City Auditor - City Recorder - Council Ordinance - 176331 Tyco Networks U.S. permit ordinance

ORDINANCE No. 176331

*Grant a temporary, revocable permit to Tyco Networks U.S., Inc. and establish terms and conditions (Ordinance)

The City of Portland ordains:

Section 1. The Council finds:

1. The City of Portland, Oregon, (the “City”), and Tyco Networks (U.S.), Inc. ("Tyco"), have reached final agreement on the terms and conditions of a ten-year Franchise for Tyco to use the City streets to provide telecommunications services.

2. The City will shortly begin considering approval of the proposed Franchise, following the formal Portland City Charter procedure of public notice and hearing. This process will begin with the publication of a notice of proposed franchise, together with the publication of the entire proposed agreement in the City’s official newspaper. The process mandated by the Portland City Charter for adopting a proposed franchise may take up to four months, or more, from the date of initial publication.

3. Tyco has asked the City, in writing, if the City would issue a temporary, revocable permit allowing Tyco to immediately begin construction to add to its fiber optic system to provide telecommunications services. Tyco’s letter acknowledges that the parties have otherwise reached final agreement on Franchise terms and conditions, and identifies an immediate need to begin construction of its telecommunications facilities in the public right-of-way. Tyco has accepted that its rights under a revocable permit would end upon the permit’s expiration, if not otherwise superseded by the proposed Franchise. A copy of Tyco’s letter is attached to this Ordinance as Exhibit A, and is hereby incorporated by reference.

4. The temporary, revocable permit to be issued under this Ordinance is substantially similar to the terms and conditions set forth in the proposed franchise agreement to be entered into between the City and Tyco.

a. NATURE AND TERM OF GRANT.

1. Issuance of Temporary, Revocable Permit.

(A) The City of Portland, Oregon does hereby grant to Tyco Networks (U.S.), Inc., a Nevada corporation qualified to do business in Oregon, and to its successors and assigns, as approved by the City under Paragraph o of this Permit, as temporary, revocable permit ("Permit") to construct, operate and maintain a Telecommunications System with all necessary Facilities, in, under, and over the surface of the City’s Streets, as shown in black on a map attached hereto as Exhibit A, which is incorporated by reference. Permittee may seek to amend, alter or add to its Telecommunications System by filing a map showing such proposed changes with the City’s Office of Cable Communications and Franchise Management and with the City Engineer. The City shall respond with its approval, modifications, or denial within 45 days from receiving Permittee’s proposal. However, the total length of Permittee’s Telecommunication System in City Streets shall not exceed 25,000 linear feet unless separately authorized by the City Council by ordinance.

2. This Permit issued to Tyco is subject to all the following terms and conditions:

(A) Throughout this Permit, the City of Portland, Oregon, shall be referred to as the "City”, and Tyco Networks (U.S.), Inc. shall be referred to as "Tyco" or the “Permittee”.

(B) This Permit does not authorize Permittee to operate a cable system or provide video programming, as defined by 47 U.S.C.A §522.

(C) Duration of Permit. The term of this Permit, and all rights and obligations pertaining thereto, shall be effective for either: (1) a period of only one year, as measured from its effective date; or, (2) until the City grants a franchise to Tyco and the franchise becomes effective, whichever event occurs sooner. The effective date of this Permit shall be upon passage of this ordinance by the City Council, unless Tyco fails to file an unconditional written acceptance of this Permit in accordance with Paragraph s of this Permit, in which event this Permit shall thereupon be null and void. The passage date of this Permit is set forth on the last page of the original hereof, as stamped by the Council Clerk.

(D) This Permit is temporary and revocable, and no expenditure of money, lapse of time, act, event, or other occurrence shall give Tyco any rights, vested or otherwise, to occupy or use the City’s streets, or shall operate as an estoppel against, or a waiver by, the City. Upon expiration to the term of this Permit, or its revocation by the City Council, Tyco shall remove its Telecommunications System and other facilities from the City Streets, or waive its rights to such Telecommunications System and other facilities. Any such removal shall be directed by, and to the satisfaction of, the City Engineer.

(E) Permit Not Exclusive. This Permit is not exclusive. The City expressly reserves the right to grant rights, permits or franchises to other Persons or corporations, as well as the right in its own name as a municipality, to use the Streets for similar or different purposes allowed Permittee hereunder.

(F) Charter and General Ordinances To Apply. To the extent authorized by law, this Permit is subject to the Charter of the City of Portland and general ordinance provisions passed pursuant thereto, affecting matters of general City concern and not merely existing contractual rights of Permittee, now in effect or hereafter made effective. Section 10-201 through 10-218, inclusive, of the Charter of the City of Portland (1942 compilation, as revised in part by subsequent amendments) as the same now exist or hereafter are amended by the people of the City of Portland, are hereby incorporated by reference and made a part of this Permit, to the extent authorized by law. Nothing in this Permit shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permits, fees to be paid or the manner of construction.

b. DEFINITIONS.

1. Captions. Throughout this Permit, captions to paragraphs are intended solely to facilitate reading and to reference the Paragraphs and provisions of this Permit. The captions shall not affect the meaning and interpretation of this Permit.

2. Definitions.

2.1 For the purpose of this Permit, the following terms, phrases, and their derivations, shall have the meanings given below unless the context indicates otherwise. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular include the plural number. The word “shall” is always mandatory and not merely directory.

2.2 “City” means the City of Portland, Oregon, a municipal corporation, and all of the territory within its corporate boundaries, as such may change from time to time.

2.3 “City Council” means the Council of the City of Portland.

2.4 “Duct” means a single enclosed raceway for conductors, optical fiber, wire or other cable.

2.5 “Facility” means any tangible component of the Telecommunications System including but not limited to optical fiber, wire, conduits, ducts, pipes, poles and vaults.

2.6 “Permit” means this Permit agreement, as approved by the City Council and accepted by the Permittee pursuant to Paragraph s herein.

2.7 "Indefeasible Right of User Interest" (IRU) means a form of acquired capital in a telecommunications system, in which the holder of the interest possesses a right to use the telecommunications system, but not the right to control, maintain, construct or revise the telecommunications system.

2.8 “Minimum Annual Permit Fee” shall mean $10,000 in the first year of this Permit, and shall increase by $1,000 annually, until reaching a minimum of $19,000 in year ten (10) of this Permit.

2.9 “Optical Fiber” means a filament of transparent dielectric material, usually glass or plastic, and usually circular in cross section, that guides light, and is used to convey modulated information.

2.10 “Penalties” means any and all monetary penalties provided for in this Permit.

2.11 “Person” means any individual, sole proprietorship, partnership, association, corporation or other form of organization authorized to do business in the State of Oregon, and includes any natural person.

2.12 “Streets” means the surface of, and the space above and below, any public street, road, alley or highway, within the City, used or intended to be used by the general public, to the extent the City has the right to allow the Permittee to use them.

2.13 “Telecommunications Services” means:

(A) Long distance, inter-exchange and inter-LATA services, which may include MTS, WATS, 800, operator services, directory assistance and travel card services, as authorized by the Oregon Public Utility Commission, but does not include intra-exchange, intra-LATA, or exchange access services.

(B) This Permit does not authorize the Permittee to operate as a telecommunications provider. The Permittee represents that it has applied for and received all necessary regulatory authority.

(C) Nothing in this Permit shall preclude the Permittee from entering into a contract for the use of any portion of its Telecommunications System with any Person or other entity for any services, whether specified herein or not, provided that said Person or entity is operating under a current Franchise, license, or permit issued by the City.

2.14 “Telecommunications System” means optical fiber cables of up to 25,000 feet in length, measured linearly, and associated wires, cables, ducts, conduits, vaults, poles and other necessary facilities owned or used by the Permittee for the purpose of providing Telecommunications Services and located in, under and above City Streets, excluding ducts, conduits and vaults leased from another City franchisee, licensee or permittee.

2.15 “Year”, “Annual” or “Annually” means the time period consisting of a full calendar year, beginning January 1 and ending December 31, unless otherwise provided in this Permit.

c. COMPENSATION AND AUDITING.

1. Amount of compensation.

(A) As compensation for the benefits and privileges under this Permit, and in consideration of permission to use the Streets of the City, the Permittee shall pay as a Permit fee to the City, through the duration of this Permit, an amount equal to the greater of the Minimum Annual Permit Fee or $3.00 for calendar year 2001 per linear trench foot of Permittee’s Telecommunications System in the Streets. The total number of linear trench feet of Permittee’s Telecommunications System located in the Streets shall be determined by the as-built maps submitted by the Permittee, and approved by the City Engineer, as provided in Paragraph f.

(B) The amount of the Permit fee specified herein shall increase annually by a percentage equal to the change in the Consumer Price Index (CPI) for urban age earners and clerical workers for the Portland, Oregon metropolitan region for the prior year, unadjusted for seasonal variations, as determined by the Bureau of Labor Statistics of the Department of labor and as published in such Bureau of Labor Statistics Detailed Report during the time period immediately prior to the due date of the Permit fee payment.

(C). As additional compensation to the amounts set forth in Paragraph c.1:

(1) In the event Permittee sells any portion of its Telecommunications System in the Streets, Permittee shall pay a one-time Permit fee to the City of one percent (1%) of the sales price; and,

(2) In the event Permittee enters into any lease or grants any IRU for any portion of its Telecommunications System in the Streets, Permittee shall pay annually to the City a Permit fee of five percent (5%) of the revenues from any such leases and IRUs.

(3) The calculation of the one percent (1%) Permit fee on sale revenue shall be based on the sale price of the Portland, Oregon portion of the Telecommunications System or a minimum annual fee of $10,000, whichever is greater.

The calculations of the one percent (1%) Permit fee on sale revenue shall be calculated under the following formula:

Permit fee = (0.01) x Ts x (Fp/Ft), where:

Ts = Total sales price or periodic lease payments for the facility, expressed in Dollars/fiber-miles;

Fp = the length of the facilities sold or leased, located within the City, expressed in fiber-miles; and,

Ft = the total length of the facilities sold, expressed in fiber-miles.

An illustrative example of this calculation would be as follows: Out of a fiber optic bundle of twenty four (24) fibers in a forty mile loop, Permittee sells two (2) fibers to a purchaser for a total sales price of five hundred thousand dollars ($500,000). Ten miles of the fiber optic loop are located within the City of Portland. The calculation would be as follows: Permit fee = (0.01) x $500,000 x (10/40)) = $1,250.00

The calculations of the five percent (5%) Permit fee on leases and IRU revenues shall be calculated under the above formula using 5%.

c.2 City Use of Telecommunications Services and/or Telecommunications System. If the City requests Telecommunications Services for the City’s own use, from the Permittee, and the Permittee agrees, Permittee may deduct the charges for such services from its Permit fee payments. Permittee shall charge the City Permittee’s most favorable rate offered at the time of the request charged to a similar user within Oregon for a similar volume of service, subject to any of Permittee’s tariffs and regulations on file with the Oregon Public Utility Commission. Other terms and conditions of such services may be specified in a separate agreement between the City and Permittee.

c.3 Permit Fee Payments.

(A) Permittee’s Minimum Annual Permit Fee payable under Paragraph c. herein shall be paid to the City 45 days after the effective date of this Permit. Each year thereafter, the Permit fee payment shall be made for the immediately preceding calendar year ending December 31. Each annual payment of the Permittee’s Minimum Annual Permit Fee shall be paid on or before the forty-fifth (45th) day following December 31st. Permittee shall pay any balance remaining to the City under the calculation of the linear foot fee on the first year anniversary of the effective date of the Permit, and annually thereafter.

(B) Permit fee payments not received by the City on or before the due date shall be assessed interest based on the average prime interest rate set by the City’s bank on December 31st of the previous year, plus 300 basis points (3%). At no time shall the annual interest rate be reduced to less than 12%.

c.4 Reports. Each Permit fee payment based upon total linear feet shall be accompanied by a written report to the City, verified by an officer or other authorized representative of Permittee, containing an accurate statement of the linear feet of Permittee’s Telecommunications System in the Streets, and the computation provided for under Paragraph c.1 hereof, and, if applicable, any revisions to the maps required under Paragraph f hereof. Such reports shall be in a form satisfactory to the City.

c.5 Cost of Pre-franchising and Publication. Permittee has paid the City Five thousand Dollars ($5,000) for its pre-franchising costs, including publication of the Franchise, as such publication is required by the City Charter.

c.6 Acceptance of Payment and Recomputation. No acceptance of any Permit fee payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the City may have for further or additional sums payable. All amounts paid under this Paragraph c shall be subject to confirmation and recomputation by the City, provided that such audit and computation is completed within five (5) years of the date any audited and recomputed payment is due. If no such audit is conducted within the five (5) year period, then any claim that the City might have had for additional compensation shall be forever waived and relinquished. The Permittee agrees to reimburse the City for:

(A) The reasonable costs of such confirmation if the City’s recomputation discloses that the Permittee has paid 95% or less of the Permit Fees owing for the period at issue upon receipt of an invoice from the City showing such costs were actually incurred and directly related to the audit; or

(B) One-half of the reasonable costs of such confirmation if the City’s recomputation discloses that the Permittee had paid more than 95% but less than 98% of the Permit Fees owing for the period at issue.

(C) The City’s confirmation costs which may be reimbursed under this subsection shall not exceed Five Thousand Dollars ($5,000.00) per audit.

c.7 If the Permittee disputes the City’s determination of underpayment, the Permittee shall immediately place the disputed amount in an escrow account until final resolution.

c.8 The City and its agents and representatives shall have authority to arrange for and conduct reviews, within the Portland metropolitan region, upon no less than 48 hours prior written notice, during normal business hours, of the relevant financial obligations payable hereunder. The City may determine the scope of review in each instance. All amounts paid by Permittee shall be subject to review by the City, provided that such review be completed within five (5) years from the date payment was due. If the City requests in writing that the Permittee provide, or cause to be provided, copies of any information reasonably within the scope of the review, and the Permittee fails within 30 days of receipt of the request to provide, or cause to be provided, such information, then the five (5) year period shall be extended by one day for each day or part thereof beyond 30 days that Permittee fails to provide, or fails to cause to be provided, such requested information.

c.9 Payment of this Permit fee shall not exempt Permittee from the payment of any license fee, tax or charge on the business, occupation, property or income of Permittee that may be lawfully imposed by the City or other taxing authority, except as may otherwise be provided in the ordinance or ordinances imposing such other license fee, tax or charge.

d. GENERAL FINANCIAL AND INSURANCE PROVISIONS.

1. Insurance.

(A) The Permittee shall maintain public liability and property damage insurance that protects the Permittee and the City, as well as the City’s officers, agents, and employees, from the claims referred to in Paragraph e. The insurance shall provide coverage at all times of not less than $200,000 for personal injury to each person, $500,000 for each occurrence, and $50,000 for each occurrence involving property damages, plus costs of defense; or a single limit policy of not less than $500,000 covering all claims per occurrence, plus costs of defense. The limits of the insurance shall be subject to any changes as to maximum statutory limits of liability imposed on municipalities of the State of Oregon during the term of this Permit. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents, and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not be canceled or materially altered without thirty (30) days prior written notice first being given to the City Auditor. If the insurance is canceled or materially altered within the term of this Permit, Permittee shall provide a replacement policy with the same terms. Permittee agrees to maintain continuous uninterrupted coverage, in the terms and amounts required, for the duration of this Permit.

(B) The Permittee shall maintain on file with the City Auditor a certificate of insurance certifying the coverage required above. The adequacy of the insurance shall be subject to the reasonable approval of the City Attorney.

(C) In the alternative to providing a certificate of insurance to the City certifying liability insurance coverage as required in this Paragraph d.1, Permittee may provide the City with a statement regarding its self-insurance. Permittee’s self-insurance shall provide at least the same amount and scope of coverage for the Permittee and the City, its officers, agents and employees, as otherwise required under this Paragraph. The adequacy of such self-insurance shall be subject to the City Attorney’s review and approval. Upon Permittee’s election to provide self-insurance coverage under this subsection, any failure by the Permittee to maintain adequate self-insurance shall be cause for immediate termination of this Permit under Paragraph p.

2. Faithful Performance Bond.

(A) Upon the effective date of this Permit, the Permittee shall furnish proof of the posting of a faithful performance bond running to the City, with good and sufficient surety approved by the City, in the penal sum of not less than $100,000, conditioned that the Permittee shall well and truly observe, fulfill, and perform each term and condition of the Permit. Permittee shall pay all premiums charged for the bond, and shall keep the bond in full force and effect at all times throughout the term of the Permit, including, if necessary, the time required for removal of all of Permittee’s Telecommunications System installed in the City’s Streets. The bond shall contain a provision that it shall not be terminated or otherwise allowed to expire without 30 days prior written notice first being given to the City Auditor. The bond shall be reviewed and approved as to form by the City Attorney.

(B) During the term of the Permit, Permittee shall file with the City Auditor a duplicate copy of the bond along with written evidence of payment of the required premiums. However, in no event shall the City exercise its rights against the performance bond under this subsection if a bona fide, good faith dispute exists between the City and the Permittee.

3. Construction bond. During all times when Permittee is performing any construction work in or under the Streets requiring a Street opening permit, Permittee shall post a faithful performance bond running to the City, as is required for Street opening permits, with good and sufficient surety approved by the City, in the sum of $100,000. The bond shall be conditioned that the Permittee shall well and truly observe, fulfill and perform each term and condition under Paragraph f. Permittee shall pay all premiums or other costs associated with maintaining the bond, and shall keep the same in full force and effect at all times during the construction work. The bond shall provide that it may be terminated upon final approval of Permittee’s construction work in or under the Streets by the City Engineer which shall not be unreasonably withheld or delayed. Upon such approval, the City agrees to sign all documents necessary to release the bond in accordance with the terms of this Paragraph. During the duration of the construction work, Permittee shall file with the City Auditor a copy of the bond, along with written evidence of the required premiums. The bond shall be subject to the reasonable approval of the City Attorney as to its adequacy under the requirements of this Paragraph.

e. COVENANT TO INDEMNIFY AND HOLD THE CITY HARMLESS.

1. General Indemnification. Permittee hereby agrees and covenants to indemnify, defend and hold the City, its officers, agents and employees, harmless from any direct claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorney fees or expenses, arising from any casualty or accident to person or property by reason of any construction, excavation or any other act done under this Permit, by or for Permittee, its agents or employees, or by reason of any neglect or omission of Permittee to keep its Telecommunications System in a safe condition, but not if arising out of or by reason of any negligence or willful misconduct by the City, its officers, agents or employees. The City shall provide Permittee with prompt notice of any such claim which Permittee shall defend with counsel of its own choosing and no settlement or compromise of any such claim will be done without the prior written approval of Permittee. Permittee and its agents, contractors and others shall consult and cooperate with the City while conducting its defense of the City.

2. Relocation Indemnification. Permittee also hereby agrees to indemnify the City for any damages, claims, additional costs or expenses assessed against or payable by the City arising out of or resulting, directly or indirectly, from Permittee’s failure to remove, adjust or relocate any of its Facilities in the Streets in a timely manner in accordance with a relocation schedule furnished to Permittee by the City Engineer, unless Permittee’s failure arises directly from the City’s negligence or willful misconduct.

f. CONSTRUCTION AND RELOCATION.

1. Subject to applicable regulations of the City, Permittee may perform all necessary construction to construct, operate and maintain its Telecommunications System. All construction and maintenance of any and all Telecommunications System Facilities within Streets incident to Permittee’s provision of Telecommunications Services shall, regardless of who performs installation and/or construction, be and remain the responsibility of Permittee. Permittee shall apply for and obtain all permits necessary for installation and/or construction of any such Facilities, and for excavation and laying of any Telecommunications System Facilities within City Streets. Permittee shall pay all applicable fees due for City construction permits.

A. Maps.

(1) Prior to beginning construction, Permittee shall provide the City’s Office of Cable Communications and Franchise Management with an initial construction schedule for work in the Streets and the estimated total cost of such work. When Permittee’s construction in the Streets is completed, Permittee shall provide the City with the total amount of City Streets, measured linearly, occupied by Permittee’s Telecommunications System, with a map showing the location of its installed Telecommunications System in the Streets, as built. Such “as-built” maps shall be in a form acceptable to the City Engineer.

(2) One year after the effective date of this Permit, and annually thereafter in the event of any alterations, Permittee shall provide a map to the City’s Office of Cable Communications and Franchise Management, or its successor, showing the location of Permittee’s optical fibers in the Streets on a scale of Three thousand five hundred feet (3,500’) per inch or whatever standard scale the City adopts for general use. Permittee shall also provide such maps in an electronic format acceptable to the City and the Permittee.

(B) Permittee may make excavations in City Streets for any Facility needed for the maintenance of the Permittee’s Telecommunications System, subject to obtaining permits from the City. Prior to doing such work, Permittee must apply for, and obtain, appropriate permits from the City, and give appropriate notices to any further franchisees, licensees or permittees of the City, or bureaus of the City or other units of government owning or maintaining facilities which may be affected by the proposed excavation, as provided in Paragraph f.

(C) In the event that emergency repairs are necessary for its Facilities in the streets, Permittee shall immediately notify the City of the need for such repairs. Permittee may immediately initiate such emergency repairs, and shall apply for appropriate permits the next business day following discovery of the emergency. Permittee must comply with all Charter and ordinance provisions relating to such excavations or construction, including the payment of permit or license fees.

2. Locates. Permittee shall comply with the requirements of the Oregon Utility Notification Law (Sections 1 to 5 and 7, Chapter 691, Oregon Laws 2001), and the rules and regulations promulgated thereunder.

3. Relocation. The City shall have the right to require Permittee to change the location of its Telecommunications System within the Streets when the public convenience requires such change, and the expense thereof shall be paid solely by Permittee. The City shall provide the Permittee with the standard notice given under the circumstances to other franchisees, licensees, or permitees. Should Permittee fail to remove or relocate any such Facilities by the date established by the City, the City may cause and/or effect such removal or relocation, and the expense thereof shall be paid by Permittee, including all direct, indirect and/or consequential costs and expenses incurred by the City due to Permittee’s delay. If the City requires Permittee to relocate its Facilities located within the City’s Streets, the City will make a reasonable effort to provide Permittee with an alternate location for its Facilities within the City’s Streets.

4. Permittee’s Telecommunications System shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the City, or with other facilities that may have been laid in the Streets by or under the City’s authority. The Telecommunications System constructed or erected by Permittee shall be of good quality and workmanship and shall be maintained in good repair and efficiency.

5. Upon Permittee’s acquisition of any Telecommunications System Facilities in the Streets, or upon any addition or annexation to the City of any area in which Permittee retains any such Facilities in the Streets, the Permittee shall submit to the City a written statement describing all Facilities involved, whether authorized by Permit or any other form of prior right, and specifying the location of all such Facilities. At the City’s sole option, as expressed by ordinance adopted by the City Council, such acquired Facilities shall be subject to the terms of this Permit, within a reasonable period of time to bring such acquired Facilities into compliance with this Permit and Permittee shall pay additional Permit fees as determined by the City.

g. RESTORATION OF STREETS.

1. Whenever Permittee disturbs the surface of any Street for any purpose, Permittee shall promptly restore the Street to at least its prior condition, to the satisfaction of the City Engineer. When any opening is made by Permittee in a hard surface pavement in any Street, Permittee shall promptly refill the opening and restore the surface to a condition satisfactory to the City Engineer.

2. If Permittee excavates the surface of any Street, Permittee shall be responsible for restoration of the Street and its surface within the area affected by the excavation. The City may, after providing notice to Permittee, refill and/or repave any opening made by Permittee in the Street, and the expense thereof shall be paid by Permittee. The City reserves the right, after providing notice to Permittee, to remove and/or repair any work done by Permittee which, in the determination of the City Engineer, is inadequate. The cost thereof, including the cost of inspection and supervision, shall be paid by the Permittee. All excavations made by Permittee in the Streets shall be properly safeguarded for the prevention of accidents. All of Permittee’s work under this Paragraph shall be done in strict compliance with all applicable rules, regulations and ordinances of the City.

3. Tree Trimming.

(A) After obtaining a written permit from the City Forester, Permittee may prune or cause to be pruned, using proper arboricultural practices in accordance with such permit, any tree in or overhanging the Streets which interferes with Permittee’s Telecommunications System. Except in emergencies, Permittee may not prune trees at a point below 30 feet above sidewalk grade until one week after written notice has been given to the owner or occupant of the premises abutting the Street in or over which the tree is growing. For purposes of this Paragraph, an emergency exists when it is necessary to prune to protect the public from imminent danger. The owner or occupant shall have seven days from receipt of Permittee’s notice to prune such tree at his or her own expense. If the owner or occupant fails to do so, Permittee may prune such tree at its own expense.

(B) The City Forester may, at his or her own discretion, waive the notification and permit process in the case of single trees, if Permittee adequately demonstrates to the City Forester’s satisfaction the ability to consistently apply proper arboricultural practices to the pruning of trees. Before any tree trimming permit may be issued, any contractor to be used by Permittee shall be subject to the approval of the City Forester. The City Forester shall have the discretion to cancel the permit if, at any time, the Permittee or its agents, fails to use proper arboricultural practices.

h. RESERVATION OF CITY STREET RIGHTS. Nothing in this Permit shall be construed to prevent the City from constructing sewers, grading, paving, repairing and/or altering any Street or laying down, 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 injure or prevent the unrestricted use and operation of the Telecommunications Systems of the Permittee under this Permit. However, if any of the Permittee’s Telecommunications System interferes with the construction or repair of any Street or public improvement, including construction, repair or removal of a sewer or water main, the Permittee’s system shall be removed or replaced in the manner the City shall direct: provided, however, the City will cooperate with the Permittee to identify possible alternate locations within the Streets. Any and all such removal or replacement shall be at the expense of the Permittee. Should Permittee fail to remove, adjust or relocate its Facilities by the date established by the City Engineer’s written notice to Permittee, the City may cause and/or effect such removal, adjustment or relocation, and the expense thereof shall be paid by Permittee, including all costs and expenses incurred by the City due to Permittee’s delay.

i. CITY USE OF DUCTS.

1. Ducts Provided to City in Streets.

(A) Permittee shall install for the City two two-inch ducts to be reserved for municipal purposes as part of Permittee’s construction in the Streets, either as shown on the map attached to this Permit as Exhibit B or as otherwise approved by the City.

(B) Notwithstanding the foregoing, Permittee shall install up to two 1.25 inch (1.25") ducts for the City’s use for any river crossing by the Permittee’s Facilities.

(C) If Permittee is joint trenching its ducts with another franchisee, the parties may jointly satisfy the requirements of this Paragraph through the provision of one duct for each duct installed, up to four ducts, or one single four-inch (4”) duct.

(D) Within ten (10) working days, upon completing installation and construction of duct for the City as noted in subparagraphs i.1 (A), (B) and (C), Permittee shall submit to the City a deed or other form of documentation, in a form acceptable to the City Attorney, indicating City ownership of such ducts. The cost of such ducts shall not be deducted from Permit fees payable to the City, or otherwise be charged to the City. Upon written request from the City, Permittee shall facilitate access to City’s ducts at the City’s expense.

2. City Use of Surplus Ducts.

(A) The City may install or affix and maintain wires and equipment for municipal purposes within any of Permittee’s surplus ducts or conduit, as defined in Paragraph l.1 (E). All work to affix and/or maintain City wires and equipment shall be performed by Permittee and shall be performed at City expense. The City shall not have access to Permittee’s surplus conduits or ducts without Permittee’s prior approval, except in the event of an emergency requiring that the City obtain immediate access to those conduits or ducts. In such an emergency, the City shall exercise its best efforts to notify the Permittee as soon as possible of the emergency and the City’s need for access.

(B) The value of the City’s use of Permittee’s surplus conduits or ducts may not be charged to the City, or be deducted from its Permit fee or other fees or charges payable to the City. Permittee shall not be responsible for any damage resulting to the wires or property of the City occurring as a result of City’s use of Permittee’s surplus conduits or ducts.

3. For the purposes of Paragraph i, the term “municipal purposes” includes but is not limited to the use of the structures and installations for City fire, police, traffic, water, telephone, and/or signal systems. The term “municipal purposes” does not include: (1) the sale or lease of Telecommunications Services to non-governmental third parties; (2) the transfer of any rights by the City to third parties for the purpose of providing the City with access to interexchange carriers; or (3) the transportation of water or wastewater. City installations under this Paragraph shall meet all local, state and federal clearance and other safety requirements, and be properly grounded and anchored.

j. STREET VACATION. If any Street or portion thereof used by Permittee is vacated by the City during the term of this Permit, unless the City Council specifically reserves to Permittee the right to continue its installation in the vacated Street area, Permittee shall, without expense to the City, forthwith remove its Facilities from such Street, and restore, repair or reconstruct the Street area where such removal has occurred, and place the Street area in such condition as may be required by the Council which shall be no better than the condition of such Street immediately prior to removal. In the event of failure, neglect or refusal of Permittee, after thirty days’ notice by City Council, to repair, improve or maintain such Street portions, the City may do such work or cause it to be done, and the direct cost thereof, as found and declared by City Council, shall be entered in the Docket of City Liens against any property of Permittee which City may choose, and such lien shall be enforced in like manner and with like effect as other liens entered in such docket. The City will cooperate with Permittee to identify alternative locations within the Streets.

k. MAINTENANCE OF FACILITIES. Permittee shall provide and put in use all Facilities necessary to control and carry Permittee’s Telecommunications Services so as to prevent injury to the City’s property or property belonging to any person, firm, or corporation within the City. Permittee, solely at its own expense, shall repair, renew, change and improve said Facilities from time to time as may be necessary to accomplish this purpose. Permittee shall not construct its Telecommunications System in a manner that requires any customer, except the City or any Telecommunications Provider franchised by the City, to install cables, ducts, conduits, or other Facilities, in, under or over the City’s Streets or other public right of way.

l. COMMON USERS.

1. For the purposes of this Paragraph l:

(A) “Attachment” means any wire, optical fiber or other cable, and any related device, apparatus or auxiliary equipment, for the purpose of voice, video, or data transmission.

(B) “Conduit Facility” means any structure, or section thereof, containing one or more ducts, conduits, manholes, handhole or other such Facilities in the Permittee’s Telecommunications System.

(D) “Licensee” means any Person franchised, licensed or otherwise permitted by the City to use the Streets. For the purpose of this Paragraph l, the Permittee shall not be construed to be a “Licensee” as defined herein.

(E) “Surplus ducts or conduits” are Conduit Facilities other than those by the Permittee or any prior Licensee, one unoccupied duct held by Permittee as an emergency use spare, and other unoccupied ducts that the Permittee reasonably expects to use within the next 18 months.

2. Permittee acknowledges that the Streets are a finite resource, with a limited capacity for containing conduits. Therefore, Permittee agrees that whenever the City Engineer determines it is impracticable to permit construction of an underground conduit system by any other person which may at the time have authority to construct or maintain conduits or ducts in the Streets, the City Engineer may require Permittee to afford to such person the right to use Permittee’s surplus ducts or conduits as the City Engineer finds practicable in common with the Permittee, pursuant to the terms and conditions of an agreement for use of surplus conduits and ducts being entered into by the Permittee and the Licensee. If the Licensee and Permittee fail to reach agreement on such terms and conditions within a reasonable time, both parties shall agree to resolve the dispute through such binding alternative dispute resolution procedures as are acceptable to both parties.

3. A Licensee occupying part of a Duct shall be deemed to occupy the entire Duct.

4. The Permittee shall give a Licensee 120 written days notice of its need to occupy licensed conduit and shall propose that the Licensee take the first feasible action listed:

(A) Pay revised conduit rent designed to recover the cost of retrofitting the conduit with multiplexing, optical fibers, or other space-saving technology sufficient to meet the Permittee’s space needs;

(B) Pay revised conduit rent based on the cost of new conduit constructed to meet the Permittee’s space needs;

(D) Construct and maintain sufficient new conduit to meet the Permittee’s space needs.

Permittee shall provide a written copy of such notice to the City at the same time such notice is provided to the Licensee.

5. When two or more Licensees occupy a section of Conduit Facility, the last Licensee to occupy the Conduit Facility shall be the first to vacate or construct new conduit. When conduit rent is revised because of retrofitting of space-saving technology or construction of new conduit, all Licensees shall bear the revised cost.

6. All attachments shall meet local, state, and federal clearance and other safety requirements, be properly grounded and anchored, and meet the provisions of contracts executed between the Permittee and the Licensee. The Permittee may, at its option, correct any attachment deficiencies and charge the Licensee for its costs. Each Licensee shall pay the Permittee for any fines, fees, damages, or other reasonable costs the Licensee’s attachments cause the Permittee to incur.

m. DISCONTINUED USE OF FACILITIES. Whenever Permittee intends to discontinue use of its Telecommunications System within all or part of a particular portion of the Streets and does not intend to use said Facilities again in the future, Permittee shall submit to the City Engineer for the City Engineer’s approval a completed application describing the Facility and the date on which the Permittee intends to discontinue using the Facility. Permittee may remove the Facility or request that the City permit it to remain in place. If Permittee is permitted to abandon its Facilities in place, upon consent of the City, the ownership of Facilities in the City’s Streets shall transfer to the City and Permittee shall have no further obligation therefor. Notwithstanding the Permittee’s request that any such Facility remain in place, the City Engineer may require the Permittee to remove the Facility from the Street area or modify the Facility in order to protect the public health and safety or otherwise serve the public interest. The City Engineer may require the Permittee to perform a combination of modification and removal of the Facility. Permittee shall complete such removal or modification in accordance with a schedule set by the City Engineer. Until such time as Permittee removes or modifies the Facility as directed by the City Engineer, or until the rights to and responsibility for the Facility are accepted by another person having authority to construct and maintain such Facility, Permittee shall be responsible for all necessary repairs and relocations of the Facility, as well as maintenance and restoration of the Street area, in the same manner and degree as if the Facility were in active use, and Permittee shall retain all liability for such Facility.

n. HAZARDOUS SUBSTANCES.

1. Permittee shall comply with all applicable state and federal laws, statutes, regulations and orders concerning Hazardous Substances relating to Permittee’s Telecommunications System in the City Streets. For purposes of this Paragraph, “Hazardous Substances” shall have the meaning given by ORS 465.200(15) (2001).

2. Inspection and Removal

(A) Permittee shall maintain and inspect its Telecommunications System located in the City Streets. Upon reasonable notice to Permittee and in the presence of an authorized representative of Permittee, the City may inspect Permittee’s Facilities in the Streets to determine if any release of Hazardous Substances has occurred, or may occur, from or related to Permittee’s Telecommunications System Facilities.

(B) In removing or modifying Permittee’s Facilities as provided in Paragraphs e.3, h and m of this Permit, Permittee shall also remove all residue of Hazardous Substances in compliance with applicable environmental clean-up standards related thereto.

3. Permittee agrees to forever indemnify the City against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the City arising out of the release or threat of release of Hazardous Substances caused by Permittee’s ownership or operation of a Telecommunications System in the Streets.

o. CITY’S WRITTEN CONSENT REQUIRED FOR ASSIGNMENT, TRANSFER, MERGER, LEASE OR MORTGAGE.

o.1 (A) Except as otherwise permitted in Paragraph o.2 hereof, neither this Permit nor any of Permittee’s Telecommunications System located in the Streets by authority of this Permit shall be sold, leased, mortgaged, assigned, merged or otherwise transferred without the prior written consent of the City as expressed by ordinance, which consent shall not be unreasonably withheld, except to entities that control, are controlled by, or are under common control with the Permittee. Permittee shall give written notice to the City of any transfers to entities under such common control within ten (10) days of such transfers. The City’s granting of consent in one instance shall not render unnecessary any subsequent consent in any other instance. Nothing contained in this Paragraph o shall be deemed to prohibit the mortgage, pledge, or assignment of tangible assets of Permittee's Telecommunications System for the purpose of financing the acquisition of equipment for or the construction and operation of Permittee’s Telecommunications System, within or outside the City, without the City’s consent, but any such mortgage, pledge or assignment shall be subject to the City’s other rights contained in this Permit.

(B) (1) In determining whether the City will consent to any sale, lease, mortgage, assignment, merger or transfer, the City may inquire into the technical, legal, and financial qualifications of the prospective party. Permittee shall assist the City in any such inquiry. The City may condition any sale, lease, mortgage, assignment, merger or transfer upon such conditions related to the technical, legal, and financial qualifications of the prospective party to perform according to the terms of this Permit, as it deems appropriate. The City shall not unreasonably delay or withhold its consent to any such sale, lease, mortgage, assignment, transfer or merger.

(2) No sale, lease, mortgage, assignment, transfer or merger for which the City’s consent by ordinance is required may occur until the successor, assignee or lessee has complied with the requirements of Paragraph d, including, but not limited to, providing certificates of insurance, unless the City Council waives such compliance by ordinance. Within ten (10) days after execution and delivery of any instrument so consented to by the City, Permittee shall file with the Auditor an executed counterpart or certified copy thereof.

o.2 (A) Permittee shall not lease any of its Facilities without the City’s prior consent as expressed by ordinance. However, Permittee may lease any portion of its Facilities in the ordinary course of its business without otherwise obtaining the City’s consent by ordinance, so long as Permittee remains solely responsible for locating, servicing, repairing, relocating or removing such Facilities. A lessee of Permittee’s Facilities shall not obtain any rights under this Permit. For the purposes of this Subsection, a capital lease shall be treated as a lease under this Subsection until the conclusion of the lease, when transfer of ownership occurs. At that point in time, the capital lease shall be treated as a sale under Subsection o.2.B(2).

(B) (1) Notwithstanding Subsection o.1(A), Permittee may grant Indefeasible Right of User Interests in any portion of its Facilities in the ordinary course of its business without otherwise obtaining the City’s consent by ordinance, so long as Permittee remains solely responsible for locating, servicing, repairing, relocating or removing such Facilities. The holder of any IRU in Permittee’s Facilities shall not obtain any rights under this Permit. For the purposes of this Subsection, if a transfer of ownership of the Facilities occurs at the conclusion of the IRU, it shall be treated as a sale under Subsection o.2.B(2) at that point in time.

(2) Notwithstanding Subsection o.1(A), Permittee may sell portions of its Telecommunications System in the ordinary course of its business, without otherwise obtaining the City’s consent by ordinance, so long as Permittee complies with the following conditions:

(a) The sale is to the holder of a current existing, valid telecommunications franchise with the City;

(b) Within fourteen days of the sale being executed and becoming final, Permittee shall provide written notice to the City, describing the portions of the Telecommunications System sold by the Permittee, identifying the purchaser of the Facilities, the location of the Facilities (in accordance with the requirements of Subsection f.1(A), and providing an executed counterpart or certified copy of the sales documents;

(c) Permittee remains solely responsible for locating, servicing, repairing, relocating or removing its remaining Telecommunications System; and,

(d) Within fourteen days of the sale being executed and becoming final, the purchaser of such Facilities shall file written notice to the City that it has assumed sole responsibility for locating, servicing, repairing, relocating or removing the purchased Facilities under the purchaser’s current, existing valid franchise. The purchaser shall not obtain any of the Permittee’s rights under this Permit.

p. REVOCATION.

1. Revocation. In addition to any other rights set out elsewhere in this Permit, the City reserves the right to declare a revocation of the Permit, and all of Permittee’s rights arising thereunder, in the event that:

(A) The Permittee violates any material provision of the Permit;

(1) For purposes of this Paragraph, the following are material provisions of this Permit, allowing the City, without limitation, to exercise its rights under this Paragraph or as set forth elsewhere in this Permit:

(a) The invalidation, failure to pay or any suspension of Permittee’s payments of Permit Fees to the City for use of the Streets under this Permit;

(b) Any failure by the Permittee to submit timely reports regarding the calculation of its Permit Fees to the City;

(d) Any failure by Permittee to maintain the performance bond required under this Permit;

(e) Any failure by Permittee to provide copies of requested information as provided under Paragraph c.9 above; or,

(f) Any failure by Permittee to otherwise fully comply with the requirements of this Permit.

(B) The Permittee is found by a court of competent jurisdiction to have practiced any fraud or deceit upon the City;

(C) There is a final determination that Permittee has failed, refused, neglected or is otherwise unable to obtain and/or maintain any permit required by any federal or state regulatory body regarding Permittee’s operation of its Telecommunications System within the City;

(D) The Permittee’s construction schedule is delayed for over 18 months; or,

(E) The Permittee becomes unable or unwilling to pay its debts, or is adjudged a bankrupt.

2. Additional Remedies. In addition to any rights set out elsewhere in this Permit, as well as its rights under the City Code, the City reserves the right at its sole option to apply any of the following, alone or in combination:

(A) Impose a financial penalty of up to $1,000.00 per Permit violation; or,

(B) Suspend the Permittee’s Permit rights, until the Permittee corrects or otherwise remedies the violation.

(C) Revocation. The City Council may revoke this Permit in the event that any provision becomes invalid or unenforceable and the City Council expressly finds that such provision constituted a consideration material to the grant of the Permit. The City shall exercise its revocation rights hereunder pursuant to Paragraph q.

3. In determining which remedy or remedies are appropriate, the City shall consider the nature of the violation, Permittee's efforts to cure the violation after notice thereof, the person or persons burdened by the violation, the nature of the remedy required in order to prevent further such violations, and any other matters the City deems appropriate.

4. Notice and Opportunity to Cure. The City shall give Permittee thirty (30) days prior written notice of its intent to exercise its rights under this Paragraph, stating the reasons for such action. If Permittee cures the stated reason within the thirty (30) day notice period, or if the Permittee initiates efforts satisfactory to the City to remedy the stated reason and the efforts continue in good faith, the City shall not exercise its remedy rights. If Permittee fails to cure the stated reason within the thirty (30) day notice period, or if the Permittee does not undertake and/or maintain efforts satisfactory to the City to remedy the stated reason, then the City Council may impose any or all of the remedies available under this Paragraph. However, in no event shall the City exercise its rights under this Paragraph if a bona fide, good faith dispute exists between the City and the Permittee.

q. RENEGOTIATION.

1. Invalidity. In the event that any provision of this Permit becomes invalid or unenforceable and the City Council or the Permittee expressly finds that such provision constituted a consideration material to entering into this Permit, the City and the Permittee may mutually agree to renegotiate the terms of this Permit. The party seeking renegotiation shall serve on the other party written notice of an offer to renegotiate. In the event the other party accepts the offer to renegotiate, the parties shall have 90 days to conduct and complete the renegotiation. If both parties agree to renegotiations hereunder, they shall proceed in good faith and in a manner that is reasonable under the circumstances.

2. Changes in Law or Unenforceability of Permit Provisions.

(A) The Parties have entered into this Permit under the federal and state laws and regulations in effect on the effective date of this Permit. The City reserves the right to request and obtain modifications to this Permit, under Paragraph q, to account for changes in the law or applicable regulations or changes in interpretation of the law or applicable regulations during the term of this Permit. The City also reserves the right to request and obtain modifications in this Permit, under Paragraph q, if any provision of this Permit becomes, or is declared, invalid or unenforceable. The purpose of these reservations of right is to ensure that under any changes in law, regulation, or enforceability of the Permit, the City may continue to maintain the benefits provided under the Permit prior to such changes, or if that is not possible, to ensure that the City obtain substitute benefits of equal value to the City.

(B) The Parties shall work in good faith to resolve any issues with the provisions of this Permit resulting from changes in the law or applicable regulations, as more fully described in 17.2(A) above. The Parties shall attempt to agree to modifications to the Permit so that the net rights and obligations of the Parties remain substantially the same after the modification, as they were prior to the change in law or applicable regulation.

r. MISCELLANEOUS PROVISIONS.

1. Compliance With Laws.

(A) Both Permittee and the City shall comply with all applicable federal and state laws.

(B) Permittee shall comply with all applicable City ordinances, resolutions, rules and regulations adopted or established pursuant to the City’s lawful authority.

2. Severability. If any Paragraph, provision or clause of this Permit is held by a court of competent jurisdiction to be invalid or unenforceable, or is preempted by federal or state laws or regulations, the remainder of this Permit shall not be affected.

3. Regulation and Nonenforcement by the City. The City Council shall be vested with the power and authority to reasonably regulate the exercise of the privileges permitted by this Permit in the public interest. Permittee shall not be relieved of its obligations to comply with any of the provisions of this Permit by reason of any failure of the City to enforce prompt compliance, nor does the City waive or limit any of its rights under this Permit by reason of such failure or neglect.

4. Force Majeure.

(A) For purposes of this Paragraph r.4, the term “Force Majeure” shall mean acts of God, landslides, earthquakes, lightning, fires, hurricanes, volcanic activity, storms, floods, washouts, droughts, civil disturbances, acts of terrorism or of the public enemy, partial or entire failure of utilities, strikes, explosions, lockouts or other industrial disturbances, insurrections, public riots or other similar events which are not reasonably within the control of the parties hereto.

(B) If the Permittee is wholly or partially unable to carry out its obligations under this Permit as a result of Force Majeure, the Permittee shall give the City prompt notice of such Force Majeure, describing the same in reasonable detail, and Permittee’s obligations under this Permit, other than for the payment of monies due, shall not be deemed in violation or default for the duration of the Force Majeure. Permittee agrees to use its best efforts to remedy as soon as possible, under the circumstances, Permittee’s inability, by reason of Force Majeure, to carry out its responsibility and duties under this Permit.

5. Choice of Forum. Any litigation between the City and the Permittee arising under or regarding this Permit shall occur, if in the state courts, in the Multnomah County Court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the District of Oregon, Portland.

6. Notice. Any notice provided for under this Permit shall be sufficient if in writing and (1) delivered personally to the following addressee or deposited in the United States mail, postage prepaid, certified mail, return receipt requested, (2) sent by overnight or commercial air courier (such as Federal Express), or (3) sent by facsimile transmission addressed as follows, or to such other address as the receiving party hereafter shall specify in writing:

(A) If to the City: Office of Cable Communications and Franchise Management

City of Portland, Oregon

1120 SW 5th Avenue, Room 704

Portland, Oregon 97204

FAX (503) 823-5370

With a copy to: City Attorney’s Office

City of Portland

Room 430, City Hall

1221 SW 4th Avenue

Portland, Oregon 97204

FAX (503) 823-3089

(B) If to the Permittee:

Mike Kirkland, Network Compliance Officer

Tyco Networks (U.S.), Inc.

10 Park Avenue

Morristown, New Jersey 07960

FAX (973) 753-3757

With a copy to: General Council

Tyco Networks (US) Inc.

10 Park Avenue

Morristown, New Jersey 07960

FAX (973) 753-3393

(C) Any such notice, communication or delivery shall be deemed effective and delivered upon the earliest to occur of actual delivery, three (3) business days after depositing in the United States mail as aforesaid, one (1) business day after shipment by commercial air courier as aforesaid or the same day as facsimile transmission (or the first business day thereafter if faxed on a Saturday, Sunday or legal holiday).

7. Confidentiality. Permittee may identify information submitted to the City as confidential. Prior to submitting such information to the City, Permittee shall prominently mark any such information with the mark “Confidential” in letters at least one-half (½) inch in height. The City shall treat any information so marked as confidential and not subject to public disclosure, until the City receives any public records request for disclosure of such information. Within five (5) working days of receiving any such request, the City shall provide the Permittee with written notice of the request, including a copy of the request. Permittee shall have five (5) working days within which to provide a written response to the City, before the City may release any of the requested confidential information. Whether the Permittee submits any written response to the City, the City shall retain final discretion to determine whether to release the requested confidential information, provided that the City shall give the Permittee at least five days written notice after receipt of any response from Permittee, prior to releasing such information.

8. Public Records.

(A) Some information submitted by the Permittee to the City may be relevant to the Permittee’s obligation to pay Permit fees. Requiring such information to be submitted to the City in order to determine fees payable or paid to the City may qualify such information as being exempt from public disclosure under ORS 192.501(5) (2001) of the Oregon Public Records Law.

(B) Some information submitted by the Permittee to the City may otherwise be used to conduct its business and known to certain individuals within the organization, with actual or potential commercial value, and giving Permittee a business advantage over its competitors. Such information may constitute trade secrets and be exempt from public disclosure under ORS 192.501(2) (2001) of the Oregon Public Record Law.

(C) Identification of these exemptions under the Oregon Public Records Law, which may apply to information submitted by the Permittee to the City, is not an exhaustive list of those possibly applicable to such information.

9. Permit Amendment. The City has negotiated this Permit in good faith, in reliance upon the information provided by the Permittee regarding the scope of its authority to offer the Telecommunications Services described in Paragraph b.2.13 above. In the event that Permittee actually receives authority to offer telecommunications services outside the scope of this Permit, or otherwise begins offering telecommunications services outside the scope of those identified in Paragraph b.2.13, Permittee shall immediately notify the City. Within 90 days of receiving such notice, the City may either enter into negotiations with the Permittee to revise or amend this Permit to reflect such changed circumstances, or may proceed with early termination of this Permit. The parties will negotiate in good faith to revise the Permit to authorize the expanded scope of services.

s. WRITTEN ACCEPTANCE. On or before the thirtieth day after this ordinance becomes effective, Permittee shall file in the Office of the Auditor of the City of Portland a written acceptance of this ordinance, executed by the Permittee, meeting the approval of the City Attorney. A failure on the part of Permittee to file such written acceptance within such time shall be deemed an abandonment and rejection of the rights and privileges conferred hereby and this ordinance shall thereupon be null and void. Such acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions and restrictions contained in this ordinance.

t. OTHER AUTHORITY SUPERSEDED. Upon effectiveness of this Permit, any and all authority to operate previously granted to Permittee by the City shall be superseded by this Permit.

Section 2. The Council declares that an emergency exists because the general public welfare will be serve by Tyco being authorized to immediately begin construction of its telecommunications system, to allow it to begin operation without delay and introduce further competition into the marketplace for telecommunications services; therefore, this ordinance shall be in full force and effect from and after its passage by the Council.

Passed by the Council: MAR 20 2002 Gary Blackmer

Commissioner Erik Sten Auditor of the City of Portland

Soloos/Walters By /S/ Susan Parsons

March 20, 2002 Deputy

BACKING SHEET INFORMATION

AGENDA NO. 268-2002

ORDINANCE/RESOLUTION/COUNCIL DOCUMENT NO. 176331

COMMISSIONERS VOTED AS FOLLOWS:

	YEAS	NAYS
FRANCESCONI	X
HALES	X
SALTZMAN	X
STEN	X
KATZ	X