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TW Telecom of Oregon, LLC - Telecommunications Ordinance Exhibit A CITY OF TIGARD, OREGON FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT ("Agreement") is made and entered into by and between the City of Tigard,an Oregon municipal corporation, ("City") and tw telecom of oregon llc a Delaware limited liability company, ("Franchisee") qualified to do business in Oregon: RECITALS 1. Pursuant to Federal law, State statutes, and City Charter and local ordinances, the City is authorized to grant non-exclusive franchises to occupy the tights-of-way as defined in Chapter 15.06 of the Tigard Municipal Code ("ThIC"), in order to place and operate a Utility System within the municipal boundaries of the City of Tigard ("Franchise Area");and 2. Franchisee has requested a franchise to place and operate telecommunications facilities and services system(the"Utility System"), as defined in TMC 15.06.020,within the Franchise Area;and 3. The City has found that Franchisee meets all lawful requirements to obtain a franchise, and therefore approves the application. NOW,THEREFORE,in consideration of the mutual promises contained herein, the parties agree as follows: AGREEMENT 1. GRANT OF AUTHORITY The City grants Franchisee the non-exclusive right to occupy City rights-of-way to place and operate a Utility System for a term of ten (10) years from and after the Effective Date of this Agreement (the"Term"),except as set forth below. 2. AUTHORITY NOT EXCLUSIVE This Agreement shall be nonexclusive, and is subject to all prior rights, interests, agreements, permits, easements or licenses granted by the City to any person to use the rights-of-way for any purpose whatsoever, including the right of the City to use same for any purpose they deem fit, including the same or similar purposes allowed Franchisee hereunder. The City may, at any time, grant to other persons authorization to use the rights-of-way for any purpose. This Agreement does not confer on Franchisee any right, title or interest in any right-of-way. ORDINANCE NO. 13- 1,3 Exhibit A Page 1 of 4 (19385481v6 0056259-000014) 3. PERFORMANCE&FRANCHISE FRF. During the term of this Agreement, Franchisee agrees to comply with all lawful terms and conditions of TMC Chapter 15.06,including but not limited to the permit and permit fee requirements set forth in TMC 15.06.200 and TMC Chapter 15.04, the provisions of which are incorporated herein as though fully set forth. Notwithstanding the foregoing or the provisions of TMC 15.06.100, Grantee shall pay a right-of- way usage fee that is the greater of (i) the applicable percentage of gross revenues set forth in TMC 15.06.100 or (ii) ten thousand dollars ($10,000), subject to any applicable limitations imposed by federal and state statutes. All other provisions of TMC 15.06.100 shall apply to Grantee as though fully set forth herein. 4. CHANGE OF LAW;AMENDMENT OF FRANCHISE AGREEMENT a. It is the intent of the parties that this Agreement may be amended from time to time to conform to any changes in the controlling federal or state law or other changes material to this agreement. Each party agrees to bargain in good faith with the other party concerning such proposed amendments. This Agreement may be amended or terminated by the mutual written consent of the parties and their successors-in-interest. b. Except as set forth in Section 3 of this Agreement, to the extent any lawful City rule, ordinance or regulation, including any amendment to the provisions of TMC Chapter 15.06, is adopted on a jurisdiction-wide basis and is generally imposed on similarly situated persons or entities,the rule, ordinance or regulation shall apply without need for amendment of this Agreement. The City shall provide Franchisee notice of any such change in local law. 5. TAXES Nothing contained in this Agreement shall be construed to exempt Franchisee from any license, occupation, franchise or excise tax or assessment, which is or may be hereafter lawfully imposed on Franchisee. 6. INSURANCE By the Effective Date of this Agreement, Franchisee shall provide a certificate of insurance that names the City as an additional insured and is otherwise consistent with the requirements of TMC 15.06.180. 7. SEVERABILITY If any section, subsection, sentence, paragraph, term, or provision hereof is determined to be invalid, or unconstitutional by any court of competent jurisdiction, such determination shall have no effect on the validity of any other section,subsection, sentence,paragraph, term or provision hereof,all of which will remain in full force and effect for the term of the Agreement. If any material portion of the Agreement becomes invalid or unconstitutional so that the intent of the Agreement is frustrated, the parties agree to negotiate replacement provisions to fulfill the intent of the Agreement consistent with applicable law,or,if a replacement provision is not feasible,to negotiate a new agreement. 8. REMEDIES a. This Agreement shall be subject to termination as set forth in TMC 15.06.310, provided that the City complies with the requirements set forth in TMC 15.06.320 and 15.06.330. ORDINANCE NO. 13- !3 Exhibit A Page 2 of 4 09385481v6 0056259-000014) b. All remedies under this Agreement,including revocation of the Agreement, are cumulative and not exclusive, and the recovery or enforcement by one available remedy is not a bar to recovery or enforcement by any other such remedy. The City reserves the right to enforce the penalty provisions of any ordinance or resolution, and both parties reserve the right to avail themselves of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon Franchisee by or pursuant to this Agreement. A specific waiver of a particular breach of any term, condition or obligation imposed upon Franchisee by or pursuant to this Agreement shall not be a waiver of any other, subsequent or future breach of the same or of any other term, condition or obligation, or a waiver of the term,condition or obligation itself. c. The right is hereby reserved to the City to adopt, in addition to the reservations contained herein and existing applicable ordinances, such additional regulations as it shall find necessary for the regulation of the right-of-way,provided that such regulations, by ordinance or otherwise,shall be reasonable and not in conflict with the rights herein granted. Franchisee shall,at all times during the life of this Agreement,be subject to all lawful exercise of the police power by the City,and to such reasonable regulations as the City may hereafter by resolution or ordinance provide. The City hereby reserves the right to exercise, with regard to this Agreement, all authority now or hereafter granted to the City by state statute or City charter, except where such authority may be modified or superseded by the Constitution of the State of Oregon or the Constitution of the United States or any other applicable law that preempts City authority. 9. ASSIGNMENT All rights and privileges granted and duties imposed by this Agreement upon Franchisee shall extend to and be binding upon Franchisee's successors,legal representatives and assigns. This Agreement may not be transferred or assigned to another person unless such person is authorized under all applicable laws to own or operate the Utility System and the transfer or assignment is approved by all agencies or organizations required or authorized under federal or state laws to approve such transfer or assignment. Franchisee shall provide the City with written notice of any transfer or assignment of this Agreement within twenty (20) days of requesting approval from any state or federal agency. 10. NOTICE Unless specifically provided otherwise herein, all notices shall be mailed, postage prepaid, to the following addresses or to such other addresses as Franchisee or the City may designate in writing: If to Franchisee: tw telecom of oregon lic Atm: Greg Diamond,Vice President of Regulatory 10475 Park Meadows Drive Littleton,CO 80124 Telephone: 206-676-8052 With a copy to: tw telecom of oregon lle Attn: Sr.VP &Deputy General Counsel 10475 Park Meadows Drive Littleton,CO 80124 If to City: City of Tigard Attention: City Manager 13125 SW Hall Blvd. Tigard, Oregon 97223 ORDINANCE NO. 13-, 19 Exhibit A Page 3 of 4 (19385481v6 0056259-000014) 11. GOVERNING LAW The laws of the State of Oregon, exclusive of choice of law rules, govern the validity of this Agreement, and its interpretation, performance and enforcement. Any action or suit to enforce or construe any provision of this Agreement by any party shall be brought in the Circuit Court of the State of Oregon for Washington County,or the United States District Court for the District of Oregon. 12. EFFECTIVE DATE The effective date of this Agreement ("Effective Date") shall be the date it is fully executed by the City and Franchisee. CITY OF TIGARD FRANCHISEE tw telecom of oregon llc By:tw telecom holdings inc. Its sole member 4.. B y: /f/ A +?WE'D By: . Mayo. Tina Davis Title: Senior Vice P,esident //++���� � 1 '`" General Counsel Date: OCI-D 22- 0 o a Date: 11/(0/?Di 3 ORDINANCE NO. 13- /3 Exhibit A Page 4 of 4 (19385481 v6 0056259-000014) J • CITY OF TIGARD,OREGON TIGARD.CITY COUNCIL • ORDINANCE NO 13-' /3 • • • AN ORDINANCE GRANTING A RENEWAL OF THE NON-EXCLUSIVE FRANCHISE WITH TW TELECOM OF OREGON LLC TO PLACE AND OPERATE-A TELECOMMUNICATION UTILITY SYSTEM IN THE CITY OF TIGARD, OREGON, FIXING THE.TERMS AND CONDITIONS FOR SAID FRANCHISE,'.REPEALING ORDINANCE NO,,02-30, AND AUTHORIZING THE MAYOR • TO SIGN THIS AGREEMENT. . WHEREAS, the Tigard Municipal Cd "TMC")'Section 15.06.060 allows the City Council to grant a non- .. . , exclusive utility franchise to any person;providing utility services which meets'the requirements of the TMC; ,and WHEREAS, tw telecom of oregon llc ("tw telecom") last held a 10-year franchise agreement with.the City from September 26,2002 through September 26,2012,to provide telecommunications-in the City;and WHEREAS, tw telecom has continued to comply with the terms of the expired franchise during the renewal .process;and WHEREAS, tw telecom and the City Of Tigard have negotiated a new 10-year franchise agreement;and WHEREAS,the City of Tigard finds that tw telecorri meets all lawful requirements to obtain a franchise. NOW,THEREFORE,THE.CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: A new,ten-year franchise for tw telecom of oregon llc ("tw telecom")is hereby granted, • including all of the terms and conditions asset forth in the agreement attached as Exhibit A to this ordinance. SECTION 2: The Mayor is authorized and directed to sign the agreement attached to this ordinance as Exhibit A on behalf of the Council. - SECTION 3: The City Council determines that the fee imposed by this franchise is not a tax subject to the limitations of Article XI,Section 11 (b)and 11 (19) of the Oregon Constitution and is not afee imposed on property or property Owners by fact of ownership. SECTION 4: This ordinance shall replace and repeal the prior franchise with tw telecom,Ordinance No.02-30,adopted on August 26,2002. SECTION 5: This ordinance shall take effect thirty days from its passage,.provided that tw telecom returns an executed original of the franchise to the City on or before the effective date of this ordinance. If tw telecom fails to provide an executed original on or before the effective date,this ordinance shall be null and void. ORDINANCE No. 13-/ (00337795;1) Page 1 PASSED: By U n a i')t'Yl 01.45 vote of all council members present after being read by number and title only,this c day of C)Gtr)12.P/t 2013. Catherine Wheatley,City Recorder APPROVED: By Tigard City Council this day of •4 A 2013. John Cook,Mayor Approved as to form: ff.U.647,z4AA•y Special Counsel 40/240/3 Date ORDINANCE No. ]3- 3 f00337795;I 1 Page 2