings shall be submitted within thirty (30) days of completion of emergency construction work. LM SECTION 4. When any excavation shall be made pursuant to the provisions of this ordinance, the Grantee shall restore the portion of the street, alley, road, or public way or place to the same condition to which it was prior to the excavation. All such work shall be done in strict compliance with the rules, regulations, ordinances or orders which may be adopted from time to time during the continuance of this franchise by the City Council or City Engineer or as may be otherwise provided by law. The City shall have the right to fix a reasonable time within which such. repairs and restoration shall be completed . If grantee fails to make such repairs and restoration within the time frame established by the City and after due notice, City shall cause such repairs to be made at the expense of Grantee. SECTION 5. The Grantee hereby agrees and covenants to indemnify, save harmless and defend the City and its officers, agents and employees from any and all damages, costs and expenses or claims of any kind whatsoever, or nature, arising from any injury to persons or property by reason of the negligent act or omission of the Grantee, its agents or employees in exercising the rights and privileges granted hereunder and by this franchise, except to the extent such damages, costs, and expenses are caused by negligent acts or omissions of the City. SECTION 6. The Grantee shall provide and keep in force public liability insurance, with a thirty-day cancellation clause, with a combined single limit of one million dollars, relating to a single occurrence, which shall be evidenced by a certificate of insurance filed with the City Recorder. The City shall be named as an additional insured on the policy to the extent of Grantee's indemnity obligations under this franchise agreement. The insurance shall indemnify and save the City harmless against liability or damage which may arise or occur from any claim resulting from the franchisee's operation under this agreement. In addition, the policy shall provide for the defense of the City for any such claims. In lieu of a third-party public liability insurance policy, Grantee may provide and keep in force self-insurance in an amount at least equal to the limits identified in the preceding paragraph. The Grantee agrees to indemnify, defend and hold harmless the City through its self-insurance program against any and all claims, demands, actions, and suits (including attorney fees and costs) arising out of or resulting from Grantee's activities to the same extent as if an additional insured endorsement had been issued. The Grantee shall provide proof of self-insurance to the City before this agreement shall take effect. SECTION 7. The City, by its properly constituted authorities, shall have the right to cause the Grantee to move the location of any pole, underground conduit or equipment belonging to Grantee whenever the relocation thereof shall be for public necessity, and the expense thereof shall be paid by the Grantee. Such charges shall comply with state statutes and administrative rules. Whenever it shall be necessary for public necessity to remove any pole, underground conduit or equipment belonging to Grantee or on which any wire or circuit of the Grantee shall be stretched or fastened, the Grantee, shall, upon written notice from the City, or its properly constituted authorities, meet with the City Engineer and agree in writing to a plan and date certain to remove such poles, underground conduit, equipment, wire or circuit, at Grantee's expense, and if the Grantee fails, neglects or refuses to do so, the City, by its properly constituted authorities, may remove the same at the expense of the Grantee. The costs associated with the removal, relocation or extension of Grantee's facilities at the request of a private developer or development shall be bome by such private developer or development. SECTION 8. At such time that Grantee intends to discontinue using or to remove (including actions pursuant to a City termination order) any telecommunications network facility or facilities within the City, Grantee shall submit a specific plan for such discontinuance or removal to the City Engineer and shall gain the City Engineer's approval. The City Engineer may allow Grantee to abandon in place any facility or facilities, may require the Grantee to remove or modify the facility or facilities within the public rights-of-way or other public place or property, may cause the facility or facilities to be removed at the Grantee's expense, or may take any combination of these actions. Grantee shall complete such removal or modifications in accordance with a schedule set by the City Engineer. Until such time that Grantee's property is completely removed and all restorations to the public rights- of-way or other public places or property have been completed, Grantee shall be responsible for all necessary repairs, relocations, and maintenance of the facility or facilities in the same manner and degree as if the facility or facilities were in active use, and the Grantee shall retain all liability for such facility or facilities. SECTION 9 Grantee shall maintain a clause in its standard Facilities Agreement to be signed by all lessees of Grantee's conduit or fiber optic fines authorizing the Grantee to disclose the lessee's business name and address to the City. Upon entering into a lease agreement with a new lessee, Grantee shall provide a one-time notice of the lessee's business name and address to the City. SECTION 10. All notices and approvals required under this Agreement shall be in writing. The Grantee shall provide the City with the name, position and phone number of Grantee staff that can be contacted for administration of this Agreement and for contact with construction-related questions and comments. Such notices and approval shall be directed to the City as follows: City Engineer. City of Tigard 13125 SW Hall Blvd., Tigard. Oregon 97223 (503) 639-4171 SECTION 11. Upon request of the City, the Grantee shall provide available plans and locate any underground conduit or equipment belonging to Grantee, as required for the preparation of construction drawings. SECTION 12. Whenever it becomes necessary to temporarily rearrange, remove, lower or raise the wires, cables or other plant of Grantee for the passage of buildings, machinery or other objects, Grantee shall temporarily rearrange, remove, lower or raise, its wires, cables or other plant as the necessities of the case require; provided, however, that the person or persons desiring to move any such buildings, machinery or other objects, shall pay the entire actual cost to Grantee of changing, altering, moving, removing or replacing its wires, cables or other plan so as to permit such passage, and shall deposit in advance with Grantee a sum equal to such cost as estimated by Grantee and shall pay all damages and claims of any kind whatsoever, direct or consequential, caused directly or indirectly by changing, altering, moving, removing or replacing of said wires, cables or other plant, except as may be occasioned through the sole negligence of Grantee. Grantee shall be given not less than ninety-six (96) hours written notice by the party desiring to move such building or other objects. Said notice shall detail the route of movement of such building or other objects over and along the streets, alleys, avenues, thoroughfares and public highways and shall bear the approval of the City. Such moving shall be with as much haste as possible and shall not be unnecessarily delayed or cause Grantee unnecessary expense or waste of time. SECTION 13. In consideration of the rights and privileges hereby granted, Grantee agrees to pay to the City the greater of $7,500 per year or five percent (5%) of the gross revenues derived from exchange access services, as defined in ORS 401.710, and lease revenues to the extent that lease revenues are separate from and in addition to revenues derived from exchange access services within the city limits less net uncollectibles. Such payments shall be made to the City every six months for the life of this agreement on or before March 15 for the six month period ended December 31, and September 15 for the six month period ended June 30. Such franchise payment will be accepted by the City from the Grantee also in payment of any license, privilege or occupation tax or fee charged for regulatory i or revenue purposes. The franchise payment is not accepted in satisfaction of ? payments due to City for the failure of Grantee to perform any of Grantee's obligations pursuant to this franchise agreement including but not limited to Grantees' obligations to bear the cost of repairs under Section 4 and the cost of relocation under Section 6. s The City shall have the right to change the percentage of gross revenues set forth a above at any time during the life of this agreement to any amount permitted by law provided it has made such notice in writing at least 180 days prior to the effective date of any change. The City shall have the right to conduct, or cause to be conducted, an audit of franchise payments as defined herein. Such audits may be conducted at two year intervals beginning two years after the effective date of this agreement. The City shall conduct the audit at its own expense. Any difference of payment due either the City or Grantee through error or otherwise as agreed upon by both the City and Grantee, shall be payable within sixty (60) days after discovery of such error. SECTION 14. The rights, privileges and franchise hereby granted shall continue to be in full force for a period of ten (10) years from the date this ordinance becomes effective. It is understood and agreed that either party may terminate or renegotiate the terms of this agreement after 60 days notice in writing. This ordinance shall be subject to any and all State or Federal laws and regulations. SECTION 15. The Grantee shall, within thirty (30) days of the effective date of this ordinance, file with the Recorder of the City its written acceptance of all the terms and conditions of the ordinance and if not so accepted by the Grantee, this ordinance shall be void. • DATED this aLP~4 day of 0CAvE2eti -12000. CITY OF TIGARD OREGON, a Municipal Corporation 11. . 14A, By: Mayor am ffith ATTEST: ./LP- Catherine Wheatley City Recorder ACCEPTANCE OF FRANCHISE WHEREAS, the CITY OF TIGARD, OREGON, under date of , 2000 passed ORDINANCE NO. , entitled as follows, to wit: AN ORDINANCE GRANTING TO PORTLAND GENERAL DISTRIBUTION CO. A FRANCHISE TO CONDUCT A TELECOMMUNICATIONS BUSINESS IN THE CITY OF TIGARD, OREGON, INCLUDING THE RIGHT TO PLACE POLES, WIRES, AND OTHER APPLIANCES FOR TELECOMMUNICATION PURPOSES IN THE PUBLIC RIGHTS-OF-WAY; AUTHORIZING THE MAYOR TO SIGN THIS AGREEMENT; AND DECLARING AN EMERGENCY. NOW, THEREFORE, the undersigned, Portland General Distribution Co., the Grantee named in said Ordinance, does for itself and its successors and assigns accept the terms, conditions and provisions of Ordinance No. and agrees to be bound thereby and comply therewith. IN WITNESS WHEREOF, Portland General Distribution Co. has caused this instrument to be executed by its officers as below subscribed this day of , 2000. By Received by the City of Tigard this day of , 2000. CITY OF TIGARD, OREGON ORDINANCE NO.007.:. ' D_ AN ORDINANCE GRANTING A NON-EXCLUSIVE CABLE AND BROADBAND ACCESS SERVICES FRANCHISE AGREEMENT TO RCN CORPORATION DOING BUSINESS AS RCN TELECOM SERVICES OF OREGON, INC., AND DECLARING AN EMERGENCY. WHEREAS, in 1980 the Metropolitan Area Communications Commission (hereinafter "MACC") was formed by Intergovernmental Cooperation Agreement (hereinafter "ICA') to enable its member jurisdictions to work cooperatively and jointly on communications issues, in particular the joint franchising of cable services and the common administration and regulation of such franchise agreements, and the City of Tigard is a member of MACC; and WHEREAS, the ICA authorizes MACC and its jurisdictions to grant one or more nonexclusive franchise agreements for the construction, operation and maintenance of a cable service system within the combined boundaries of the member jurisdictions; and WHEREAS, the ICA requires that each member jurisdiction to be served by the proposed grantee must formally approve any joint cable service franchise agreement; and WHEREAS, RCN Corporation, doing business as RCN Telecom Services of Oregon, Inc., (hereinafter RCN), a Delaware corporation, has formally requested a franchise agreement with MACC and several of its member jurisdictions in accordance with federal law; and WHEREAS, the MACC Board, by Resolution 2000-11 adopted on the 29th day of June, 2000, recommended that affected member jurisdictions grant a franchise in the form attached hereto as Exhibit "A"; and WHEREAS, the City of Tigard finds that approval of the recommended franchise is in the best interest of the City and its citizens, in order to provide opportunities for effective competition in the provision of these services consistent with the federal Telecommunications Act of 1996; i NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: There is hereby granted to RCN Corporation dba RCN Telecom Services of Oregon, Inc. a non-exclusive franchise on the terms and conditions contained in Exhibit "A". This nonexclusive grant authorizes the provision of cable and broadband access services within the jurisdictional boundaries of the City of Tigard as said boundaries presently exist or may be amended, commencing on September 30, 2000, or the date that MACC 3 certifies that all jurisdictions have adopted this Franchise, whichever occurs later, and a ending September 30, 2014. SECTION 2: The grant of franchise at Section 1 is conditioned upon each of the following events: ORDINANCE No. 00-30 Page 1 (a) The affirmative vote of the governing body of each MACC member jurisdiction to be served under the franchise; (b) RCN's fulfillment of the franchise acceptance provisions contained in the Agreement; and (c) Formal written determination by MACC staff that each of the above two events has occurred. SECTION 3: Tigard's approval of this ordinance must be coordinated with the 11 other jurisdictions within MACC which will be served by RCN. None of the franchises approved by other jurisdictions will take affect until the franchise is approved by all jurisdictions. All other jurisdictions have already given their approval to this franchise. The City of Tigard therefore declares that an emergency exists so that this ordinance takes affect upon passage, thereby allowing RCN to begin construction to serve all participating MACC jurisdictions. PASSED: By U (MI'Y M S vote of all Council members present after being read by number and title only, this aL1 4b day of 0apbyn_ , 2000. Lc~ Catherine Wheatley, City Recor r APPROVED: By Tigard City Council this day of 0L1-01MA. 22000. Ja es Griffi a proved as to form: ity Attorne Date ORDINANCE No. 00-30 Page 2 Stu c'y Sess;a~ I01,W IDD 11530 SW 72nd Ave. Tigard, OR 97223 RECEWED CAT: October 23, 2000 Mr. William A. Monahan O C T 2 4 2000 City Manager City of Tigard /4tjmi0Stration Dear Mr. Monahan: The subject of this letter deals with reviewing the City Attorney's contract. I appreciate your offer to make copies for each of the council members, and thank you for allowing me to express my thoughts and opinions. At this late date, I don't think that it would be practical to hire a staff attorney. Finding a highly competent attorney may take a considerable amount of time. In my opinion, the present law firm is fully competent, and I think that it would be wise to renew the contract but with a certain condition. My problem with an outside law firm is that the firm represents private clients as well as the City. The interests of these private clients can very well conflict with the City's intent and interests, particularly in matters of land use. If a developer has designs for a particular structure on a given lot, would that developer get favored treatment and expedite approval of his plans by hiring the services of the law firm? In my opinion, it is not enough for the law firm to give assurances that it would not represent such private clients. This is somewhat like allowing a treasurer merely to give his word that he would not misappropriate funds. Despite our trust in such an individual, we would still want his records to be audited periodically. Also even in the most trustworthy organizations, the left hand often does not know what the right hand is doing and vice versa. Auditing the law firm would be needlessly time-consuming, expensive, and simply not practical. Instead, I believe that the law firm should publicly reveal the names of its clientile with periodic updates. Any aware citizen of Tigard could then call to City's attention any private client who appears to have a conflict of interest with the City. just as Council members are ethically bound to reveal their contacts with parties who may have a vested interest in issues before the Council, the law firm should also reveal its clients who may have vested business interests in Tigard. Thank you for taking my thoughts on this matter into consideration. Sincerely, Dayle Beach May 17, 2000 Cffy OF 71GARD OREGON Mr. Dayle Beach 11530 SW 72"d Avenue Tigard, OR 97223 Dear Mr. Beach: I am in receipt of your letter of May 14, 2000, regarding the City's use of the Ramis, Crew, Corrigan and Bachrach law firm as its city attorneys. You have raised a number of issues to support your position that the City should consider having an in-house City Attorney. • v I will forward a .copy of your letter to the members of the City Council. The Tigard City Charter provides that the City Council is vested with the authority to select the City Attorney. Our City Attorney operates under a contract with the City, which is due for review at the end of this calendar year. During the last review of the City Attorney's contract, which led to the City and the firm entering into a Personal Services Contract on December 9, 1997, City Council considered whether an in-house attorney was preferable to a contractual relationship. Earlier in 1997 members of the Administration staff reviewed the City Attorney arrangements in several local jurisdictions to compare the pros and cons of in-house and contract attorneys. That report was provided to the City Council for consideration. Thank you for your views on this matter. I am sure that the City Council will consider your letter and concerns as it prepares for review of attorney services later this year. Sincerely, William A. Monahan City Manager c: Members of City Council Tim Ramis INAMeiLuooos> 7.000 13125 SW Hall Blvd., Tigard, OR 97223 (503) 639-4171 TDD (503) 684-2772 1 M 11530 SW 72nd Ave, RECEIVED C.O.T. Tigard, OR 97223 May 14, 2000 MAY 17 2000 Mr. Wiliam Monahan AdminiStration City Administrator City of Tigard City Hall Tigard, Oregon 97223 Dear Mr. Monahan: I have long believed that the City of Tigard should dismiss the Ramis law firm and have its own legal department with its,own staff attorney. A city attorney loyal only to the city's hest Interests would have never entangled the city in anything like the ABoy fiasco. A salaried city attorney would have nothing to gain from countless hours of litigation, whereas a law frm which Is compensated on an hourly basis would certainly have much to gain financially from lengthy litigation. it has been argued that establishing a legal department for the City of Tigard would be quite costly. But if the City had had its own staff attorney over the past few years, 1 am positive that the City would not have been forced to pay out a million plus dollars in damages to ABoy. Over the long haul, 1 am confident that the City would save a considerable sum of money with its own attorney and legal department. Furthermore, I am bothered by possible confect of interest. The Ramis law irm serves prorate clients as well as the City of Tigard. Do any of these corporate and personal clients have vested interests in Tigard real estate and businesses? Any such client might want to develop on a plot of land, and in doing so, would have to conform to certain zoning taws and standards. How convenient it would be for the city's law firm to pave the way for such a client. And the result may not be in the city's best interests. Yes, the lawn firm can claim that it represents no private client who has any interest in developing real estate in Tigard. And I would Ike to believe that that is true. But if the law firm is to continue to be an advocate for the City of Tigard, it should allow itself to be subjected to a thorough audit on a periodic basis. Also, I believe that the law firm should be required to publicly reveal the names of all its clients on a periodic basis. That way confect of interest could be more readily spotted by the Tigard citizens, any of whom may have inside knovAedge. May 1 please have your thoughts on this matter? Thank you. Yours truly, "ga'J& /3~~ Dayle Beach ' S-~u ~-j Ses~1 ~ n J ~/a~-(lam CITY OF TIGARD, OREGON PERSONAL SERVICES CONTRACT THIS AGREEMENT made and entered into this 15ik~day of", 191i~7 by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called CITY, and O'Donnell, Ramis, Crew, Corrigan and Bachrach, LLP, hereinafter called CONTRACTOR. WITNESSETH WHEREAS, CITY has need for the services of a law firm with the particular training, ability, knowledge, and experience possessed by CONTRACTOR; and WHEREAS, CITY has determined that O'Donnell, Ramis, Crew, Corrigan and Bachrach, LLP is qualified and capable of performing the professional services as CITY does hereinafter require under those terms and conditions set forth; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: 1. LEGAL SERVICES TO BE PROVIDED: CONTRACTOR agrees to complete work which is detailed in Exhibit 'W , and by this reference made a part hereof. 2. EFFECTIVE DATE AND DURATION: This Agreement shail become effective beginning January 1, 1998, and shall expire, unless otherwise terminated or extended, on December 31, 2000. 3. COMPENSATION: a. CITY agrees to pay CONTRACTOR in accordance with-this section for performance of services described herein: Payment shall be based upon a detailed monthly billing showing work performed and identifying specific legal matters worked on. PERSONAL SERVICES CONTRACT - Page 1 b. Hourly Rates: Effective January 1, 1998 forward the hourly rates shall be as follows: Partners $135.00 Sr. Associates & Special Counsel $125.00 Associates $115.00 Law Clerks/Legal Assistants $70.00 Secretarial $45.00 The parties may by mutual agreement adjust these rates. C. The direct cost for such items as long distance charges, messenger services, printing, mileage, copy charges (25 cents per page) and the like will be billed to CITY, with no markup or overhead charge added, except that mileage charges for trips between CONTRACTOR's office and CITY offices shall not be charged to the CITY. d. Payment by CITY shall release CITY from any further obligation for payment to CONTRACTOR, for services performed or expenses incurred as of the date of the statement of services. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. e. Payment will be made in installments based on CONTRACTOR's invoice, subject to the approval of the City Manager, and not more frequently than monthly. Payment shall be made only for work actually completed as of the date of the invoice. f. The CITY certifies that sufficient funds are available and authorized for expenditure to finance costs of this contract. i 4. OWNERSHIP OF WORK PRODUCT: e CITY shall be the owner of and shall be entitled to possession of any and all work products of CONTRACTOR which result from this Agreement, including any computations, plans, correspondence or pertinent data and information gathered by or computed by CONTRACTOR prior to termination of this Agreement by CONTRACTOR or upon completion of the work pursuant to this Agreement. PERSONAL SERVICES CONTRACT - Page 2 5. ASSIGNNIENT/DELEGATION: Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and not assignment shall be of any force or effect whatsoever unless and until the other party has so consented. If CITY agrees to assignment of tasks to a subcontractor, CONTRACTOR shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by them, and neither the approval by CITY of any subcontractor nor anything contained herein shalt be deemed to create any contractual relation between the subcontractor and CITY. 6. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR.: CONTRACTOR certifies that: a. CONTRACTOR acknowledges that for all purposes related to this Agreement, CONTRACTOR is and shall be. deemed to be an independent -contractor as defined by ORS 670.700 and not an employee of CITY, shall not be entitled to benefits of any kind to which an employee of CITY is entitled and shall be solely responsible for all payments and taxes required by law. Furthermore, in the event that CONTRACTOR is found by a .court of law or any administrative agency to be an employee of CITY for any purpose, CITY shall be entitled to offset compensation due, or to demand repayment of any amounts paid to CONTRACTOR under the terms of this Agreement, to the full extent of any benefits or other remuneration CONTRACTOR receives (from CITY or third party) as a result of said finding and to the full extent of any payments that CITY is required or make (to CONTRACTOR or to a third party) as a result of said finding. b. The undersigned CONTRACTOR hereby represents that no employee of the CITY, or any partnership or corporation in which a CITY employee has an interest, has or will receive any remuneration of any description from CONTRACTOR, either directly or indirectly, in connection with the letting or performance of this Agreement, except as specifically declared in writing. C. CONTRACTOR certifies that it currently has a CITY business license or will obtain one prior to delivering services under this Agreement. d. CONTRACTOR is not an officer, employee, or agent of the CITY as those terms are used in ORS 30.265. i i i S PERSONAL SERVICES CONTRACT - Page 3 7. INDEMNIFICATION: CITY has relied upon the professional ability and training of CONTRACTOR as a material inducement to enter into this Agreement. CONTRACTOR warrants that all its work will be performed in accordance with generally accepted professional practices and standards as well as the requirements of applicable federal, state and local laws, it being understood that acceptance of a contractor's work by CITY shall not operate as a waiver or release. CONTRACTOR agrees to indemnify and defend the CITY, its officers, agents and employees and hold them harmless from any and, all liability, causes of action, claims, losses, damages, judgments or other costs or expenses including attorney's fees and witness costs and (at both trial. and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity which in any way arise from, during or in connection with the performance of the work described in this contract, except liability arising out of the sole negligence of the CITY and its employees. Such indemnification shall also cover claims brought against the CITY under state or federal worker's compensation laws. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. 8. INSURANCE: a. CONTRACTOR, and its subcontractors, shall maintain insurance acceptable to CITY in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out of CONTRACTOR's activities or work hereunder, including the operations of its subcontractors of any tier. Such insurance shall include provisions that such insurance is primary insurance with respect to the interests of CITY and that any other insurance maintained by CITY is excess and not contributory insurance with the insurance required hereunder. b. The policy or policies of insurance maintained by CONTRACTOR shall provide at least the following limits and coverages: i. Commercial General Liability Insurance CONTRACTOR shall obtain, at CONTRACTOR's expense, and keep in effect during the term of this contract, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an "occurrence" form (1986 ISO or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided under this contract. The following insurance will be carried: PERSONAL SERVICES CONTRACT - Page 4 Coverage Limit General Aggregate 2,000,000 Each Occurrence 1,000,000 ii. Professional Liability Insurance CONTRACTOR shall obtain, at CONTRACTOR's expense, and keep in effect during the term of this contract, Professional Liability Insurance. This coverage shall include Annual Aggregate & Per Occurrence limits of $2,000,000 per attorney. iii. Commercial Automobile Insurance CONTRACTOR shall obtain, at CONTRACTOR's expense, and keep in effect during the term of this contract, "Symbol 1" Commercial Automobile Liability coverage. The Combined Single Limit per occurrence shall not be less than $1,000,000. iv. Workers' Compensation insurance The CONTRACTOR and all employers providing work, labor or materials under this contract are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage that satisfies Oregon law for all their subject workers. V. Additional Insured Provision The City of Tigard, Oregon, its officers, directors, and employees shall be added as additional insureds with respect to this contract. The General Liability Insurance policy will be endorsed to show this additional coverage. vi. Notice of Cancellation There shall be no cancellation, material change, exhaustion of aggregate limits or intent not to renew insurance coverage without 30 days written notice to the CITY. Any failure to comply with this provision will not affect the insurance coverage provided to the CITY. The 30 days notice of cancellation provision shall be physically endorsed on to the policy. 3 a PERSONAL SERVICES CONTRACT - Page 5 vii. Insurance Carrier Rating Coverages (other than Workers' Compensation) provided by the CONTRACTOR must be underwritten by an insurance company deemed acceptable by the CITY. The CITY reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. viii, Certificates of Insurance As evidence of the insurance coverage required by this contract, the CONTRACTOR shall furnish a Certificates of Insurance to the CITY. No contract shall be effected until the required certificates have been received and approved by the CITY. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the address listed in this section 10 days prior to coverage expiration. ix. Primary Coverage Clarification All parties to this contract hereby agree that the CONTRACTOR's coverage will be primary in the event of a loss. CONTRACTOR's insurance policy shall contain provisions that such policies shall not be canceled or their limits of liability reduced without thirty (30) days prior notice to CITY. A copy of each insurance policy, certified as a true copy by an authorized representative of the issuing insurance company, or at the discretion of CITY, in lieu thereof, a certificate in form satisfactory to CITY certifying to the issuance of such insurance shall be forwarded to: Loreen R. Mills Risk Manager 13125 SW Hall Blvd. Tigard, OR. 97223 Such policies or certificates must be delivered prior to commencement of the work. Ten days cancellation notice shall be provided CITY by certified mail to the name at the address listed above in event of cancellation or non-renewal of the insurance. i The procuring of such required insurance shall not be construed to limit CONTRACTOR's liability hereunder. Notwithstanding said insurance, CONTRACTOR shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this contract. f I PERSONAL SERVICES CONTRACT - Page 6 9. PROFESSIONAL SERVICES: The CITY requires that services provided pursuant to this Agreement shall be provided to the CITY by a CONTRACTOR which does not represent clients on matters contrary to CITY interests. Further, CONTRACTOR shall not engage services of an attorney and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to CITY interests. Should the CONTRACTOR represent clients on matters contrary to CITY interests or engage the services of an attorney and/or other professional who individually, or through members of his/her same firm, represents clients on matters contrary to CITY interests, CONTRACTOR shali'consuit with the appropriate CITY representative regarding the conflict. After such consultation, the CONTRACTOR shall have 30 days to eliminate the conflict to the satisfaction of the CITY. If such conflict is not eliminated within the specified time period, the Agreement may be terminated pursuant to Section 13(b)(iii) of this agreement. 10 METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING PAYMENTS. All notices shall be made in writing and may be given by personal delivery or by mail. Notices sent by mail should be addressed as follows: CITY: City Manager City of Tigard 13125 SW Hall. Blvd. Tigard, OR. 97223 CONTRACTOR: Pamela J. Beery ODonnell Ramis Crew Corrigan & Bachrach, LLP 1727 NW Hoyt Street Portland, OR 97209 and when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices, bills and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills and payments are to be given by giving written notice pursuant to this paragraph. All bills and payments shall be sent to the CITY's Finance Director. PERSONAL SERVICES CONTRACT - Page 7 11. MERGER: This writing is intended both as a final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. No modification of this Agreement shall be effective unless and until it is made in writing and signed by both parties. 12. TERMINATION WITHOUT CAUSE: At any time and without cause, CITY shall have the right in its sole discretion, to terminate this Agreement by giving notice to CONTRACTOR. If CITY terminates the contract pursuant to this paragraph, it shall pay CONTRACTOR for services rendered to the date of termination. Termination by CITY must be done by motion of the City Council. 13. TERMINATION.WITH CAUSE: a. CITY may tenminate this Agreement effective upon delivery of written notice to CONTRACTOR, or at such later date as may be established by CITY, under any of the following conditions: i. If CITY funding from federal, state, local, or other sources is not obtained and continued at levels sufficient to allow for the purchase of the indicated quantity of services. This Agreement may be modified to accommodate a reduction in funds. ii. If federal or state regulations or guidelines are modified, changes, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement. iii. If any license or certificate required by law or regulation to be held by CONTRACTOR, its subcontractors, agents, and employees to provide the services required by this Agreement is for any reason denied, revoked or not renewed. iv. If CONTRACTOR becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against CONTRACTOR, if a receiver or trustee is appointed for CONTRACTOR, or if there is an assignment for the benefit of creditors of CONTRACTOR. Any such termination of this Agreement under paragraph (a) shall be without prejudice to any obligations or liabilities of either party already accrued prior to such termination. PERSONAL SERVICES CONTRACT - Page 8 b. CITY, by written notice or default (including breach of contract) to CONTRACTOR, may terminate the whole or any part of this Agreement: i. If CONTRACTOR fails to provide services called for by this Agreement within the time specified herein or any extension thereof, or ii. If CONTRACTOR fails to perform any of the other provisions of this Agreement, or so fails to pursue the work as to endanger performance of this Agreement in accordance with its terms, and after receipt of written notice from CITY, fails to correct such failures within ten (10) days or such other period as CITY may authorize. iii. If CONTRACTOR fails to eliminate a conflict as described in Section 11 of this Agreement. The rights and remedies of CITY provided in the above clause related to defaults (including breach of contract) by CONTRACTOR shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. If CITY terminates this Agreement under paragraph (b), CONTRACTOR shall be entitled to receive as full payment for all services satisfactorily rendered and expenses incurred, an amount which bears the same ratio to the total fees specified in this Agreement as the services satisfactorily rendered by CONTRACTOR bear to the total services otherwise required or be performed for such total fee; provided, that there shall be deducted from such amount the amount of damages, if any, sustained by CITY due to breach of contract by CONTRACTOR. Damages for breach of contract shall be those allowed by Oregon law, reasonable and necessary attorney fees, and other costs of litigation at trial and upon appeal. 14. ACCESS TO RECORDS: CITY shall have access to books, documents, papers and records of CONTRACTOR that are directly pertinent to this Agreement for the purpose of making audits, examinations, excerpts and transcripts. a i 15. CITY ATTORNEY BAR MEMBERSHIP/OCAA MEM 3ERSFDP REQUIREMENTS: a City Attorney is responsible for maintaining City Attorney's professional standing as a member of the Oregon State Bar Association and the Oregon City Attorney's Association. 3 PERSONAL SERVICES CONTRACT - Page 9 16. NON-WAIVER: The failure of CITY to insist upon or enforce strict performance by CONTRACTOR of any of the terms of this Agreement or to exercise any rights hereunder, should not be construed as a waiver or relinquishment to any extent of its rights to assert or rely upon such terms or rights on any future occasion. 17. ATTORNEYS' FEES: In case suit or action is instituted to enforce the provisions of this contract, the parties agree that the losing party shall pay such sum •as the court may adjudge reasonable attorney fees and court costs, including attorney's fees and court costs on appeal. 18 GOVERNING LAW: The provisions of this Agreement shall be construed in accordance with the provisions of the laws of the State of Oregon. Any action or suits involving any question arising under this Agreement must be brought in the appropriate court of the State of Oregon. of 19. COMPLIANCE WITH APPLICABLE LAW: CONTRACTOR shall comply with all federal, state and local laws and ordinances, applicable public contracts, and to the work to be done under this contract. 20 CONFLICT BETWEEN TERMS: It is further expressly agreed by and between the parties hereto that should there by any conflict between the terms of this instrument in the proposal of the contract, this instrument shall control and nothing herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith. 21. AUDIT: CONTRACTOR shall maintain records to assure conformance with the terms and conditions of this Agreement, and to assure adequate performance and accurate expenditures within the contract period. CONTRACTOR agrees to permit CITY, the State of Oregon, the federal government, or their duly authorized representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of funds. PERSONAL SERVICES CONTRACT - Page 10 71 22, SEVERABILITY: In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected or invalidated thereby. 23, COMPLETE AGREEMENT: This Agreement and attached exhibits constitutes the entire Agreement between the parties. No waiver, consent, modification, or change of terms of this Agreement shall bind either party unless in writing and signed by both parties. Such waiver, consent, modification, or change if made, shall be effective only in specific instances and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. CONTRACTOR, by the signature of its authorized representative, hereby acknowledges that he has read this Agreement, understands it and agrees to be bound by its terms and conditions. IN WI'T'NESS WHEREOF, CITY has caused this Agreement to be executed by its duly authorized undersigned officer and CONTRACTOR has executed this Agreement on the date hereinabove first written. CITY OF GARD By: Mayor D /61 /6? Manager Date: 2 ZlG f `3 7 CONTRACTOR By: 13 Pamela J. i3eery, (~6arLt-Nt 2 Date: 7 c By: 62-t,~- Timothy V. Ramis Date: I Z j 7 F 7 5 a PERSONAL SERVICES CONTRACT - Page I I EXHIBIT "A" SCOPE OF SERVICES A. CONTRACTOR will be responsible for CITY legal representation as authorized by the City Council an6i'vr City Manager. Authorization to perform specific tasks will come from the Mayor, City Council, City Manager or other persons directly authorized by the Mayor, City Council or the City Manager. Pamela J. Beery will act as lead attorney. Timothy V. Ramis is referred to herein as the "City Attorney". B. Unless otherwise specified by the Mayor, City Council or the City Manager, CONTRACTOR will be responsible for: i. Legal aspects of general administration of CITY business, including preparing and providing legal opinions, assist with establishment of correct procedures, drafting and reviewing ordinances, resolutions, contracts, orders, agreements, and other legal documents, and related tasks needed to support CITY personnel, the Council and Commissions. ii. Training of nonlegal personnel in the performance of legally related tasks in order to reduce legal expenses. iii. Regular attendance at City Council meetings and attendance at other municipal meetings on request. iv. Municipal Court prosecution. V. Review City Council packets and provide advice prior to meetings. Review Planning Commission packets when requested and provide timely advice prior to meetings. vi. Ensure that all current and future codes and ordinances are in compliance with state and federal laws, current and future. C. Legal activities such as complex litigation and special project assignments which fall outside of the above categories, and which would include costs exceeding the projections of the City's budget for legal services, must be authorized by the City Council. City Attorney and the City Manager will regularly review the level of expenditures on legal services and will prioritize projects in order to stay within the budgeted amounts. PERSONAL SERVICES CONTRACT - Page 12 D. The City Attorney will coordinate with the City Manager and department heads, but within the chain of command shall report directly to the City Council. In this regard, in the event a conflict develops between the Council and City Manager, the City Attorney will represent the Council but will notify the City Manager at first knowledge of a conflict. E. The City reserves the right in appropriate situations to retain separate outside counsel. It is recognized that the City presently utilizes other!-av., firms to provide representation in personnel issues, labor relations, and water related matters (i.e., water rights, water supply). pjb/acmf90024/Cityatty.ps33(12/3/97) PERSONAL SERVICES CONTRACT - Page 13 AMENDMENT CITY OF TIGARD, OREGON PERSONAL SERVICES CONTRACT This constitutes an amendment to that AGREEMENT made and entered into on the 9' day of DecumbCr, 1997 by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called CITY, and O'Donnell, Ramis, Crew, Corrigan and Bachrach, LLP, hereinafter called CONTRACTOR. Section 10. is revised to substitute the following language "CONTRACTOR: Timothy V. Ramis O'Donnell Ramis Crew Corrigan & Bachrach, LLP 1727 NW Hoyt Street Portland, OR 97209" Signature Block is revised to substitute the following language: "CONTRACTOR By: , Timothy V. Ramis Date: " Exhibit A, Scope of Services, Section A is revised to substitute the following language: "A. CONTRACTOR will be responsible for CITY legal representation as authorized by the City Council and/or City Manager. Authorization to perform specific tasks will come from the Mayor, City Council, City Manager or other persons directly authorized by the Mayor, City Council or the City Manager. Timothy V. Ran-is will act as lead attorney. Timothy V. Ramis is referred to herein as the "City Attorney." Page 1 - PERSONAL SERVICES CONTRACT AMENDMENT IN WITNESS WHEREOF, CITY has caused this Amendment to Agreement to be executed by its duly authorized undersigned officer and ONTRACTOR has executed this Amendment to Agreement on the date written belo CITY OF ARD By: , Mayor Da By: ity Manager Date: CONTRACTOR By: V. 'l U'----a Timothy V. Ramis Date: -S tvr/tigard/counci I/psaamend(2/ 17/98 Xsrb) Page 2 - PERSONAL SERVICES CONTRACT AMENDMENT I vlaV/X MEMORANDUM CITY OF TIGARD, OREGON TO: Honorable Mayor and City Council FROM: Bill Monahan DATE: October 20, 2000 SUBJECT: SW 130th and Hawks Beard Traffic Calming On Tuesday evening , October 17, the City Council gave direction on the process to be used to continue review of the 130th & Hawks Beard traffic calming devices. Following is a recap of the discussion conducted by Council as Item No. 8 of the Council Agenda: Mayor Griffith advised that he supported a review of the Hawks Beard traffic calming devices since at the October 20, 2000, Council meeting it was pointed out that a review was to have taken place after six months. The review was not done. He said he would like to have a task force appointed to study the issue consisting of former members along with new members who reside on SW North Dakota Street and also from other locations within the City. The Mayor referred to problems cited and to the number of traffic tickets written at the Hawks Beard site. He said he would like the Task Force to look at the traffic flow and if it leads to a "retook at SW North Dakota, so be it." Councilor Scheckla said that this approach sounds fair. Councilor Hunt said he had no comment at this time. Council Moore said the Mayor's proposal was acceptable to him and he would support the restudy proposed by the Mayor. Councilor Patton said she would like to have the study be "open ended" and to see where the review of Hawks Beard "takes us." The Mayor asked for comments from those interested in the audience. Mr. Ed i Halberg said that he understood the Mayor was suggesting that SW North Dakota be left as it is, for now. The Hawks Beard traffic calming devices would a be reviewed and then, possibly as a result of this review, a review of SW North Dakota would be warranted. He said he would like to see the same process + utilized that was used before; that is, form a task force. He said he was j amenable to new members being added to the task force. Councilor Hunt commented that he would like it if a number of people from outside the area were appointed to the task force. Councilor Patton noted concerns about what had been accomplished by the task force that served before on SW North Dakota and Hawks Beard insofar as those people who served tried to be objective and made an honest effort to find solutions. Councilor Hunt agreed that the citizen members had made this effort; however, he noted that he remained troubled with the actions on ine pal -L of former Councilor Rohlf. Councilor Moore added he thought the Council had learned a valuable lesson that a Councilor should not be appointed as a liaison to a task force if they are involved in the problem under review. He noted the Council had supported the task force and appointed Councilor Rohlf as the liaison. Mayor Griffith confirmed that the duties and membership of the task force would be presented to the Council for its review. Liz Newton has been working to assemble a list of possible participants in the revised task force. Following is a list of potential members. From the earlier Hawks Beard Task Force Bob Pavlokovich Rose Cicero Gene McAdams Ed Halberg From the SW North Dakota area Basil Christopher Mark Irwin From outside the area Bev Froude - Chair of the Traffic Calming Committee from several years ago Paul Owen - Suggested by Councilor Paul Hunt Someone - To be nominated by Councilor Scheckla (Liz has left a message for Councilor Scheckla requesting his input.) This information is provided to the City Council to make sure the staff has understood the Council direction. If Council has any issue with the reporting of the direction to be given to the task force, or if Council has concerns about the composition of the task force, please let us know during the Council meeting of October 24. Liz would like to make contact with the task force members and discuss their task with them beginning on October 25. NTIG333U1SR\DEPTSV DMIBILLWEMOS%130 6 HAWKS BEARDAOC AGENDA ITEM NO.2 • VISITOR'S AGENDA DATE : October 24, 2000 (Limited to 2 minutes or less, please) P!ease sign on the appropriate sheet for listed agenda items. The Council wishes to hear from you on other issues not on the agenda, but asks that you first try to resolve your concerns through staff. Please contact the City Manager prior to the start of the meeting. Thank you. NAME, ADDRESS & PHONE TOPIC STAFF CONTACTED Jr~c- Po 1, I bcdo S- V, C'7k4'ee 4 C ~c;_si eF 7!~ k MIPrZLXII~ G~~'• o r`~~ C r r ~ ~~f r~i ~ ~^3 ~~v~th fT r~l.(w~ r VISITOR'S AGENDA Page 1 . ti AGENDA ITEM # 3. 2 FOR AGENDA OF 10/24/00 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Bid award for the purchase of a 1997 Ford F800 with Telelect model XT52 Aerial device and chip body. PREPARED BY: Howard Gregg DEPT HEAD OK CITY MGR OK ISSUE BEFORE THE COUNCIL The issue before the Council is to award bid to the lowest responsible bidder, Pacific Utility Equipment Co. for purchase of a 1997 Ford F800 with Telelect model XT52 Aerial device and chip body at the bid amount of $79,950. STAFF RECOMMENDATION Staff recommends that the Council award the bid to Pacific Utility Equipment Co for the bid amount of $79,950.00 for the purchase of a 1997 Ford F800 with Telelect model XT52 Aerial device and chip body. INFORMATION SUMMARY A request for bids went out for the purchase on September 18, 2000, with bid closing on October 2, 2000. There were 2 bids received on the Aerial lift truck with chip body. One from Pacific Utility Equipment Co. and one from Air Tec Equipment Inc. Although Air Tec Equipment Inc. had the low bid of $63,500.00 their bid was rejected for not meeting the specifications, including but not limited to: 1. Truck is two years older than the 1995 cut off year. 2. Has 37,325 miles more than the 50,000 mile limit. 3. Does not have an hour meter so we have no way of knowing how many hours it has ran. 4. Is not available within the 10 days after bid opening for evaluation. It would not be made available for three weeks after payment. This piece of equipment would be utilized to enhance our Street tree-trimming program and allow us to increase our range/height of trimming ability. Also, the Parks Division would be able to reach higher (which is where most limbs are) than we currently can (30-ft.) to perform general tree maintenance/pruning and hazardous limb removal in accessible areas. This would allow us to reduce current outside cost in these areas. This vehicle can also be utilized by Building Maintenance to clean and repair gutters and roofs, saving us rental fees. We can also use this lift to put the holiday lights on the tree at City Hall as well as part of the lights on the building, saving approximately $600.00 per year in rental fees. i I We would be able to return truck 005, the current lift truck,to the sign shop on a year around basis for sign repair and replacement. This will be a key issue with all of the upcoming Manual of Uniform Traffic Control Devices (M.U.T.C.D.) changes regarding sign regulations. On the average we currently change out 800 signs per year and this number will almost certainly grow with the new regulations. It will also extend the life of 005 and 015 (our current chip truck) if this vehicle is purchased and used for tree related programs and projects. OTHER ALTERNATIVES CONSIDERED Reject all bids and readvertise for new bids. VISION TASK FORCE GOAL. AND ACTION CQMMITTEE STRATEGY N/A b FISCAL NOTES In the budget for the fiscal year of 2000/2001 an amount of $80,000.00 was identified for the purchase of a 60- foot boom truck. The 1997 F800 with Telelect model XT52 Aerial device and chip body bid by Pacific Utility Equipment Co. meets these requirement and is within the budgeted amount. i:\citywide\sum.dot AGENDA ITEM # 3.3 FOR AGENDA OF _ 10 2 4 OD CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Training Request for 5`h Annual Conference on Oregon Land Use Law PREPARED BY: William A. Monahan DEPT HEAD OK ~~Wt CITY MGR OK L~ ISSUE BEFORE THE COUNCIL Should the Council approve a training request for Councilor Joyce Patton to attend the 5`h Annual Conference on Oregon Land Use Law scheduled for December 7 & 8, 2000, in Portland? STAFF RECOMMENDATION Staff recommends approval of this training request. INFORMATION SUMMARY The budget for the City Council includes a line item for Travel and Training totaling $10,806. The majority of this line item was budgeted to allow for Council participation at the National League of Cities Conference in Boston. Funding was allocated to allow for participation by three members of Council. Only one Council member is planning to utilize the Travel and Training budget for the conference scheduled for December. Therefore, sufficient funds remain for alternative training for Council members. Councilor Joyce Patton received and reviewed the program description for the 5ch Annual Conference on Oregon Land Use Law to be held on December 7 & 8, 2000, in Portland. The conference has a full range of topics from an Overview of the Prominent Oregon Land Use cases in 2000 to Access Management issues, Critical Legal Issues for Hearing Officers, Successful Permitting Strategies, and Ethics in the Land Use Process. The training should be very beneficial to Councilor Patton in her role on Council where various Land Use issues are dealt with throughout the year. City Policy requires that any training which exceeds $500 in costs which is not specifically mentioned in the City Budget document requires Council approval. The total cost of the conference is $515. i i OTHER ALTERNATIVES CONSIDERED N/A a 1 VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A FISCAL NOTES A total of $10,806 is budgeted within the City Council FY 2000-2001 adopted budget for Travel and Training. Sufficient funds are available to allocate $515 from this amount for this conference. I:UDM\CITY COUNCIL=UNCIL AGENDA REM SUMMARIEMOREGON LAND USE LAW CONF.DOC Wow= Rum- ~1-8~RlZA~~~til At :IOn # TA T. # ►za EX IN UthOr ~E~T~AIN A of -TIGARD'~ )OBTITLE COUNCIA, !NG DATES Cw 100-3110 625000 Tg DEPT ACCT. # From: 12107100 m►tted) UST be attached to each TA sub To: 12108100 agendas M USE MATTERS. NAME 10 PATTON a -tkshoP1Meeting g OF LAND TRIP iComplete Confer, LAND USE LAW" ZFD IN A VARIETY LAND USE CASES. LOCATR ISSUES U'111-1 INENT LA OREGON City: POOREGON PURPOSE OE State: OF ACCESS MANAGEMENT & pp ,51" ANNUAL ACONFERENCE ON TRAINING & SOPHISTICATED CONCEPTS & TO OBTAIN EXPERTS IN OREGON ON TOPICS LEARN FROM gOOK Costs $ SIMATERIALS Vendor o mitt Check costs $ 51 5'00 TION Mailing Address 0 Hold For EmptoYee REGISTRA Mail Check 11 11 Vendor INAR GROUP XD 0 Reimburse THE SEM 10YQe CitylStatelZip Mailing Address 0 Hold for Emp PO BOX 523 phone # CitylStatelZip ❑ Reimburse gg070 .~--NIA--- ISLAND, \N TION ph e # TRANSPORTA Costs $ phone # 20463-4400 L DGING NIA_ Vendor Q Mail Check O Daily rate tinci taxlcosts $ to Mailing Address ~ Hold For Employee pates to day: 0 Mail Check Vendor Reimburse ❑ Hold For Employee CitylStatelZip Mailing Address Phone # CitylStatelZip 0 Reimburse 32.5q, per mile phone # miles NA1LEAGE Reimburse advance from to deduct any outstanding Confirmation # Advance ❑ Reimburse I authorize the Cih' pate PER DIEMIfvIEALS Advance Tigard any excess amount advanced' to reimburse the CityOf ad pate his authorization, I agree By siCosts:g$ning Dept. a check, itravel f repayment is n Date ot made. City Manager my p y Date Employee supervisor WrAm ryCIU qA~4 RNtill NG J PA'rT 1'. 7[ T srrraY?~!`~ • T 0 VI PLEASE NOTE THE FOLLOWING ADMINISTRATIVE RULES... The following levels of approval are required for all employee requests for expenditures for education, training, and travel requests: • If the expenditure will be over $500 or involves travel over 500 miles from the City, specific City Council approval is required unless the request was specifically approved by the City Council in the budget document. • If the expenditure will be over $300 or involves travel over 300 miles from the City, the request will require the approval of the City Administrator. • If the expenditure is less that $300 or involves travel of less than 300 miles, the request will require the approval of the employee's Department Head. • Training not previously budgeted must be reviewed by the Human Resources Director who will forward the request to the City Administrator. At least two weeks prior to the anticipated travel, the employee should complete a Training Authorization form.. The purpose of this form is to provide advance approval of the requested travel and, if necessary, to provide the means for an advance of funds to the employee for the anticipated travel. Within one week after the travel has been completed, the employee shall complete a "Travel Expense" form documenting all expenses from the travel and providing receipts when required. I:IPDITRAVTNG.DOTI:IPDITRAVTNG.DOT Fifth Annual Conference o Oregon M& I'm M is _M 106" ME-11MM ;3%w/ ctw In just two days, you will learn the sophisticated concepts and issues utilized in a variety of land use matters. Listen to experts address topics from access management and successful permitting strategies, to prominent land use cases. SPECIALLY DESIGNED FOR: Attorneys and Legal Staff . ,,q' Planners ' Government Officials 44 Engineers Developers Builders a Transportation Professionals c~ X AMC 0 F'IFTHANNUAL CONFERENCE ON OREGON LAND UsF. LAW 3:30 Introduction and Overview 3:30 Regional Planning in the Portland Metro Area Gregory S. Hathaway, Esq., Program Co-Chair An Evaluation and a Look into the Future Davis Wright Tremaine LLP John Fregonese 8:40 2000 in Review - Oregon's Prominent Fregonese Calthorpe & Associates Land Use Cases 4:15 Questions and Answers Michael E. Judd, Esq. Members of the Faculty Clackamas County Council • t 111 9:30 Break 9:45 Anatomy of a Land Use Case - The St. 9:00 Introduction and Overview Mary's Property Saga Timothy V. Ramis, Esq., Program Co-Chair A Panel Discussion Ramis Crew Corrigan & Bachrach LLP Jeff Bachrach, Esq. 9:10 Critical Legal Issues for Hearing Officers - Ramis Crew Corrigan f? Bachrach LLP A Panel Discussion Mary K. McCurdy, Esq. J. Richard Forester, Esq. 1000 Friends of Oregon Dispute Resolution Services Timothy J. Sercombe, Esq. Gregory J. Frank, Esq. Preston Gates & Ellis, LLP Attorney at Law 10:45 How to Present A Land Use Case Before Ann M. Gasser, Esq. the Oregon Court of Appeals Marion County Hearings Office Chief Judge Mary J. Deits, Esq. Phillip E. Grillo, Esq. Oregon Court of Appeals Miller Nash LLP 11:30 Muddy Waters: The Confluence of Land Use and 10.15 Break Endangered Species Act Regulatory Programs Wendie L. Kellington, Esq. 10:30 Successful Permitting Strategies - The Do's Schwabe Williamson Wyatt PC and Dont's 12.15 Lunch (On your own) Planner's Point of View • Richard H. Carson, Director 1:15 Access Management: Dispatches From the Clark County Community Development Front Line • Overview of New Administrative Rules Government Point of View Andrew H. Stamp, Esq. Ruth M. Spetter, Esq. Schwabe Williamson & Wyatt PC Portland City Attorney's Office • Case Study: Southview PUD Access Permit Private Sector Point of View D. Daniel Chandler, Esq. Timothy V. Ramis, Esq. Schwabe Williamson & Wyatt PC ODOT's Perspective 11:45 Successful Permitting Strategies ---Questions Del Huntington and Discussion with the Audience Oregon Department of Transportation 12:00 Lunch (On your own) 2.15 Break 1:00 Danger Zone: Ethics in the Land Use Process 2:30 Pet Peeves of Land Use Professionals - A Jane E. Angus, Esq. Panel Discussion Oregon State Bar Dorothy S. Cofield, Esq. E. Michael Connors, Esq. Attorney at Law Christopher P. Koback, Esq. William C. Cox, Esq. Davis Wright Tremaine LLP Attorney at Law 2:00 Real Estate Issues for Land Use Lawyers G. Frank Hammond, Esq. Christen C. White, Esq. I Cable Huston Benedict Haagensen & Lloyd LLP Ball Janik LLP 2:30 Critical Legal Issues in Oregon Land Use Law Steven L. Pfeiffer, Esq. • • ° Stoel Rives LLP 0 0 3:00 Questions and Answers Members of the Faculty THE SEMINAR GROUP FACULTY Gregory S. Hathaway, Program Co-Chair, is a partner at Davis Wright Ann M. Gasser is a hearings officer for Marion County. A graduate Trcmaine LLP and is Chair of the Land Use and Real Estate of Willamette University College of Law, she also worked as a Development Practice Group. hearings officer for the City of Portland. Timothy V. Ramis, I"i ;i m Co-Chair, a partner at Rums Crew Corri} an Phillip E. Grillo is a partner at Miller Nash Wiener Hager & Carlsen & Bachrach IJ.P, serves as city attorney for several suburban cities. He LLP where he chairs the firm's Land Use Practice Group. His argued the Landmark case of Dokw n Gay of 'l'igirdbefore the Supremc Court. practice concentrates on land use, environmental and municipal law. Jane E. Angus is Assistant Disciplinary Counsel for the Oregon G. Frank Hammond is a partner at Cable, Huston, Benedict, State Bar. She is a frequent speaker on legal ethics issues and an Haagensen & Lloyd LLP in Portland. He emphasizes land use, solid active member of several professional organizations. waste and environmental law, as well as appellate litigation. Jeff H. Bachrach is a partner with Rarnis Crew Corrigan & Bachrach Del Huntington is the Access Management Program Manager at I.LP Fie specializes in land use and real estate, typically representing the Oregon Department of Transportation. He was instrumental clients in all aspects of land development projects in developing the 1999 Oregon Highway Plan. Richard H. Carson is Director of Clark County Community Michael E. Judd is Assistant County Counsel for Clackamas County. Development Department in Vancouver, Washington. I le has 30 years A member of the Oregon State liar since 1978, he received his JD planning experience in Oregon, Washington and California. degree from Northwestern School of Law, Lewis & Clark College. D. Daniel Chandler is a partner with Schwabe Williamson & Wyatt Wendie L. Kellington, Schwabe Williamson & Wyatt PC, PC, concentrating his practice on land use, wetland and environmental practices land use, municipal law and administrative law. She was issues in Oregon, Washington and Montana. chief referee of the Oregon Land Use Board of Appeals (LUBA). Dorothy S. Cofield is the former Director of Legal Affairs for Christopher P. Koback, Davis Wright Trcmaine 1.1.13, is a member Oregonians in Action. She has worked on test case litigation as well of its Land Use and Real Estate Development Practice Group. His as legislative and regulatory reform of Oregon's land use laws, practice concentrates on land use and real estate litigation. r E. Michael Connors, Davis Wright "Trcmaine LLI; is a member of Mary Kyle McCurdy is staff attorney for 1000 Friends of its Land Use and Real Estate Development Practice C group and serves Oregon. Prior to this she was in private practice concentrating on ; on the Educational Committee of the Real Estate and Lind Use land use, municipal, administrative and environmental law. Section of the Oregon State Bar. Steven L. Pfeiffer, Stod Rives I.I.P, practices in the areas of land William S. Cox, Attorney at Law, concentrates his practice on land use, use, real estate development and natural resource law. Fie has development and real property issues An experienced land developer, he is extensive experience in advising business, utility and government ; one of the initial three LUBA referees He also holds an MBA degree. clients with respect to land use. Mary J. Deits, has been Chief Judge of the Oregon Court of Timothy J. Sercombe, Preston Gates & Ellis LI.P, represents public Appeals since 1997. Before this position she was the Presiding)udge and private entities in the areas of municipal, land use, of the Court of Appeals, Department 1. constitutional and administrative law. J. Richard Forester provides consulting, mediation and facilitation Ruth M. Specter, Portland City Attorney's Office, concentrates on i services for Dispute Resolution Services He is also Counsel to the law general municipal and land use law She is a contributing editor to the 1 farm of Grenley, Rotenberg, Evans, Bragg & Bodie PC, specializing in Oregon StateBarAssociationandaformerVicePat-identof the Oregon Bat l.-and use and related transportation, municipal and administrative law. Andrew H. Stamp practices at Schwabe, Willliamson & Wyatt PC Gregory J. Frank is Principal Land Use Hearings 0fftccr for the City in land use, transportation, municipal and administrative law, with of Portland and the Department Chair of the Real Estate Department particular expertise in cases involving urban growth boundary at Portland Community College. amendments, annexation and access issues John A. Fregonese is Principal at Fregonese, Calthotpe & Christen C. White, Ball Janik LI.P, concentrates her practice on Associates, a full service planning firm that specializes in land use and real estate law, particularly site acquisition and 4 comprehensive planning, GIS analysis and land use ordinances. development review. - CONFERENCE INFORMATION q Registration: Advance registration is recommended. Full payment Course Accreditation: This course has been approved by the of the tuition must accompany your registration. You are encouraged Oregon State Bar for 11.00 General CLE and 1 Ethics credits. to mail in your registration as soon as possible since enrollment is Washington State Bar CLE Credits are pending. RE Appraiser i -a limited. Walk-in registrations will be accepted subject to space avail- credits in the states of WA & OR are pending. For information, i ability; however, it is recommended that you call THE SEMINAR GROUP please call THE SEMINAR GROUP at (206) 4634400 or (800) 5744852. e at (206) 4634400 or (toll free) (800) 574-4852 or fax to (206) 463-4444. Seminar Location: The seminar will be held at the Governor Hotel, Tuition: The seminar fee of $595 per person includes attendance at all 611 SW Tenth Downtown Portland, Oregon. A block of rooms at a special rate has been set aside for Conference attendees until sessions, coffee breaks, and all course materials. Special government rate: $515 per person; student and new associate rate: $397.50. Make November 6, 2000. For room reservations, please call the hotel checks payable to: THE SEMINAR GROUP directly at (503) 224-3400. S Save When Two or More Register: Save 200 or more with our Course Materials: Each participant will receive a set of course multiple registrant discount! The tuition is only $495 per person for materials, prepared by the speakers especially for this Conference, two or more registering from the same organization. which will be invaluable as a future reference. The course materials alone are available for $100 which includes shipping and handling. Substitution or Cancellation: You may substitute another person at Homestudy Package: Our complete Homestudy Course, consist- any time. We will refund tuition, less a $50 cancellation charge, if we ing of a full Video or Audio transcript and the course materials, is i receive your cancellation by Friday, December 1, 2000. available for $605.00. This package may qualify for self-study credit. i DINAR PRESORTED GJF G PO Box 523 (MAIL) STANDARD POSTAGE 4v 17530 VASI ION Hwy. SW; SUITE 21'2 U.S. P PAID fa( VASHON ISLAND, WA 98070 PERWT # 1079 (206) 463-4400 (800) 574-4852 SEATTLE, WA ® ° 1 1 son= YES! Please register the following: Name: Name: Firm: Address: 1 4 City: Scats: Zip: yEyrnkyryEy~c~Y:re:R~sc~rYr:tc~c ECRLOT * C-002 Phone: Fax: CODE: LOCI 1 email: JOYCE PATTON COUNCILOR I cannot attencr' Please send me: ❑ Course Materials only, or 13125 SW HALL BLVD ❑ Videotapes and Course Materials, or TIGARD OR 97223-8144 1 ❑ Audiotapes and Course Materials Payment of $ Enclosed or Charge my ❑ VISA ❑ MasterCard ❑ American Express Card No: Exp. Date: Signature: t ® MAIL C7 FAX ~ TELEPHONE ~ Fi-MAIL THE SEMINAR GROUP (800) 574-4852 (206) 463-4444 PO Box 523 (206) 463-4400 VASHON ISLAND, WA 98070 i Fifth A nnual Conferqn%.114L.- ® Oregort C1 STATE BAR CLE CREDITS: ' q Oregon: 11.00 General and 1.00 Ethics µ Washington: Pending December 7 and 8, 2000 RF Aiiiiraiser CREDITS The Ooyeralor hotel„ Oregon and Washington: Pending ~A r:Portland, Oregon F AGENDA ITEM # 3. 4 FOR AGENDA OF 10/24/00 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE TGM Intergovernmental Agreement PREPARED BY: Nadine Smith DEPT HEAD OK ITY MGR OK ISSUE BEFORE THE COUNCIL Should the City enter into an intergovernmental agreement with ODOT so that a Transportation Growth Management grant may be awarded to the City? STAFF RECOMMENDATION Staff recommends that Council authorize the Mayor to sign the intergovernmental agreement. INFORMATION SUMMARY As Council will recall, the City applied for and was awarded a $91,000 grant from ODOT to complete transportation related work for the Washington Square Implementation Plan. As with all TGM grants, the award is made on the condition that the City enter into an intergovernmental with ODOT that outlines the terms of grant administration. Council received a briefing on this grant application several months ago. OTHER ALTERNATIVES CONSIDERED None VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Goal 1 Growth and Growth Management, "Accommodate growth while protecting the character and livability of new and established areas." Strategy 3) "Address planning and growth issues associated with the Regional Center." FISCAL NOTES The City would provide a $10,415 match in personnel and other project costs. TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 INTERGOVERNMENTAL AGREEMENT City of Tigard, Washington Square Regional Center Implementation Plan THIS AGREEMEN"1' is made and entered into by and bet..ee.^. THE STATE OF OREGON, acting by and through its Department of Transportation, hereinafter referred to as "ODO'T", and City of Tigard, hereinafter referred to as "City". RECITALS 1. The Transportation and Growth Management Program, hereinafter referred to as the "TGM Program", is a joint program of ODOT and the Oregon Department of Land Conservation and Development. 2. The TGM Program includes a program of grants for local governments for planning projects. The objectives of these projects are to better integrate transportation and land use planning and develop new ways to manage growth in order to achieve compact, pedestrian, bicycle, and transit friendly urban development. 3. This TGM grant is financed with federal Transportation Equity Act for the 21St Century (TEA-21) funds. State General funds are used as match for TEA-21 funds. 4. By authority granted in ORS 190.110 and 283.110, state agencies may enter into agreements with units of local government or other state agencies to perform any functions and activities that the parties to the agreement, or their officers or agents have the duty or authority to perform. 5. The City has been awarded a TGM grant which is conditional upon the execution of this agreement. 6. The parties desire to enter into this agreement for their mutual benefit. NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is agreed by and between the parties hereto as follows: TERM OF AGREEMENT; DEFINITIONS 1. The beginning date of this agreement is that date on which all parties have signed. The termination date of this agreement is June 30, 2001. 2. The project is described in Exhibit A attached hereto and by this reference made a part hereof. TATGM01\IGA\13oi1cr Platcs\IGA I Grantcc with_Contractor.doc TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 3. The total project cost is the sum of qualified costs incurred by the City and the personal services contractor(s) for this project. 4. The grant amount is the sum of the City's amount (defined below) and the personal services contract amount (defined below) payable by ODOT. The grant amount shall not exceed $91,000. 5. The City's amount is the maximum amount payable by ODOT to City for the project and shall not exceed $0. 6. The personal services contract amount is the amount payable by ODOT to a personal services contractor(s) and is equal to the total amount payable for all deliverables described in Exhibit A for which the personal services contractor(s) is identified as responsible. The personal services contract amount is $91,000. 7. City's matching amount is the maximum amount of matching funds which the City is required to expend to fund the project and is 10.27% of the total project cost, or up to $10,415. % 8. Qualified costs are direct project costs, including matching amounts, incurred by the City and personal services contractor(s) during the term of this agreement. 9. Direct project costs are costs which are directly associated with the project. These may include the salaries and benefits of personnel assigned to the project and the cost of supplies, postage, travel, and printing. General administrative costs, capital costs, and overhead are not direct project costs. Any jurisdiction or Metropolitan Planning Organization that has federally approved indirect cost plans may treat such indirect costs as direct project costs. CITY REPRESENTATIONS, WARRANTIES, AND COVENANTS 1. City shall perform the work and provide the deliverables described in Exhibit A, for which City is identified in Exhibit A as being responsible. 2. City shall be responsible for any nonqualifying costs associated with the work described in Exhibit A and any costs above the City amount. 3. City shall perform the work identified in Exhibit A as City's responsibility under this agreement as an independent contractor. City shall be exclusively responsible for all costs and expenses related to its employment of individuals to perform any work identified in Exhibit A as City's responsibility and for providing for employment- related benefits and deductions that are required by law, including, but not limited to, TATGM01\IGANBoilcr P1a1cs\IGA_1_Grantcc _with_Contractor.doc -2- TGM Grant Agreement No. 18686 TGM File Code I V-99 EA # TGM4GF08 federal and state income tax withholdings, unemployment taxes, workers' compensation coverage, and contributions to any retirement system. City shall be responsible, to the extent permitted by the Oregon Tort Claims Act, O RS 30.260-30.300, only for the acts, omissions or negligence of its own officers, employees or agents. 4. City shall present cost reports, reimbursement requests, progress reports, and deliverables to ODOT's Contract Administrator no less than every other month. City shall not submit requests for payment that exceed the City's amount. Generally accepted accounting principles and definitions of ORS 294.311 shall be applied to clearly document verifiable costs that are incurred. 5. City agrees to cooperate with ODOT's Contract Administrator. At the request of ODOT's Contract Administrator, City agrees to: a. Meet with the ODOT's Contract Administrator; and b. Form a project steering committee (which shall include ODOT's Contract Administrator) to oversee the project. 6. City shall maintain all fiscal records relating to this agreement in accordance with generally accepted accounting principles. In addition, City shall maintain any other records pertinent to this agreement in such a manner as to clearly document City's performance. City acknowledges and agrees that ODOT and the Oregon Secretary of State's Office and the federal government and their duly authorized representatives shall have access to such fiscal records and other books, documents, papers, plans, and writings of City that are pertinent to this agreement to perform examinations and audits and make copies, excerpts and transcripts. City shall retain and keep accessible all such fiscal records, books, documents, papers, plans, and writings for a minimum of three (3) years, or such longer period as may be required by applicable law, following final payment and termination of this agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to this agreement, whichever date is later. 7. City shall not enter into any subcontracts to accomplish work described in Exhibit A, unless written approval is first obtained from ODOT. 8. If ODOT engages a personal services contractor(s) to accomplish work described in Exhibit A, City shall: a. Provide ODOT's Contract Administrator with the opportunity to participate in the personal services contractor selection; b. Select personal services contractor(s) in accord with ODOT procedures, and advise ODOT of City's recommendation; TATGM01\1GA\Boilcr PlateAGA_I_Grantee with_contractor.doc -3- TGM Grant Agreement No. 18686 TGM File Code 1V-99 EA # TGM4GF08 c. Provide ODOT's Contract Administrator with the opportunity to review and approve personal services contractor's work, billings and progress reports; and d. Provide a project manager to: i. be City's principal contact person for ODOT's Contract Administrator and the personal services contractor for the project; ii. monitor and coordinate the work of the personal services contractor; iii. review and approve bills and deliverables (work products) produced and submitted by the personal services contractor; and iv. advise ODOT's Contract Administrator regarding payments to the personal services contractor. 9. City acknowledges and agrees that City shall not be reimbursed for, and shall not request reimbursement for, project costs or expenses related to this agreement which are incurred prior to the execution of this agreement. 10. All project work products of City that result from this agreement are the exclusive property of ODOT. ODOT and City intend that such work products be deemed "work made for hire" of which ODOT shall be deemed the author. If, for any reason, the work products are not deemed "work made for hire", City hereby irrevocably assigns to ODOT all of its rights, title, and interest in and to any and all of the work products, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. City shall execute such further documents and instruments as ODOT may reasonably request in order to fully vest such rights in ODOT. City forever waives any and all rights relating to the work products, including without limitation, any and all rights arising under 17 USC § 106A or any other rights of identification of authorship or rights of approval, restriction or limitation on use or subsequent modifications. ODOT hereby grants to City a royalty free, non-exclusive license to reproduce any work products for distribution upon request to members of the public. 11. City shall ensure that any work products produced pursuant to this agreement include the following statement: This project is partially funded by a grant from the Transportation and Growth Management (TGM) Program, a joint program of the Oregon Department of Transportation and the Oregon Department of Land Conservation and Development. This TGM grant is financed, in part, by federal Transportation Equity Act for the 21St Century (TEA-21), local government, and the State of Oregon funds. TAMM01\IGAToilcr P1atcs\IGA_1_Grantcc _with_Contractor.doc -4- TGM Grant Agreement No. 18686 TGM File Code 1V-99 EA # TGM4GF08 The contents of this document do not necessarily reflect views or policies of the State of Oregon. 12. City shall submit two hard copies of all final products produced in accordance with this agreement to ODOT's Contract Administrator, unless otherwise specified in Exhibit A. City shall also submit to ODOT's Contract Administrator all final products produced in electronic form using generally available word processing or graphics programs for personal computers via e-mail or on IBM-compatible 3.5" computer diskettes. The Oregon Department of Land Conservation and Development may display appropriate products on it "home page". 13. City shall submit to ODOT's Contract Administrator all payment claims within 45 days after the termination date of this agreement. 14. Within 45 days after the termination date of this agreement, City shall provide, in a format provided by ODOT, a completion report. The report shall contain: a. A summary of qualified costs incurred for the project, including reimbursable costs and matching amount; b. The intended location of records (which may be subject to audit); c. A list of final deliverables; and, d. Prepare payment requests to ODOT's Contract Administrator for reimbursement. 15. Within 45 days after the termination date of this agreement, City shall pay to ODOT the matching amount less previously reported qualifying matching amount. ODOT shall use any funds paid to it under this paragraph to substitute for an equal amount of federal TEA-21 funds used for the project or use as matching funds. 16. City shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to the work under this agreement, including, without limitation, the provisions of ORS 279.312, 279.314, 279.316, 279.320, and 279.555, as amended from time-to-time, which are incorporated by reference herein. 17. Without limiting the generality of the foregoing, City expressly agrees to comply with: a. Title VI of Civil Rights Act of 1964; b. Section V of the Rehabilitation Act of 1973; c. The Americans with Disabilities Act of 1990 and ORS 659.425; d. All regulations and administrative rules established pursuant to the foregoing laws; and, e. All other applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. TATGM01\IGA\13oi1cr 111ale AIGA I Gramcc with Conlractor.doc TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 18. City, and all employers working under this agreement, are subject employers under the Oregon Workers' Compensation law and shall comply with ORS 656.017, which requires these to provide workers' compensation coverage for all their subject workers. 19. City represents and warrants to ODOT that: a. it is duly formed and operating under applicable State of Oregon law; b. City has full legal right and authority to execute and deliver this agreement and to observe and perform its duties, covenants, obligations and agreements hereunder and to undertake and complete the project; C. the agreement has been authorized pursuant to its official action that has been adopted and authorized in accordance with applicable state law; d. the agreement is duly authorized and executed and delivered by an authorized officer(s) of City and constitutes its legal, valid and binding obligations enforceable in accordance with its terms; e. the authorization, execution and delivery of the agreement by it, the observation and performance of its duties, covenants, obligations and agreements hereunder, and the undertaking and completion of the project do not and will not contravene any existing law, rule or regulation or any existing order, injunction, judgement, or decree of any court or governmental or administrative agency, authority or person having jurisdiction over it or its property or assets; and, f, the statement of work attached to this agreement as Exhibit A has been approved by ODOT's Contract Administrator. ODOT COVENANTS 1. ODOT shall reimburse City for qualified costs for work described in Exhibit A, up to the City's amount. 2. ODOT shall make interim payments within 45 days of satisfactory completion (as determined by City's project manager and ODOT's Contract Administrator) of deliverables identified as being the City's responsibility in the approved statement of work, described in Exhibit A. Subject to the 10% withholding described in paragraph 3, below, the amount of the interim payment for a deliverable will be the qualified costs in the payment request. The balance due to City under this paragraph shall be payable within 45 days of ODOT's Contract Administrator's approval of the completion report described in paragraph 14 of City Representations, Warranties, and Covenants. 3. Further, ODOT reserves the right to withhold payment equal to 10% of the total project amount until all work required hereunder (and under any personal services TATGMOI\IGA\BoiIcr Platcs\IGA_I-Grantee _with_Contractor.doc -6- TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 contract(s) related to the project) is completed and accepted by the ODOT's Contract Administrator. 4. ODOT shall limit reimbursement of travel expenses in accordance with current State of Oregon Accounting Manual, General Travel Rules, effective on the date the expenses are incurred. 5. ODOT certifies that, at the time this agreement is executed, sufficient funds are authorized and available for expenditure to finance ODOT's portion of this agreement within the appropriation or limitation of its current biennial budget. 6. ODOT will provide City the statements of proposal for the City's project that meet the minimum requirements of the Request for Proposals, advertised by the Transportation Growth Management Program for this project. 7. ODOT will assign a Contract Administrator for this agreement who will be ODOT's principal contact person regarding administration of this agreement. 8. If ODOT engages a personal services contractor(s) to perform the work described in Exhibit A, it agrees to pay personal service contractor(s) the personal services contract amount, subject to the terms and conditions of the applicable personal services contract(s). 9. If ODOT engages a personal service contractor(s) to complete work described in Exhibit A, ODOT's Contract Administrator shall: a. At his/her discretion, participate in selection of a personal services contractor(s), monitor personal services contractor's work, review and approve personal services contractor billings and progress reports; and b. Prepare and obtain execution of a personal services contract(s). GENERAL PROVISIONS 1. Budget modifications and major adjustments from the work described in Exhibit A must be processed as an amendment to this agreement and personal services contract(s). 2. This agreement may be terminated by mutual written consent of all parties. ODOT may terminate this agreement effective upon delivery of written notice to City, or at such later date as may be established by ODOT under, but not limited to, any of the following conditions: a. Failing to complete work specified in Exhibit A within the time specified in this agreement, including any extensions thereof, or failing to perform any of the provisions of this agreement and City does not correct any such failure within TATGM01\IGA\Doi1cr 111utes\IGA_1 Grantee _with_Coniractor.doc -7- TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 10 days of receipt of \vritten notice or the date specified by ODOT in such written notice. b. If federal or state laws, regulations or guidelines are modified or interpreted in such a way that either the work under this agreement is prohibited or OIJO T is prohibited from paying for such work from the planned funding source. c. If ODOT fails to receive funding, appropriations, limitations or other expenditure authority at levels sufficient to pay for the work provided for in this agreement. Any termination of this agreement shall not prejudice any right or obligations accrued to the parties prior to termination. 3. As federal funds are involved in this grant, Exhibits B and C are attached hereto and by this reference made a part of this agreement and are hereby certified to by City's representatives. 4. Except as otherwise expressly provided in this agreement, any communications between the parties hereto or notices to be given hereunder shall be given in writing by personal delivery, facsimile, or mailing the same, postage prepaid, to ODOT or City at the address or number set forth on the signature page of this agreement, or to such other addresses or numbers as either party may hereafter indicate pursuant to this section. Any communication or notice so addressed and mailed is in effect five (5) days after the date postmarked. Any communication or notice delivered by facsimile shall be deemed to be given when receipt of the transmission is generated by the transmitting machine. To be effective against ODOT, such facsimile transmission must be confirmed by telephone notice to ODOT's Contract Administrator. Any communication or notice by personal delivery shall be deemed to be given when actually delivered. 5. This agreement shall be governed by and construed in accordance with the laws of the State of Oregon without regard to principles of conflicts of law. Any claim, action, suit or proceeding (collectively, "Claim") between ODOT (and/or any other agency or department of the State of Oregon) and City that arise from or relates to this agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. 6. This agreement and attached exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this agreement. No waiver, consent, modification or change of terms of this agreement shall bind either party unless in writing and signed by all parties and all necessary approvals have been T:\TGM01\1GA\Boi1er Platcs\IGA I Gr1Wcc with Contractor.doc TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of ODOT to enforce any provision of this agreement shall not constitute a waiver by ODOT of that or any other provision. The Oregon Transportation Commission on March 18, 1999, approved Subdelegation Order No. 2, in which the Director grants authority to the Branch and Region Managers to approve and execute agreements for projects included in the Statewide Transportation Improvement Program. City ODOT City of Tigard STATE OF OREGON, by and through By: its Department of Transportation (Official's Signature) By: Craig Greenleaf, Deputy Director Transportation Development Division Date: (Printed Name and Title of Official) Nadine Smith Date: City of Tigard 13125 SW Hall Blvd. Tigard, OR 97223 Phone: 503-6394171 Fax: 503-684-7297 L idwien Rahman, Contract Administrator Transportation and Growth Management Program 123 NW Flanders Portland, OR 972094037 Phone: 503-731-8259 Fax: 503-731-3266 E-Mail: lidwien.rahman@odot.state.or.us TATGM0 I\10MBoilerPlatesUGA_1_Grantce with Contraetocdoc -9- milli 11100~ 11111 ~1 TGM Grant Agreement No. 18686 TGM File Code 1V-99 EA # TGM4GF08 Exhibit A WASHINGTON SQUARE REGIONAL CENTER PLAN IMPLEMENTATION TGM File 1V-99 Statement of Work List of Abbreviations City = City of Tigard ITE = Institute of Transportation Engineers ODOT/Agency = Oregon Department of Transportation OHP = Oregon Highway Plan RTP = Regional Transportation Plan STA = Special Transportation Area TAC = Technical Advisory Committee TDM = Transportation Demand Management TGM = Transportation and Growth Management TMA = Transportation Management Association TSP = Transportation System Plan UBA = Urban Business Area WSRC = Washington Square Regional Center WTA = Westside Transportation Alliance PROJECT COOPERATION This statement of work describes the responsibilities of all entities involved in this cooperative project. Any Contractor tasks or deliverables which are contingent upon receiving information, resources, assistance, or cooperation in any way from another entity as described in this statement of work shall be subject to the following guidelines: 1. At the first indication of non-cooperation, the Contractor shall provide written notice (email acceptable) to Agency Contract Administrator of the specific acts or inaction indicating non-cooperation and of any deliverables that may be delayed due to such lack of cooperation by other entities referenced in the statement of work. 2. Agency Contract Administrator shall contact the non-cooperative entity/s to discuss the matter and attempt to correct the problem and/or expedite items determined to be delaying the Contractor/project. 10 TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 3. If Contractor has lollowed the notification process described in item 1, and delinquency or delay of any deliverable is found to be a result of the failure of other referenced entities to provide information, resources, assistance, or cooperation, as described in the statement of work, the Contractor will not be found in breach or default of contract; not shall the Contractor be assessed or liable for any damages. Neither shall Agency be responsible or liable for any damages to Contractor as the result of such non-cooperation by other entities. The Agency Contract Administrator will negotiate with Contractor in the best interest of the State, and may amend the delivery schedule to allow for delinquencies beyond the control of the Contractor. Background With funding from a "Transportation and Growth Management (TGM) Grant, a master planning effort was undertaken to define the boundaries of the Washington Square Regional Center (WSRC) and propose transportation and land use designations intended to reflect a twenty year planning horizon. To assist the planning effort, Tigard City Council appointed a 23-member task force. Task Force members represent neighborhoods, schools, business, property owners, state, regional, local governments, and public interest groups. The Washington Square Regional Task Force directed City of Tigard (City) staff and Contractors in the preparation of the land use and transportation development concept of the Washington Square Regional Center. The Task Force met for over a year and was made up of area residents, business owners, developers, and representatives of the Tigard Planning Commission, Tigard City Council, Beaverton City Council, Metro, and the Oregon Department of Transportation (/Agency/ODOT). The recommendations for the Washington Square Regional Center were intended to not only meet the Metro 2040 Growth Concept for the Regional Center, but also to meet the neighborhood goals for the area. The WSRC Plan recommends transportation improvements, including new road connections, added roadway capacity, transportation system management measures, parking strategies, and transit, bicycle, and pedestrian improvements. The WSRC Plan also recommends development of a Transportation Demand Management (TDM) Program. Key projects include: Highway 217 overcrossing connecting Washington Square Mall to Nimbus Drive; Extension of Nimbus Drive to Greenburg Road; Highway 217 overcrossing extending Locust Street to Nimbus Drive; development of a collector system along Oak, Lincoln, and Locust Streets; Hall Boulevard widening; new roadway parallel to Hwy 217; interchange capacity improvements at Scholls Ferry Road and Hall Blvd.; Nimbus area bus service; neighborhood traffic management measures; transit center amenities and pedestrian connections; relocation of Park & Ride; development of off-street bikepath system; pedestrian crossings and sidewalks on Greenburg Road, Hall 11 MEN 111 TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 Boulevard, and Cascade Avenue; Mall area street improvements to Eliander Lane, Washington Square Road, and Palm Boulevard; pedestrian amenities within commercial core area; people-mover system; and commuter rail. A copy of the WSRC transportation system plan and recommendations for implementation priorities and phasing are attached. However, the WSRC Plan did not determine the feasibility of implementing the needed transportation improvements both in terms of environmental constraints and funding strategies. The Washington Square Regional Center Plan has been presented to Tigard City Council. They adopted the WSRC Plan in February of 2000, but delayed the effective date. Throughout the planning process, concerns have been raised regarding the adequacy of facilities to support the proposed increase in land use density in the Washington Square Regional Center. Task force members, City officials, and neighborhood representatives have raised concerns specifically with adequacy of the transportation system to support up-zoning of the Washington Square Regional Center area. Concerns have also been raised with water resources and adequate stormwater drainage facilities in this area. This grant is intended to improve the likelihood of implementation of the transportation recommendations of the WSRC Plan. In addition to this project, the City is undertaking a parallel Washington Square Implementation Plan. The focus for that effort is to further refine and define the natural resources and open space recommendations in the WSRC Plan and to expand the public involvement process. Work on that effort will be coordinated with and augment the TGM Project. Project Description This project consists of the refinement and adoption of a Transportation Improvement plan, and development of a Funding Plan and a TDM program. Transportation Relationship and Benefits This project must refine the transportation plan that was developed in the Washington Square Regional Center Plan. The detailed plans will enable the City to require dedication of right-of- way, frontage improvements, and/or impose systems development charges when developers apply for land use approvals. A detailed road plan will help ensure that adequate transportation facilities are developed to support the land uses planned for in the Washington Square Regional Center Plan. Project Objectives The project objectives are as follows: ® Ensure implementation of the Washington Square Regional Center Plan • Develop a Transportation Demand Management Plan ® Develop a Transportation Improvement and Funding Plan 12 _01 1111N_= M1 1111111 11111 TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 The plans shall include a significant public involvement component. Deliverabies Overview: 1. Written materials---Agendas, summaries, technical memorandums, reports, etc., shall be submitted in writing at least five days prior to a meeting at which they are scheduled to be discussed, and may be required electronically in MS Word 97. 2. Drafts-Any deliverables requiring a draft will be reviewed by the Project Management Team or as otherwise assigned in this statement of work. Issues and feedback raised during the review process shall be addressed with necessary changes incorporated by Contractor in the final submittal. WORK PROGRAM Phase I Ongoinj* 1'roject Elements Task 1: Project Management Objective: Efficient project management and coordination. Methodology: The project management team, consisting of City staff, ODOT TGM grant manager, Metro representative, and Contractor shall meet at least monthly to assure project stays within scope, budget, and schedule. The project management team shall prepare for and schedule meetings of the Washington Square Regional Center Task Force (Task Force). The Contractor shall assure that all meeting material packets (agendas and draft or final review materials) are prepared in a timely manner for distribution (see Deliverables Overview). Contractor shall prepare minutes of the project management team meetings. Contractor Deliverables: Meeting agendas and minutes from tip to 12 project management team meetings. a City Staff Deliverabies: Meeting logistics N Schedule: Ongoing throughout the project Task 2: Stakeholder Involvement a Prepare for and conduct meetings of the Washington Square Task Force. When conducting the detailed work in developing the transportation and water resource facilities, it is important to have stakeholder review and support in developing detailed facility plans. 13 TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 Objectives: To obtain community input throughout the project; to ensure agreement with project recommendations from those agencies and stakeholders in a position to implement them. Methodology: Contractor shall conduct meetings of the Washington Square Task Force. Contractor and City staff shall schedule presentations in the community as appropriate for project elements, as determined by the project management team. In addition to citizen interests, the following agencies shall be invited to be involved with the task force: ODOT, Metro, City of Beaverton, Tri-Met, DLCD, and Washington County. Staff shall approve the Washington Square Task Force members. Task Force members are expected to coordinate with their respective agencies and/or constituents, and to participate in Task Force meetings . Contractor Deliverablcs: Up to six (6) Washington Square Task Force meeting agendas, meeting minutes and backup materials, and revisions to these materials. Individual meetings with up to six (6) stakeholders. City staff Deliverables: Review and approval of meeting materials, as well as providing background research for meetings. Schedule: Ongoing throughout the project. 'c'ask 3: Agency Coordination Prepare for and conduct Technical Advisory Committee (TAC) meetings. Meet as needed with other government agency staff. A significant portion of this task shall include coordinating this planning effort with the Highway 217 corridor planning effort. A TAC was formed and met during the development of the Washington Square Regional Center Plan; it is anticipated that it will continue with the same format and participants. Objectives: To ensure consistency with state, regional, and adjacent jurisdictions' plans and policies; and to ensure coordination with other agencies' planning and implementation efforts; to obtain technical input and review. i Methodology: 'these meetings will be a continuation of meetings held during the development of the Washington Square Regional Center Plan, except this group shall do more detailed, technical review of the feasibility of the placement and development of specific facilities. Additional TAC members that represent environmental and/or water quality interests shall be included. City staff shall establish meeting schedule based on statement of work elements, but at least bi-monthly. Contractor shall prepare agenda packets at least one week prior to meetings, conduct meetings, prepare minutes. City Staff shall be responsible for distribution of meeting packets and for scheduling the time and location of meetings. 14 TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 Contractor Deliverables: Meeting agendas, meeting minutes, meeting backup materials, correspondence for up to 6 TAC meetings and up to 6 individual meetings with agency representatives. City Staff Deliverables: Assist Contractor with researching and preparing backup materials, and reviewing draft deliverables on an as-needed basis. Schedule: Ongoing, throu(1110ut the project, but at least bi-monthly. Phase II. Transportation Improvement and Financing Plan Task 1: Review of Previous Recommendations Review Washington Square Regional Center Plan to assess specific transportation improvement needs. A. Revicw Previous Transportation Recommendations and Identify Implementation Requirements Objective: To confirm previous recommendations, and to identify the additional steps needed to move the recommendations toward implementation. Methodology: The Contractor shall review transportation recommendations for all modes (including roadway, transit, pedestrian, bicycle, commuter rail, and parking) from the previous Washington Square Regional Center Plan, and identify technical, permitting and procedural steps necessary for implementing the recommendations and adopting them as final land use decisions. Contractor Deliverables: Draft and final memorandum summarizing previous transportation recommendations and identifying implementation steps. N City Staff Deliverables: review of notes and memos, coordination with review agencies in preparation and revision of the memos. Schedule: Month 2. B: Analyze Differential Impacts of Current and Proposed Land Use Zoning in the Study Area 15 TGM Grant Agreement No. 18686 TGM File Code I V-99 EA # TGM4GF08 Objective: 1'o clarity the transportation impacts resulting from adopting the WSRC comprehensive plan and zoning recommendations. Methodology: Tlic Contractor shall prepare an analysis of two land use and transportation scenarios for the Washington Square Regional Center area. The first scenario must be based on current city of Tigard zoning for the study area. The second scenario must be based on the proposed Washington Square Regional Center zoning. The analysis must compare whether current zoning and proposed zoning can accommodate 2020 population and employment targets for the Washington Square area, and whether there are significant differences in population and employment concentrations within the area. Contractor shall prepare an analysis of the trip- generating characteristics of each scenario according to the ITE Trip Generation Manual procedures. Contractor shall compare the trip generation characteristics of the existing and proposed land use scenarios to each other, and evaluate the outcome of this comparison against the results of the 1999 WSRC transportation analysis. Contractor shall qualitatively assess the differences in tral7ic volumes under the two land use scenarios at key facilities (i.e. Hall Boulevard, Grcenburg Road, Scholls Ferry Road, Oak Street, and Lincoln Street). This assessment must qualitatively show whether the transportation improvements recommended in the WSRC Plan will be required under the existing zoning scenario. Contractor Deliverables: A draft and final memorandum describing the differential impacts to the transportation system resulting from current and proposed land use plans and zoning. City Staff Deliverables: Assistance in assessing existing zoning, review and comment on Contractor deliverables. Schedule: Month 3 C: Coordinate with Metro, ODOT and Tri-Met Regarding State and Regional Policy Issues Objective: To identify policies that the City needs to adopt in order to address recent requirements of regional and state projects or policies. i Methodology: I'lie Contractor shall review policies and meet with representatives of ODOT, Metro and Tri-Met to identify issues, projects or policies (e.g , the 1999 Oregon Highway Plan (OHP), including potential Special Transportation Area (STA), Urban Business Area (UBA), and Expressway designations, I-Iighway Mobility Standards and Access Management Policies), and .4 to address the Metro Regional Transportation Plan (RTP) and Metro Urban Growth Management Functional Plan, that may influence implementation of the 1999 WSRC Plan. The Contractor shall evaluate constructability of proposed 1999 WSRC Transportation System, and identify significant environmental, right-of way or financial constraints, opportunities for coordination with ongoing state and regional planning efforts, and policy needs. Contractor Deliverable: Draft and revised memorandum identifying additional technical and related work required to implement the transportation recommendations of the 1999 Washington Square Regional Center Plan in a manner consistent with State and regional plans and policies, including the 01-IP and RTP. 16 TGM Grant Agreement No. 18686 TGM File Code I V-99 EA # TGM4GF08 City Staff Deliverable: Assessment of existing City policy and code in relation to regional and state requirements. Schedule: Month , Task 2: Impact and Feasibility Analysis of Transportation Recommendations Identify potential environmental, land use, transportation, and other impacts, and determine engineering and financial feasibility of recommended transportation improvements A: Assess Environmental ]impacts of Recommended Transportation Improvements. Objective: To assess impacts, refine projects, and identify permitting requirements. Methodology: The Contractor shall prepare overlay maps of proposed roadway, transit, pedestrian and bicycle, and parking improvements. These maps must identify a more limited assessment area for any detailed natural resource inventories that may be needed. The maps must also be used as a tool for the Contractor team engineers, planners, and environmental scientists to identify major environmental hurdles early in the process and propose modifications, if feasible. The Contractor shall initiate consultation and coordination, as appropriate, with the pertinent regulatory agencies. Perform pmiect-speci fie natural resource inventories - The Contractor shall perform any required field studies and other natural resource inventories within the footprint of any proposed project improvements or features. The preliminary baseline environmental conditions maps must be updated with more detailed results of this focused natural resource analysis effort. a Assess environmental impacts - The Contractor shall perform a final overlay analysis using the refined transportation system features maps, and the detailed natural resource maps. to assess relative and absolute impacts of the project components and alternatives on the environment. Follow-up proicct refinement and environmental permitting - The Contractor shall use the resource and project features overlay maps developed in the City's work ' program to make any needed refinements to the proposed project. This may require some additional minor adjustments to the environmental impact assessment. The Contractor shall prepare an outline of permitting requirements. I I Contractor Deliverables: Mapping of environmental assessment, memorandum describing environmental impacts, project refinement recommendations, and permitting requirements. 17 TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 City Staff Deliverables: Assistance in GIS mapping and analysis, review of Contractor deliverables. Schedule: Months 4-6 B: Impact and Feasibility Analysis of Transportation Recommendations Objective: Resolve environmental, engineering, and related land use issues that affect the feasibility of implementing planned transportation improvements. Methodology: Contractor shall perform a review of environmental, constructability, right-of-way and planning level cost impacts to assess feasibility of the multi-modal transportation system identified in the 1999 WSRC Plan. The Contractor shall identify conceptual mitigation measures to decrease the magnitude of the negative impacts. The level of analysis must be of sufficient detail to assess the "reasonableness" of the proposed solutions and recommend modifications. The "reasonableness" or feasibility of theimplemcntation of the improvements will be assessed by the Task Force and Technical Advisory Committee according to evaluation criteria agreed to during the course of the project. There will be no follow up modeling or analysis to assess the feasibility of the conceptual modifications to the 1999 WSRC Plan. Contractor shall complete the following tasks: • Develop draft and final evaluation criteria for assessing the alternatives. • Review the results of task 2A to identify natural resource issues and impacts. • Work with the TAC and Task Force to finalize the evaluation criteria, and to evualate the transportation system recommendations , apply the evaluation criteria.ldentify fatal flaws. • Identify potential improvements or modifications to the 1999 transportation system. There will be no additional operations or modeling analysis performed on the potential improvement concepts. • Develop planning-level cost estimates for the transportation improvement recommendations. • Prepare a summary memorandum to be submitted in draft and final form to the Task Force, TAC and project management team. Based on one set of comments compiled by the City, the Contractor shall revise the draft document. The final document must summarize the evaluation of the 1999 WSRC Plan, and identify potential changes to the plan to ensure implementation of the transportation component of the plan. Contractor Deliverables: Draft and revised evaluation criteria and impact and feasibility analysis of proposed transportation improvements and potential mitigation measures. Cost estimates. Memorandum identifying possible modifications to the 1999 WSRC transportation system that would be required to facilitate implementation. 18 TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 City Staff Deliverable: Assistance in confirming cost estimates, review of contractor deliverables. Schedule: Months J-10 C. Transportation Policy Amendments Objective: To identify amendments to City transportation policies in order to implement refinements to the WSRC Plan. Methodology: Contractor shall develop draft transportation plan policies and code amendments to be incorporated into the City's Transportation System Plan (TSP) and the Washington Square Regional Center Plan element of the City Comprehensive Plan. Contractor Deliverables: Draft policy amendments. City Staff Deliverable: Assessment of existing City policy in relation to proposed changes to the WSRC Plan, sl)ecific policy text for City consideration. Schedule: Months 9-9 Task 3: Transportation Financing Plan Development cif a transportation-financing element of the transportation public improvement plan Objective: To develop a systematic, informed financing plan necessary to ensure the implementation of recommended transportation improvements. Methodology: Contractor shall identify and evaluate potential funding mechanisms, including urban renewal, traffic impact fees, systems development charges, developer- I paid improvements as condition of development approvals, and others. Evaluate alternatives and select most feasible option or combination of options for each of the planned transportation improvements. Identify an overall funding and phasing plan for transportation improvements. This funding and phasing plan must include a cost analysis and return on public investment analysis. Contractor Deliverables: Memorandum identifying and evaluating capital and maintenance/operations funding alternatives for recommended transportation improvements. A draft and revised transportation funding strategy including a cost and return on public investment analysis. City Staff Deliverables: assist Contractor in research of the memos. Review memos and ensure coordination in review of memos with staff within the City, as well as outside agencies. 19 TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 Schedule: Months 8-9 Phase III Transportation Demand Management Plan 'T'ask 1: Transportation Demand Management Plan (TDM) and Parking Strategies Objective: To develop a systematic, implementable TDM Plan Methodology: The Contractor shall interview at least eight and up to ten stakeholders in the study area, evaluate existing DEQ employee surveys, and identify other methods related to smaller employers, to identify potential strategies and alliances for developing a transportation demand management program for employees in the regional center area. The following strategies must be evaluated for their advantages and disadvantages in the Washington Square area. This work will be integrated with the above refinement work on the 1999 WSRC Plan. The strategies are: • free monthly or daily bus passes for employees • parking management • designated and preferential carpool parking for employees • shuttle to nearby park-and-rides • employee shuttle • people mover system • flexible or staggered work hours • guarantecd ride home for employees who commute by non-single occupant vehicle • develop a partnership with the Westside Transportation Alliance (WTA) in developin- a TDM plan for the area, or develop a Transportation Management Association (TMA) of Washington Square employers • transit priorities Based on the interviews and evaluation of specific strategies, Contractor shall prepare a draft framework plan for a Washington Square Area Transportation Demand Management Program . The framework plan will provide guidance as to the type of a TDM program that would be most successful in the Washington Square Area. The Contractor shall distribute the draft framework plan for review and comment by key stakeholders, and revise the plan accordingly. The City shall compile the comments from a Task Force Members, TAC, and project management team members, and supply the a comments to Contractor. Contractor Deliverables: A draft and revised memorandum summarizing the results of the interviews and strategies evaluation, and a TDM framework plan.. 20 TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 City Staff deliverahlcs: 1. List of stakeholders, to include at a minimum both large and small employers and property managers 2. Assist Contrnctor with reviewing and revising the draft TDM plan. Schedule: Months 5-9 Phase IV Summary Report Task 1: Prepare Summary Report Objective: To document the major analysis results, conclusions and recommendations. 21 TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 Methodology: The Contractor shall prepare a brief draft summary report incorporating the primary results, conclusions and recommendations for the tasks described above, and for the parallel Washington Square Implementation Plan sponsored by the City. The management team and advisory committees shall review the draft report, and Contractor shall prepare a final summary report. Contractor Deliverables: Draft and final Summary Report. City Staff Deliverables: Assist Contractor with reviewing and revising the draft Summary Report, printing. Schedule: Month 9 Budget Summary Amount Grant Total $ 91,000 Contractor Services $ 91,000 Total Grantee Match $ 10,415 Total Project cost $101,415 22 TGM Grant Agreement No. 1868 TGM File Code 1 V-9 EA # TGM4GF0 PROJECT BUDGET BY TASK WASHINGTON SQUARE REGIONAL CENTER IMPLEMENTATION TGM 1 V-99 August 25, 2000 Team Spencer & Kittelson & Lindle Cogan BRW MB&G D. Kupper Assoc. y Owens Steinber a DBE' Staff JS BW MK LL EC MH MD JN MH JA DS Totals Phase 1: On-Going Project Elements-Project Management and Public Involvement Program } trPyroJectl'vlanasQement 3 00, 4~."~k.K. ,rSv r1 :fi+" } ~ _ lf~'~~ ~..fnii ~ .i r• 1-t' i f.,x -`o~ i" f 1 A}- ` ,~~t+ ~T4(t~=' ement 2 ~n~:.Ot; ~{-S~ ~`i✓-xj~;i ,.'ti:~4 t ~ ~~r .hi= 'u'`': k1y .G , iii"'fit :r:2r•• 20~ 'S 1~ ~..i. t'L l b~ ~O rs"' = 7005 a(L2 ,~StalCeholder Involv, 1 y ,i s ~ ~'~r ~ x is + r (KY ~ ~ , x . 1~ Y1°"~,i'`§• ?'t; ~ ga t~~ ~ c : O`r ~ tr t ~ r• r ~ ~c ~`t " Is ~ 1~ ~ 3 'j. L' c> Y..n ; Arai' h~-;'~.f Y' •s&" ?s '"vr E~~ . c~ _.~i _ ~'.~3:'a.:~~ 1.rJ t'.' A'~ 'a~`yvr C IkOR gen"cy Coordiiiatitin;`~ y1~ f,625td0~- 2 3,00: ' 2 520 T'A'-1i ,.f:.'<,.i.xn a . ;,x• .,.s...... 'i'rJ'tr?.•,,,:~M`+6„?.-.;1 "F'c•,.~...v+ Phase 2: Transportation Improvement and Financing Plan a DBE Statement: Spencer & Kupper commits to using Dierdre Steinberg Communications, a registered DBE firm, to record management, public and technical meetings throughout the duration of the project for an amount of $ 4585, or at least 5% of the total Contractor budget. 23 r"3 a ~-r r . .~~ra . , b24 r 1q.2E`O. s dZX'. ' l~C `.~Fl.x 4{ iaf" F~ an ; 4,35 viron• 0 ~.,940 3,250 A. ;Evaluate En . 8,550 , . Impacts 880 Feasibility g.lmpact & 8,410 sis of Transportation Malys roen~ 1,050 4,36 ggec .200 0 C. Trans. Policy 12,750 ents 1,890 Amendm 1,'760 3. Transportation tna,ftc lan d Manabement F o Deman S,00 hase 3~ ra portati n 1350 3,400 1 Tp1~/i Plan 91,000 x1,04 4,585 maw, Report ~Q ' : r t 4 35 4,36 5'65 0 4'20 0 1,40 0 2500 Phase & hum. ort 0 Rep 2 . Surr~marY 1,6$0 4,' ,"V 1 8500 5 4 f 319 0 20,6 0 File I'VM 0 Total TGN1 24 TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 I-'X IIIBIT B (Local Agency or State Agency) CONTRACTOR CERTIFICATION Contractor certifies by signing this contract that Contractor has not: (a) Employed or retained fora commission, percentage, brokerage, contingency fee or other consideration, any firm or person (other than a bona fide employee working solely for me or the above consultant) to solicit or secure this contract. (b) agreed, as an express or implied condition for obtaining this contract, to employ or retain the services of any firm or person in connection with carrying out the contract, or (c) paid or agreed to pay, to any firm, organization or person (other than a bona fide employee working solely for me or the above consultant), any fee, contribution, donation or consideration of any kind for or in connection with, procuring or carrying out the contract, except as here expressly stated (if any): Contractor further acknowledges that this certificate is to be furnished to the Federal Highway Administration, and is subject to applicable State and Federal laws, both criminal and civil. AGENCY OFFICIAL CERTIFICATION (ODOT) Department official likewise certifies by signing this contract that Contractor or his/her representative has not been required directly or indirectly as an expression of implied condition in connection with obtaining or carrying out this contract to: (a) Employ, retain or agree to employ or retain, any fine or person or (b) pay or agree to pay, to any firm, person or organization, any fee, contribution, donation or consideration of any kind except as here expressly stated (if any): Department official further acknowledges this certificate is to be furnished to the Federal Highway Administration, and is subject to applicable State and Federal laws, both criminal and civil. EXHIBIT C Federal Provisions Oregon Department of Transportation H 1. CERTIFICATION OF NONINVOLVEMENT IN ANY DEBARMENT AND SUSPENSION Contractor certifies by signing this contract that to the best of its knowledge and belief, it and its principals: 1. Are not presently debarred, suspended, proposed for criminal offense in connection with obtaining, debarment, declared ineligible or voluntarily attempting to obtain or performing a public (federal, excluded from covered transactions by any Federal state or local) transaction or contract under a public department or agency; transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, 2. Have not within a three-year period preceding this forgery, bribery falsification or destruction of proposal been convicted of or had a civil judgment records, making false statements or receiving stolen rendered against them for commission of fraud or a property; Rev. 5/10/2000 AGR.F6UC ERT -25- TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 3. Are not presently indicted for or otherwise criminally certification, in addition to other remedies available or civilly charged by a governmet:tal entity to the Federal Government or the Department may (federal, state or local) with commission of any of terminate this transaction for cause of default. the offenses enumerated in paragraph (1)(b) of this certification, and 4. The Contractor shall provide immediate written notice to the Department to whom this proposal is 4. Have not within a three-year period preceding this submitted if at any time the Contractor learns that application/proposal had one or more public its certification was erroneous when submitted or transactions (federal, state or local) terminated for has become erroneous by reason of changed cause or default. circumstances. Where the Contractor is unable to certify to any of the 5. The terms "covered transaction", "debarred", statements in this certification, such prospective participant "suspended", "ineligible", "lower tier covered shall attach an explanation to this proposal. transaction", "participant", "person", "primary covered transaction", "principal", and "voluntarily List exceptions. For each exception noted, indicate to whom excluded", as used in this clause, have the meanings the exception applies, initiating agency, and dates of action. set out in the Definitions and Coverage sections of If additional space is required, attach another page with the the rules implementing Executive Order 12549. following heading: Certification Exceptions continued, You may contact the Department's Program Section Contract Insert. (Tel. (503) 986-3400) to which this proposal is being submitted for assistance in obtaining a copy EXCEPTIONS: of those regulations. Exceptions will not necessarily result in denial of award, but 6. The Contractor agrees by submitting this proposal will be considered in determining Contractor responsibility. that, should the proposed covered transaction be Providing false information may result in criminal entered into, it shall not knowingly enter into any prosecution or administrative sanctions. lower tier covered transactions with a person who is debarred, suspended, declared ineligible or The Contractor is advised that by signing this contract, the voluntarily excluded from participation in this Contractor is deemed to have signed this certification. covered transaction, unless authorized by the Department or agency entering into this transaction. II. INSTRUCTIONS FOR CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER 7. The Contractor further agrees by submitting this RESPONSIBILITY MA,r fERS-PRIMARY COVERED proposal that it will include the Addendum to Form TRANSACTIONS FHWA-1273 titled, "Appendix B--Certification Regarding Debarment, Suspension, Ineligibility and 1. By signing this contract, the Contractor is providing Voluntary Exclusion--Lower Tier Covered the certification set out below. Transactions", provided by the Department entering into this covered transaction without modification, 2. The inability to provide the certification required in all lower tier covered transactions and in all below will not necessarily result in denial of solicitations for lower tier covered transactions. participation in this covered transaction. The " Contractor shall explain why he or she cannot 8. A participant in a covered transaction may rely 0 provide the certification set out below. This upon a certification of a prospective participant in a " explanation will be considered in connection %vith " lower tier covered transaction that it is not the Oregon Department of Transportation debarred, suspended, ineligible or voluntarily determination to enter into this transaction. Failure excluded from the covered transaction, unless it to furnish an explanation shall disqualify such knows that the certification is erroneous. A person from participation in this transaction. participant may decide the method and frequency by which it determines the eligibility of its 3. The certification in this clause is a material principals. Each participant may, but is not representation of fact upon which reliance was required to, check the Nonprocurement List placed when the Department determined to enter published by the U. S. General Services into this transaction. If it is later determined that Administration. the Contractor knowingly rendered an erroneous Rev. 5/1012000 AGK.r•EDC•tiRT -26- TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 9. Nothing contained in the foregoing shall be 4. The terms "covered transaction", "debarred", construed to require establishment of a system of "suspended", "ineligible", "lower tier covered records to render in -ood faith the certification transaction", "participant", "person", "primary required by this clause. The knowledge and covered transaction", "principal", "proposal", and information of a participant is not required to "voluntarily excluded", as used in this clause, have exceed that which is normally possessed by a the meanings set out in the Definitions and prudent person in the ordinary course of business Coverage sections of rules implementing Executive dealings. Order 12549, You may contact the person to which this proposal is submitted for assistance in 10. Except for transactions authorized under paragraph obtaining a copy of those regulations. 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier 5. The prospective lower tier participant agrees by covered transaction with a person who is submitting this contract that, should the proposed suspended, debarred, ineligible or voluntarily covered transaction be entered into, it shall not excluded from participation in this transaction, in knowingly enter into any lower tier covered addition to other remedies available to tl)e Federal transaction with a person who is debarred, Government or the Department, the Department suspended, declared ineligible or voluntarily may terminate this transaction for cause or default. excluded from participation in this covered transaction, unless authorized by the department or III. ADDENDUM TO FORM I-I1WA-1273, REQUIRED agency with which this transaction originated, CONTRACT PROVISIONS 6. The prospective lower tier participant further agrees This certification applies to subcontractors, material by submitting this contract that it will include this suppliers, vendors, and other lower tier participants. clause titled, "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary • Appendix B of 49 CFR Part 29 - Exclusion--Lower Tier Covered Transaction", without modification, in all lower tier covered Appendix B--Certification Regarding Debarment, transactions and in all solicitations for lower tier Suspension, Ineligibility, and Voluntary covered transactions. Exclusion--Lower Tier Covered Transactions 7. A participant in a covered transaction may rely Instructions for Certification upon a certification of a prospective participant in a lower tier covered transaction that it is not I. By signing and submitting this contract, the debarred, suspended, ineligible or voluntarily prospective lower tier participant is providing the excluded from the covered transaction, unless it certification set out below, knows that the certification is erroneous. A participant may decide the method and frequency 2. The certification in this clause is a material by which it determines the eligibility of its representation of fact upon which reliance was principals. Each participant may, but is not placed when this transaction was entered into. If it required to, check the nonprocurement list. is later determined that the prospective lower tier participant knowingly rendered an erroneous 8. Nothing contained in the foregoing shall be certification, in addition to other remedies available construed to require establishment of a system of to the Federal Government, the department or records to render in good faith the certification agency Nvith which this transaction originated may required by this clause. The knowledge and pursue available remedies, including suspension information of a participant is not required to and/or debarment. exceed that which is normally possessed by a prudent person in the ordinary course of business 3. The prospective IoNver tier participant shall provide dealings. immediate written notice to the person to which this contract is submitted if at any time the prospective 9. Except for transactions authorized under paragraph lower tier participant learns that its certification was 5 of these instructions, if a participant in a covered erroneous when submitted or has become erroneous transaction knowingly enters into a lower tier by reason of changed circumstances. covered transaction with a person who is Rev. 5/10/2000 AGR.FEI)CERT -27- TGM Grant Agreement No. 18686 TGM File Code I V-99 EA # TGM4GF08 suspended, debarred, ineligible or voluntarily entitled to rely on the accuracy, competence, and excluded from participation in this transaction, in completeness of Contractor's services. addition to other remedies available to the Federal Government, the department or agency with which V. NONDISCRIMINATION this transaction originated may pursue available remedies, including suspension and/or debarment. During the performance of this contract, Contractor, for himself, his assignees and successors in interest, Certification Regarding Debarment, Suspension, hereinafter referred to as Contractor, agrees as follows: Ineligibility, and Voluntary Exclusion--Lower Tier Covered Transactions 1. Compliance with Regulations. Contractor agrees to comply with Title VI of the Civil Rights Act of a. The prospective lower tier participant certifies, 1964, and Section 162(a) of the Federal-Aid by submission of this proposal, that neither it Highway Act of 1973 and the Civil Rights nor its principals is presently debarred, Restoration Act of 1987. Contractor shall comply suspended, proposed for debarment, declared with the regulations of the Department of ineligible or voluntarily excluded from Transportation relative to nondiscrimination in participation in this transaction by any Federal Federally assisted programs of the Department of department or agency. Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from b. Where the prospective Iowcr tier participant is time to time (hereinafter referred to as the unable to certify to any of the statements in this Regulations), which are incorporated by reference certification, such prospective participant shall and made a part of this contract. Contractor, with attach an explanation to this proposal. regard to the work performe8 after award and prior to completion of the contract work, shall not IV. EMPLOYMENT discriminate on grounds of race, creed, color, sex or national origin in the selection and retention of 1. Contractor warrants that lie has not employed or subcontractors, including procurement of materials retained any company or person, other than a bona and leases of equipment. Contractor shall not fide employee working solely for Contractor, to participate either directly or indirectly in the solicit or secure this contract and that he has not discrimination prohibited by Section 21.5 of the paid or agreed to pay any company or person, other Regulations, including employment practices, when than a bona fide employee working solely for the contract covers a program set forth in Contractors, any fee, commission, percentage, Appendix B of the Regulations. brokerage fee, gifts or any other consideration contingent upon or resulting from the award or 2. Solicitation for Subcontractors, including making of this contract. For breach or violation of Procurement of Materials and Equipment. In all this warranting, Department shall have the right to solicitations, either by competitive bidding or annul this contract without liability or in its negotiations made by Contractor for work to be discretion to deduct from the contract price or performed under a subcontract, including consideration or otherwise recover, the full amount procurement of materials and equipment, each { of such fee, commission, percentage, brokerage fee, potential subcontractor or supplier shall be notified gift or contingent fee. by Contractor of Contractor's obligations under this contract and regulations relative to 2. Contractor shall not cn,age, on a full or part-time nondiscrimination on the grounds of race, creed, basis or other basis, during the period of the color, sex or national origin. contract, any professional or technical personnel who are or have been at any time during the period 3. Nondiscrimination in Employment (Title VII of the of this contract, in the employ of Department, 1964 Civil Rights Act). During the performance of except regularly retired employees, without written this contract, Contractor agrees as follows: consent of the public employer of such person. a. Contractor will not discriminate against any 3. Contractor agrees to perform consulting services employee or applicant for employment because with that standard of care, skill and diligence of race, creed, color, sex or national origin. normally provided by a professional in the Contractor will take affirmative action to performance of such consulting services on work ensure that applicants are employed, and that similar to that hereunder. Department shall be employees are treated during employment, Rev. 5/10/2000 AGtt.rr•.ncetrr -28- TGM Grant Agreement No. 18686 TGM File Code 1 V-99 EA # TGM4GF08 without regard to their race, creed, color, sex or direction, Department may, at its option, enter into such national origin. Such action shall include, but litigation to protect the interests of Department, and, in not be limited to the following: employment, addition, Contractor may request Department to enter upgrading, demotion or transfer; recruitment or into such litigation to protect the interests of the State of recruitment advertising; layoff or termination; Oregon. rates of pay or other forms of compensation; and selection for training, including VI. DISADVANTAGED BUSINESS apprenticeship. Contractor agrees to post in ENTERPRISE (DBE) POLICY conspicuous places, available to employees and applicants for employment, notice setting forth in accordance with Title 49, Code of Federal the provisions of this nondiscrimination clause. Regulations, Part 26, Contractor shall agree to abide by and take all necessary and reasonable steps to comply b. Contractor will, in all solicitations or with the following statement: advertisements for employees placed by or on behalf of Contractor, state that all qualified DBE POLICY STATEMENT applicants will receive consideration for employment without regard to race, creed, DBE Policy. It is the policy of the United States color, sex or national origin. Department of Transportation (USDOT) to practice nondiscrimination on the basis of race, color, sex 4. Information and Reports. Contractor will provide and/or national origin in the award and administration all information and reports required by the of USDOT assist contracts. Consequently, the DBE Regulations or orders and instructions issued requirements of 49 CFR 26 apply to this contract. pursuant thereto, and will permit access to his books, records, accounts, other sources of Required Statement For USDOT Financial information, and his facilities as may be determined Assistance Agreement. If as a condition of assistance by Department or FHWA as appropriate, and shall the Agency has submitted and the US Department of set forth what efforts he has made to obtain the Transportation has approved a Disadvantaged Business information. Enterprise Affirmative Action Program which the Agency agrees to carry out, this affirmative action 5. Sanctions for Noncompliance. In the event of program is incorporated into the financial assistance Contractor's noncompliance with the agreement by reference. nondiscrimination provisions of the contract, Department shall impose such agreement sanctions DBE Obligations. The Oregon Department of as it or the FHWA may determine to be Transportation (ODOT) and its contractor agree to appropriate, including, but not limited to: ensure that Disadvantaged Business Enterprises as defined in 49 CFR 26 have the opportunity to a. Withholding of payments to Contractor under participate in the performance of contracts and the agreement until Contractor complies; and/or subcontracts financed in whole or in part with Federal funds. In this regard, Contractor shall take all b. Cancellation, termination or suspension of the necessary and reasonable steps in accordance with agreement in whole or in part. 49 CFR 26 to ensure that Disadvantaged Business Enterprises have the opportunity to compete for and 6. Incorporation of Provisions. Contractor will perform contracts. Neither ODOT nor its contractors include the provisions of paragraphs I through 6 of shall discriminate on the basis of race, color, national this section in every subcontract, including origin or sex in the award and performance of procurement of materials and leases of equipment, federally-assisted contracts. The contractor shall carry unless exempt from Regulations, orders or out applicable requirements of 49 CFR Part 26 in the instructions issued pursuant thereto. Contractor award and administration of such contracts. Failure by shall take such action with respect to any the contractor to carry out these requirements is a subcontractor or procurement as Department or material breach of this contract, which may result in FHWA may direct as a means of enforcing such the termination of this contract or such other remedy as provisions, including sanctions for noncompliance; ODOT deems appropriate. provided, however, that in the event Contractor becomes involved in or is threatened with litigation The DBE Policy Statement and Obligations shall be with a subcontractor or supplier as a result of such included in all subcontracts entered into under this contract. Rev. 5/102000 AGR.FEDCERT -29- I= mi TGM Grant Agreement No. 18686 TGM File Code IV-99 EA # TGM4GF08 influence an officer or employee of any Federal Records and Reports. Contractor shall provide agency, a Member of Congress, an officer or monthly documentation to Department that it is employee of Congress or an employee of a Member subcontracting with or purchasing materials from the of Congress in connection with the awarding of any DBEs identified to meet contract goals. Contractor Federal contract, the making of any Federal grant, shall notify Department and obtain its written approval the making of any Federal loan, the entering into of before replacing a DBE or making any change in the any cooperative agreement, and the extension, DBE participation listed. If a DBE is unable to fulfill continuation, renewal, amendment or modification the original obligation to the contract, Contractor must of any Federal contract, grant, loan or cooperative demonstrate to Department the Affirmative Action agreement. steps taken to replace the DBE with another DBE. Failure to do so will result in withholding payment on 2. If any funds other than Federal appropriated funds those items. The monthly documentation will not be have been paid or will be paid to any person for required after the DBE goal commitment is satisfactory influencing or attempting to influence an officer or to Department. employee of any Federal agency, a Member of Congress, an officer or employee of Congress or an Any DBE participation attained after the DBE goal has employee of a Member of Congress in connection been satisfied should be reported to the Departments. with this agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form DBE Definition. Only firms DBE certified to Report Lobbying", in accordance with its by the State of Oregon, Department of Consumer & instructions. Business Services, Office of Minority, Women & Emerging Small Business, may be utilized to satisfy This certification is a material representation of fact this obligation. upon which reliance was placed when this transaction was made or entered into. Submission of this CONTRACTOR'S DBE CONTRACT GOAL certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, DBE GOAL 0 % U. S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not By signing this contract, Contractor assures that good less than $10,000 and not more than $100,000 for each faith efforts have been made to meet the goal for the such failure. DBE participation specified in the Request for Proposal/Qualification for this project as required by The Contractor also agrees by signing this agreement ORS 200.045, and 49 CFR 26.53 and 49 CFR, Part 26, that he or she shall require that the language of this Appendix A. certification be included in all lower tier subagreements, which exceed $100,000 and that all VII. LOBBYING such subrecipients shall certify and disclose accordingly. The Contractor certifies, by signing this agreement to the best of his or her knowledge and belief, that: FOR INQUIRY CONCERNING ODOT' S 1. No Federal appropriated funds have been paid or DBE PROGRAM REQUIREMENT will be paid, by or on behalf of the undersigned, to CONTACT OFFICE OF CIVIL RIGHTS any person for influencing or attempting to AT (503)986-4354. Rev. 511020011 AORYPME.RT -30- L ~v AGENDA ITEM # 4 FOR AGENDA OF October 24.2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Recognize Korean War Veterans of Tigard PREPARED BY: Susan Koepping DEPT HEAD OKUL Wb4Yf" CITY MGR OK l ISSUE BEFORE THE COUNCIL The City Council will recognize Korean War veterans from Tigard. STAFF RECOMMENDATION Tigard City Council, on behalf of the citizens of Tigard, will recognize these individuals as representatives of local veterans who served during the Korean War and their families. INFORMATION SUMMARY Korean War veterans will present brief statements concerning their service during the Korean War. Patsy Nestor, a native of Bend, Oregon, served in the Womens' Army Corps as a dental technician in Washington at Camp Hanford and Fort Lawton near Seattle. Dorsie Olds, Army infantry, 2nd Division, was in combat while stationed in Korea from October 1952, until the war ended. Chuck Woodard enlisted in the Navy Air Corps providing radar operations for a squadron. He was stationed in Alameda California, Hawaii, Japan and Guam. While in Japan he flew coastal patrols as far North as Vladavostok, Russia. Herb Gulling served aboard the USS Foss, a destroyer escort, as a clerk. The USS Foss at one time supplied power to the city of Hungnam which is above the 38`h parallel. The ship had to depart when Hungnam was bombr i. Patsy Nestor will present to Mayor Griffith a book, Forgotten Heros• The Medal of Honor: Korea: 1950 - 1953 which will be added to the Tigard Library. OTHER ALTERNATIVES CONSIDERED Recognize Korean War Veterans at another time. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY None FISCAL NOTES None LM Tigard American Legion Post 158 x SW Scoflins St. Tigard. OR 9732: US;"y~►' (Mailing) PO Bo\ 23482.Tigard. OR 07281-3482 BEING IN THE SERVICE DURING WAR TIME IS A DIFFERENT EXPERIENCE THAN SERVING DURING PEACE TIME. I WAS IN THE WOMENS ARMY RP--KNOWN AS THE WACS. I WAS A DENTAL TECHNICIAN. I TOOK MY BASIC TRAINING IN FT. LEE, VA. WENT TO DENTAL TECHNICIAN SCHOOL AT FT. SAM HOUSTON, TEXAS. I SERVED THE REST OF MY TIME IN THE SERVICE, IN THE STATE OF WASHINGTON AT CAMP HANFORD AND AT FT. LAWTON IN SEATTLE. I ENLISTED INTO THE SERVICE FROM BEND, OREGON. AS A MOTHER AND GRANDMOTHER, MY FEELINGS ARE THAT WOMEN SHOULD NOT SERVE IN COMBAT, ESPECIALLY THOSE WITH CHILDREN. WHEN I SERVED YOU COULDN'T HAVE ANY DEPENDENTS UNDER 18. AS WOMEN WE WERE DISCRIMINATED AGAINST AND WE WEREN'T AWARE THAT THIS WAS BEING DONE TO US. AS A DENTAL TECHNICIAN I COULD NOT HOLD AN ENLISTED RATING OF MORE THAN A CORPOREAL. ONLY A MALE COULD HOLD A SERGEANTS RATING. BEING IN THE SERVICE CHANGES YOUR LIFE NO MAT'T'ER WHEN OR WHERE YOU SERVE, BUT THE CHANGES IT MAKES IN A PERSON SERVING IN COMBAT, CHANGES THAT PERSONS FOR THE REST OF THEIR LIFE. MY EXPERIENCES WERE SEEING SOLDERS RETURNING FROM KOREA AND SEEING FIRST HAND WHAT THE WAR COULD DO. THE MEDICAL FIELD SCHOOL AT FT. SAM HOUSTON RECEIVED CASUALTIES 72 HOURS AFTER SOLDERS WERE WOUNDED ON THE BATTLEFIELDS. SEEING THESE MEN AND WHAT THEY HAVE GONE THROUGH CHANGES YOUR LIFE. IT IS SOMETHING YOU WILL ALWAYS REMEMBER. YOU ALSO REMEMBER THE GOOD TIMES AND COMRADESHIPS YOU HAD IN T'HE SERVICE. phone(503)624-2332 fax(503)968-6277 AGENDA ITEM # _ 5 FOR AGENDA OF October 24.2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Proposed Revisions to the Board and Committee Appointment Process PREPARED BY:_ Liz Newton DEPT HEAD OK ITY MGR OK ISSUE BEFORE THE COUNCIL Council consideration of revisions to the board and committee appointment process clarifying the role of the staff liaison. STAFF RECOMMENDATION Adopt the attached resolution which, if approved, would modify the board and committee appointment process to include the staff liaison as a resource in the applicant interviews. INFORMATION SUMMARY At the September 19, 2000, City Council meeting staff presented a proposal to modify the procedure for appointments to boards and committees. Staff's proposal was to increase the role of the staff liaison by having him or her assist in the selection of interviewees and participate in the interview process. After some discussion, consensus of the Council was to have the staff liaison "sit in" on the interviews but not ask questions of the candidates or vote on whom should be recommended for appointment to the full City Council. A copy of the September 19, 2000, meeting minutes is attached. A resolution is attached which, if adopted, would modify the staff liaison role as agreed to by Council. The resolution would supercede Resolution 95-60 (attached) and revise the section that describes the staff liaison role in the board and committee interview process. The staff liaison appointed by the department head would provide information to the Mayor's Appointment Advisory Committee members. The staff liaison would not question candidates or have a vote in the selection but would provide an overview to the candidates explaining the function of the board or committee and its activities and could point out the present make up of the board or committee including gaps in expertise or interests. OTHER ALTERNATIVES CONSIDERED Leave the staff liaison role as currently defined. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY Community Character and Quality of Life - Goal #1 - Volunteerism The City will maximize the effectiveness of the volunteer spirit to accomplish the greatest good for our community. FISCAL NOTES No direct costs. Staff liaison schedules can be modified to avoid overtime costs. I:UDMICRV COUNCILVCOUNCIL AGENDA REM SUMMARIESV2EVISE DdC APPOINT PROCESS.DOC s CITY OF TIGARD, OREGON RESOLUTION NO. 95-(00 A RESOLUTION ESTABLISHING A PROCEDURE FOR RECRUITMENT AND APPOINTMFMS TO BOARDS AND COMMITTEES WHEREAS, the City of Tigard wants to appoint interested citizens to serve on various Boards and Committees; and WHEREAS, Section 20 of the Tigard Charter gives the mayor the authority to appoint fellow Council members to internal committees which have been formed by Council rule; and WHEREAS, there are no rules in the Charter governing committees which are created by an ordinance or resolution of Council, where prospective appointees are from the community; and WHEREAS, a written. procedure for recruitment and interviewing individuals for Board and Committee appointments would provide consistency and minimize delays in filling vacancies. NOW, THEREFORE, BE IT RESOLVED by the Tigard City Council that: Section 1: Tigard City Council hereby adopts the following procedure for recruitment, interviewing and appointments to the Budget Committee, the Library Board, and the Planning Commission. 1. Three months prior to the expiration of any term(s) on the Library Board, Planning Commission or Budget Committee, a recruitment notice shall appear in the Cityscape. In addition, any incumbent(s) eligible for reappointment shall be contacted to determine their interest in reappointment. 2. Individuals interested in being considered for appointment to the Budget Committee, Planning Commission, or Library Board shall submit a completed "Citizen's Interest Application" by the deadline submitted in the CityScape 3. The Mayor and Councilor serving on the Mayor's Appointments Advisory Committee shall be contacted and a time shall be scheduled to interview interested individuals two (2) months prior to the expiration-of any term(s). RESOLUTION NO. 95- Page 1 4. The staff liaison for the Board or Committee shall review the applications submitted and make recommendations to the Mayor's Appointments Advisory Committee on those individuals to interview. 5. The Mayor and Councilor on the Mayor's Appointment Advisory Committee shall review the applications and, considering the recommendations of the staff liaison, select those individuals to be interviewed. Any incumbent(s) eligible for reappointment shall also be interviewed. 6. The Mayor's Appointment Advisory Committee shall make a recommendation to the full City Council no more than thirty (30) days prior to the expiration of any term(s). 7. Individuals not selected for an interview or individuals interviewed but not appointed shall be notified in writing. 8. Individuals appointed or reappointed shall be notified in writing at. least twenty (20) days prior to the expiration of the term to which they are appointed. 9. The staff liaison shall contact the newly appointed Board or Commission member at least two (2) weeks prior to the beginning of the term to schedule an orientation. Reappointed members shall also be contacted and provided an opportunity to discuss issues of concern or interest with the staff liaison. Section 2: Appointments of Council members to internal committees formed )qy Council rule shall be made by the Mayor. PASSED: This' I day of 1995. i ' M - City of Tigard Z /1' ATTEST: a W City Recorder - City of Tigard RESOLUTION NO. 95- Page 2 C. Changes by capping administrative costs at 25 percent. Currently there is no cap on administrative costs. Administrative costs include such items as Storage fees (for seized vehicles), attorney costs, court processing and appearances. o Ballot Measure 7 - Compensation if Government Regulation Reduces Property Value Ms. Newton explained that this measure amends the Constitution and would require local municipalities to reimburse property owners whose property value was reduced as a result of a government regulation. The measure does not apply to federal regulations or nuisance laws. In response to questions from Council, Ms. Newton explained that this measure could make the local municipalities financially responsible for reduced properry values resulting from State regulations. The estimated cost of the measure is $3.8 billion. o Ballot Measure 87 - Regulation of Sexually-Oriented Businesses through Zoning Ms. Newton explained that this measure would bring the Oregon Constitution more in line with the federal Constitution. The amendment changes the Oregon Constitution to allow regulation of sexually-oriented businesses through content. Councilor Patton pointed out that the measure was referred by the State Legislature. 6. DISCUSSION OF THE PROCEDURE FOR APPOINTMENTS TO BOARDS AND COMMITTEES AND CONSIDER PROPOSED REVISIONS Staff Report and Discussion: This change was proposed by City Manager Monahan. Assistant to the City Manager Liz Newton discussed the proposed revision of increasing the role of the staff liaison by having him/her assist in the selection of interviewees, and participate in the interview process. Since the staff liaison is aware of the committee's/board's issues, and existing member composition, his/her participation may offer additional insight into the committee's/board's membership needs. Councilor Scheckla commented that the current process seems to work well and he didn't support the change. He indicated that he likes to interview all candidates that apply for a vacancy. Mayor Griffith suggested that the staff liaison might serve as an advisory resource. Councilor Patton said that although it may be fitting for the staff liaison to ",sit in" on the interview, she didn't think it appropriate for him/her to ask questions of the candidates. Ms. Newton stated the Council's direction would be reflected in the upcoming revisions. COUNCIL MEETING MINUTES - SEPTEMBER 19, 2000 - PURGE 4 AGENDA ITEM # [o FOR AGENDA OF October 24. 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE: An ordinance granting to Portland general Distribution Co. a franchise to conduct a telecommunications business in the City of Tigard, Oregon, including the right to place poles, wires, and other appliances for telecommunication purposes in the public rights-of-way; authorizing the Mayor to sign this agreement; and declaring an emergency. PREPARED BY: C. Prosser DEPT HEAD OK _ O CITY MGR OK uAd-IL ISSUE BEFORE THE COUNCIL Shall the Council approve an ordinance to establish a new franchise agreement for local telephone services provided by Portland General Distribution Co.? STAFF RECOMMENDATION Staff recommends approval of the franchise agreement. INFORMATION SUMMARY Portland General Distribution Co. (PGD) has requested a franchise from the City of Tigard to offer telecommunication fiber within the City limits. The attached ordinance establishes that franchise, including the rights and responsibilities of the City and of Portland General Distribution Co. PGD is a subsidiary of PGE. PGE plans to install conduit and telecommunications fiber in open trenches throughout the City. PGD will then lease the conduit or the fiber to other telecommunication companies (which will also require a City franchise). PGD does not currently plan to provide direct telecommunications services. The attached ordinance is based on the City's master telecommunication franchise agreement, with the following modifications: • Section 6. Provision for self-insurance. PGD will be self-insured. The franchise agreement has been modified to allow self-insurance as an option. • Section 8. Reserves the right to the City to require PGD to remove or modify abandoned lines. In the event that PGD no longer maintains its telecommunications lines, the City Engineer may require PGD to remove or modify those lines, or may have the lines removed at PGD's expense. This section will become a standard requirement of all future City franchises. • Section 9. Requires PGD to provide a one-time notification to the City any time it leases out its telecommunications conduit or fiber. This section was added in recognition of the nature of PGD's business: it will not be providing direct services to retail customers; rather PGD will lease its conduit and fiber to other direct providers. Those providers will require a City franchise. This notification ensures that the City is aware that these companies are doing business in Tigard. • Section 13. The franchise fee will consist of a minimum payment of $7,500 per year or 5% or gross revenues, whichever is greater. The City will start charging a minimum franchise fee of $7,500 on this and all future franchises. Much of the inspection and oversight work occurs in the early years of a franchise, before the company starts generating gross revenues. Instituting a minimum fee ensures that the City's costs during this start-up period are covered. When 5% of the company's gross revenues exceed $7,500, the company will start paying the higher amount. This will become a standard requirement of all future franchises. OTHER ALTERNATIVES CONSIDERED Do not approve the local telephone access franchise agreement. 4 VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A FISCAL NOTES Telephone franchise agreements generate General Fund revenue based on a minimum fee of $7,500 or 5% of the franchisee's revenues generated within the City of Tigard, whichever is greater. AGENDA ITEM # FOR AGENDA OF October 24, CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE: Granting a non-exclusive cable and broadband access services franchise agreement to RCN Corporation doing business as RCN Telecom Services of Oregon, Inc. PREPARED BY: C. Prosser DEPT HEAD OK - Op- CITY MGR OK _ ISSUE BEFORE THE COUNCIL Shall the Council approve an ordinance to establish a new franchise agreement for cable television services provided by RCN Corporation? STAFF RECOMMENDATION Staff recommends approval of the franchise agreement. INFORMATION SUMMARY RCN Corporation plans to offer "bundled" cable and telecommunications services in the Portland Metropolitan area. Bundled franchises will provide cable and telecommunications (data and voice) services over a common line. Bundled providers are straining Oregon's regulatory system (basically, technology has evolved more quickly than the regulatory structure.) Cable franchises are negotiated and administered by the Metropolitan Area Communications Commission (MACC), though each local government must approve a separate cable franchise agreement. Telecommunications franchises are negotiated and administered by local governments. This ordinance adopts the cable franchise agreement. It is not the standard City franchise agreement because it was negotiated by and will be administered by MACC. The term of the franchise is 14 years. The franchise requires RCN to pay a fee based on 5% of RCN's gross revenues. Franchise fees are shared back with the City of Tigard based on services within the City. This franchise agreement and the issues associated with "bundled" service providers were presented to the Council in the October 17 Workshop. OTHER ALTERNATIVES CONSIDERED Do not approve the cable franchise agreement. VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A FISCAL NOTES Cable franchise agreements generate General Fund revenue based on 5% of the franchisee's revenues generated within the City of Tigard. PROPOSED CABLE, BROADBAND ACCESS, AND TELECOMMUNICATIONS SERVICES FRANCHISE AGREEMENT BETWEEN CITY OF TIGARD AND RCN TELECOM SERVICES OF OREGON, INC. PREAMBLE This Franchise Agreement (hereafter "Agreement") is entered into effective on the 15th day of September, 2000, by and between the Oregon cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, North Plains, Rivergrove, Tigard, and Tualatin, together with Washington County, Oregon, individually and collectively, (hereafter "Grantors"), who by Intergovern mental Cooperation Agreement (hereafter "IGA" joined together in 1980 as the Metropolitan Area Communications Commission (hereafter "Commission"), along with the cities of Banks and Gaston, to work cooperatively and jointly on communications issues, in particular the joint franchising of communications services and the common administration and regulation of such franchise agreements, and RCN Telecom Services of Oregon, Inc. (hereafter "Grantee"), a registered corporation in the State of Oregon. WHEREAS, Grantee has properly requested that a franchise agreement with the Commission and its member jurisdictions be granted to provide service within the MACC jurisdictional boundaries; and WHEREAS, the Grantors are authorized by the IGA to grant one or more nonexclusive franchises to construct, operate, and maintain such communications systems within the combined boundaries of the member jurisdictions; and WHEREAS, the Grantors have negotiated a franchise agreement with the Grantee which is reasonably comparable with other existing franchise agreements, as required by those agreements; and WHEREAS, the Grantors have considered the financial condition, technical ability, and legal qualifications of the Grantee to construct, operate and maintain such a system, and to provide services to the territory included within the MACC jurisdictional boundaries, and following due consideration, have approved and found sufficient the Grantee's qualifications; and PROPOSED MACC / RCN FRANCHISE August 18, 2000 1 WHEREAS, the Grantee is willing to accept this Agreement subject to its terms and conditions and to abide by those terms and conditions; and WHEREAS, the public has had adequate notice and opportunity to comment on Grantee's application for a franchise agreement; and WHEREAS, the governing body of each Grantor will separately adopt this franchise agreement, and an additional franchise for telecommunications services pursuant to this Agreement, and in these regards it is intended that Grantee shall rely upon, look to, communicate with, and comply with the orders and decisions of the Commission, its agents and employees for all matters upon which the Commission has authority to act and which are relevant to carrying out the purposes of this Agreement; and WHEREAS, Grantors intend to be bound by decisions and actions of the Commission taken pursuant to its powers, duties and responsibilities as set forth in the IGA; NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES MADE HEREIN AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH IS HEREBY ACKNOWLEDGED, THE GRANTORS AND THE GRANTEE TO HEREBY ENTER INTO AND AGREE UPON THE FOLLOWING FRANCHISE AGREEMENT, AS OF THE DATE HEREINABOVE FIRST WRITTEN: PROPOSED MACC / RCN FRANCHISE August 18, 2000 2 CABLE, BROADBAND ACCESS, AND TELECOMMUNICATIONS SERVICES FRANCHISE AGREEMENT BETWEEN MEMBERS OF THE METROPOLITAN AREA C .M. MUNICATIONS COMMISSION AND RCN TELECOMMUNICATIONS SERVICES OF OREGON, INC. TABLE OF CONTENTS PREAMBLE p. 1-2 PART 1 - PROVISIONS APPLICABLE TO ALL SERVICES SECTION 9 - DEFINITIONS p. 3 _ 8 1.1 ACCESS 1.2 ACCESS CENTER 1.3 ACCESS CHANNEL 1.4 AFFILIATE 1.5 AGREEMENT OR FRANCHISE 1.6 BASIC SERVICE 1.7 BROADBAND ACCESS SERVICE 1.8 CABLE ACTS 1.9 CABLE OPERATOR 1.10 CABLE SERVICE 1.11 CABLE SYSTEM 1.12 CHANNEL 1.13 COMMENCEMENT OF CONSTRUCTION 1.14 COMMISSION 1.15 DESIGNATED ACCESS PROVIDER 1.16 DOWNSTREAM 1.17 FCC 1.18 FIBER OPTIC 1.19 FRANCHISE AREA 1.20 GRANTEE 1.21 GRANTOR 1.22 GROSS REVENUES 1.23 HEADEND OR HUB 1.24 INCUMBENT CABLE OPERATOR 1.25 INSTITUTIONAL NETWORK 1.26 INTERCONNECTION 1.27 LEASED ACCESS CHANNEL 1.28 MACC i ME 11011 I'm 1.29 NETWORK FACILITIES 1.30 NODE 1.31 ORIGINATION POINT 1.32 PERSON 1.33 PUBLIC COMMUNICATIONS NETWORK (PCN) 1.34 PUBLIC RIGHTS OF WAY 1.35 QUARTERLY 1.36 SCHOOL 1.37 STREET 1.38 SUBSCRIBER 1.39 TELECOMMUNICATIONS SERVICE 1.40 UPSTREAM 1.41 URBAN GROWTH BOUNDARY SECTION 2 - GRANT OF FRANCHISE p. 9 -12 2.1 GRANT 2.2 USE OF PUBLIC STREETS AND WAYS 2.3 DURATION 2.4 EFFECTIVE DATE 2.5 FRANCHISE NONEXCLUSIVE 2.6 GRANT OF OTHER FRANCHISES 2.7 POLICE POWERS 2.8 RELATIONS TO OTHER PROVISIONS OF LAW 2.9 EFFECT OF ACCEPTANCE 2.10 FAMILIARITY WITH AGREEMENT 2.11 FUTURE CHANGES IN LAW SECTION 3 - FRANCHISE FEE AND FINANCIAL CONTROLS p. 13 - 16 3.1 FRANCHISE FEES 3.2 PAYMENTS 3.3 ACCEPTANCE OF PAYMENT AND RECOMPUTATION 3.4 QUARTERLY FRANCHISE FEE REPORTS 3.5 ANNUAL FRANCHISE FEE REPORTS 3.6 AUDITS/REVIEWS 3.7 INTEREST ON LATE PAYMENTS 3.8 ALTERNATIVE REMEDIES 3.9 ADDITIONAL COMMITMENTS NOT FRANCHISE FEES 3.10 COSTS OF PUBLICATION 3.11 TAX LIABILITY 3.12 PAYMENT ON TERMINATION 3.13 INCIDENTAL PAYMENT 3.14 CLASSIFICATION OF PAYMENTS DUE ii SECTION 4 - ADMINISTRATION AND REGULATION p. 17 -18 4.1 AUTHORITY 4.2 TIME LIMITS STRICTLY CONSTRUED 4.3 PERFORMANCE EVALUATION SECTION 5 - FINANCIAL AND INSURANCE REQUIREMENTS p. 19 - 24 5.1 INSURANCE REQUIREMENTS 5.2 DEDUCTIBLES AND SELF-INSURED RETENTIONS 5.3 INDEMNIFICATION 5.4 LETTER OF CREDIT 5.5 PERFORMANCE BOND SECTION 6 - REPORTS AND RECORDS p. 25 - 26 6.1 OPEN RECORDS 6.2 CONFIDENTIALITY 6.3 COPIES OF FEDERAL AND STATE DOCUMENTS 6.4 INSPECTION OF FACILITIES 6.5 FALSE STATEMENTS 6.6 REPORT EXPENSE SECTION 7 - SYSTEM CONSTRUCTION REQUIREMENTS p. 27 - 38 7.1 NETWORK FACILITIES DESIGN AND CONTSTRUCTION 7.2 SERVICE AVAILABILITY 7.3 CONNECTION OF PUBLIC FACILITIES 7.4 CONSTRUCTION REGULATIONS 7.5 LOCATION OF FACILITIES 7.6 RELOCATION 7.7 RESTORATION OF STREETS 7.8 MAINTENANCE AND WORKMANSHIP 7.9 RESERVATION OF GRANTOR STREET RIGHTS 7.10 USE OF CONDUITS BY GRANTOR 7.11 STREET VACATION ? 7.12 DISCONTINUING USE OF FACILITIES ' 7.13 HAZARDOUS SUBSTANCES 7.14 UNDERGROUNDING OF FIBER OPTIC FACILITIES 7.15 CODES 7.16 STANDARDS SECTION 8 - STANDBY POWER p.39 • SECTION 9 - FRANCHISE VIOLATIONS: REVOCATION OF FRANCHISE p. 40 - 46 9.1 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS 9.2 FINES 9.3 REVOCATION 9.4 RELATIONSHIP OF REMEDIES 9.5 REMOVAL 9.6 RECEIVERSHIP AND FORECLOSURE 9.7 NO RECOURSE AGAINST GRANTOR 9.8 NONENFORCEMENT BY GRANTOR SECTION 10 -ABANDONMENT p. 47 • 10.1 EFFECT OF ABANDONMENT 10.2 WHAT CONSTITUTES ABANDONMENT SECTION 11 - TRANSFER I CHANGE OF CONTROL OF AGREEMENT p. 48 - 49 SECTION 12 - SEVERABILITY p. 50 SECTION 13 - MISCELLANEOUS PROVISIONS p. 51-53 13.1 PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED 13.2 DISPUTE RESOLUTION 13.3 NOTICES 13.4 BINDING EFFECT 13.5 AUTHORITY TO AMEND 13.6 GOVERNING LAW 13.7 GUARANTEE 13.8 CAPTIONS 13.9 ENTIRE AGREEMENT 13.10 CONSTRUCTION OF AGREEMENT 13.11 FRANCHISE REVIEW iv PART 2 - PROVISIONS APPLICABLE ONLY TO CABLE AND BROADBAND ACCESS SERVICES SECTION 14 - ADMINISTRATION AND REGULATION p. 54 - 55 14.1 RATES AND CHARGES 14.2 RATE DISCRIMINATION 14.3 CROSS SUBSIDIZATION 14.4 SUBSCRIBER CONTRACTS 14.5 FILING OF RATES AND CHARGES 14.6 EQUIVALENT SERVICE SECTION 15 - GRANT FUND SUPPORT p. 56 SECTION 16 - CUSTOMER SERVICE p. 57 - 61 16.1 DEFINITIONS 16.2 LOCAL OFFICE 16.3 TELEPHONE ANSWERING STANDARDS 16.4 INSTALLATIONS, OUTAGES AND SERVICE CALLS 16.5 NOTICE REQUIREMENTS 16.6 SPECIAL NOTICE PROCEDURES 16.7 BILLING 16.8 SUBSCRIBER PRIVACY 16.9 EMERGENCY BROADCAST 16.10 MACC BILL INSERTION SECTION 17 - CABLE AND BROADBAND REPORTS AND RECORDS p. 62 - 63 17.1 COMPLAINTS 17.2 CONSTRUCTION 17.3 CUSTOMER SERVICE 17.4 TELEPHONE ANSWERING 17.5 REQUESTS FOR ADDITIONAL INFORMATION SECTION 18 - PROGRAMMING p. 64 - 65 18.1 BROAD PROGRAMMING CATEGORIES 18.2 OPEN ACCESS 18.3 PARENTAL CONTROL DEVICE 18.4 LEASED ACCESS CHANNELS 18.5 CONTINUITY OF SERVICE 18.6 SERVICE FOR THE DISABLED v SECTION 19 - TEST AND COMPLIANCE PROCEDURES p. 66 SECTION 20 - INSTITUTIONAL NETWORK (I-NET) p. 67 - 72 20.1 CONSTRUCTION AND GENERAL CONDITIONS 20.2 NETWORK CONSTRUCTION AND EQUIPMENT COSTS 20.3 1-NET ACTIVATION 20.4 DESIGN REVIEW 20.5 I-NET FIBER 20.6 FIBER ROUTING 20.7 I-NET USES. 20.8 I-NET DEMARCATION POINTS 20.9 I-NET HEADEND(S) 20.10 GRANTOR CONTINUED USE OF THE I-NET 20.11 GRANTOR AS "GATEKEEPER" FOR I-NET 20.12 GRANTEE I-NET AGREEMENT 20.13 GRANTEE ENCHANCED SERVICES 20.14 ADDITIONAL CAPACITY OR SITES 20.15 1-NET UPGRADE 20.16 INTERNET SERVICE TO GOVERNMENT & EDUCATIONAL USERS SECTION 21 - CABLE MODEM SERVICES TO GRANTOR p. 73 SECTION 22 - PUBLIC, EDUCATIONAL & GOVERNMENTAL ACCESS (PEG) p. 74 - 81 22.1 GENERAL DEFINITIONS 22.2 MANAGEMENT AND CONTROL OF ACCESS CHANNELS 22.3 CHANNEL CAPACITY AND USE 22.4 ACCESS CHANNEL DESIGNATIONS & RELOCATION OF ACCESS CHANNELS 22.5 ACCESS ORIGINATION POINTS 22.6 ACCESS INTERCONNECTIONS 22.7 TRIGGER FOR EXPANSION OF ACCESS CHANNELS 22.8 ACCESS SUPPORT NOT FRANCHISE FEES 22.9 ACCESS CHANNELS ON LOWEST AVAILABLE TIER 22.10 CHANGE IN TECHNOLOGY 22.11 TECHNICAL QUALITY 22.12 PROMOTIONAL SERVICES 22.13 CHANNEL IDENTIFICATION SECTION 23 - RENEWAL p. 82 vi PART 3 - PROVISIONS APPLICABLE TO TELECOMMUNICATIONS SERVICES SECTION 24 - GRANT OF FRANCHISE p. 83 24.1 CONDITIONS OF GRANT 24.2 FRANCHISE FEE ATTACHMENT 20 A I-NET AGENCY SITES AND AGENCY HUB LOCATIONS p. 84 ATTACHMENT 2013 i-NET SERVICE AND PERFORMANCE STANDARDS p. 85 - 87 ATTACHMENT 22.5 A PERMANENT PEG ORIGINATION SITES p. 88 7 a vii - PART 1 - PROVISIONS APPLICABLE TO ALL SERVICES SECTION 1 - DEFINITIONS For the purposes of this Agreement and all attachments included hereto, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words not defined shall be given their common and ordinary meaning. The words "shall", "must", and "will" are always mandatory and not merely directory, and the word "may" is merely directory and not mandatory. 1.1 Access means the availability for noncommercial use by various agencies, institutions, organizations, groups and individuals in the community, including Grantor and its designees, of the Network Facilities to acquire, create, receive, and distribute video, Cable Service, and signals as permitted under applicable law, which includes the following: A) Public Access which means Access where organizations, groups or individual members of the general public, on a nondiscriminatory basis, are the primary users; B) Educational Access which means Access where schools and educational institutions are the primary users of programming and service C) Governmental Access which means Access where governmental institutions are the primary users of programming and service; and D) PEG Access which means Public Access, Educational Access, and Governmental Access, collectively. 1.2 Access Center means a facility or facilities where Public, Educational, or Governmental use signals are managed and delivered to the Grantee for Downstream transmission to Subscribers or to other Access Centers via a dedicated connection. 1.3 Access Channel means any Channel, or portion thereof, designated for ` non-commercial Access purposes or otherwise made available to facilitate or transmit Access programming or service. 1.4 Affiliate when used in connection with Grantee means any corporation, Person or entity that owns or controls Grantee, is owned or controlled, in whole or in part, by Grantee or its indirect parent, RCN Corporation, or is under common ownership or control with, Grantee. PROPOSED MACC / RCN FRANCHISE August 18, 2000 3 1.5 Agreement or Franchise means the non-exclusive and revocable authorization or renewal thereof for the construction or operation of Network Facilities such as is granted by this Agreement, whether such authorization is designated as a Franchise, license, resolution, contract, certificate, agreement, or otherwise. 1.6 Basic Service means any service tier which includes the retransmission of local television broadcast signals and Public, Educational, and Governmental Access Channels, or such service tier as may be further defined by federal law. 1.7 Broadband Access Service means voice and information services, including Internet access via cable modem or equivalent technology, data transmission and networking services, and other hybrid and interactive services, to the extent such services are offered over Grantee's Network Facilities. Broadband Access Service shall not include: (i) "dial-up" access to the Internet services of third party information service providers, Grantee, or its Affiliates, or (ii) unbundled Broadband Access Services offered by Grantee on an "open platform" basis to third party information service providers. 1.8 Cable Acts means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992 and any amendments thereto, including those contained in the Telecommunications Act of 1996. 1.9 Cable Operator means any Person or group of Persons, including Grantee, who provide Cable Services over a Cable System and directly or through one or more affiliates owns a significant interest in such Cable System, or who otherwise controls or is responsible for, through any arrangement, the management and operation of such Cable System. 1.10 Cable Service has the meaning given in 47 USC Section 522(6). 1.11 Cable System means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term includes the exceptions set forth in federal law at 47 USC Section 522(7). 1.12 Channel means a portion of the electromagnetic frequency spectrum used on Network Facilities and which is capable of delivering video signal whether in an analog or digital format. This definition does not restrict the use of any channel to the transmission of analog video signals. 1.13 Commencement of Construction means making any physical change to, occupying or in any way changing the appearance of the Public Rights of Way or utility easements described in this Agreement. PROPOSED MACC / RCN FRANCHISE August 18, 2000 4 1.14 Commission means the governing body of the Metropolitan Area Communications Commission and its officers, agents and employees, created and exercising its powers pursuant to an Intergovernmental Cooperation Agreement entered into by Grantors herein, as authorized by state law (particularly ORS Chapter 190) and the laws, charters, and other authority of the individual member units of local government which are members of the Commission. The Commission's powers have been delegated to it by Grantors and although it may exercise those powers as an entity, it remains a composite of Grantors. 1.15 Designated Access Provider means the entity or entities designated by the Grantor to manage or co-manage Public, Educational, or Governmental Channels and facilities. The Grantor may be a Designated Access Provider. 1.16 Downstream means the transmission from the Headend to remote points on the Network Facilities or to Interconnection points on such facilities. 1.17 FCC means the Federal Communications Commission. 1.18 Fiber Optic means a transmission medium of optical fiber cable, along with all associated electronics and equipment capable of carrying Cable Services, Broadband Services, Telecommunications Services, and an Institutional Network by means of electric lightwave impulses. 1.19 Franchise Area means the area within the jurisdictional boundaries of the signers of the Intergovernmental Agreement that comprise the Metropolitan Area Communications Commission. Any additional signers during the term of this Agreement would be included only upon mutual written agreement of the Grantor and Grantee. 1.20 Grantee means RCN Telecom Services of Oregon, Inc., whose ultimate parent company is RCN Corporation. 1.21 Grantor means, individually and collectively, the Oregon cities of Beaverton, Cornelius, Durham, Forest Grove, Hillsboro, King City, Lake Oswego, North Plains, Rivergrove, Tigard, and Tualatin, together with Washington County, Oregon, who, by Intergovernmental Cooperative Agreement, joined together in • 1980 as the Metropolitan Area Communications Commission. a 1.22 Gross Revenues means all amounts, in whatever form and from all sources, earned either by the Grantee from the operation of Grantee's Network Facilities to provide Cable Services, Broadband Access Services, and ' Telecommunications Services within the Franchise Area, or by any Affiliate only to the extent such amounts are earned from the operation of Grantee's Network Facilities to provide Cable Services and Broadband Access Services within the PROPOSED MACC / RCN FRANCHISE August 18, 2000 5 Franchise Area. "Gross Revenues" shall include, without limitation, amounts for Basic Service, tiers of service and premium services, audio services, Broadband Access Services, Subscriber installations and transactions, leased access, advertising, equipment rentals, and all other revenues derived from the operation of Grantee's Network Facilities. Revenues that are not directly attributable to specific customers, such as advertising revenue, advertising commissions paid to and/or earned by any party for providing advertising-related services to the Grantee, and home shopping commissions, shall be allocated to systems and jurisdictions on a per Subscriber basis measured in a consistent manner from period to period. "Gross Revenues" shall not be net of. (1) any operating expense; (2) any accrual, including without limitation, any accrual for commissions; or (3) any - other expenditure, regardless of whether such expense, accrual, or expenditure reflects a cash payment. "Gross Revenues", however, shall not be double counted. Revenues of both Grantee and an Affiliate that represent a transfer of funds between the Grantee and the Affiliate, and that would otherwise constitute Gross Revenues of both the Grantee and the Affiliate, shall be counted only once for purposes of determining Gross Revenues. Similarly, operating expenses of the Grantee which are payable from Grantee's revenue to an Affiliate and which may otherwise constitute revenue of the Affiliate, shall not constitute additional Gross Revenues for the purpose of this Franchise. "Gross Revenues" shall include amounts earned by Affiliates only to the extent that Grantee could, in concept, have earned such types of revenue in connection with the operation of Grantee's Network Facilities to provide Cable Services and recorded such types of revenue in its books and records directly, but for the existence of Affiliates. "Gross Revenues" shall not include sales taxes imposed by law on Subscribers that the Grantee is obligated to collect. With the exception of recovered bad debt, "Gross Revenues" shall not include bad debt. 1.23 Headend or Hub means a facility for signal reception and dissemination on Grantee's Network Facilities, including cables, antennas, wires, satellite dishes, monitors, switches, modulators, processors, and all other related equipment and facilities. 1.24 Incumbent Cable Operator means TCI Cablevision of the Tualatin Valley, Inc. (whose parent company is AT&T), or any successor cable operator. 1.25 Institutional Network means the two-way optical fiber system built by Grantee as part of the Network Facilities, which links those public agency users as described in Section 20 of this Agreement. 1.26 Interconnection means the provision by Grantee of technical, engineering, physical, and all other necessary components to maintain a physical linking of Grantee's Network Facilities and services or any designated Channel or signal PROPOSED MACC / RCN FRANCHISE August 18, 2000 6 pathway thereof with neighboring systems, so that services of technically adequate quality may be sent to, and received from, other systems in accordance with this Agreement. 1.27 Leased Access Channel means any Channel commercially available for programming for a fee or charge by Grantee to members of the general public. 1.28 MACC means the Metropolitan Area Communications Commission and its officers, agents, and employees, created and exercising its powers pursuant to an Intergovernmental Cooperation Agreement entered into by Grantors. 1.29 Network Facilities means and includes, without limitation, all aerial wires, amplifiers, antennae, boxes, cabinets, cables (including coaxial cable), • demodulators, drop wires, headends, hubs, nodes, optical fiber, and other equipment owned, leased, or used by Grantee for provision of its Cable • Services, Broadband Access Services, and Telephony Services. 1.30 Node means an exchange point in the signal distribution system portion of the Network Facilities where optical signals are converted to RF signals for the [-NET and other services. 1.31 Origination Point means a location other than an Access Center, where Public, Educational, or Governmental use programming is delivered to the Grantee for Upstream transmission. 1.32 Person means any individual, natural Person, sole proprietorship, partnership, association, or corporation, or any other form of entity or organization. 1.33 Public Communications Network (PCN) means the Institutional Network provided by the Incumbent Cable Operator as part of its separate Franchise Agreement with the Grantor. 1.34 Public Rights of Way include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public utility easements, and all other public ways, including the subsurface under and air space over these areas, excluding parks and parkways, within the jurisdictional boundaries of each of the Grantors, but only to the extent of the Grantor's right, title, interest, or authority to • grant a franchise to occupy and use such streets and easements for telecommunications facilities. Public Rights of Way shall also include any easement granted to or owned by the Grantors and acquired, established, dedicated, or devoted for right of way and utility purposes. 1.35 Quarterly, or quarter, means the standard calendar periods of January 1 - March 31, April 1 - June 30, July 1 - September 30, and October 1 - December 31, unless otherwise specified in this Agreement. _ PROPOSED MACC / RCN FRANCHISE August 18, 2000 7 _ 1.36 School means any accredited educational institution, public or private, including, but not limited to, primary and secondary schools, and colleges and universities. 1.37 Street means each of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the Franchise Area: Streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and other public ways. 1.38 Subscriber means any Person who elects to subscribe to, for any purpose, Cable Service or Broadband Access Service provided by Grantee by means of, or in connection with, the Network Services, and whose premises are physically wired and lawfully activated to receive Cable Service or Broadband Access Service from Grantee's facilities. A) Commercial Subscriber means any Subscriber other than a Residential Subscriber. B) Residential Subscriber means any Person who contracts individually for Cable Service or broadband access service to a residence, whether that residence is a single family unit or located in a multiple dwelling unit. 1.39 Telecommunications Service has the meaning given in ORS 759.005. 1.40 Upstream means the carrying of a transmission to the Headend from remote points on Network Facilities or from Interconnection points. 1.41 Urban Growth Boundary means the boundary adopted by a Metropolitan Service District ("Metro") pursuant to ORS 266.390(3), in the area within the jurisdiction of Grantors. PROPOSED MACC / RCN FRANCHISE August 18, 2000 8 SECTION 2 - GRANT OF FRANCHISE 2.'i GRANT A. Grantors hereby grant to Grantee in the public interest a nonexclusive and revocable authorization to make lawful use of the Streets, Public Rights of Way, and utility easements within the Franchise Area to construct, operate, maintain, reconstruct, and repair its Network Facilities for the purpose of providing Cable Services, Broadband Access Services, and the related Institutional Network (Met) subject to the terms and conditions of this Agreement. B. This Agreement is intended to convey limited rights and interests only as to those Streets and Public Rights of Way, in which the Grantor has an actual interest. It is not a warranty of title or interest in any right-of=way, it does not provide the Grantee any interest in any particular location within the right-of- way, and it does not confer rights other than as expressly provided in the grant hereof. This Agreement does not deprive the Grantor of any powers, rights, or privileges it now has, or may acquire in the future, to use, perform work on, or regulate the use and control of the Grantor's Streets covered by this Agreement, including without limitation, the right to perform work on its roadways, rights-of-way, or appurtenant drainage facilities, including constructing, altering, paving, widening, grading, or excavating thereof. C. This Agreement is subject to the general lawful police power of Grantor affecting matters of local government concern and not merely existing contractual rights of Grantee. Nothing in this Agreement shall be deemed to waive the requirements of the other codes and ordinances of general applicability enacted, or hereafter enacted, by Grantor. D. This Agreement authorizes Grantee to engage in providing Cable Service, Broadband Access Services, and a related I-Net as those terms are defined herein. Subject to the specific limitations provided for herein, this Agreement also authorizes the provisions of telecommunications services as defined in Oregon law. This Agreement shall not be interpreted to prevent the Grantor from imposing lawful additional conditions, including additional compensation conditions for use of the Rights of Way should Grantee provide service other than those authorized herein. Nothing herein shall be interpreted to prevent Grantee from challenging the lawfulness or enforceability of any provisions of a this Agreement under applicable law. a E. Grantee promises and guarantees as a condition of exercising the privileges granted by this Agreement, that any Affiliate or joint venture or partner of the Grantee directly involved in the offering of services authorized by this Agreement in the Franchise Area, or directly involved in the management or PROPOSED MACC / RCN FRANCHISE August 18, 2000 9 operation of the Network Facilities in the Franchise Area, will also comply with the terms and conditions of this Agreement. 2.2 USE OF PUBLIC STREETS AND WAYS Subject to Grantor's supervision and control, Grantee may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the public Streets, including rights-of-way and public utility easements within the Franchise Area, such wires, cables, conductors, ducts, conduits, vaults, amplifiers, pedestals, attachments, and other property and equipment as are necessary and appurtenant to the operation of a its Network Facilities for the provision of Cable Service, Broadband Access Service, and the related I-Net within the Franchise Area. Grantee shall comply with all applicable construction codes, laws, ordinances, regulations and procedures now in effect or enacted hereafter, and must obtain any and all necessary permits from the appropriate agencies of Grantors prior to commencing any construction activities. Grantee, through this Agreement, is granted extensive and valuable rights to operate its Network Facilities for profit using Grantor's public rights-of- way and public utility easements within the Franchise Area in compliance with all applicable Grantor construction codes and procedures. As trustee for the public, Grantor is entitled to fair compensation to be paid for these valuable rights throughout the term of this Agreement. 2.3 DURATION The term of this Agreement and all rights, privileges, obligations, and restrictions pertaining thereto shall be from the effective date of this Agreement through September 14, 2014, unless extended or terminated sooner as hereinafter provided. 2.4 EFFECTIVE DATE The effective date of this Agreement shall be September 15, 2000 (or the date that MACC certifies that all jurisdictions have adopted this Franchise, whichever occurs later) unless Grantee fails to file an unconditional written acceptance of this Agreement and post the security required hereunder by September 14, 2000 (or, by notice from MACC, at least one (1) day prior to the date that MACC certifies that all jurisdictions have adopted this Franchise, whichever is later). In either event, this Agreement shall be null and void, and any and all rights of Grantee to own or operate its Network Facilities within the Franchise Area under this Agreement shall be of no force or effect. 2.5 FRANCHISE NONEXCLUSIVE This Agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements, permits, easements or licenses granted by Grantor to any Person to use any street, right-of-way, easements not otherwise restricted, or property for any purpose whatsoever, including the right of Grantor to use same for any purpose it deems fit, including the same or similar purposes allowed Grantee PROPOSED MACC / RCN FRANCHISE _ August 18, 2000 10 hereunder. Grantor may, at any time, grant authorization to use the public rights- of-way for any purpose not incompatible with Grantee's authority under this Agreement, and for such additional Franchises as Grantor deems appropriate, upon substantially equivalent terms and conditions to those contained herein. 2.6 GRANT OF OTHER FRANCHISES A. In the event the Grantor enters into a Franchise, permit, license, authorization, or other agreement of any kind with any other Person or entity other than the Grantee to enter into the Grantor's public ways for the purpose of constructing or operating Network Facilities, or providing Cable Service to any part of the Service Area in which the Grantee is actually providing Cable Service, Broadband Access Service, or Telecommunications Services under the terms and conditions of this Agreement, or is required to extend Cable Service to under the provisions of Section 7.2 of this Agreement, the material provisions thereof shall be reasonably comparable to those contained herein, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law. B. If Grantor grants a Franchise to a third party for services to an area that Grantee is not actually serving or required to extend service to, and which has material provisions that are not reasonably comparable to those contained herein, Grantor shall offer Grantee a Franchise to serve the same area under terms and conditions that are reasonably comparable to those set forth in the Franchise Agreement entered into with the third party. C. If Grantor grants a Franchise to a third party for services in a portion of the Franchise Area that Grantee is actually serving or required to extend service to, and which has material provisions that are not reasonably comparable to those contained herein, Grantor shall offer Grantee an amendment to this Agreement which grants Grantee a Franchise to serve the same area under terms and conditions that are reasonably comparable to those set forth in the Franchise Agreement entered into with the third party. 2.7 POLICE POWERS Grantee's rights hereunder are subject to the lawful police powers of Grantor to adopt and enforce ordinances necessary to the safety, health, and welfare of the general public and Grantee agrees to comply with all applicable laws and ordinances enacted, or hereafter enacted, by Grantor or any other legally- constituted governmental unit having lawful jurisdiction over the subject matter hereof. 2.8 RELATIONS TO OTHER PROVISIONS OF LAW This Agreement and all rights and privileges granted under it are subject to, and the Grantee must exercise all rights in accordance with, applicable law as amended over the Franchise term. This Agreement is a contract, subject to the PROPOSED MACC / RCN FRANCHISE - August 18, 2000 11 1J Grantor's exercise of its police and other regulatory powers and such applicable law. This Agreement does not confer rights or immunities upon the Grantee other than as expressly provided herein. In cases of conflict between this Franchise Agreement and any ordinance of general application enacted pursuant to the Grantor's police power, the ordinance shall govern; however, nothing herein shall be interpreted to prevent Grantee from challenging the lawfulness or enforceability of any provision of applicable law. The Franchise issued and the Franchise fee paid hereunder are not in lieu of any other required permit, authorization, fee, charge, or tax, unless expressly stated herein. 2.9 EFFECT OF ACCEPTANCE By accepting the Agreement the Grantee: (1) acknowledges and accepts the Grantor's legal right to issue and enforce the Agreement; (2) agrees that it will not oppose the Grantor's right to intervene or otherwise participate in any proceeding affecting the Network Facilities; (3) accepts and agrees to comply with each and every provision of this Agreement; and (4) agrees that the Agreement was granted pursuant to processes and procedures consistent with applicable law, and that it will not raise any claim to the contrary. 2.10 FAMILIARITY WITH AGREEMENT Grantee acknowledges and warrants by acceptance of the rights, privileges, and agreements granted herein, that it has carefully read and fully comprehends the terms and conditions of this Agreement, and is willing to and does accept all lawful and reasonable risks of meaning of the provisions, terms, and conditions herein. Grantee further acknowledges and states that it has fully studied and considered the requirements relating to the construction of the Network Facilities, and all requirements and provisions of this Agreement, and finds that the same are commercially practicable at this time. 2.11 FUTURE CHANGES IN LAW If future changes to binding federal or state law affect any material provision of the Franchise, including but not limited to the scope of Grantor's authority to regulate Grantee and its activities within the Franchise Area and the Public Rights of Way, the parties agree that they will take any action necessary, or revise this Agreement, where applicable, to be consistent with the scope of such change in law. In the event the parties are unable to agree to a modification of this Agreement within sixty (60) days, either party may: 1) seek appropriate legal remedies to amend the Agreement, or 2) shorten the Agreement to 36 months from the date following the conclusion of the sixty (60) day period, at which point either party may invoke the renewal procedures under 47 USC Section 546. Each party agrees to participate in up to sixteen (16) hours of negotiation during the sixty (60) day period. PROPOSED MACC / RCN FRANCHISE August 18, 2000 12 SECTION 3 - FRANCHISE FEE AND FINANCIAL CONTROLS 3.1 FRANCHISE FEES A. As compensation for the benefits and privileges granted under this Agreement, and in consideration of permission to use Grantor's Streets, utility easements, and Public Rights of Way, Grantee shall pay as a Franchise fee to Grantor, throughout the duration of this Agreement, an amount equal to five percent (5%) of Grantee's Gross Revenues including the franchise fee itself, derived from the operation of the Network Facilities to provide Cable Service and Broadband Access Service in the Franchise Area. Accrual of such Franchise Fees shall commence as of the effective date of this Agreement. The Franchise Fees are in addition to all other fees, assessments, taxes, or payments of general applicability that the Grantee may be required to pay under any federal, state, or local law to the extent not inconsistent with applicable law. This Agreement and the Franchise Fees paid hereunder are not in lieu of any other generally applicable required permit, authorization, fee, charge, or tax. B. In the event any law or valid rule or regulation applicable to this franchise limits Franchise Fees below the five percent (5%) of Gross Revenues required herein, the Grantee agrees to and shall pay the maximum permissible amount and, if such law or valid rule or regulation is later repealed or amended to allow a higher permissible amount, then the Grantee shall pay the higher amount up to the maximum allowable by law, not to exceed five percent (5%) during all affected time periods. 3.2 PAYMENTS Grantee's Franchise fee payments to Grantor shall be computed quarterly. Each quarterly payment shall be due and made available to Grantor no later than forty- five (45) days after the last day of the preceding quarter. 3.3 ACCEPTANCE OF PAYMENT AND RECOMPUTATION No acceptance of any payment shall be construed as an accord by Grantor that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim Grantor may have for further or additional sums payable or for the performance of any other obligation of Grantee. Grantee retains all defenses related to the applicable statute(s) of limitation. 3.4 QUARTERLY FRANCHISE FEE REPORTS Each payment shall be accompanied by a written report to Grantor containing an accurate statement in summarized form, as well as in detail, and in a form approved by Grantor, of Grantee's Gross Revenues and the computation of the payment amount. PROPOSED MACC / RCN FRANCHISE August 13, 2000 13 3.5 ANNUAL FRANCHISE FEE REPORTS At the end of each of the first, second, and third calendar year of the franchise, Grantee shall furnish to Grantor a statement, no later than one-hundred twenty (120) days after the end of each calendar year, stating the total amount of Gross Revenues and all payments, deductions, and computations for the period covered by the payments. The first statement shall cover the period from the grant of the Franchise through December 31, 2001. A CPA of Grantee's choice shall prepare each annual statement. The CPA may be an employee of Grantee. Beginning with year four of the Franchise (January - December, 2004) and thereafter throughout the term of the Franchise, Grantee shall furnish Grantor with an Audited Gross Receipts Report. This Report shall be provided within one hundred twenty (120) days after the end of each calendar year. This Report shall include all schedules and work papers used by the Grantee's auditor(s) as the basis for their audit opinions. These materials must include sufficient information and detail so that, at a minimum, Grantor can determine from this report all revenues and/or payments, by type, and all deductions and computations for the period covered by the Report. Each Report shall be prepared by an independent CPA of Grantee's choice. However the CPA preparing these Reports may not be, nor become, an employee of Grantee during the term of the Franchise. 3.6 AUDITS/REVIEWS On an annual basis, no more frequently than every twelve (12) months, and not prior to the second year of the Agreement, upon thirty (30) days prior written notice, Grantor shall have the right to conduct an independent audit or review of Grantee's records reasonably related to the administration or enforcement of this Agreement, in accordance with generally accepted accounting principles. The Grantor may hire an independent certified public accountant to audit or review the Grantee's financial records, in which case the Grantee shall provide all necessary records to the certified public accountant. All such records shall be made available in the offices of the Grantee located within the State of Oregon unless Grantee makes arrangements and pays all cost of Grantor to inspect such records at least another location outside the State of Oregon. If the audit or review shows that Franchise Fees have been underpaid by two percent (2%) or more, Grantee shall reimburse to Grantor the total cost of the audit or review within 45 (forty-five) days of the Grantor's written demand for same. Records for audit/review purposes shall include without limitation: A. Source documents, which demonstrate the original or beginning amount, and the final amount shown on any report related to and/or included in the determination of Franchise Fees, revenues or expenses related thereto. PROPOSED MACC / RCN FRANCHISE August 18, 2000 14 I MMM B. Source documents that completely explain any and all calculations related to any allocation of any amounts involving Franchise Fees, revenues, or expenses related thereto. C. Any and all accounting schedules, statements, and any other form of representation, which relate to, account for, and/or support and/or correlate to any accounts involving Franchise Fees, revenues or expenses related thereto. 3.7 INTEREST ON LATE PAYMENTS In the event that a franchise fee payment or other sum is not received by the Grantor on or before the due date, or is underpaid, the Grantee shall pay in addition to the payment, or sum due, interest from the due date at a rate equal to the legal interest rate on judgments in the State of Oregon. 3.8 ADDITIONAL COMMITMENTS NOT FRANCHISE FEES Consistent with Sections 2.11 and 3.1 B, no term or condition in this Agreement shall in any way modify or affect Grantee's obligation to pay Franchise Fees to Grantor. Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this Agreement may total more than five percent (5%) of Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional commitments herein are not Franchise Fees as defined under any federal law, to the extent not inconsistent with applicable federal law, nor are they to be offset or credited against any Franchise fee payments due to Grantor. 3.9 COSTS OF PUBLICATION Grantee shall pay the reasonable cost of newspaper notices and publication pertaining to this Agreement, and any amendments thereto, including changes in control or transfers of ownership, as such notice or publication is reasonably required by Grantor or applicable law. 3.10 TAX LIABILITY Payment of the Franchise Fees under this Agreement shall not exempt Grantee from the payment of any generally applicable license, permit fee or other generally applicable fee, tax or charge on the business, occupation, property or income of Grantee that may be imposed by Grantor. . 3.11 PAYMENT ON TERMINATION If this Agreement terminates for any reason, the Grantee shall file with the Grantor within ninety (90) calendar days of the date of the termination, a financial statement, certified by an independent certified public accountant, showing the Gross Revenues received by the Grantee since the end of the previous fiscal year. The Grantor reserves the right to satisfy any remaining financial PROPOSED MACC / RCN FRANCHISE August 18, 2000 15 obligations of the Grantee to the Grantor by utilizing the funds available in a Letter of Credit or other security provided by the Grantee. 3.12 INCIDENTAL PAYMENT Annually, beginning September 15, 2003, the Grantee shall provide Grantor an Incidental Payment. Grantee shall pay Grantor: $100,000.00 on 09/15/03; $100,000.00 on 09/15/04; $150,000.00 09/15/05; $200,000.00 on 09/15/06; $250,000.00 on 09/15/07. During the Agreement, a total of $800,000.00 shall be paid by Grantee to Grantor in the form of Incidental Payments. Grantor may use these funds for any purpose, with the exception that annually a minimum of twenty-five percent (25%) of these funds may be used either for the I-Net provision of this Agreement or to support the PCN. These funds shall not be regarded as franchise fees, nor payments in lieu of franchise fees, nor as an offset against franchise fees, and they shall be used by Grantor at the Grantor's sole discretion consistent with applicable law. Grantor recognizes these funds as "external costs" of the Grantee, as defined by FCC rate regulation rules, and authorizes Grantee to recover these costs from Subscribers. Any amount(s) billed by Grantee to Subscribers pursuant to this Section which in total exceed $800,000 shall be paid to Grantor and dedicated to "Grant Fund Support" as described in Section 15. On September 15, 2004, and on that date in each subsequent year of the Franchise, Grantor shall provide a report to Grantee on the use of the Incidental Payment. 3.13 CLASSIFICATION OF PAYMENTS DUE Grantor and Grantee agree that all payments due under this Agreement are exempt from all Oregon tax limitation measures and laws in effect at the time of adoption of this Agreement or which may be hereafter enacted or adopted. p.-.. "n C-rn AAA/'! / RCN FRANCHISE P'Mvr%jJLV IVIMCv August 18, 2000 16 SECTION 4 - ADMINISTRATION AND REGULATION 4.1 AUTHORITY Grantor is vested with the power and right to regulate the exercise of the privileges permitted by this Agreement in the public interest, or to delegate that power and right, or any part thereof, to the extent permitted under state and local law, to any agent, in its sole discretion. 4.2 TIME LIMITS STRICTLY CONSTRUED Whenever this Agreement sets forth a time for any act to be performed by Grantor or Grantee, such time shall be deemed to be of the essence, and any failure of the party to perform within the allotted time may be considered a material violation of this Agreement and sufficient grounds for the other party to invoke any relevant provision of this Agreement. However, in the event that either Grantor or Grantee is prevented or delayed in the performance of any of its obligations under this Agreement by reason of a force majeure occurrence, such as acts of God (for example, floods, tornadoes, earthquakes, unusually severe weather conditions), or other reasonable delays beyond the control of Grantor or Grantee, such as delays in obtaining permits and approvals as referenced in Section 6.1.A, that party's performance shall be excused during the force majeure occurrence. Thereafter, Grantor or Grantee shall, under the circumstances, promptly perform the affected obligations under this Agreement or procure a substitute for performance, which is satisfactory to the other party. Neither Grantor nor Grantee shall be excused by mere economic hardship, nor by misfeasance or malfeasance of its directors, officers, employees, elected officials, or duly authorized agents. 4.3 PERFORMANCE EVALUATION A. Grantor may hold regular performance evaluation sessions annually on the anniversary dates of the effective date of this Agreement. Grantor shall conduct all such evaluation sessions. B. Grantor may hold special evaluation sessions at any time during the term of this Agreement. C. All regular evaluation sessions shall be open to the public and announced at least one week in advance in a newspaper of general circulation in the Franchise Area. D. Evaluation sessions shall deal with the Grantee's performance of the terms and conditions of the Agreement and compliance with state and federal laws and regulations. E. As part of the annual performance evaluation session and upon request by Grantor, Grantee shall submit to the Grantor a plant survey, report, or map, in a format mutually acceptable to Grantor and Grantee, which include a PROPOSED MACC / RCN FRANCHISE August 18, 2000 17 LM description of the portions of the Franchise Area that are cabled and have all Cable Services available. Such report shall also include the number of miles and location of overhead and of underground cable plant for both the Network Facilities and I-Net. If the Grantor has reason to believe that a portion or all of the Network Facilities does not meet the applicable FCC technical standards, the Grantor, at its expense, reserves the right to appoint a qualified independent engineer to evaluate and verify the technical performance of the Network Facilities. F. During evaluations under this Section, Grantee shall fully cooperate with Grantor and shall provide such information and documents as necessary and reasonable for Grantor to perform the evaluation, and as consistent with Section 16. PROPOSED MACC / RCN FRANCHISE August 18, 2000 18 SECTION 5 - FINANCIAL AND INSURANCE REUIREMENTS 5.1 INSURANCE REQUIREMENTS A. General Requirement. Grantee must have adequate insurance during the entire term of this Agreement to protect against claims for injuries to Persons or damages to property which in any way relate to, arise from, or are connected with this Agreement or involve Grantee, its duly authorized agents, representatives, contractors, subcontractors and their employees. B. Initial Insurance Limits. Grantee must keep insurance in effect in accordance with the minimum insurance limits herein set forth by the Grantor. The Grantee shall obtain policies for the following initial minimum insurance limits: 1) Commercial General Liability: Two-million dollar ($2,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage, and for those policies with aggregate limits, a two-and-one-half million dollar ($2,500,000) aggregate limit; one million dollar ($1,000,000) limit for broadcasters liability. 2) Automobile Liability: Two-million dollar ($2,000,000) combined single limit per accident for bodily injury and property damage; and 3) Employer's Liability: Two-million dollar ($2,000,000) limit. 5.2 DEDUCTIBLES AND SELF-INSURED RETENTIONS If Grantee changes its policy to include a self-insured retention, the Grantee shall give notice of such change to the Grantor. Grantor's approval will be given if the self-insured retention is consistent with standard industry practices. Any deductible or self-insured retention of the policies shall not in any way limit Grantee's liability to the Grantor. A. Endorsements. All policies shall contain, or shall be endorsed so that: 1) The Grantor, its officers, officials, employees, and duly authorized agents are to be covered as, and have the rights of, additional insureds with respect to liability arising out of activities performed by, or on behalf of, Grantee under this Agreement or applicable law, or in the construction, operation or repair, or ownership of its Network Facilities; 2) The Grantee's insurance coverage shall be primary insurance with respect to the Grantor, its officers, officials, employees, and duly authorized agents. Any insurance or self-insurance maintained by the Grantor, its officers, officials, employees, and duly authorized agents shall be in excess of the Grantee's insurance and shall not contribute to it; PROPOSED MACC / RCN FRANCHISE August 18, 2000 19 3) Grantee's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability; and 4) The policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, nor shall the intention not to renew be stated by the insurance company except after forty-five (45) days prior written notice, return receipt requested, has been given to the Commission. B. Acceptability of Insurers. The insurance obtained by Grantee shall be placed with insurers with an A.M. Best's rating of no less than "A". C. Verification of Coverage. The Grantee shall furnish the Grantor with certificates of insurance and endorsements or a copy of the page of the policy reflecting blanket additional insured status. The certificates and endorsements for each insurance policy are to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices, and are to be received and approved by the Grantor prior to the commencement of activities associated with this Agreement. The Grantee hereby warrants that its insurance policies satisfy the requirements of this Agreement and Grantors' ordinances and laws. 5.3 INDEMNIFICATION A. Scope of Indemnity. Grantee shall, at its sole cost and expense, indemnify, hold harmless, and defend the Grantor and its officers, boards, commissions, duly authorized agents, and employees against any and all claims, including, but not limited to, third party claims, suits, causes of action, proceedings, and judgments for damages or equitable relief, to the extent such liability arises out of or through the acts or omissions of the Grantee arising out of the construction, operation or repair of its Network Facilities regardless of whether the act or omission complained of is authorized, allowed, or prohibited by this Agreement, provided, however, the Grantee will not be obligated to indemnify Grantor for the costs of intervening in any proceeding regarding the grant of this Agreement pursuant to Section 2.9 of this Agreement, and provided further that Grantee's obligation to indemnify Grantor under this Section does not extend to claims arising solely from the negligence, omissions, or willful misconduct of Grantor. Without limiting in any way the Grantee's obligation to indemnify the Grantor and its officers, boards, commissions, duly authorized agents, and employees, as set forth above, this indemnity provision also includes damages and liabilities such as: 1) To persons or property, to the extent such liability arises out of or through the acts or omissions of the Grantee, its contractors, subcontractors, and PROPOSED MACC/RCN FRANCHISE - August 18, 2000 20 M - M their officers, employees, or duly. authorized agents, or to which the Grantee's negligence or fault shall in any way contribute; 2) Arising out of any claim for invasion of the right of privacy; for defamation of any Person, firm or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark, or patent; for a failure by the Grantee to secure consents from the owners or authorized distributors of programs to be delivered by the Network Facilities; or for violation of any other right of any Person, to the extent such liability arises out of or through the acts or omissions of the Grantee, provided, however, that Grantee will not be required to indemnify Grantor for any claims arising out of use of PEG Access Channels by Grantor and/or Designated Access Provider; 3) Arising out of Grantee's failure to comply with the provisions of any federal, state or local statute, ordinance, rule or regulation applicable to the Grantee • with respect to any aspect of its business to which this Agreement applies, to the extent such liability arises out of or through the acts or omissions of the Grantee; and 4) Arising from any third party suit, action or litigation, whether brought by a competitor to Grantee or by any other Person or entity, to the extent such liability arises out of or through the acts or omissions of the Grantee, whether such Person or entity does or does not have standing to bring such suit, action or litigation if such action (1) challenges the authority of the Grantor to issue this Agreement to Grantee; or (2) alleges that, in issuing this Agreement to Grantee, the Grantor has acted in a disparate or discriminatory manner. B. Duty to Give Notice and Tender Defense. The Grantor shall give the Grantee timely written notice of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity obligation in this Section. In the event any such claim arises, the Grantor or any other indemnified party shall tender the defense thereof to the Grantee and the Grantee shall have the obligation and duty to defend, settle or compromise any claims arising • thereunder, and the Grantor shall cooperate fully therein. Grantee shall accept or decline the tender within thirty (30) days. Grantee shall reimburse reasonable attorney fees and costs incurred by the Grantor during the thirty (30) day period in which the Grantee accepts or declines tender. In the event that the Grantee declines defense of the claim in violation of this Section, the Grantor may defend such claim and seek recovery from Grantee its expenses for reasonable attorney fees and disbursements, including expert witness fees, incurred by Grantor for defense and in seeking such recovery. PROPOSED MACC / RCN FRANCHISE August 18, 2000 21 MMMW I 5.4 LETTER OF CREDIT A. No later than the effective date of this Agreement, Grantee shall establish and provide to Grantor, as security for the faithful performance by Grantee of all provisions of this Agreement, a Letter of Credit in the amount of one- hundred-thousand dollars ($100,000). The Letter of Credit shall be filed in a form acceptable to the Grantor and issued by a financial institution acceptable to the Grantor, provided the Grantor, in its sole discretion, may direct that the Letter of Credit be issued by a local financial institution. B. The Letter of Credit shall be maintained in the amount established in Section 5.4 A. throughout the term of this Agreement. C. The Letter of Credit may be assessed by Grantor for various purposes including, but not limited to, the following: 1) Failure of Grantee to pay Grantor sums due under the terms of this Agreement. 2) Reimbursement of costs borne by Grantor to correct violations of this Agreement not corrected by Grantee. w 3) Fines assessed against Grantee due to violations of the requirements of this Agreement. 4) Failure to comply with the Customer Service Standards. D. If Grantee fails within thirty (30) days after the date of written notice to pay to Grantor any Franchise Fees, assessment, or taxes lawfully due under this Agreement which Grantor determines can be remedied by a draw upon the Letter of Credit, Grantor may thereafter withdraw the amount thereof from the Letter of Credit. Upon such withdrawal, Grantor shall notify Grantee of the amount and date thereof. Within seven (7) days following receipt by Grantee of written notice from Grantor that any amount has been withdrawn from the Letter of Credit, Grantee shall restore such Letter of Credit to the amount a required under this Agreement. Failure by Grantee to so restore the Letter of a Credit shall be considered a material violation of this Agreement. a a E. The Letter of Credit deposited pursuant to this Section shall become the a property of Grantor in the event that this Agreement is lawfully terminated or revoked for cause by reason of the violation by Grantee, and Grantee has s exhausted all of its remedies relating thereto. Grantee, however, shall be entitled to the return of the Letter of Credit deposited in accordance with this Section, or any portion thereof remaining upon normal expiration of this Agreement. PROPOSED MACC / RCN FRANCHISE August 18, 2000 22 F. The rights reserved to Grantor with respect to the Letter of Credit are in addition to all other rights of Grantor whether reserved by this Agreement or authorized by law or equity, and no action, proceeding or exercise of a right with respect to such Letter of Credit shall constitute a waiver of any other right Grantor may have. G. A single Letter of Credit for the amount required herein shall satisfy the requirements of Grantor. 5.5 PERFORMANCE BOND A. Grantee shall obtain and maintain during the entire term of this Agreement, or any extension(s) hereof, a performance bond in the amount of $1,500,000 to guarantee Grantee's faithful performance of its responsibilities and obligations under this Agreement and applicable law. The amount of the performance bond may be reduced only in accordance with the provisions of subsections D. and E. below. B. The performance bond shall provide, by way of example and without limitation, for the following: 1) System construction. To ensure Grantee's obligation to construct the Network Facilities and Institutional Network, to relocate and remove its facilities, and to restore the Grantor's rights-of-way and other property. 2) Abandonment, transfer, or receivership. Subject to Section 9.1 of this Agreement, the total amount of the performance bond may, in Grantor's sole discretion, be forfeited in favor of the Grantor in the event: (a) the Grantee abandons the Network Facilities, as defined in Section 10.2; (b) the Grantee carries out a transfer or change in control of this Agreement without the prior express written consent of the Grantor as required by Section 11; or (c) a receiver or trustee is appointed as provided in Section 9.6. 3) In case of such forfeiture of the performance bond, the Grantor shall apply any funds received to defray any damages, fees, costs and other expenses attributed to, or arising from, the conditions set forth in this Section. Any funds remaining upon final resolution of all claims and • payment of all damages, fees, costs and other expenses shall be returned to the issuer of the bond. C. The performance bond shall be issued by a surety qualified to do business in Oregon, shall be in a form approved by Grantor, and shall contain the following endorsement: i "This bond may not be canceled, or allowed to lapse, until ninety (90) days after receipt by the Grantor, by certified mail, return receipt PROPOSED MACC / RCN FRANCHISE August 18, 2000 23 requested, of a written notice from the issuer of the bond of intent to cancel or not renew." D. No earlier than ninety (90) days following written certification by the Grantor of completion of construction of the Network Facilities, the Performance Bond amount may be reduced by Grantee to $500,000. E. No earlier than ninety (90) days after the end of the seventh year of this Agreement, the bond amount shall be further reduced to $250,000 for the remaining term of this Agreement. PROPOSED MACC / RCN FRANCHISE August 18, 2000 24 SECTION 6 - REPORTS AND RECORDS 6.1 OPEN RECORDS A. Grantee shall manage all of its operations in accordance with a policy of keeping its documents and records open and accessible to Grantor. Grantor shall have access to, and the right to inspect, any books and records of Grantee, its parent corporations and affiliated entities that are reasonably related and necessary to the administration or enforcement of the terms of this Agreement. Grantee shall not deny Grantor access to any of Grantee's records on the basis that Grantee's records are under the control of any parent corporation, affiliated entity or a third party. Grantor may, in writing, request copies of any such records or books and Grantee shall provide such copies within ten (10) business days of the transmittal of such request. If the requested books and records are too voluminous, or for security reasons cannot be copied or removed, then Grantee may request, in writing within ten (10) business days, that Grantor inspect them at one of Grantee's local area offices. If any books or records of Grantee are not kept in a local office, Grantee will provide or otherwise make such documents available for inspection and review at the local office within ten (10) business days. B. Grantee shall at all times maintain and allow Grantor, with reasonable notice, access and the right to review a full and complete set of plans, records and "as built" maps showing the exact location of all Network Facilities equipment installed or in use in the Franchise Area, exclusive of electronics, Subscriber drops and equipment provided in Subscribers' homes. These maps shall be maintained in a standard format and medium agreed upon by the Grantor and the Grantee. Grantor's review of the plans, records, and as-built maps, provided for herein, shall occur at the Grantee's local office. C. The ability for Grantor to obtain records and information from Grantee is critical to the administration of this Agreement and the requirements herein. Therefore, Grantee's failure to comply with the requirements of this Section may result in fines as prescribed in Section 9. 6.2 CONFIDENTIALITY Subject to the limits of the Oregon Public Records Law, Grantor agrees to treat as confidential any books and records that constitute proprietary or confidential • information under federal, state or local law, to the extent Grantee makes Grantor aware of such confidentiality. Grantee shall be responsible for clearly and conspicuously stamping the word "Confidential" on each document or portion thereof that contain confidential or proprietary information. At Grantor's request, Grantee shall provide a brief written explanation as to why such information is confidential under local, state, or federal law. If Grantor believes it must release any such confidential books and records in the course of enforcing this Agreement, or for any other reason, it shall advise Grantee in advance so PROPOSED MACC / RCN FRANCHISE August 18, 2000 25 NEI 0111110 that Grantee may take appropriate steps to protect its interests. If Grantor receives a demand from any Person for disclosure of any information designated by Grantee as confidential, Grantor shall, so far as consistent with applicable law, advise Grantee and provide Grantee with a copy of any written request by the party demanding access to such information within a reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction, Grantor agrees that, to the extent permitted by local, state, or federal law, it shall deny access to any of Grantee's books and records marked confidential as set forth above to any Person. 6.3 COPIES OF FEDERAL AND STATE DOCUMENTS Prior to and during the term of this Agreement, and upon the request of Grantor, Grantee shall submit to Grantor a list, or copies of actual documents, of all pleadings, applications, notifications, communications and documents of any kind, submitted by Grantee or its parent corporations or Affiliates to any federal, state or local courts; and regulatory agencies or other government bodies if such documents specifically relate to the operations of Grantee's Network Facilities within the Franchise Area. Grantee shall submit such list or copies to Grantor no later than thirty (30) days after filing, mailing or publication thereof. Grantee shall not claim confidential, privileged or proprietary rights to such documents unless under federal, state, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or state agency. To the extent allowed by law, any such confidential material determined to be exempt from public disclosure shall be retained in confidence by Grantor and its duly authorized agents and shall not be made available for public inspection. 6.4 INSPECTION OF FACILITIES Grantor may inspect any portion of Grantee's Network Facilities and equipment to confirm performance under this Agreement at any time upon at least twenty- four (24) hours notice, or in case of an emergency, upon demand, without prior notice. 6.5 FALSE STATEMENTS Any intentional, false and misleading statement or representation in any report required by this Agreement may be deemed a material violation of this Agreement and may subject Grantee to all remedies, legal or equitable, which are available to Grantor under this Agreement or otherwise. 6.6 REPORT EXPENSE All reports and records required under this or any other Section shall be furnished without cost to Grantor. PROPOSED MACC / RCN FRANCHISE August 18, 2000 26 SECTION 7 - SYSTEM CONSTRUCTION REQUIREMENTS 7.1 NETWORK FACILITIES DESIGN AND CONSTRUCTION A. Grantee has determined an appropriate plan for design for construction of its Network Facilities in the Franchise Area, and will provide and construct according to the following requirements: 1) The Network Facilities will use a fiber to the neighborhood node architecture using deployment of fiber optic cable throughout the System. 2) The Network Facilities shall serve an average of 150 homes per fiber node. 3) All active and passive electronics will be capable of providing a at least 860 MHz or higher bandwidth. 4) The Network Facilities shall be two-way capable and able to support two- way high speed Internet Access. 5) Grantor will authorize Grantee to activate the Network Facilities as nodes are constructed. 6) The Cable System shall be capable of delivering at least 100 analog Channels, including analog Access Channels, of video programming services to Subscribers. B. As designed and maintained, all Network Facilities must be able to deliver high quality signals that meet, or exceed, FCC technical quality standards regardless of the particular manner in which the signal is transmitted. Construction of the Network Facilities shall begin upon the effective date of this Agreement, and be completed on or before September 15, 2005. The Network Facilities will be capable of supporting addressable equipment throughout the Franchise Area and shall enable the provision of digitally compressed video services. Grantee's Network Facilities shall, at all times, meet or exceed the minimum system design and performance specifications required by the FCC. C. System Functionality. 1) It is the intent of the parties to provide for a process that provides the Grantor with an opportunity to review the system design plan and construction progress to ensure that the Network Facilities meet or exceed the specifications described herein. Grantee agrees that it shall provide 3 Grantor with reasonable notice of its intent to test the performance of the Network Facilities so that Grantor can witness such testing. PROPOSED MACC / RCN FRANCHISE August 18, 2000 27 2) At least sixty (60) days before commencement of construction, Grantee shall provide the Grantor with a timeline for the construction and an opportunity to review the proposed system design plan consistent with Grantee's obligations as described in Section 7. The Grantor shall indicate to Grantee, within thirty (30) days of the receipt and review of materials, as to any aspects of the timeline and/or design plan Grantor believes are inconsistent with the requirements set forth herein in Section 7. Grantee shall respond within thirty (30) days to the Grantor to resolve any inconsistencies. 3) At least thirty (30) days before commencement of construction, and every month thereafter, at the request of the Grantor, Grantee and Grantor will meet to discuss the progress of the construction and work cooperatively to speed the construction process and to minimize the impact upon Subscribers (by e.g. discussing any problems in obtaining permits and by having Grantors provide information to Grantee on population and/or demographic trends and projections."). At each meeting, Grantee will provide a progress report on the upgrade detailing its progress in satisfying the requirements of this Section. 4) Grantee will take prompt corrective action if it finds that any of its facilities or equipment are not operating as expected, or if it finds that facilities and equipment do not comply with the requirements of this Agreement or applicable law. D. Timing of Construction. Grantee's decisions on constructing plant for service from each hub or node shall be based solely upon legitimate engineering decisions and shall not take into consideration the income level of the Franchise Area. 7.2 SERVICE AVAILABILITY A. Service to New Subdivisions. Grantee shall make Cable Services available in new subdivisions in portions of the Franchise Area already served by Grantee upon the earlier of either of the following occurrences: 1) Wthin sixty (60) days of the time when foundations have been installed in fifty (50) percent of the dwelling units in any individual subdivision; or 2) Within thirty (30) days following a request from a resident. Grantee shall not be responsible or liable for any failure to provide Cable Services if it is able to establish, to the satisfaction of Grantor, that the owner, lessor, or governing entity of the new subdivision will not allow Grantee access necessary for purposes of constructing and operating its Cable System on such property. For purposes of this Section, a receipt shall be deemed to be made on the signing of a service agreement, receipt of funds by the Grantee, receipt of a written request by Grantee, or receipt by Grantee of a verified verbal request. Grantee shall provide such service: PROPOSED MACC / RCN FRANCHISE August 18, 2000 28 _ 1) With no line extension charge except as specifically authorized elsewhere in this Agreement. 2) At a nondiscriminatory installation charge for a standard installation, consisting of a drop no longer than one hundred and twenty five (125) feet, with additional charges for non-standard installations computed according to a nondiscriminatory methodology for such installations, adopted by Grantee and provided in writing to Grantor. B. Required Extensions of Service. The Grantee shall make service available throughout the following minimum boundaries in the Franchise Area: 1) within the Urban Growth Boundary established by Metro, and the corporate limits of the City of North Plains on the effective date of this Agreement; 2) outside the area to be served under 1) above, where the density is at least 20 residences per 1320 cable-bearing strand feet; 3) outside the area to be served under 1) and 2) above, where the average density of the area being served combined with the density of the entire Franchise Area proposed for service, is at least 20 residences per 1320 cable-bearing strand feet. C. Future Extensions of Service. Ninety (90) days before September 15, 2005, the required completion date for system construction, the Grantor and Grantee will meet to discuss: 1) Possible extension of service into areas added to the Urban Growth Boundary since the effective date of this Agreement; and, 2) Possible extension of service to MACC jurisdictions not required to be served as part of the system construction provided for under this Section. In considering possible service extensions to these two areas, the parties shall consider the following factors: population and housing density; services provided by other Cable Operators; aerial and underground build requirements; and the cost of such extensions. D. Enforcement. Failure to meet these standards shall subject Grantee to enforcement actions on a per Subscriber basis in Section 9. 7.3 CONNECTION OF PUBLIC FACILITIES Grantee shall, at no cost to Grantor, provide one (1) outlet of Basic and Expanded Basic (or comparable) programming to Grantors' public use buildings, as designated by the Grantors, and all libraries and Schools. Those portions of PROPOSED MACC / RCN FRANCHISE August 18, 2000 29 - buildings housing prison/jail populations shall be excluded from this requirement. In addition, Grantee agrees to provide, at no cost, one (1) outlet of Basic and Expanded Basic (or comparable) programming to all such future public buildings if the drop line to such building does not exceed one hundred and twenty five (125) cable feet or if Grantor or other agency agrees to pay the incremental cost of such drop line in excess of one hundred twenty five (125) feet, including the cost of such excess labor and materials. Outlets of Basic and Expanded Basic (or comparable) programming provided in accordance with this subsection may be used to distribute Cable Service throughout such buildings, provided such distribution can be accomplished without causing disruptions and general technical standards are maintained. Cost for any additional outlets shall be the responsibility of Grantor. 7.4 CONSTRUCTION REGULATIONS A. Subject to applicable laws, regulations and ordinances of Grantor and the provisions of this Agreement, Grantee may perform all construction necessary for the operation of its Network Facilities. All construction and maintenance of any and all facilities within Streets incident to Grantee's Network Facilities shall, regardless of who performs the construction, be and remain Grantee's responsibility. Grantee shall apply for, and obtain, all permits necessary for construction or installation of any facilities, and for excavating and laying any facilities within the Streets. Grantee shall pay, prior to issuance, all applicable fees and/or obtain bonds required of the requisite construction permits. B. Prior to beginning any construction, Grantee shall provide Grantor with a construction schedule for work in the Streets. All construction shall be performed in compliance with this Agreement and all applicable Grantor Ordinances and Codes. When obtaining a permit, Grantee shall inquire in writing about other construction currently in progress, planned or proposed, in order to investigate thoroughly all opportunities for joint trenching or boring. Whenever it is possible and reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other providers, grantees, permittees and franchisees so as to reduce as far as possible the number of Street cuts. C. Construction in the Public Rights of Way, or other public property, or on or near private property shall be done in a manner that causes the least interference with the rights and reasonable convenience of property owners and residents. Grantee's Network Facilities shall be constructed and maintained in such a manner as not to interfere with the operations of sewers, water pipes, or any other property of the Grantor, or with any other pipes, wires, conduits, pedestals, structures, or other facilities that may be located in the Right of Way by, or under, the Grantor's authority. Grantee's Network Facilities shall be located, erected, and maintained so as not to endanger or interfere with the lives of persons, or to interfere with new PROPOSED MACC / RCN FRANCHISE August 18, 2000 30 improvements Grantors may deem proper to make or to unnecessarily hinder or obstruct the free use of the public places by the public during the construction, repair, operation, or removal thereof, and shall not obstruct or impede traffic. D. Prior to beginning construction on any part of the Network Facilities, Grantee shall inform the public, its Subscribers, and the Grantor about the progress of the construction, areas where construction crews will be working, and any expected temporary interruptions to existing services which may occur. At least forty-eight (48) hours in advance of any construction affecting multiple Subscribers on the same street or in the same neighborhood, those affected Subscribers shall be individually notified by Grantee, or Grantee's subcontractor(s), or notified by a door hanger or similar notice prominently left a each Subscriber's residence so affected. E. When the Agreement requires Grantee's Network Facilities to be placed underground, all pedestals, power supplies, and other similar devices associated with that portion of the system shall be placed in appropriate utility easements and Public Rights of Way in accordance with applicable codes and rules. In residential areas, Grantee shall make reasonable efforts to plan and locate the placement of "tap" pedestals and other similar devices in areas where other utility pedestals are placed, or in shrubbery areas and other similar locations to reduce, wherever possible, the visual impact on individual property owners. When installing power supply cabinets, node housings, or other similar pedestals or devices, Grantee shall, wherever possible, locate such devices so they are not placed or grouped together, or otherwise co-located with other existing pedestals or devices. When such pedestals and other devices are to be installed in residential areas, the Grantee will notify individual homeowner(s) to be affected at least forty-eight (48) hours in advance of the time of the proposed installation. If the Grantee is unable to individually notify the homeowner in person, a door hanger, or other similar notice, shall be prominently left at each residence. The door hanger shall be specifically designed to notify the homeowner that a pedestal, or other similar device, will be located on their property. It will also display the proposed date of the installation and will contain a telephone number by which the homeowner can contact a representative of the Grantor or Grantor's contractor to discuss the work planned. Where reasonably possible, Grantee will work with the resident to determine the best location for the pedestal or device. F. When individual connections to Subscriber residences are installed, they shall be buried in accordance with applicable codes within ten (10) working days of PROPOSED MACC / RCN FRANCHISE August 18, 2000 31 the installation, or at a time mutually agreed upon between the Grantee and Subscriber. When freezing surface temperatures prevent the Grantee from meeting this timeline, Grantee shall apprise the Subscriber of the problem and provide Subscriber with Grantee's telephone number and instructions as to how and when to call the Grantee to request burial of the line. G. Grantor shall have the right to inspect all construction or installation work performed within the franchise area as it shall find necessary to ensure compliance with the terms of this Agreement and other pertinent provisions of law. 7.5 LOCATION OF FACILITIES Within forty-eight (48) hours after notification of any proposed Street excavation, Grantee shall, at Grantee's expense: A. Mark on the surface all of its underground facilities within the area of the proposed excavation; B. Notify the excavator of any un-located underground facilities in the area of the proposed excavation; or C. Notify the excavator that Grantee does not have any underground facilities in the vicinity of the proposed excavation. The Grantor does not guarantee the accuracy of any maps that may be provided showing the horizontal or vertical location of existing substructures. 7.6 RELOCATION Grantor shall have the right to require Grantee to change the location of any part of Grantee's Network Facilities within the Streets when the public convenience requires such change, and the expense thereof shall be paid by Grantee. To the extent possible, Grantor shall provide Grantee with reasonable notice of the need for relocation of Grantee's Network Facilities. Should Grantee fail to remove or relocate any such facilities by the date established by Grantor, Grantor may effect such removal or relocation, and the expense thereof shall be paid by Grantee, including all costs and expenses incurred by Grantor due to Grantee's delay. If Grantor requires Grantee to relocate its facilities located within the Streets, Grantor shall make a reasonable effort to provide Grantee with an alternate location within the Streets. 7.7 RESTORATION OF STREETS A. Whenever Grantee disturbs the surface of any Street for any purpose, Grantee shall promptly restore the Street to at least its prior condition. When any opening is made by Grantee in a hard surface pavement in any Street, PROPOSED MACC / RCN FRANCHISE August 18, 2000 32 Grantee shall refill the opening within twenty-four (24) hours and restore the surface to a condition satisfactory to Grantor. B. If Grantee excavates the surface of any Street, Grantee shall be responsible for restoration in accordance with applicable regulations of the jurisdiction within the area affected by the excavation. Grantor may, after providing notice to Grantee, refill or repave any opening made by Grantee in the Street, and the expense thereof shall be paid by Grantee. Grantor may, after providing notice to Grantee, remove or repair any work done by Grantee that, in the determination of Grantor, is inadequate. The cost thereof, including the costs of inspection and supervision, shall be paid by Grantee. All excavations made by Grantee in the Streets shall be properly safeguarded for the prevention of accidents. All of Grantee's work under this Agreement, and this Section in particular, shall be done in strict compliance with all rules, regulations and ordinances of Grantor. Prior to making any Street or right-of- way cuts or openings, Grantee shall provide written notice to Grantor. 7.8 MAINTENANCE AND WORKMANSHIP A. Grantee's Network Facilities shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of Grantbr, or with any other pipes, wires, conduits, pedestals, structures, equipment or other facilities that may have been laid in the Streets by, or under, Grantor's authority. B. Grantee shall provide and use any equipment necessary to control and carry Grantee's transmission over Grantee's Network Facilities so as to prevent injury to Grantor's property or property belonging to any Person. Grantee, at its own expense, shall repair, change and improve its facilities to keep them in good repair, and in safe and presentable condition. 7.9 RESERVATION OF GRANTOR STREET RIGHTS Nothing in this Agreement shall prevent Grantor or utilities owned, maintained or operated by public entities other than Grantor, from constructing sewers; grading, paving, repairing or altering any Street; repairing or removing water mains; or constructing or establishing any other public work or improvement. All such work shall be done, insofar as practicable, so as not to obstruct, injure or prevent the use and operation of Grantee's Network Facilities. However, if any • of Grantee's Network Facilities interfere with the construction or repair of any Street or public improvement, including construction, repair, or removal of a sewer or water main, Grantee's Network Facilities shall be removed or replaced in the manner Grantor shall direct, and Grantor shall in no event be liable for any damage to any portion of Grantee's Network Facilities. Any and all such removal or replacement shall be at the expense of Grantee. Should Grantee fail to remove, adjust or relocate its facilities by the date established by Grantor's written notice to Grantee, Grantor may effect such removal, adjustment, or PROPOSED MACC / RCN FRANCHISE August 18, 2000 33 _ relocation, and the expense thereof shall be paid by Grantee, including all reasonable costs and expenses incurred by Grantor due to Grantee's delay. 7.10 USE OF CONDUITS AND EQUIPMENT BY GRANTOR Grantor may install or affix and maintain wires and equipment owned by Grantor for governmental purposes in or upon any and all of Grantee's ducts, conduits or equipment in the Streets and other public places without charge to Grantor, to the extent space therein or thereon is reasonably available, and pursuant to all applicable Ordinances and Codes. For the purposes of this Section, "governmental purposes" includes, but is not limited to, the use of the structures and installations by Grantor for fire, police, traffic, water, telephone, or signal systems, but not for purposes in competition with Grantee. Grantee shall not deduct the value of such use of its facilities from its Franchise fees payable to Grantor. - 7.11 STREET VACATION If any Street or portion thereof used by Grantee is vacated by Grantor during the term of this Agreement, unless Grantor specifically reserves to Grantee the right to continue its installation in the vacated Street, Grantee shall, without delay or expense to Grantor, remove its facilities from such Street, and restore, repair or reconstruct the Street where such removal has occurred, and place the Street in such condition as may be required by Grantor. In the event of failure, neglect or refusal of Grantee, after thirty (30) days' notice by Grantor, to restore, repair or reconstruct such Street, Grantor may do such work or cause it to be done, and the reasonable cost thereof, as found and declared by Grantor, shall be paid by Grantee within thirty (30) days of receipt of an invoice and documentation, and failure to make such payment shall be considered a material violation of this Agreement. REM 7.12 DISCONTINUING USE OF FACILITIES A. Whenever Grantee intends to discontinue using any facility within the Streets for all services authorized by this Agreement, Grantee shall submit for Grantor's approval a complete description of the facility and the date on - which Grantee intends to discontinue using the facility. Grantee may remove the facility or request that Grantor allow it to remain in place. Notwithstanding Grantee's request that any such facility remain in place, Grantor may require Grantee to remove the facility from the Street or modify the facility to protect the public health, welfare, safety, and convenience, or otherwise serve the public interest. Grantor may require Grantee to perform a combination of modification and removal of the facility. Grantee shall a complete such removal or modification in accordance with a reasonable schedule set by Grantor. Until such time as Grantee removes or modifies the facility as directed by Grantor, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and PROPOSED MACC / RCN FRANCHISE August 18, 2000 34 maintain such facility, Grantee shall be responsible for all necessary repairs and relocations of the facility, as well as maintenance of the Street, in the same manner and degree as if the facility were in active use, and Grantee shall retain all liability for such facility. If Grantee abandons its facilities, Grantor may choose to use such facilities for any purpose whatsoever including, but not limited to, public, governmental, or educational purposes. B. Whenever Grantee intends to discontinue using any facility within the Streets or Public Rights of Way for one service, but intends to continue using such facility for other services, the parties shall proceed consistent with, and any determination by Grantor shall be pursuant to 47 USC Section 625. Following any such modification, Grantee shall remain subject to all terms and conditions of any permits, ordinances, or other approvals issued by Grantor for use of the facility for its active services, including any terms and conditions regarding modification, maintenance, and/or removal of the facility. 7.13 HAZARDOUS SUBSTANCES A. Grantee shall comply with all applicable local, state and federal laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's Network Facilities in the Streets. B. Grantee shall maintain and inspect its Network Facilities located in the Streets. Upon reasonable notice to Grantee, Grantor may inspect Grantee's facilities in the Streets to determine if any release of hazardous substances has occurred, or may occur, from or related to Grantee's Network Facilities. In removing or modifying Grantee's facilities as provided in this Agreement, Grantee shall also remove all residues of hazardous substances related thereto. 7.14 UNDERGROUNDING OF FIBER OPTIC FACILITIES A. Wiring. 1) Where all utility lines in an area are installed underground at the time of Network Facilities construction, or when such lines are subsequently placed underground, all lines or wiring and equipment shall also be placed underground on a nondiscriminatory basis with other utility services at no additional expense to the Grantor or Subscribers, to the extent permitted by law and applicable safety codes. Fiber optic facilities must be installed • underground where: (1) all existing utilities are placed underground, (2) statute, ordinance, policy, or other regulation of an individual Grantor or Commission requires utilities to be placed underground, or (3) all overhead utility lines are placed underground. In areas where electric or telephone utility wiring is aerial, the Grantee may install aerial cable, except when a property owner or resident requests PROPOSED MACC / RCN FRANCHISE August 18, 2000 35 underground installation and agrees to bear the reasonable additional cost in excess of aerial installation. 2) The Grantee shall utilize existing poles and conduit wherever possible. 3) This Agreamznt does not grant, give or convey to the Grantee the right or privilege to install its facilities in any manner on specific utility poles or equipment of the Grantor or any other Person without their permission. Copies of agreements for use of poles, conduits or other utility facilities must be provided upon request by the Grantor upon demonstrated need and subject to protecting Grantee's proprietary information from disclosure to third parties. 4) Whenever possible, to avoid additional wear and tear on Grantor's Rights of Way, Grantee shall, when building, relocating, or upgrading the current Network Facilities, install additional conduit or provide additional space to lease or rent to other similar franchisees. Grantee may charge for use of the conduit consistent with all applicable laws. B. Repair and Restoration of Property. 1) Grantee shall protect public and private property from damage. If damage occurs the Grantee shall promptly notify the property owner within twenty-four (24) hours in writing. 2) If public or private property is disturbed or damaged, the Grantee shall restore the property to its former condition, normal wear and tear excepted. Public right-of-way or other Grantor property shall be restored, in a manner and within a time frame approved by the Grantor's Director of Public Works or other appropriate designated official. If restoration of public right-of-way or other property of the Grantor is not satisfactorily performed within a reasonable time, the Director of Public Works or other appropriate designated official may, after prior notice to the Grantee, or without notice where the disturbance or damage may create a risk to public health or safety, or cause delay or added expense to a public project or activity, cause the repairs to be made at the Grantee's expense and recover the cost of those repairs from ' the Grantee. Within thirty (30) days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the Grantee shall pay the Grantor. If suit is brought upon Grantee's failure to pay for repair or restoration, and if judgment in such a suit is entered -in favor of the Grantor, then the Grantee shall pay all of the Grantor's actual costs and expenses resulting from the non-payment, including penalties, interest from the date the bill was presented, disbursements, attorneys' fees and litigation- related costs. Private property must be restored promptly, considering the nature of the work that must be performed and in no event later than seventy- two (72) hours. PROPOSED MACC / RCN FRANCHISE August 18, 2000 36 C. Movement of Network Facilities For and By Grantor. The Grantor may remove, replace, modify or disconnect Grantee's facilities and equipment located in the public right-of-way or on any other property of the Grantor in the case of fire, disaster, or other emergency, or when a project or activity of the Grantor's makes the removal, replacement, modification, or disconnection necessary or less expensive for the Grantor. Except during an emergency, the Grantor shall attempt to provide reasonable notice to Grantee prior to taking such action and shall, when feasible, provide Grantee with the opportunity to perform such action. Following notice by the Grantor, Grantee shall remove, replace, modify or disconnect any of its facilities or equipment within any public right-of-way, or on any other property of the Grantor, except that the Grantor shall provide at least sixty (60) days' written notice of any major capital improvement project which would require the removal, replacement, modification, or disconnection of Grantee's facilities or equipment. If the Grantee fails to complete this work within the time prescribed and to the Grantor's satisfaction, the Grantor may cause such work to be done and bill the cost of the work to the Grantee. Within thirty (30) days of receipt of an itemized list of those costs, the Grantee shall pay the Grantor. D. Movement for Other Franchise Holders. If any removal, replacement, modification, or disconnection is required to accommodate the construction, operation or repair of the facilities or equipment of another Franchise holder, Grantee shall, after at least thirty (30) days' advance written notice, take action to effect the necessary changes requested by the responsible entity. The Grantor, Grantee, and other Franchise holders shall determine how costs associated with the removal or relocation required herein shall be allocated. E. Movement for Other Permittees. At the request of any Person holding a valid permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The permit holder must pay the expense of such temporary changes, and Grantee may require a reasonable deposit of the estimated payment in advance. • F. Tree Trimming. Subject to acquiring prior written permission of the Grantor, i the Grantee shall have the authority to trim trees that overhang a public right- of-way of the Grantor so as to prevent the branches of such trees from coming in contact with its Network Facilities, in accordance with applicable codes and regulations and current, accepted professional tree trimming a practices. a PROPOSED MACC / RCN FRANCHISE JMM August 18, 2000 37 G. Employee/Contractor Identification. Grantee and Grantee's contractors, shall at all times wear visible identification badges or similar devices clearly showing that they are a representative of the Grantee. All Grantee and Grantee's contractor vehicles and facilities will be clearly marked to identify them as the property of the Grantee, or as a contractor performing work for the Grantee. 7.15 CODES Grantee shall comply with all building and zoning codes currently or hereafter in effect. Grantee shall arrange its lines, cables and other appurtenances, on both public and private property, in such a manner as to not cause unreasonable interference with the use of said public or private property by any Person. In the event of such interference, Grantor may require the removal or relocation of Grantee's lines, cables, and other appurtenances, at Grantee's cost, from the property in question. 7.16 STANDARDS A. All work authorized and required hereunder shall be done in a safe, thorough and workmanlike manner. The Grantee must comply with all safety requirements, rules, and practices and-employ all necessary devices as required by applicable law during construction, operation, and repair of its Network Facilities. By way of illustration and not limitation, the Grantee must comply with the National Electric Code, National Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards. B. Grantee shall ensure that individual drops are properly bonded to the electrical power ground at the home, and are consistent, in all respects, with the requirements of the National Electric Code and the National Electrical Safety Code. PROPOSED MACC / RCN FRANCHISE August 18, 2000 38 - SECTION 8 - STANDBY POWER Grantee shall provide standby power generating capacity at its Network Facilities Headend capable of providing at least twelve (12) hours of emergency operation. Grantee shall maintain standby power system supplies, to the node, rated for at least two (2) hours duration. At least 90 days prior to activating a service on any portion of the Network Facilities, and throughout the term of this Agreement, Grantee shall have a plan in place, along with all resources necessary for implementing such plan, for dealing with outages of more than two (2) hours. 1 his outage plan and evidence of requisite implementation resources shall be provided to Grantor no later than ninety (90) days following the date Grantee begins providing services authorized by this Agreement within the Franchise Area. 0 1 PROPOSED MACC / RCN FRANCHISE August 18, 2000 39 SECTION 9 - FRANCHISE VIOLATIONS; REVOCATION OF FRANCHISE 9.1 PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS A. Except as provided in Section 9.2.A. 4), if Grantor believes that Grantee has failed to perform any obligation under this Agreement or has failed to perform in a timely manner, Grantor shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged violation. B. The Grantor must provide written notice of a violation. Except where otherwise stated herein, upon receipt of notice, the Grantee will have a period of thirty (30) days to cure the violation or thirty (30) days to present to the Grantor a reasonable remedial plan. The Grantor shall, with Grantee's consent, decide whether to accept, reject, or modify the remedial plan presented by the Grantee. Fines shall be assessed only in the event that either a cure has not occurred within thirty (30) days or the Grantor rejects the remedial plan. The procedures provided in Section 9 shall be used to impose any fines. The date of violation will be the date of the event and not the date Grantee receives notice of the violation provided, however, that if Grantor has actual knowledge of the violation and fails to give the Grantee the notice called for herein, then the date of the violation shall be no earlier than ten (10) business days before the Grantor gives Grantee the notice of the violation. Except where otherwise stated herein, Grantee shall have thirty (30) calendar days from the date of receipt of such notice to: 1) Respond to Grantor, contesting Grantor's assertion that a violation has occurred, and requesting a hearing in accordance with subsection E. below, or; 2) Cure the violation, or; 3) Notify Grantor that Grantee cannot cure the violation within the thirty (30) days, and notify the Grantor in writing of what steps the Grantee shall take to cure the violation including the Grantee's projected completion date for such cure. In such case, Grantor shall set a hearing date within thirty (30) days of receipt of such response in accordance with subsection C. below. C. In the event that the Grantee, pursuant to subsection B. 3) above, notifies the Grantor in writing that it cannot cure the violation within the thirty (30) day cure period, Grantor shall, within thirty (30) days of Grantor's receipt of such notice, set a hearing. At the hearing, Grantor shall review and determine whether the Grantee has taken reasonable steps to cure the violation and whether the Grantee's proposed plan and completion date for cure are PROPOSED MACC / RCN FRANCHISE August 18, 2000 40 reasonable. In the event such plan and completion date are determined by mutual consent to be reasonable, the same may be approved by the Grantor, who may waive all or part of the fines for such extended cure period in accordance with the criteria set forth in subsection G. of this Section. D. In the event that the Grantee fails to satisfy the requirements set forth in subsection B. and/or C. above, the Grantor shall determine what fines, if any, shall be applied. In the event that the Grantee, pursuant to subsection B.1) above, contests the Grantor's assertion that a violation has occurred, and requests a hearing in accordance with subsection B. 1) above, the Grantor shall set a hearing within sixty (60) days of the Grantor's receipt of the hearing request to determine whether the violation has occurred, and if a violation is found, what fines shall be applied. F. In the case of any hearing pursuant to this Section, Grantor shall notify Grantee of the hearing in writing and at the hearing, Grantee shall be provided an opportunity to be heard, examine Grantor's witnesses, and to present evidence in its defense. The Grantor may also hear any other person interested in the subject, and may provide additional hearing procedures, as Grantor deems appropriate. G. The fines set forth in Section 9.2 of this Agreement may be revised at the discretion of the Grantor, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors: 1) Whether the violation was unintentional; 2) The nature of the harm which resulted; 3) Whether there is a history of prior violations of the same or other requirements; 4) Whether there is a history of overall compliance, and/or; 5) Whether the violation was voluntarily disclosed, admitted or cured. H. If, after the hearing, Grantor determines that a violation exists, Grantor may use one or more of the following remedies: 1) Order Grantee to correct or remedy the violation within a reasonable time frame as Grantor shall determine; PROPOSED MACC-/ RCN FRANCHISE August 18, 2000 41 2) Establish the amount of fine set forth in Section 9.2, taking into consideration the criteria provided for in subsection G. of this Section as appropriate in Grantor's discretion; 3) Revoke this Agreement, and/or; 4) Pursue any other legal or equitable remedy available under this Agreement or any applicable law. 9.2 FINES A. Failure to comply with provisions of the agreement may result in injury to Grantor. It will be difficult to accurately estimate the extent of such injury. Therefore, the financial penalty provisions of this Agreement are intended as a reasonable forecast of compensation to Grantor for the harm caused by violation of this Agreement, including but not limited to administrative expense, legal fees, publication of notices, and holding of a hearing or hearings as provided herein. 1) For violating aggregate performance telephone answering standards for a quarterly measurement period: a) $10,000 for the first such violation; b) $20,000 for the second such violation, unless the violation has been cured; c) $30,000 for the third such violation, unless the violation has been cured; d) For each and every subsequent violation, a fine equal to the sum of: 1) the fine assessed for the previous violation, together with 2) an additional $10,000 fine, unless the violation has been cured. Until cured, the fine for any quarter shall be $10,000 more than the fine for the previous violation. A cure is defined as meeting the subscriber telephone answering standards for two consecutive quarterly measurement periods. I 2) For violation of applicable subscriber service standards where violations ' are not measured in terms of aggregate performance standards: $25 per violation multiplied by the number of affected subscribers, per day; 3) For violations of Sections 7 or 20: $1,000 per day; s 4) For violations involving record submissions including without limitation those under Sections 3, 5, and 17 respectively, and especially where reporting requirements and timelines are defined within this Agreement: $250 PROPOSED MACC / RCN FRANCHISE August 13, 2000 42 per day for each violation for each day the violation continues. Grantee shall have a period of three (3) calendar days to cure the violation. The cure period shall commence upon the date of the violation and not the date Grantee receives notice of the violation. 5) For all other violations of this Agreement, except as otherwise provided herein: $250 per day for each violation for each day the violation continues. B. Collection of Fines. The collection of fines by the Grantor shall in no respect affect: 1) Compensation owed to Subscribers; or 2) The Grantee's obligation to comply with all of the provisions of this Agreement or applicable law; or 3) Other remedies available to the Grantor. C. Subject to Grantee's rights available under this Section, a fine assessed by Grantor is to be fully paid by Grantee no later than fifteen (15) days after receipt of Grantor's notice. 9.3 REVOCATION In addition to all other rights and powers retained by the Grantor under this Agreement or otherwise, the Grantor reserves the right to forfeit and terminate this Agreement and all rights and privileges of the Grantee hereunder, in whole or in part, in the event of a material violation of its terms and conditions. A material violation by the Grantee shall include, but shall not be limited to the following: 1) Violation of any material provision of this Agreement or any other Agreement between Grantor and Grantee, or any material rule, order, regulation, standard or determination of the Grantor or authorized agent made pursuant to this Agreement or other Agreement; 2) Attempt to evade any material provision of this Agreement or to practice any fraud or deceit upon the Grantor or its Subscribers or customers; 3) Failure to begin or complete the system construction, I-Net construction, or system extensions as provided in Sections 7 and 20; 4) Failure to restore service after forty-eight (48) consecutive hours of interrupted service system-wide, except when approval of such interruption is obtained from the Grantor; 5) Material misrepresentation of fact in the application for or negotiation of this Agreement, or; PROPOSED MACC / RCN FRANCHISE August 18, 2000 43 6) If Grantee becomes insolvent, or the subject of a bankruptcy proceeding. 9.4 RELATIONSHIP OF REMEDIES A. Remedies are Non-exclusive. The remedies provided for in this agreement are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another remedy, or the exercise of any rights of the Grantor at law or equity provided that the cumulative remedies may not be disproportionate to the magnitude and severity for the breach for which they are imposed. By way of example and not limitation, the collection of fines by Grantor shall in no respect affect: 1) Compensation owed to Subscribers; or ' 2) Grantee's obligation to comply with the provisions of this agreement or applicable law. B. No Election of Remedies. Without limitation, the withdrawal of amounts from the Grantee's Letter of Credit (LOC), or the recovery of amounts under the insurance, indemnity or penalty provisions of this agreement shall not be construed as any of the following: an election of remedies; a limit on the liability of Grantee under the Agreement for fines or otherwise; or an excuse of faithful performance by Grantee. 9.5 REMOVAL A. In the event of termination, expiration or revocation of all services provided pursuant to this Agreement, Grantor may order the removal of the above- ground Network Facilities and such underground facilities as required by Grantor in order to achieve reasonable engineering or Street-use purposes, from the Franchise Area at Grantee's sole expense within a reasonable period of time as determined by Grantor. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that is made by it and shall leave all Streets, public places and private property in as good a condition as that prevailing prior to Grantee's removal of its equipment. B. If Grantee fails to complete any required removal to the satisfaction of Grantor, Grantor may cause the work to be done and Grantee shall reimburse Grantor for the reasonable costs incurred within thirty (30) days after receipt of an itemized list of the costs and Grantor may recover the costs through the Letter of Credit provided by Grantee. a 9.6 RECEIVERSHIP AND FORECLOSURE A. At the option of Grantor, subject to applicable law, this Agreement may be revoked one-hundred twenty (120) days after the appointment of a receiver or PROPOSED MACC / RCN FRANCHISE August 18, 2000 44 trustee to take over and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or other action or proceeding unless: 1) The receivership or trusteeship is vacated within one-hundred twenty (120) days of appointment, or; 2) The receiver(s) or trustee(s) have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this Agreement, and have remedied all violations under the Agreement. Additionally, the receiver(s) or trustee(s) shall have executed an agreement duly approved by the court having jurisdiction, by which the receiver(s) or trustee(s) assume and agree to be bound by each and every term and provision of this Agreement. B. If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Grantee, Grantor may serve notice of • revocation on Grantee and to the purchaser at the sale, and the rights and privileges of Grantee under this Agreement shall be revoked thirty (30) days after service of such notice, unless: 1) Grantor has approved the transfer of the Agreement, in accordance with the procedures set forth in this Agreement and as provided by law; and 2) The purchaser has agreed with Grantor to assume and be bound by all of the terms and conditions of this Agreement. 9.7 NO RECOURSE AGAINST GRANTOR Grantee shall not have any monetary recourse against Grantor or its officials, boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision or requirement of this Agreement or the enforcement thereof, in accordance with the provisions of applicable federal, state and local law. The rights of the Grantor under this Agreement are in addition to, and shall not be read to limit, any rights or immunities the Grantor may enjoy under federal, state or local law. However, under federal law, Grantee does have the right to seek injunctive and declaratory relief. 9.8 NONENFORCEMENT BY GRANTOR Grantee is not relieved of its obligation to comply with any of the provisions of • this Agreement by reason of any failure of Grantor to enforce prompt compliance. Grantor's forbearance or failure to enforce any provision of this Agreement shall not serve as a basis to stop any subsequent enforcement. The failure of the Grantor on one or more occasions to exercise a right or to require compliance or performance under this Agreement or any applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing. Any PROPOSED MACC / RCN FRANCHISE August 18, 2000 45 waiver of a violation is not a waiver of any other violation, whether similar or different from that waived. a i i 3 PROPOSED MACC / RCN FRANCHISE August 18, 2000 46 SECTION 10 -ABANDONMENT 10.1 EFFECT OF ABANDONMENT If the Grantee abandons its Network Facilities during the Agreement term, or fails to operate its Network Facilities in accordance with its duty to provide continuous service, the Grantor, at its option, may operate the Network Facilities; designate another entity to operate the Network Facilities temporarily until the Grantee restores service under conditions acceptable to the Grantor or until the Agreement is revoked and a new Franchise is selected by the Grantor; or obtain an injunction requiring the Grantee to continue operations. If the Grantor is required to operate or designate another entity to operate the Network Facilities, the Grantee shall reimburse the Grantor or its designee for all reasonable cost,, expenses and damages incurred. 10.2 WHAT CONSTITUTES ABANDONMENT The Grantor shall be entitled to exercise its options and obtain any required injunctive relief if: A. The Grantee fails to provide all services specified under this Agreement to the Franchise Area for ninety-six (96) consecutive hours, unless the Grantor authorizes a longer interruption of service, except if such failure to provide service is due to a force majeure occurrence, as described in Section 4.2; or B. The Grantee, for any period, willfully and without cause refuses to provide services specified under this Agreement. PROPOSED MACC / RCN FRANCHISE August 18, 2000 47 SECTION II - TRANSFER / CHANGE OF CONTROL OF AGREEMENT A. No application for a transfer or change of control of this Agreement shall be granted unless the proposed Grantee agrees, in writing, that it will abide by and accept all terms of this Agreement, and as it may be amended, and that it will assume the obligations, liabilities, and responsibilities for all ants and omissions, known or unknown, of the previous Grantee under this Agreement, unless the Grantor, in its sole discretion, expressly waives this requirement in whole or in part in writing. S. The Cable System and this Agreement shall not be sold, assigned, transferred, leased, or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger, consolidation, nor shall title thereto, either legal or equitable, or any right, interest, or property therein pass to or vest in any Person or entity, without the prior written consent of the Grantor, which consent shall not be unreasonably withheld. C. The Grantee shall promptly notify the Grantor of any actual or proposed change in, or transfer of, or acquisition by any other parry of control of the Grantee. The word "control' as used herein is not limited to majority stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise on the acquisition or accumulation by any Person or group of Persons of twenty (20) percent of the voting shares or the general partnership interest in the Grantee, or any of its parent corporations except that this sentence shall not apply in the case of a transfer to any Person or group already owning at least a twenty (20) percent interest of the voting shares or the general partnership interest in the Grantee. Every change, transfer or acquisition of control of the Grantee shall make this Agreement subject to cancellation unless and until the Grantor shall have consented thereto. D. The parties to the sale or transfer shall make a written request to the Grantor for its approval of a sale or transfer and furnish all information required by law and the Grantor. E. The Grantor shall render a final written decision on the request within one-hundred twenty (120) days of the request, provided it has received all requested information. Subject to the foregoing, if the Grantor fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Grantor agree to an extension of time. F. Within thirty (30) days of any transfer or sale, if approved or deemed granted by the Grantor, Grantee shall file with the Grantor a copy of the deed, agreement, lease, or other written instrument evidencing such sale or transfer of ownership or control, certified and sworn to as correct by Grantee and the transferee. PROPOSED MACC / RCN FRANCHISE August 18, 2000 48 G. In reviewing a request for sale or transfer, the Grantor may inquire into the legal, technical and financial qualifications of the prospective controlling party or transferee, and Grantee shall assist the Grantor in so inquiring. The Grantor may condition said sale or transfer upon such terms and conditions as it deems reasonably appropriate, provided, however, any such terms and conditions so attached shall be related to the legal, technical, and financial qualifications of the prospective controlling party or transferee and to the resolution of outstanding and unresolved issues of noncompliance with the terms and conditions of this Agreement by Grantee. H. The consent or approval of the Grantor to any transfer by the Grantee shall not constitute a waiver or release of any rights of the Grantor, and any transfer shall, by its terms, be expressly subordinate to the terms and conditions of this Agreement. • 1. Notwithstanding anything to the contrary in this Section, the prior approval of the Grantor shall not be required for any sale, assignment or transfer of the Agreement or Cable System for cable television system usage to an entity controlling, controlled by or under the same common control as Grantee provided that the proposed assignee or transferee must show financial responsibility as may be determined necessary by the Grantor and must agree in writing to comply with all provisions of the Agreement. PROPOSED MACC / RCN FRANCHISE August 18, 2000 49 SECTION 12 - SEVERABILITY If any section, subsection, paragraph, term or provision of this Agreement is determined to be illegal, invalid or unconstitutional by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, subsection, paragraph, term or provision of this Agreement, all of which will remain in full force and effect for the term of the Agreement. PROPOSED MACC / RCN v;IvCIHISE August 18, 2000 50 LM SECTION 13 - MISCELLANEOUS PROVISIONS 13.1 PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED Grantee shall not discriminate in hiring, employment or promotion on the basis of race, color, creed, ethnic or national origin, religion, age, sex, sexual orientation, marital status, or physical or mental disability. Throughout the term of this Agreement, Grantee shall fully comply with all equal employment or nondiscrimination provisions and requirements of federal, state and local law and, in particular, FCC rules and regulations relating thereto. 13.2 DISPUTE RESOLUTION The Grantor and Grantee agree that should a dispute arise between the parties concerning any aspect of this Agreement which is not resolved by mutual agreement of the parties, and unless either party believes in good faith that injunctive relief is warranted, the dispute will be submitted to mediated negotiation prior to any party commencing litigation. In such event, the Grantor and Grantee agree to participate in good faith in a non-binding mediation process. The mediator shall be selected by mutual agreement of the parties. In the absence of such mutual agreement, each parry shall select a temporary mediator, and those mediators shall jointly select a permanent mediator. If the parties are unable to successfully conclude the mediation within 45 days from the date of the selection of the mediator, either party may terminate further mediation by sending written notice to the other. After written notice has been received by the other party, either party may pursue whatever legal remedies exist. All costs associated with mediation shall be borne, equally and separately, by the parties. 13.3 NOTICES Throughout the term of the Agreement, Grantee shall maintain and file with Grantor a designated legal or local address for the service of notices by mail. A copy of all notices from Grantor to Grantee shall be sent, postage prepaid, to such address and such notices shall be effective upon the date of mailing. At the effective date of this Agreement, such addresses shall be: John Jones Executive Vice President, General Counsel 105 Carnegie Center Princeton, NJ 08540 (609) 734-3700 Frank Cirone Senior Vice President, Regional Operations 1400 Fashion Island Blvd., Suite 100 PROPOSED MACC / RCN FRANCHISE August i 8, 2000 51 San Mateo, CA 94404 (650) 212-8070 All notices to be sent by Grantee to Grantor under this Agreement shall be sent, postage prepaid, and such notices shall be effective upon the date of mailing. At the effective date of this Agreement, such address shall be: Metropolitan Area Communications Commission 1815 NW 169th Place, Suite 6020 Beaverton, OR 97006-4886 13.4 BINDING EFFECT This Agreement shall be binding upon the parties hereto, their permitted successors and assigns. 13.5 AUTHORITY TO AMEND This Agreement may be amended at any time by written agreement between the parties. 13.6 GOVERNING LAW This Agreement shall be governed in all respects by the laws of the State of Oregon. 13.7 GUARANTEE The performance of the Grantee shall be guaranteed in all respects by RCN Corporation. A signed guarantee, in a form acceptable to the Grantor, shall be filed with the Grantor prior to the effective date hereof. 13.8 CAPTIONS The captions and headings of this Agreement are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of any provisions of this Agreement. 13.9 ENTIRE AGREEMENT This Agreement, together with all appendices and attachments, contains the entire agreement between the parties, supersedes all prior agreements or proposals except as specifically set forth herein, and cannot be changed orally but only by an instrument in writing executed by the parties. 13.10 CONSTRUCTION OF AGREEMENT The provisions of this Agreement shall be liberally construed to promote the public interest. PROPOSED i inliC , . CN FRANCHISE August 18, 2000 52 13.11 FRANCHISE REVIEW A. During the six-month period beginning eight (8) years after the effective date of this Agreement, the Grantor and Grantee shall undertake a review of Grantee's system and performance to date, in order to determine whether the Agreement should continue in effect for the full fourteen (14) year term, or should terminate at the end of the eleventh (11) year from the effective date of this Agreement. The Grantor may terminate the Franchise at the end of the eleventh (11) year if at least one of the following has occurred: 1) Grantor determines there has been a pattern of violation of material provisions of the Agreement; and/or 2) by the end of the six-month period, Grantee refuses to make provision for the effective resolution of any evident patterns of customer service problems unanticipated in the provisions of the Agreement. Any proposal by the Grantor to terminate the Agreement at the end of the • eleventh (11) year from the effective date of this Agreement shall be subject to the same procedural requirements as for forfeiture under Section 9 hereof. B. In addition, during the six-month period beginning eight (8) years after the effective date of this Agreement, either the Grantor or the Grantee may request the other party to participate in good faith negotiations, for a period not to exceed six (6) months to consider one or more of the following subjects: 1. Technology 2. Parity with neighboring systems 3. PEG Access support by the Grantee 4. Franchise term 5. I-Net Functioning and Service Nothing in this subsection requires either the Grantor or the Grantee to agree to any amendment to this agreement, and any amendments hereto must be formally accepted in writing by both parties. PROPOSED MACC / RCN FRANCHISE August 18, 2000 53 PART 2 - PROVISIONS APPLICABLE ONLY TO CABLE AND BROADBAND ACCESS SERVICES SECTION 14 - ADMINISTRATION AND REGULATION 14.1 RATES AND CHARGES All of Grantee's rates and charges related to or regarding Cable Service shall be subject to regulation by Grantor to the full extent provided by applicable federal, state, and local laws. 14.2 RATE DISCRIMINATION All of Grantee's rates and charges shall be published (in the form of a publicly available rate card), and shall be nondiscriminatory as to all Persons and organizations of similar classes, under similar circumstances and conditions. - Grantee shall apply its rates in accordance with governing law, with similar rates and charges for all Subscribers receiving similar Cable Service, without regard to race, color, familial, ethnic or national origin, religion, age, sex, sexual orientation, marital, military or economic status, or physical or mental disability, or geographic location in the Franchise Area. Grantee shall provide equivalent Cable Service to all Residential Subscribers at similar rates and to Commercial Subscribers as authorized by applicable laws. Nothing herein shall be construed to prohibit: A. The temporary reduction or waiving of rates or charges in conjunction with valid promotional campaigns; B. The offering of reasonable discounts to senior citizens or economically disadvantaged citizens; C. Grantee from establishing different and nondiscriminatory rates and charges for commercial customers, as well as different nondiscriminatory monthly rates for commercial customers as allowable by federal law and regulations; or D. Grantee from establishing different and nondiscriminatory rates and charges for Residential Subscribers as allowable by federal law and regulations. 14.3 CROSS SUBSIDIZATION Grantee shall comply with all applicable laws regarding rates for Cable Services and all applicable laws covering issues of cross subsidization through the term of this Agreement. PROPOSED MACC / RCN FRANCHISE August 18, 2000 54 14.4 SUBSCRIBER CONTRACTS Grantee shall not enter into any contract with any Subscriber that is in any way inconsistent with the terms of this Agreement. Upon request, Grantee will provide to the Grantor samples of Subscriber contract(s) and service agreement(s) currently in use. 14.5 FILING OF RATES AND CHARGES Throughout the term of this Agreement, for informational purposes, Grantee shall maintain on file with Grantor a complete schedule of applicable rates and charges for services authorized by this Agreement. Nothing in this subsection shall be construed to require Grantee to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns, and rates for multiple dwelling units, provided that Grantee shall make reasonable efforts to notify Grantor in writing in advance of such promotions. Grantee shall provide upon request from Grantor a complete schedule of current rates and charges for any and all Leased Access Channels, or portions of such Channels, provided by Grantee. The schedule shall include a description of the price, terms and conditions established by Grantee for Leased Access Channels. 14.6 EQUIVALENT SERVICE It is Grantee's general policy that all residences in the Franchise Area have equivalent availability from Grantee's Network Facilities under nondiscriminatory rates and reasonable terms and conditions. Grantee shall not arbitrarily refuse to provide services to any Person within the Franchise Area. i i i If t PROPOSED MACC / RCN FRANCHISE August 18, 2000 55 SECTION 15 - GRANT FUND SUPPORT Grantee shall make contributions to the existing grant fund administered by Grantor that provides support for Designated Access Providers and governmental, educational, and non-profit agencies using the PCN or the I-Net provided for in this Agreement. Throughout the first seven (7) years of the term of this Agreement, Grantee shall provide $0.50 per month, per Residential Subscriber for capital support for PEG and for operating and/or capital support for the PCN or I-Net. For the year beginning on September 16, 2007, and continuing until the end of the Agreement, Grantee shall provide, for this same dual purpose, $1.00 per month, per Residential Subscriber. Grantee shall make such payments quarterly, following the effective date of this Agreement, for the preceding quarter ending March 31, June 30, September 30, and December 31. Each payment shall be due and payable no later than thirty (30) days after the end of each quarter. These payments shall be subject to the provisions in Section 22.8. If Grantee chooses to itemize these costs on Subscribers bills, Grantor shall be given an opportunity to review and comment on any notice or explanation to Subscribers. Grantee shall make its best efforts to submit the content of notice to Subscribers regarding such charges to the Grantor for review and comment at least 10 days prior to printing. Grantor recognizes these funds as "external costs" of the Grantee, as defined by FCC rate regulations and rules. Grantor has established a grant award process and a committee to award these grants. Grantee shall have the option of appointing a representative to serve on this committee as a ex-officio, non-voting member. Committee grant award recommendations shall be forwarded to the Commission for final consideration and award. Grantor shall provide an annual report to Grantee on the use of these grant funds. Grants may be awarded only for the following purposes: 1. Capital expenditures by Designated Access Provides within the Franchise Area that directly use, or are directly related to the use of the Network Facilities, bandwidth, channels, or related technology. 2. Capital or operating expenditures by agencies within the Franchise Area that directly use, or are directly related to the use of the Network Facilities, bandwidth, channels, or related technology, the PCN, or the I-NET provided for in this Agreement. PROPOSED MACC / RCN FRANCHISE August 18, 2000 56 mill Millisolim SECTION 16 - CUSTOMER SERVICE 16.1 DEFINITIONS A. Normal business hours mean those hours during which most similar businesses in the franchise area are open to serve customers. In all cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. B. Normal operating conditions mean those service conditions that are within the control of the Grantee. Those conditions which are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, major power outages, major non-Grantee owned telephone network outages, severe and unusual weather conditions. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Network Facilities. C. Service interruption means the loss of picture or sound on one or more cable channel. 16.2 LOCAL OFFICE By August 31, 2002, and throughout the term of the Agreement, Grantee must maintain, at a minimum, one (1) customer service center conveniently located in the Franchise Area which will be open during normal business hours, to provide Subscribers the opportunity for the receipt and pickup of Subscriber equipment and for bill payments and complaints. Grantee shall install telephones and other equipment so that customer complaints and service requests can be received by Grantee on a 24-hour basis at a toll-free telephone number. 16.3 TELEPHONE ANSWERING STANDARDS A. Trained company representatives will be available to respond to telephone inquiries a minimum of twelve (12) hours each day, Monday through Friday, and eight (8) hours on Saturday and Sunday. Outside of normal business hours, and hours when the office is not staffed, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received by Grantee's answering service or automated response system must be responded to by a trained company representative before the end of the next business day. B. Under normal operating conditions, telephone answer time by a trained customer representative including wait time, shall not exceed thirty (30) seconds from when the connection is made. If the call needs to be transferred, or if the call is answered by an automated response system, transfer time shall not exceed thirty (30) seconds from the time the customer PROPOSED MACC / RCN FRANCHISE August 18, 2000 57 requests or selects the option of speaking with a trained customer service representative. These standards shall be met for no less than ninety (90) percent of all calls received, measured quarterly. C. Under normal operating conditions, no more than three (3) percent of all callers will receive a busy signal, measured quarterly. No more than five (5) percent of all calls received will be lost or abandoned, measured quarterly. D. Failure to meet these standards shall subject Grantee to enforcement actions set forth in Section 9.2. 16.4 INSTALLATIONS. OUTAGES AND SERVICE CALLS A. Service calls and response time. Under normal operating conditions, each of the following standards will be met in no fewer than ninety-five (95) percent of applicable events, as measured on a quarterly basis. For purposes of calculating compliance with and determining enforcement of these standards, each request for service or installation shall be counted as one event: 1) Installations to locations that are located within one hundred and twenty- five (125) feet of the existing distribution system will be performed within seven (7) business days after an order has been placed, according to the requirements of Section 7.2. 2) Where a request for service can be satisfied without a service call, the request must be satisfied within three (3) business days from the date of request. 3) For installations to locations that are more than one hundred and twenty- five (125) feet from the existing distribution system, in accordance with Section 7.2, service must be provided within thirty (30) days of the date the person requesting service agrees to pay the charges associated with the installation. Nothing in this Section permits the Grantee to charge for extending service in an area where the Grantee is required to provide service pursuant to Section 7.2. 4) The "appointment window" alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. The Grantee may i schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer. ' 5) Grantee may not cancel an appointment with a person after the close of business on the business day prior to the scheduled appointment. 6) If Grantee's representative is running late for an appointment with a Subscriber and will not be able to keep the appointment as scheduled, PROPOSED MACC / RCN FRANCHISE August 18, 2000 58 Grantee will attempt to contact Subscriber at least two times. The appointment will be rescheduled, as necessary, at a time that is convenient for the customer, and as soon as practical. 7) Excluding conditions beyond the control of the Grantee, the Grantee will begin working on service interruptions promptly and in no event later than twenty-four (24) hours after the interruption becomes known to the Grantee. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem. B. Failure to meet these standards shall subject Grantee to enforcement action set forth in Section 9. • 16.5 NOTICE REQUIREMENTS A. The Grantee shall provide written information on each of the following areas at the time of installation of service; at least annually to all Subscribers; and at any time upon request: 1) Products and services offered; 2) Prices and options for programming services and conditions of subscription to programming and other services. In order that Subscribers are fully apprised of the charges they may incur, grantee shall note that advertised rates are subject to additional taxes and fees; 3) Installation and service maintenance policies; 4) Instructions on how to use the Cable Service; 5) Channel positions of programming carried on the system; 6) Billing and complaint procedures, including the address and telephone number of the Metropolitan Area Communications Commission. The Grantee shall make its best efforts to submit the content of notices to Subscribers regarding such changes to the Grantor for review and comment at least 10 days prior to printing. B. Failure to meet these standards shall subject Grantee to enforcement action set forth in Section 9. 16.6 SPECIAL NOTICE PROCEDURES A. 1) At any time a person subscribes to any service, the person must be specifically informed whether there will be a charge to drop the service. PROPOSED MACC / RCN FRANCHISE August 18, 2000 59 2) If there is any charge for terminating a promotional or free product or service, the charge must be disclosed in writing prior to connection of the service or provision of the product. B. Subscribers shall be notified 30 days in advance of any changes in rates, programming services, or channel positions as soon as possible in writing unless otherwise expressly provided by federal law. C. The Grantor shall be notified of any change in rates, prograrnining services, channel position, or policy at least thirty (30) days in advance of such change by letter delivered to the Commission, except where such notification is impossible because the change is beyond the control of Grantee or any Affiliate, in which case the notice must be given as quickly as possible. The Grantee shall make its best efforts to submit the content of notices to Subscribers regarding such changes to the Grantor for review and comment at least 10 days prior to its printing. D. Failure to meet these standards shall subject Grantee to enforcement action set forth in Section 9. 16.7 BILLING A. Bills will be clear, concise and understandable. Bills shall be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. B. In case of a billing dispute, the Grantee shall respond to a written complaint from a Subscriber within thirty (30) days. C. Refund checks will be issued promptly, but no later than either: 1) The Subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or 2) The return of the equipment supplied by the Grantee if service is terminated. D. Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. E. For purposes of billing, a request for disconnection shall be effective immediately upon the Subscriber's oral or written request, and the Subscriber may not be billed for any service provided after the request, and is entitled to refunds on any prepaid period unless otherwise provided by federal law or regulation. PROPOSED MACC / RCN FRANCHISE August 18, 2000 60 F. Subscriber bills from Grantee shall include the name, address, and telephone number of the Metropolitan Area Communications Commission. G. Failure to meet the standards in subsections B. - F. shall subject Grantee to enforcement actions set forth in Section 9. 16.8 SUBSCRIBER PRIVACY Grantee will comply with privacy rights of Subscribers in accordance with federal, .Stale, and wvul iur•. 16.9 EMERGENCY BROADCAST In accordance with, and at the time required by, the provisions of the FCC Regulations Part 11, Subpart 11.51, as such provisions may from time to time be amended, Grantee shall provide the emergency alert capability in accordance with Federal Law, and in compliance with the FCC-approved Oregon State Emergency Alert System (EAS) plan, and the Local Area EAS plans that apply to Washington and Clackamas Counties. Grantee will cooperate with the Grantor and local emergency officials to develop policies and procedures for the use of the emergency broadcast capability within the Franchise Agreement service area. 16.10 MACC BILL INSERTION One time each calendar year, Grantee shall allow MACC to include one bill insertion to provide an explanation of its roles and responsibilities to Grantee's subscribers. Grantee shall be responsible for all costs for printing, insertion, and any additional postage cost that may result from the addition of the bill insertion. Bill insertions shall conform to Grantee's mailing requirements. Grantee and Grantor shall coordinate the timing of these insertions. Grantee shall be provided an opportunity to review and comment on content of such bill insertions. PROPOSED MACC < RCN FRANCHISE August 18, 2000 61 SECTION 17 - CABLE AND BROADBAND REPORTS AND RECORDS 17.1 COMPLAINTS A. Grantee shall keep accurate and comprehensive files of any and all complaints regarding the operation and performance of its Network Facilities for provision of Cable Services and Broadband Access Services within the Franchise Area, in a manner consistent with the privacy rights of Subscribers. B. Grantee shall report to Grantor: 1) Number, duration, general location, and customer impact of unplanned service interruptions; and 2) Resolution and/or disposition of formal complaints made through Grantor, including a description of causes of the complaint. C. Grantor may request additional information if Grantor reasonably believes that Grantee may not be in compliance with the standards covered by these reports. 17.2 CONSTRUCTION A. Throughout construction of the Network Facilities, and until such time as Grantor certifies in writing the completion of the construction, Grantee shall provide a quarterly summary report within thirty (30) days of the end of the preceding quarter that provides a summary of construction activities related to construction of the Network Facilities. Upon request of Grantor, Grantor and Grantee will hold monthly meetings to discuss the progress of construction of the Network Facilities and work cooperatively to speed the construction process and to minimize the impact upon Public Rights of Way and on Subscribers. These meeting will include discussion of. the construction timeline; system design plans; any problems Grantee has in obtaining permits or other approvals; and interactions with other system operators or utilities. B. Upon activation and provision of service on any portion of the Network Facilities, Grantee shall provide a quarterly summary report within thirty (30) days of the end of the preceding quarter that shall include information on construction of the Network Facilities to new subdivisions. 17.3 CUSTOMER SERVICE A. Throughout the term of the Franchise, Grantee shall provide a quarterly summary report within thirty (30) days of the end of the preceding quarter that shall include: PROPOSED MACC / RCN FRANCHISE August 18, 2000 62 1) Subscriber counts by service tiers, and, if calculated by Grantee, equivalent billing unit (EBU) counts; 2) Total disconnections and the major reasons for such disconnections; 3) Average response times and total number of service calls; 4) Video programming changes, including additions and/or deletions; and 5) Other information about special problems, activities, or achievements as Grantee may want to provide Grantor. B. Grantor may require these reports be submitted on a monthly basis if Grantor reasonably believes that Grantee may not be in compliance with the standards covered by these reports. 17.4 TELEPHONE ANSWERING A. Upon activation and provision of service on any portion of the Network Facilities, Grantee shall provide summary reports to Grantor within fifteen (15) days of the end of the preceding month, which shall include totals of. 1) the number of calls attempting to reach Grantee; 2) the number of calls answered by a trained company representative, including hold times; 3) the number of calls abandoned; 4) the number of calls that receive a busy signal; and 5) the percentage of time during which no phone line is available to accept incoming calls. B. Grantor may require these reports be submitted on a more frequent basis if Grantor reasonably believes that Grantee may not be in compliance with the standards covered by these reports. 17.5 REQUESTS FOR ADDITIONAL INFORMATION Grantor shall also have the right to request such information as appropriate and reasonable to determine whether or not Grantee is in compliance with applicable Customer Service Standards, as referenced in Section 16. Such information shall be provided to Grantor in such format as Grantee customarily prepares reports. Grantee shall fully cooperate with Grantor and shall provide such information and documents as necessary and reasonable for Grantor to evaluate compliance. PROPOSED MACC / RCN FRANCHISE August 18, 2000 63 SECTION 18 - PROGRAMMING 18.1 BROAD PROGRAMMING CATEGORIES A. Grantee's cable television system shall provide the widest diversity of programming possible. Grantee shall provide at least the following broad categories of programming to the extent such categories are reasonably available: 1) Educational programming. 2) Sports. 3) General entertainment (including movies). 4) Children/family-oriented. 5) Arts, culture and performing arts. 6) Foreign language. i) Science/documentary. 8) Weather information. 9) Programming addressed to diverse ethnic and minority interests in the Franchise Area; and 10) National, state, and local government affairs. B. Grantee shall not delete any broad category of programming in Section 18.1.A. within its control. 18.2 OPEN ACCESS If Grantee, an Affiliate provider, or a party contracting with the Grantee to provide cable modem service (or an equivalent Internet access service) over the Grantee's Network Facilities, it shall provide, absent a reasonable business justification, non-discriminatory access to the cable modem (or equivalent) platform for other providers of Internet and on-line services, whether or not such providers are affiliated with the Grantee. 18.3 PARENTAL CONTROL DEVICE Upon request by any Subscriber, Grantee shall make available a parental control or lockout device, traps, or filters to enable a Subscriber to control access to both the audio and video portions of any or all Channels. Grantee shall inform its Subscribers of the availability of the lockout device at the time of their initial subscription and periodically thereafter. 18.4 LEASED ACCESS CHANNELS Grantee shall meet the requirements for Leased Access Channels imposed by federal law. PROPOSED MACC / RCN FRANCHISE August 18, 2000 64 18.5 CONTINUITY OF SERVICE A. It shall be the right of all Subscribers to continue to receive Cable Service from Grantee insofar as their financial and other obligations to Grantee are satisfied. Subject to the force majeure provisions of this Agreement, Grantee shall use its best efforts to ensure that all Subscribers receive continuous, uninterrupted Cable Service regardless of the circumstances. B. In the event of a change in ownership, or in the event of sale or transfer of the Network Facilities in accordance with this Agreement, Grantee shall cooperate with Grantor in maintaining continuity of service to all Subscribers. 18.6 SERVICE FOR THE DISABLED Grantee shall comply with the Americans Vllith Disabilities Act, any amendments thereto and any other applicable federal, state or local laws or regulations. PROPOSED MACC / RCN FRANCHISE August 18, 2000 65 SECTION 19 - TEST AND COMPLIANCE PROCEDURES Upon request, Grantee shall advise Grantor of Grantee's schedule and methods for testing its Network Facilities on a regular basis to determine compliance with the provisions of applicable FCC technical standards. Representatives of Grantor may V itness tests, and written test reports may be made available to Grantor upon request. As required by FCC Rules, Grantee shall conduct proof of performance tests and cumulative leakage index tests designed to demonstrate compliance with FCC requirements. Grantee shall provide Grantor summary written reports of the results of such tests. a i i . 3 a PROPOSED MACC / RCN FRANCHISE August 18, 2000 66 SECTION 20 - INSTITUTIONAL NETWORK (I-NET) 20.1 CONSTRUCTION AND GENERAL CONDITIONS As part of the construction of its Network Facilities, Grantee shall provide an Institutional Network (I-Net). The sole purpose of this I-Net will be to provide fiber redundant pathing from specific agency sites which are currently using the Incumbent Cable Operator's Public Communications Network (PCN), to specific PCN User Headend locations. The specific I-Net agency sites and agency Hub locations, which will make up the I-Net, are listed in Attachment 20 A. Any additional sites not listed on such Attachment shall be constructed and connected to the I-Net by the Grantee during the term of the Agreement as described in subsection N. Construction of the I-Net shall be concurrent with the construction of Grantee's Network Facilities and shall be completed on or before the completion date for system construction as specified in Section 7. The I-Net is a private communications network provided for governmental, nonprofit, and educational uses governed by this Agreement and the Cable Act. The I-Net may be used by the Grantor for its Qualified I-Net Users (hereinafter "User") to provide any technically and legally compatible, non-commercial service. The Grantor agrees to require all Users to stipulate and agree to this limitation. The I-Net will not be used in any way that will intentionally or unreasonably interfere with the signal quality and the normal operation of the Grantee's Network Facilities. 20.2 NETWORK CONSTRUCTION AND EQUIPMENT COSTS Throughout the term of this Agreement, and any extension or renewal, Grantee will not charge a usage fee to Grantor or Users of the I-Net. Except for Section 20.16, Grantee will not charge for any costs associated with the design, construction, or use of the I-Net capacity, outside plant maintenance, and maintenance, replacement, and diagnosis of electronic equipment necessary to provide I-Net capacity. 20.3 I-NET ACTIVATION As construction of the Grantee's Network Facilities is completed in a geographic area of a node(s), Grantee will: (1) test the I-Net segment ready for activation using a Optical Time Domain Reflectometer (hereinafter "OTDR"), and (2) will then activate those portions of the I-Net in that area which pass the OTDR testing. Grantee and the Grantor can agree to waive these requirements on a case-by-case basis. Nothing in this Agreement shall prevent the parties agreeing to different procedures for I-Net construction as long as those procedures permit the I-Net to be constructed efficiently and cost-effectively. Consistent with this goal, it is the PROPOSED MACC / RCN FRANCHISE August 18, 2000 67 intent of the parties to cooperate to minimize any delay in the construction of the Network Facilities while provided sufficient time to permit the Grantor to review and approve any design plans or cost estimates. 20.4 DESIGN REVIEW Grantee shall submit the proposed design to the Grantor for review and input prior to its construction. Grantor shall review and comment on the proposed design within thirty (30) days of receipt. Grantee shall incorporate any changes proposed by the Grantor into the design of the I-Net. Grantee shall submit the final design for the I-Net to the Grantor for review and comment thirty (30) days prior to start of construction of the I-Net. Grantee will incorporate any changes proposed by Grantor into the final design. Grantee will provide monthly 1-Net construction updates at the same time as they provide updates on construction ' of the Network Facilities. The design phase should include: walk-out of the facility sites to be served by I- Net; a detailed network design; and, a breakdown of materials, equipment, components, labor, and facilities required to provide the I-Net capacity. Grantor will be provided with copies of any I-Net system maps and other schematics used in the design and operation of the I-Net. 20.5 I-NET FIBER The I-Net construction will incorporate optical fiber architecture to achieve the I- Net Service and Performance Standards described in Attachment 20 B. A minimum of two (2) pairs of single-mode "dark" optical fibers will be dedicated to Grantor by the Grantee for non-competitive, non-commercial I-Net use. 20.6 FIBER ROUTING In order to provide redundant pathing for PCN Users, the routing of the 1-Net between User sites and the designated User Headend will, where possible, travel on routes different than those used by the Incumbent Operator for its Cable System. I-Net fibers may be contained, in the same sheath as Grantee's Network Facilities (or in some cases, in a separate fiber sheath) and will generally follow the same routing as used by the Grantee for Network Facilities. As a result, the I-Net may travel on the System ring(s), through the Headend/Hubs, and through facility nodes (in some cases, separate I-Net nodes can be installed for the I-Net at Grantee's expense). 20.7 I-NET USES. The I-Net will be designed to provide redundant paths between PCN Users sites and designated Headend(s). It should be capable of supporting a variety of PCN equipment applications, which shall include, but are not limited to Ethernet, Fast Ethernet, Gigabit Ethernet, ATM, FDDI, telephony, and analog/digital video applications. This I-Net will not be used for commercial purposes. 20.8 I-NET DEMARCATION POINTS PROPOSED MACC / RCN FRANCHISE August 18, 2000 68 Grantor or User shall designate a demarcation point for the I-Net in each facility that is to be served and in the User Headend(s). Grantee will provide and install M a rack or equivalent device at each demarcation point to mount Grantor's fiber optic connectors and patch panel. Grantee will provide and be responsible for all I-Net equipment used to provide the network capacity up to that demarcation point. Grantor and individual I-Net users may separately contract with Grantee for equipment and maintenance beyond the demarcation point or for specialized network equipment placed on the I-Net backbone. All fiber runs to the demarcation points will be in conduit with a locator tape as part of the standard installation. The User will provide the route and the access from the property line of the I-Net site into the facility where the demarcation point is located. Grantee, where possible, will place Met drop conduit in common trenches or paths with the Grantee's Network Facilities drops to these facilities for cable television service. Where possible, Grantee will avoid, if possible, using the same trench or path used by the Incumbent Operator to serve the PCN. 20.9 I-NET HEADEND(S) As part of the I-Net design and architecture, I-Net fibers from each I-Net site will terminate at Headend facility(ies) designated by the Grantor. Grantee will incorporate the Headend(s) into the I-Net design plans and will appropriately terminate the User fibers at the Headend demarcation point as required by Grantor. 20.10 GRANTOR CONTINUED USE OF THE I-NET The Grantor is hereby granted the irrevocable right of continued use and control of the [-Net described in this Agreement, during its term and any extension or renewal thereof. If at any point, Grantee ceases to operate and maintain the I- Net, due to abandonment, revocation, or any other reason, the Grantor may operate and maintain the I-Net and shall have an absolute right to obtain access to and utilize any Grantee facilities or equipment required to do so. In the event the Grantee ceases operation of the Network Facilities during the term of this Agreement, for any reason, without a transfer of the Agreement being approved by the Grantor, as provided for herein, ownership of the equipment and facilities comprising the ]-Net (specifically including any equipment designated as owned by the Grantee pursuant to this Section shall transfer to the Grantor for its sole use. At the termination of this Agreement, the Grantor shall maintain the right to continue to use the I-Net under mutually agreed upon terms. 20.11 GRANTOR AS "GATEKEEPER" FOR I-NET Grantor will serve as the "gatekeeper" of the I-Net required in this Agreement. In this role, the Grantor, in its sole discretion, will determine which entities and PROPOSED MACC / RCN FRANCHISE August 18, 2000 FQ which User sites will be connected to the I-Net. The Grantor will designate qualified I-Net Users of the I-Net. The I-Net is not meant to replace or supplant the PCN, but will provide a level of redundant protection for current PCN Users. 20.12 GRANTEE I-NET AGREEMENT Grantee may require the Grantor or Users to enter into an I-Net Agreement. Under no circumstances can the terms of such I-Net Agreement conflict with the terms or intent of this Agreement. Any I-Net Agreement between the Grantee and Grantor, or Users, shall have a term concurrent with the term of this Agreement. 20.13 GRANTEE ENCHANCED SERVICES Grantee shall own all equipment and facilities outside the demarcation point set forth in Section 20.8, with the exception of the network equipment or components owned separately by the Grantor or User and installed on the I-Net. Grantee, at its option, may install additional fiber capacity that is not part of the I- Net to the demarcation point at each User site. Additional fiber capacity installed by the Grantee may be used to provide Grantee's enhanced services to Users, as part of a separate agreement for services. These services may include telephone, data, video, or other services offered by Grantee. There is no requirement in this Agreement for the Grantor or Users to subscribe to, or make use of, Grantee's Enhanced Services. Grantee's enhanced services as provided for in this subsection shall not in any way replace or supplant the PCN or the current applications of Users on the PCN. 20.14 ADDITIONAL. CAPACITY OR SITES Additional sites not listed in Attachment 20 A of this Agreement may be added to the I-Net as follows: A. Prior to completion of I-Net fiber design - Up to five (5) additional sites may be identified to be constructed by Grantee upon request of the Grantor. These sites will be constructed at Grantee's incremental cost for the fiber, engineering, design, equipment, and the actual construction. Grantor or User requesting service to the site will reimburse Grantee for these incremental costs based on an itemized invoice provided by the Grantee. B. Upon completion of I-Net fiber design - If at any time after the completion of fiber design construction of the Network Facilities and I-Net, the Grantor or a User desires additional capacity, services, or additional sites connected to the PROPOSED MACC / RCN FRANCHISE August 18, 2000 70 I-Net, beyond those provided for during the construction, the Grantee shall provide additional capacity for up to five (5) additional sites as follows: 1) Grantee will design the most cost-efficient construction solution and will provide cost itemizations for review by Grantor. Grantee shall charge Grantor only for the incremental costs to install any additional fiber needed for the project, and the Grantee's actual costs for project labor and construction. 2) If Grantor decides to proceed with project, Grantee will perform the work as designed, and will invoice Grantor for project costs. Grantor shall promptly pay any proper invoice presented by Grantee. 3) All construction to additional sites, as identified in 1) and 2), will be from the nearest serviceable Node or Hub site for the I-Net or Network Facilities to help minimize Grantor or User costs for such construction. Grantee shall warrantee all work performed in adding additional sites and, at Grantee's expense, maintain any equipment purchased for use on the network for this project. The provisions of this Section shall apply to any additional sites added to the I-Net following the construction and activation of these sites. The I-Net Service and Performance Standards will also apply to all additional sites added to the I-Net. 20.15 1-NET UPGRADE Grantee and Grantor shall cooperate in investigating and considering options for upgrades to the I-Net at any time during the term of this Agreement. Nothing herein shall be construed to prevent Grantee from enhancing the capabilities, capacity, performance, or other characteristics of the network to take advantage of beneficial changes in future network technology. Grantee and Grantor will agree to any such changes prior to Grantee. 20.16 INTERNET SERVICE TO GOVERNMENT & EDUCATIONAL INSTITUTIONS Grantee shall provide, by no later than July 1, 2001, Internet capacity and service to one government and one education institutional site as designated by the Grantor. To facilitate this service, Grantee shall install one (1) pair of redundant fibers from Grantee's megapop, located in Hillsboro, to the City of Hillsboro's Computer Center, and to the Northwest Regional Educational Service District Administration building in Hillsboro. On these fibers, Grantee shall provide one DS3 circuit from each designated site to the Grantee's megapop. The two (2) DS3 circuits will be delivered from a Sonet platform and Grantee shall provide all necessary transport/terminal equipment between the megapop and the demarcation point at each designated site. Commencing from Grantee's megapop, Grantee will aggregate the two (2) DS3 circuits onto Grantee's Internet backbone and will provide Grantor, at no cost, a minimum of nine (9) Mbps of upstream and downstream bandwidth capacity to Grantee's Internet Service Point via leased long-line capacity. Within 30 days of request of Grantor, PROPOSED MACC / RCN FRANCHISE August 18, 2000 71 the Grantee shall provide additional Internet backbone capacity in 1 Mbps increments at a cost to Grantor not to exceed $500 per increment per month. Grantee may configure the initial allocation of Internet backbone bandwidth at the request of the Grantor, by throttling it at 9 Mbps or by allowing burst speeds above this allocation. Such burst speeds shall be metered by Grantee and shall be billed to Grantor at a maximum charge of $500 per month. Over this Internet backbone, and through the fibers from the megapop to each designated site, the Grantee shall provide its own Internet service at no cost to Grantor. Grantee shall also pay the costs of IP addressing and shall assist the Grantor with the installation and conversion of this Grantee-provided service for the two designated sites. PROPOSED MACC / RCN FRANCHISE August 18, 2000 72 SECTION 21 - CABLE MODEM SERVICES TO GRANTOR A. Cable modem services mean Broadband Access Services provided by Grantee over the Network Facilities that enable access to the Internet services of Grantee, its Affiliates, or third parties. B. When such service is made available to subscribers, Grantee shall also provide Grantor, up to twenty (20) high-speed residential-type cable modems or equivalent transpoi devices for use b; Grantor, during the term of this Agreement. Modems shall be provided by Grantee without cost to Grantor. Grantor shali designate the public agency locations for installation of these modems. Grantee shall not charge for the initial installation, set-up, use, or general maintenance of these modems. If modems are relocated during the term of this Agreement, Grantor shall pay Grantee's lowest available installation cost for relocation. Grantor shall be responsible for the safekeeping of the modems and shall reimburse Grantee for any loss of, or any intentional damage to, a modem provided by Grantee. C. If Grantee uses a non-cable modem based high-speed Internet/E-mail residential service, it may substitute that service for the cable modem based service required above. All other requirements of this subsection shall apply to this alternate service option. PROPOSED MACC / RCN FRANCHISE August 18, 2000 73 h SECTION 22 - PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS (PEG) 22.1 GENERAL DEFINITIONS With respect to purposes of this Section, the following definitions will apply with respect to Public, Educational, and Governmental (PEG) use of the Network Facilities. A. "Access Channel" means any Channel, or portion thereof, designated for non-commercial PEG Access purposes or otherwise made available to facilitate or transmit Access programming or service. Each Access Channel shall be six (6) MHz and must be capable of transmitting a standard analog video signal. The capacity can be used to transmit non-commercial signals in any format, and can be used to transmit: audio only, video, or other information (including, by way of example, but not limited to secondary audio, text, digital information, high-definition signals, and compressed signals.) A non-standard NTSC use shall be subject to the Grantee's prompt prior review and approval to ensure that the use will not cause unreasonable technical interference with other Channels. Such uses must be in furtherance of PEG uses. Additionally, there shall not be commercial use or lease of such PEG capacity without the express written permission of the Grantee. B. "Digital Access Channel", as used in this Section, means a Channel carrying PEG continuous full-motion video programming in a digital format. Digital Access Channels shall have the same compression ratio and transmission quality as is used to carry any of the commercial Channels that deliver programming to the Grantor in a similar format for delivery to each Subscriber. C. "Designated Access Provider" means the entity or entities designated by the Grantor to manage or co-manage PEG Channels and facilities. The Grantor may be a Designated Access Provider. D. "Origination Point" means a location other than an Access Center, where PEG programming is delivered to the Grantee for Upstream transmission. (Attachment 22.5 A) 22.2 MANAGEMENT AND CONTROL OF ACCESS CHANNELS . A. Grantor may authorize Designated Access Providers to control and manage the use of any and all Access facilities provided by Grantee under this Agreement, including, without limitation, the operation of Access Channels. To the extent of such designation by Grantor, as between the Designated Access Provider and Grantee, the Designated Access Provider shall have sole and exclusive responsibility for operating and managing such Access Facilities. The Grantor, or its designee, may formulate rules for the operation of the Access Channels, consistent with this Agreement. Such rules shall not PROPOSED MACC / RCN FRANCHISE August 18, 2000 74 1 be designed to control the content of Public Access programming. Nothing herein shall prohibit the Grantor from authorizing itself to be a Designated Access Provider. B. Grantee shall cooperate with the Grantor and Designated Access Provider in the use of the Network Facilities and Access facilities for the provision of Access programming. Grantee shall enter into such operating agreements with the Designated Access Provider as may be necessary to facilitate and coordinate the provision of Access, provided that such agreements shall not be inconsistent with the terms of this Agreement and shall be subject to approval of the Grantor. C. Except as provided in this Agreement, the Grantor shall allocate Access resources only to Designated Access Providers. The Grantee shall cooperate with the Grantor in such allocations, in such manner, as the Grantor shall direct. D. Subject to written authorization from the Grantor, the Grantee shall have the right to use temporarily any Channel, or portion thereof, which is allocated under this Section for Access use pursuant to 47 USC Section 611(d). y 22.3 CHANNEL CAPACITY AND USE A. All Access Channels provided for herein are administered by the Grantor or ,designee. B. Upon activation and provision of service on any portion of the Network Facilities, the Grantee shall activate and provide six (6) Access Channels for distribution of Access programming. C. Upon completion of construction of the Network Facilities, Grantor may require Grantee to activate three (3) additional Access Channels for a maximum of nine (9) Access Channels, according to the criteria set forth in Section 22.7 of this Agreement. D. The Grantee shall provide connection of all Access Channels required by this Agreement to and from the Grantee's Headend and the Designated Access Providers' Headend upon activation and provision of service on any portion of the Network Facilities. Connection between the Grantee's Headend and Designated Access Providers' Headend shall be made by two dedicated fibers. Grantee will provide and maintain all transmission and modulation equipment used to activate this connection, and will assist in establishing the connection of this equipment with equipment at the Designated Access Providers' Headend. If Designated Access Providers' Headend is relocated within twelve (12) months of the effective date of this Agreement, Grantee PROPOSED MACC / RCN FRANCHISE August 18, 2000 75 agrees to provide reconnection, at no charge to Grantor or to Designated Access Providers. E. If Designated Access Providers place additional Access facilities into operation within the Franchise Area, other than its Headend, prior to completion of construction of the Network Facilities, the Grantee will install two fibers connecting those facilities with the Access Headend to enable transmissions of programming and data by the Designated Access Providers. These shall be installed at no cost to Grantor or Designated Access Providers. The Grantee shall provide and maintain any necessary transmission and modulation equipment necessary to activate these connections and will assist in establishing the connection of this equipment with equipment at the Designated Providers' Headend. F. As required in Section 22.3, Grantee shall be required to provide a maximum , of nine (9) Access Channels. However, if all video programming is delivered in a digital format, or the Grantor requests that Access Channels be digitized, then, in lieu of the Access Channels provided for in Section 22.3, there shall be a maximum of eighteen (18) continuous, full-motion video programming Digital Access Channels not subject to the trigger criteria set forth in Section 22.7. The Grantor shall determine the number of Digital Access Channels to be activated, not to exceed eighteen (18). Finally, if all Access video programming is delivered in digital format, the bandwidth available for Access use shall not exceed twice the amount of bandwidth that is necessary to transmit the eighteen (18) Digital Access Channels, except that the amount of capacity available beyond the amount required to transmit the eighteen (18) Digital Access Channels shall not be less than twelve (12) MHz in any case. 22.4 ACCESS CHANNEL DESIGNATIONS & RELOCATION OF ACCESS CHANNELS Upon activation and the provision of service on any portion of the Network Facilities, Grantor agrees to carry Access Channels on the same Channel designations as the Incumbent Cable Operator. If the Incumbent Cable Operator changes the location of its Access Channels, Grantee will use its best efforts to relocate its Access Channels to those same Channel designations as the Incumbent Cable Operator. If the Grantee is unable to relocate all or part of the Access Channels to the designations used by the Incumbent Cable Operator, the Grantee shall provide Grantor or Designated Access Providers with: 1) A minimum of sixty (60) days' notice prior to the time Access Channel designations are changed. Grantee shall use its best efforts to provide one hundred twenty (120) days notice of such changes. 2) If Grantee has advertising insertion capability on its system, Grantee shall provide ten (10) advertising availabilities, a minimum of thirty (30) seconds in length, in each if the first six (6) months following the change in the Access PROPOSED MACC / RCN FRANCHISE August 18, 2000 76 --M Channel designations to notify Subscribers of the Channel change(s). These advertising availabilities shall be provided at no cost to Grantor or Designated Access Providers. Grantee shall also consult with Grantor and Designated Access Providers prior to making a final determination regarding any changes in Access Channel designations or assignments. Any new Channel designations for Access Channels provided pursuant to this Agreement shall be in full compliance with FCC signal quality and proof of performance standards. 22.5 ACCESS ORIGINATION POINTS A. Prior to the completion of construction of the Network Facilities, Grantee shall provide, without charge, adequate capacity and necessary modulation and transmission equipment to facilitate transmission of character-generated, pre- recorded, and live cablecasts from the Designated Access Providers' Origination Points, listed in Attachment 22.5 A, to enable the distribution of Access programming on Access Channels. B. Upon completion of construction of the Network Facilities, additional permanent Access Origination Points required by the Grantor or Designated Access Providers shall be provided by Grantee within ninety (90) days of receipt of written notice from Grantor at expense of Grantor or Designated Access Providers. C. Upon completion of construction of the Network Facilities, Grantee shall provide additional Access Origination Points on a short-term basis for the live cablecast of Access Programming, provided that an active fiber is available at the desired location. Such request will be provided to Grantee, in writing, six (6) weeks in advance of the scheduled cablecast. The incremental, out-of- pocket costs to Grantee shall be paid for by Grantor or Designated Access Providers. Grantee shall not be required to facilitate more than two (2) such Origination Points in any twenty-four (24) hour period. D. There shall be no charge to the Grantor, MACC, Designated Access Providers, nor to any other person for the use of the fiber capacity from the • program Origination Points described in this Section, so long as the transmissions are designed for re-routing and distribution on any Access Channel(s). 22.6 ACCESS INTERCONNECTIONS Under its Franchise Agreement, the Incumbent Cable Operator has the responsibility to fulfill the requirements of this Section. If the Incumbent Cable Operator, or its successors or assignees, were to terminate its Cable PROPOSED MACC / RCN FRANCHISE August 18, 2000 77 --1 1ju Services Agreement issued by the Grantor, these requirements would become the responsibility of the Grantee of this Agreement. A. For the duration of this Agreement, Grantee shall maintain any and all existing Interconnections of Access Channels with contiguous Cable Systems. B. Grantee shall be capable of interconnection of PEG Access Channels in the Cable Systems in Franchise Areas that are geographically adjacent to Grantor, provided that Grantor has secured the written permission for such Interconnection from the regulatory authority for the adjacent Franchise Area and the applicable Franchisee. The cost of such Interconnections shall be Grantee's so long as Grantee or Grantee's affiliate owns the adjacent system. If the adjacent system is not owned by Grantee, the cost for interconnection shall be equally shared by the two systems. C. All Interconnections shall have the capability of transmitting and receiving Access programming. All Interconnections shall be accomplished in a manner that permits the transmission of signals meeting the technical standards of this Agreement on all interconnected Channels, consistent with Section 22.10. Installation of all interconnect capacity shall be completed at the Grantee's expense, except as otherwise provided herein. D. The Grantor, or its Designated Access Providers, shall have the right to control and schedule the operation of all interconnected Access Channels and capacity. In addition, the Grantor, or its Designated Access Providers, shall have the right to use, at their sole discretion and at no cost, any Access Channels and capacity provided under this Agreement for non-commercial purposes, in furtherance of PEG use. However, the requirement to interconnect Access programming with adjacent Cable Systems of willing franchising authorities shall not result in an increase in the number of Access Channels beyond the number of Channels provided for in Sections 22.3 and 22.7 of this Agreement. E. The Grantee shall take all necessary steps to ensure that technically adequate signal quality in compliance with FCC requirements are initially and continuously provided for all Access Interconnections and Origination Points. PROPOSED MACC / RCN FRANCHISE August 18, 2000 78 22.7 TRIGGER FOR EXPANSION OF ACCESS CHANNELS A. Upon completion of construction of the Network Facilities, Grantee shall, if directed by the Grantor, provide additional, activated Downstream Channel capacity for Access, to a maximum total of nine (9) Access Channels as described in Section 22.3. The Grantor shall give Grantee at least ninety (90) days prior notice of need for additional Access Channels. B. The Grantor may require Grantee to provide additional activated Downstream Channel capacity for a particular type of Access under this Section. When a Channel for a particular type of Access programming meets the criteria set forth below, Grantor may require Grantee to provide additional activated Downstream Channel capacity for that type of PEG Access under this Section. Upon Grantee's request, a public hearing will be conducted regarding the need for additional capacity, up to a maximum total of nine (9) Access Channels, as established by the following criteria: 1) Public Access Channels: During any eight (8) consecutive weeks, the Public Access Channel is in use for Locally Produced, Locally Scheduled Original Programming 80% of the time, seven (7) days per week, for any consecutive five (5) hour block during the hours from noon to midnight; or, 2) Educational Access Channels: During any eight (8) consecutive weeks, the Educational Access Channel is in use for Locally Scheduled Original Programming 80% of the time, five (5) days per week, Monday through Friday, for any consecutive five (5) hour block during the hours from 6:00 a.m. to 11:00 p.m.; or, 3) Governmental Access Channels: During any eight (8) consecutive weeks, the Governmental Access Channel is in use for Locally Scheduled Original Programming 80% of the time, five (5) days per week, Monday through Friday, for any consecutive five (5) hour block during the hours from 6:00 a.m. to 11:00 p.m.; and, 4) The applicable Access Channel capacity expansion criteria as set forth in subsections 1), 2), or 3) has been met, or exceeded, by the Grantor or its Designated Access Providers with responsibility for programming the Access Channel. (C) For the purpose of Section 22.7: (1) "Locally Produced" means programming produced in the Clackamas, Multnomah, or Washington Counties, or the Vancouver/Clark County, Washington metropolitan area; and (2) "Original Programming" means the initial cablecast programming or in its first or second repeat; and PROPOSED MACC / RCN FRANCHISE August 18, 2000 79 (3) "Locally Scheduled" means that the scheduling, selection, and or playback of Original Programming on a per-program basis is determined in consultation with, or pursuant to the operating procedures of the Designated Access Providers or, with respect to programming received from an Interconnection, the provider transmitting the programming over the Interconnection. However, carriage of all or a substantial portion of any non- local programming which duplicates programming on any Access Channel otherwise carried by Grantee as a part of its Basic or Expanded Basic Cable Services shall not be considered "Locally Scheduled." 22.8 ACCESS SUPPORT NOT FRANCHISE FEES A. The Grantee agrees that support for PEG Access shall in no way modify or otherwise affect the Grantee's obligations to pay Franchise Fees to the Grantor. The Grantee agrees that although the sum of Franchise Fees and the payments set forth in this Section may total more than five percent (5%) of the Grantee's Gross Revenues in any twelve (12) month period, the additional commitments shall not be offset or otherwise credited in any way against any Franchise Fee payments under this Agreement. B. The Grantor recognizes Franchise Fees and certain additional commitments are external costs as defined under the FCC rate regulations in force at the time of adoption of this Agreement, and the Grantee has the right and ability to include Franchise Fees and certain other commitments on the bills of Grantee's Subscribers. 22.9 ACCESS CHANNELS ON LOWEST AVAILABLE TIER All Access Channels provided to Subscribers under this Agreement shall be included by the Grantee, without limitation, as a part of Basic Cable Service offered by the Grantee on its Network Facilities. 22.10 CHANGE IN TECHNOLOGY In the event the Grantee makes any change in its Network Facilities and related equipment and facilities, or in the Grantee's signal delivery technology, which directly or indirectly substantially affects the signal quality or transmission of 4 Access services or programming, the Grantee shall, at its own expense, take necessary technical steps or provide necessary technical assistance, including the acquisition of all necessary equipment, and full training of the Grantor's or i Designated Access Providers' personnel to ensure that the capabilities of Access services are not diminished or adversely affected by such change. a 22.11 TECHNICAL QUALITY The Grantee shall maintain all Upstream and Downstream Access services, a Channels, and Interconnections at the same level of technical quality and reliability required by this Agreement and all other applicable laws, rules, and regulations for all other Cable Service Channels. The Grantee shall provide PROPOSED MACC / RCN FRANCHISE August 18, 2000 80 routine maintenance, and shall repair and replace all transmission equipment, including modulators, associated cable and equipment in use upon the effective date of this Agreement, necessary to carry a quality signal to and from the Grantor's or Designated Access Providers' facilities. 22.12 PROMOTIONAL SERVICES A. When Grantee has the capability to insert ads on its system, Grantee shall provide, at no cost to the Grantor, ten (10) PEG Access advertising availabilities per month, of a minimum of thirty (30) s^con ids, on various Subscriber Cable Services carried by the Grantee, scheduled at Grantee's discretion. Grantee shall be provided an opportunity to review and approve the content of the PEG advertising. B. The Grantee shall allow the Grantor to include two bill insertions per year. The Grantor or Designated Access Providers shall be responsible for the cost of printing its bill insertions, the costs of inserting the information into Grantee's bills, and for any incremental postage costs. Bill insertions must conform to Grantee's mailing requirements. Grantee shall be provided an opportunity to review and approve all Access bill insertions. 22.13 CHANNEL IDENTIFICATION If requested by the Grantor or Designated Access Providers, Grantee will identify the PEG Channels and identify the programming carried on the PEG Channels in its printed and electronic programming guides, in the same manner in which it identifies the Channels and programming on Channels under its control. It is the responsibility of the Designated Access Providers to provide appropriate entities with program schedules in a timely manner, and, if the Designated Access Provider fails to do so for a particular Channel, the Grantee may simply identify the general type of programming carried on the Channel. Grantee may bill the Grantor or appropriate Designated Access Provider for the costs of these listings. PROPOSED MACC / RCN FRANCHISE August 18, 2000 81 Jim 01 SECTION 23 - RENEWAL A. The Grantor and Grantee agree that any proceedings undertaken by the Grantor that relate to the renewal of Grantee's Agreement shall be governed by and comply with the provisions of 47 USC Section 546, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law. B. In addition to the procedures set forth in the Cable Act, the Grantor agrees to notify Grantee of the completion of its assessments regarding the identification of future cable-related community needs and interests, as well as the past performance of Grantee under the then current Franchise term. Notwithstanding anything to the contrary set forth herein, Grantee and Grantor agree that at any time dunr+g the term of the then current Agreement, while affording the public adequate notice and opportunity for comment, the Grantor and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current Agreement and the Grantor may grant a renewal thereof. Grantee and Grantor consider the terms set forth in this Section to be consistent with the express provisions of the Cable Act. PROPOSED MACC / RCN FRANCHISE August 18, 2000 82 PART 3 - PROVISIONS APPLICABLE TO TELECOMMUNICATIONS SERVICES SECTION 24 - GRANT OF FRANCHISE 24.1 CONDITIONS OF GRANT Pursuant to Section 2.1.A of this Agraamcnt, Grantors granted a nonexclusive and revocable authorization to make lawful use of the Streets, Public Rights of Way, and utility easements within the Franchise Area for the construction, operation, and maintenance of Grantee's Network Facilities. Grantee is a Competitive Telecommunications Provider as that term is defined by Oregon law, and intends to provide Telecommunications Services over its Network Facilities. The conditions applicable to the grant of authority as to Telecommunications Services are set forth in this Section. Prior to the provision of any Telecommunications Services within the Franchise Area, Grantee shall obtain separate authority to offer those services under the laws, ordinances and regulations of the individual Grantor with lawful authority to make such grant. Grantee shall further accept such grant on the terms and conditions required by each individual Grantor. 24.2 FRANCHISE FEE Grantee shall pay to each individual Grantor that Franchise Fee applicable to its Telecommunications Services within each Grantor's jurisdiction. Such fee shall be set by the governing body of each Grantor, consistent with state law and local regulation. Agreed to this 15th day of September, 2000. RCN TELECOM SERVICES METROPOLITAN AREA OF OREGON, INC. COMMUNICATIONS COMMISSION e By: By: Frank Cirone Bruce Crest Senior Vice President, Administrator Regional Operations PROPOSED MACC / RCN FRANCHISE August 18, 2000 83 ATTACHMENT 20 A I-NET AGENCY SITES AND AGENCY HUG LOCATIONS GOVERNMENT ADDRESS City Hall / Police Dept. 4755 SW Griffith Dr. Beaverton City Hall 1355 N. Barlow Cornelius City Hall 17160 SW Upper Boones -Ferry Rd. Durham City Hall 1924 Council Forest Grove Police Department 2102 Pacific Avenue Forest Grove Information Services 181 SE Washington St. Hillsboro City Hall 123 W. Main St. Hillsboro City Hall 15300 SW 116th Ave. King City City Hall / Police Dept. 380 A Ave. Lake Oswego MACC/TVCA 1815 NW 169th Place Beaverton City Hall / Police Dept. 13125 SW Hall Blvd. Tigard City Hall 8650 Tualatin Road Tualatin TVCA Future location unknown TVF&R Administration 20665 SW Blanton Street Aloha Tualatin Valley Water District Beaverton Admin. 1850 SW 170th Washington County 155 N. First Ave. Hillsboro WCCCA 17911 NW Evergreen WCCLS Administration 1111 NE Lincoln St. Hillsboro Unified Sewerage Agency (USA) 3125 SE River Road Hillsboro EDUCATION Beaverton School District - Admin 1841 SW Merlo Rd. Beaverton Forest Grove School District 1728 Main St. Forest Grove Hillsboro School District - Admin 759 SE Washington Hillsboro Hillsboro School District - West Hillsboro District 215 SE 6th Ave. Hillsboro School District New District Office Hillsboro Tigard School District 13137 SW Pacific Hwy. Tigard Tigard School District New District Office Tigard NW Regional ESD 5825 NE Circle Rd. Hillsboro DS-3 INTERNET CONNECTIONS NW Regional ESD 5825 NE Circle Rd. Hillsboro Hillsboro Information Services 181 SE Washington St. Hillsboro PROPOSED MACC / RCN FRANCHISE Augusi i8, 2000 84 ATTACHMENT 20 B I-NET SERVICE AND PERFORMANCE STANDARDS Grantee shall only be responsible for meeting these service and performance standards on the portion of the [-Net that it owns and maintains. A. Signal Quality. The following standards presume that the 1-Net will be constructed solely of Fiber Optics to the demarcation point at each "qualified I-Net User" (hereinafter "User") site, and that the I-Net will operate in an analog format up to 550 MHz with Grantee-provided intermediary transport electronics installed at a Node or e Hub location. If the I-Net incorporates any coaxial cable or the bandwidth is used in a different ° manner than described above, the parties will negotiate in good faith to modify these standards as appropriate to the circumstances. The I-Net shall achieve these performance standards under worst-case conditions for communications occurring between one Demarcation Point and any other Demarcation Point whether or not the Grantee has provided intermediary transport electronics. The term "intermediary electronics" as used herein, shall be defined as Grantee-provided transmission components required at a Node, Hub, or the Headend for the purpose of enabling communications connectivity over backbone portions of the I-Net to a central transmission management device located in the Headend and establishing the Grantee's interconnectivity with I-Net Users. 1) Noise. The I-Net will not add more than 4dB carrier-to-noise to transmissions, as measured from one Demarcation Point to another. Signal-to-noise or other interference measurements will be substituted for this standard where appropriate. 2) Data Communications. For any data communications link on the I-Net, the bit error ratio (BER) shall be equal to or better than 1 x 10 to the minus 9. 3) Availability. For each User of the I-Net, I-Net availability shall be equal to or better than 99.965% (no more than 184 minutes of I-Net down-time per Qualified I- Net User) as measured on an annual basis. 4) Unavailable time. The I-Net shall be defined as "unavailable" or as an "I-Net Outage" for any given Qualified I-Net User when such User: (a) Cannot, because of an I-Net problem, measured by SNMP software or other appropriate software and associated hardware, or through a failure of a Grantee-provided Interconnect, transmit video, voice, and/or data communications to, from, and/or on the I-Net; PROPOSED MACC / RCN FRANCHISE _ August 18, 2000 85 (b) Experiences, due to an I-Net problem, video, voice, and/or data transmissions that are below the standards set forth in this Section (c) Experiences, due to an I-Net Problem, a data communications packet loss of greater than ten percent (10%). 5) For purposes of this subsection, an I-Net Problem is defined as those that result from the failure of any Grantee-provided I-Net component. 6) For purposes of this subsection, I-Net Problems shall not include: (a) Infrequent scheduled preventative maintenance as long as Qualified I-Net Users are notified in advance; or (b) Those caused by force majeure, as set forth in subsection 4.12 of this franchise. B. Fiber Optic Performance Standards. Maximum loss will not exceed manufacturers' passive cable system attenuation, adjusted for cable length, splice loss and collector loss. Minimum optical receive power will not fall below what is necessary for any particular I-Net service based on the manufacturers' minimum input specifications for the end user equipment. The maximum connector pair loss is assumed to be .5dB. 1) Maintenance - Grantee shall be responsible for the ongoing maintenance and performance of the I-Net from the Demarcation Point within a facility through the I- Net, including the Headend including any Grantee provided intermediary electronics but excluding any Qualified I-Net User's equipment. Routine and preventative maintenance shall be performed on the I-Net to ensure that it meets all performance criteria detailed herein. Qualified I-Net users shall have at least ten (10) business days advance notice of routine and preventative maintenance activities that may affect operation of their I-Net circuits. 2) Demand Maintenance/Service and Repair - Response to I-Net Problems shall occur at all hours (24 x 365). Appropriate Grantee technical support shall respond - and actively begin working on I-Net problems within one (1) hour of either: (a) Grantee identifying such I-Net problem, or (b) Grantee receiving a call from an I-Net User reporting an [-Net Problem. Grantee shall work continuously until the problem is resolved. If it is determined that the [-Net Problem is caused by the I-Net User's equipment or software, then the User shall correct the problem such that other I-Net Users are no longer affected. If the User does not correct the problem, Grantee may disconnect the PROPOSED MACC / RCN FRANCHISE August 18, 2000 86 MEN ME affected site from the I-Net until such a time as the equipment or software is repaired. 3) Staff Support. Grantee shall provide an appropriate complement of administrative, Headend, and field personnel at all times to meet the performance standards described herein. 4) Service Call Processing and Tracking. Grantee shall establish mechanisms and procedures for all I-Net Users to quickly and easily report I-Net problems. All trouble or service calls will be documented, processed, and completed in an expedited manner. The Grantee will provide in-house and/or contract staff; spare and backup Headend and distribution equipment; test and maintenance equipment; and additional support, as necessary, to ensure that the I-Net performs reliably in accordance with all standards herein. C. Performance Testing. Proof of performance testing will be conducted on the I-Net two (2) times per year, and at least once every six (6) months. A minimum of one (1) test point location per twenty (20) I-Net sites will be established that is representative of worst-case performance of the I-Net. A representative sampling of Activated Upstream and Downstream bandwidth shall be tested at each test point location. Testing shall be performed to ensure compliance with the I-Net performance specifications included in A. and B. Tests shall be performed using standard test methodologies as incorporated in the most recent version of the NCTA's Recommended Practices for Measurement on a Cable Television System, or another test methodology, as mutually agreed to by the Grantor and Grantee. All tests will be documented and, upon request, filed with the Grantor. At the Grantor's .request, all testing processes will be conducted under the observation of representatives of the Grantor. D. Failure to meet these performance standards may subject Grantee to enforcement action as set forth in Section 9. PROPO ;ED MACC / RCN FRANCHISE August 18, 2000 87 ATTACHMENT 22.5 A PERMANENT PEG ORIGINATION SITES - RCN FACILITY ADDRESS CITY / COUNTY WCCCA 17911 NW Evergreen Parkway Beaverton TVF&R Administration 20665 SW Blanton Street Unincorporated Washington County Portland Community College 17775 NW Springville Road Unincorporated - Rock Creek Washington County NWR ESD Admin Building 5825 NE Ray Circle Hillsboro Hillsboro Stadium 4450 NW 229th Hillsboro Washington County 872 NE 28th Avenue Hillsboro Fairgrounds Hillsboro Arts Center Main and 57th Hillsboro Century High School 2000 SW 234th Ave Hillsboro Hillsboro Library Tanasborne area Hillsboro (future site) Tuality Hospital Library 334 SE 8th Avenue Hillsboro 0 PROPOSED MAC;C % RCN FRIAivCHiSE August 18, 2000 88 AGENDA ITEM # 1s FOR AGENDA OF October 24, 2000 CITY OF TIGARD, OREGON COUNCIL AGENDA ITEM SUMMARY ISSUE/AGENDA TITLE Review Council & Staff Liaison Appointments PREPARED BY: Bill Monahan DEPT HEAD OK ITY MGR OK ISSUE BEFORE THE COUNCIL Review of the Council and Staff Liaison Appointments. STAFF RECOMMENDATION Discuss appointments and revise as needed. INFORMATION SUMMARY Attached is the latest Council/Staff Liaison Appointment Matrix presented for Council review and approval. OTHER ALTERNATIVES CONSIDERED N/A VISION TASK FORCE GOAL AND ACTION COMMITTEE STRATEGY N/A FISCAL NOTES N/A I:\ADM\CITY COUNCIL\COUNCIL AGENDA ITEM SUMMARIES\APPOINTMENTS.DOC ~ppo~n~n`~n~S i , & ~#a~f SOn y~heckla date 101201110®unc-I` or Steil Patton Alternate atWe a ycheckla ~C~,ncit'o..r ~ esen~' Moor p~imar'y ; }hunt patton ,i{#ith Moore Bud CI Comm►'~ee gotten, Prosser. fidget yukcom - Monahan wont yocial y~,rvices &rif{ith Sum°m' R°bers fidget Events ycheckla ity pevelop Commun San-3une 42 k grant Moore gloc $aard Hendryx Adviso Monohan July -Dec 01 Patton I gu.;iness Cents t a 01 p en Assn Barnes Son- Sun pistr Moore Coop. I'`br6rrd Boa Hunt Adviso gs erd TO y,Jater 3uly ' Dec 00 newton APO . heckla M°y°r s Com• ycheckla Mon°han Adviso MACC patton W- Library Moore _ be Coostvction be Rep' to t Comm. ee Wegner (to yta works deg eation decided after ~blie ber p and R`"cr or istrict Task porce i1R1o0 electian) staff mem D Wegner (staff, ~At{alati) µunt Regional'ater Consortium t Matt°x Page on ApP°1nt°~en ~gys Gour~*115taif ~t°is Update 10/20100 Alternate or Sfiaff Pr~mar9r;(Cou"cil or Re resentative. Commit"ce *me staff Mills Senior Center Hendryx - (staff: Tigard Chamber of Commerce Board ex officio) Moore Rohlf -Budget Vision Task Force Monahan schrader Committee/Citizen Washington County Re Consolidated Communications Cam puencs Washington County Griffith Coordinating Staff Committee Wegner - Willamette Water Hunt Re resentative Bob Rohtf, Su i A enc Hendryx Washington square scheckla ex-officio Re ional Task Force ouncil/Staff Liaison Appointment Matrix -.Page 2 C Update 10/20/00 Council or Staff f Re'Presenta#ves at Afeetings Cour~il and/or Alternate or Staff Staff Re resentative COMKIt'tee- flame festival of Balloons Moore, 6oodpaster, We ner, Wheatle FOCUS Mayor Srilfith's Griffith meeting of City and County Elected Officials (l:nformal) Metro - Various Meetings az we are notified Moore Westside Alliance councillstdf Liaison Appointment Matrix - Page 3 i Update 10/20/00 Council Liaison Appointments Elected Cifficial Griffith Hunt Moore Patton Scheckla Name of a Budget a Budget a Budget a Budget a Budget Board/Committee or Committee Committee Committee Committee Committee Task Forte a Budget a Budget a Budget a Budget a Budget Subcommittee - Subcommittee - Subcommitee - Subcommittee - Subcommittee Events Events Events Events Events a Mayor's Appt. a IWB Water a Central Business a Budget Sub- a COBS Advisory Washington Co. Board District Committee - Bd. Coordinating 0 Mayor's Appt. a Mayor's Appt. Social Services a Housing Code Committee a Regional Water a Park d a Mayor's Appt. Task Force Consortium Recreation a New Library a Mayor's Appt. Willamette District Board a MACC Water Supply • Westside Construction Agency Alliance Committee 1.VADKCATHYM000NCILWPPT.MATR.DOC A Council/Staff Liaison Appointment Matrix - Page 4