HomeMy WebLinkAboutOrdinance 5942 11/01/1999
.
'.
..
~ f .
. ,
,.
ORDINANCE NO. 5942
AN ORDINANCE RATIFYING THE CREATION OF THE FIBER SOUTH
CONSORTIUM AND AUTHORIZING AND DIRECTING THE CITY MANAGER TO
EXECUTE THE INTERGOVERNMENTAL AGREEMENT CREATING THE
CONSORTIUM ON BEHALF OF THE CITY OF SPRINGFIELD.
THE COMMON COUNCIL OF THE CITY OF SPRINGFIELD DOES ORDAIN AS
FOLLOWS:
Section 1.
Section 2.
Section 3.
b.
c.
d.
e.
Section 4.
a.
b.
c.
It is the intent ofthe Springfield City Council to create an intergovernmental
entity, to be known as the Fiber South Consortium, by an intergovernmental
agreement entered into by the City and other units of local government pursuant to
the provisions ofORS 190.003 et seq.
The effective date of such intergovernmental agreement shall be July 1, 1999, or
the date two participating units of local government shall have adopted an
ordinance ratifying the creation of the Fiber South Consortium, whichever shall
last occur.
The public purposes for which the Fiber South Consortium shall be created shall
be:
a.
To assume ownership and control of fiber optic cable obtained by the consortium,
or by any member government, that the government, in its discretion, deems it is
appropriate to contribute to the consortium;
To provide for the members a fiber optic system, or components thereof, that,
consistent with available resources, best serves the public interest in an efficient
manner;
To provide a forum for communication and consultation among members and to
provide an opportunity for a cooperative and equitable sharing of the expenses,
data, expertise, experience and plans of each unit oflocal government;
If feasible for and agreeable to some or all of the members, take joint or common
action to provide the appropriate level of communication services to the citizens
of the various jurisdictions; and
To acquire such additional tangible and intangible assets as are deemed necessary
to fulfill the other purposes of the consortium.
The powers, duties and functions of the Fiber South Consortium shall be:
Plan for fiber optic system development for the consortium.
Direct and manage the use of a fiber optic system or systems obtained by the
consortium or its members.
When requested, act as the agent of the members in the preparation and
Page 1 of 2
. Ordinance 5942
'Pag~ 2
.
negotiation of agreements concerning the acquisition, management and use of the
consortium's fiber optic systems.
Carry out further responsibilities and functions as provided by the members.
d.
Section 5. The City Manager is hereby authorized and directed to evidence this ratification of
the creation of the Fiber South Consortium by executing, on behalf ofthe City of
Springfield, a copy of an INTERGOVERNMENTAL AGREEMENT TO
ESTABLISH A CONSORTTIJM OF LOCAL GOVERNMENTS FOR THE
OWNERSHIP AND OPERATION OF A FIBER OPTIC SYSTEM, substantially
. in the form of a draft dated July 12, 1999, with such changes as he determines are
not inconsistent with the provisions of this ordinance, such. determination to be
evidenced by his execution of the agreement.
ADOPTED by the Common Council of the City of Springfield this ~ day of November
1999, by a vote of ~ for and ~ against.
APPROVED by the Mayor of the City of Springfield this ~ day oNovember, 1999.
.
~1lAi~
Maureen M. Maine, Mayor
ATTEST:
q~(Q~
City Recorder
FlEVIEWED & APPROVED
A Q TO flDRM
~ 0 4~-A ~ '- ft.A \~
DATE:/~_'.\a I \'4... \ '\ C\
.
OFFICI..OF CITY ATTORNEY
.
Page 2 of 2
INTERGOVERNMENTAL AGREEMENT
.
TO ESTABLISH A CONSORTIUM OF LOCAL GOVERNMENTS
FOR THE OWNERSHIP AND OPERATION OF A FIBER OPTIC SYSTEM
AN AGREEMENT, entered into by and between some or all of the following: the Cities of
Springfield; Eugene; Veneta; Florence; Dunes City; Reedsport; Lakeside; Coos Bay; North
Bend; Bandon; Coquille; Roseburg; Sutherlin; Drain; Y oncalla; Cottage Grove and Creswell,
all of which are Oregon municipal corporations, and Lane County; Douglas County and Coos
County, all of which are political subdivisions of the State of Oregon.
RECITALS
WHEREAS,ORS 190.010 provides that units oflocal government may enter into
agreements for the performance of any or all functions and activities that a party to the
agreements, its officers or agents, have authority to perform, and
WHEREAS it is the intent of the parties to create an intergovernmental entity for the
purposes provided in this agreement.
AGREEMENT
.
Now therefore it is agreed:
Section 1.
GENERAL PURPOSE
To form ajoint entity (hereafter the Fiber South Consortium, or "the consortium") consisting
of representatives from certain units of local government to carry out the following purposes:
A. To assume control of fiber optic cable obtained by the consortium, or by any
member government, that the government, in its discretion, deems it is
appropriate to contribute to the consortium by an assignment of rights or other
transfer of control;
B. To provide for the members a fiber optic system, or components thereof, that,
consistent with available resources, best serves the public interest in an
efficient manner;
C. To provide a forum for communication and consultation among members and
to provide an opportunity for a cooperative and equitable sharing of the
expenses, data, expertise, experience and plans of each unit oflocal
government; and
.
If feasible for and agreeable to some or all of the members, take joint or
common action to provide the appropriate level of communication services to
the citizens of the various jurisdictions.
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 1 of 8
D.
.
E.
To acquire such additional tangible and intangible assets as are deemed
necessary to fulfill the.other purposes of the consortium.
Section 2.
MEMBERSHIP
A. Membership in the consortium is, subject to the approval of the original members of
the consortium, open to any local government and other governmental entities with a
contribution to make to the fulfillment of the purposes of the consortium. Any local
government listed in the first paragraph of this agreement may become a member of
the consortium at any time by appropriate action.
B. Membership by an entity not listed in the initial paragraph of this intergovernmental
agreement shall be subject to the approval of the existing membership of the
consortium. The existing members ofthe consortium shall consider any application
for membership and may approve the application whenever the additional
membership will further contribute to the efficient achievement of the purposes of the
consortium. Such approval shall be a prerequisite for the adoption of any necessary
ordinances. The governing body of any local government may attain membership by
adopting an ordinance enacting the intergovernmental agreement. Any other entity
may obtain membership in the consortium when such membership is consistent with
applicable law and is initiated pursuant to such applicable law.
.
C.
Associate membership may be available for any other entity whom the members of
the consortium recognize as appropriately able to contribute to the purposes of the
consortium. Associate members shall be able to participate in all meetings and
discussions, but may not participate in any recorded final vote that creates an
obligation for any member. The consortium shall develop appropriate standards and
procedures for admission of associate members.
Section 3.
FUNCTIONS
The basic functions of the consortium are:
A. Plan for fiber optic system development for the consortium.
B. Direct and manage the use of a fiber optic system or systems obtained by the
consortium or its members.
C. When requested, act as the agent of the members in the preparation and
negotiation of agreements concerning the acquisition, management and use of
the consortium's fiber optic systems.
D. Carry out further responsibilities and functions as provided by the members.
.
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 2 of8
.
Section 4.
.
AUTHORITY
A.
Consortium Authority. Except as provided in Article B ofthis section, the
Consortium shall have authority to act on behalf of the members to oversee
and direct the operation of any consortium fiber optic system created or
enhanced pursuant to the right of way permit agreements, or other similar
agreements entered into by the consortium or its members, and such other
responsibilities as may be assigned by the members. The Consortium shall
have authority to carry out all functions and duties possessed by the members,
either as reserved in the right of way agreements or as otherwise provided by
law, subject to the specific provisions of reservation provided in this
agreement.
B. Powers Retained by Governing Bodies of Members. In the following areas
members reserve the authority to act on their own behalf. Each member
agrees to make a good faith effort to weigh the impact of such actions on the
overall operation and continuity of the system, and each member agrees to
take no action in those areas without prior notice to the consortium. The
matters subject to this retained authority are:
1.
Revocation, termination, extension, amendment or renewal of a right-
of-way permit, license or franchise for any actions within the
member's right of way.
2. Notice and an opportunity to review prior to the execution of any
agreement by the consortium concerning the use, management,
control, or operation of any part of the consortium's fiber optic system
within the jurisdictional area of the member. All such agreements
shall be subject to any applicable ordinances or regulations of the
member.
3. Any action requiring the adoption of any legislation by the governing
bodies, the amendment of this agreement, or the granting or denying of
any additional right of way permit, license or franchise.
4. Any decision concerning a change of ownership or control of a system
subject to a right of way permit, license or franchise.
Discretionary Review. No action of the consortium in regard to the following
matters shall become final before a period of 30 days has expired from the
adoption thereofby the consortium. These actions shall be subject to review
by each member during the 30 day period in accordance with procedures
established by the member. The purpose ofthis review is to permit governing
bodies of members to understand the consortium's intended actions in matters
of particular concern, and to allow the consortium to reconsider such actions,
if necessary. The matters subject to this discretionary review are:
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 3 of8
c.
.
.
Section 5.
1.
,Any sanctions to be imposed on any user of the fiber optic system for
failure to comply with the terms of an agreement with the consortium.
2. Adoption, amendment or repeal of regulations governing the operation
of the system.
RULES OF PROCEDURE
The consortium shall adopt rules of procedure. The rules shall:
.
Section 6.
A. Establish times and places of meetings.
B. Establish a central office for the consortium, which shall have a mailing
address, a telephone, and appropriate records of the consortium.
C. Prescribe officers of the consortium to be elected by the consortium from
among its members.
D.
Provide for the organization and operation of the meetings of the consortium,
wherein each member shall be entitled to select one representative to attend
and vote at consortium meetings, that a quorum for any meeting shall consist
of a majority of the members having delegated representatives. The original
rules of procedure shall provide that a decision of the consortium, including a
decision to amend the rules of procedure, may be made only upon the
affirmative vote of at least half ofthe members of the consortium. The rules
of procedure may be amended to provide that decisions may be made by less
than a majority ofthe members, except that no amendment of the rules of
procedure may ever be made by less than a majority of the members. The
rules of procedure may provide for meetings to be conducted by telephone or
for the attendance of some member's representatives by telephone.
CONTRACTS
The consortium is authorized by the members to enter into contracts for:
.
A. Technical and professional services.
B. Construction and installation of any facilities necessary to achieve the
objectives of this agreement.
C. Provision of any form of telecommunications services to the consortium area,
or any part thereof.
D. The purchase and ownership of real and personal property.
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 4 of8
.
The Consortium's contracts shall be valid when signed by the presiding officer of the
consortium, after authorization of such signature by the members of the consortium.
Section 7.
COST OF OPERATION
A. The cost of operation of the consortium shall be determined by its members. In
accordance with and subject to the Oregon Local Budget Law, the consortium may
make expenditures for the purchase of materials, services, supplies and equipment.
Expenditures shall not exceed the funds appropriated for the purpose by the members
or acquired through the operations of the consortium. No member shall be obligated
for any payments except as previously approved by the member. All obligations of
the consortium shall be subject to prior appropriation of funds.
B.
Any revenues received in excess of the budgeted cost of operation may be reinvested
in the provision of additional services by the consortium, or held in a reserve account
for future needs, or otherwise used as determined by the consortium. Revenues in
excess of operational costs may also be returned to the members when such action is
made a part of the consortium's adopted budget. The consortium recognizes that
some members have made greater contributions to the establishment of the
consortium than other members, when measured in terms of goods and services
donated, forbearance in the collection of right-of-way fees, or other financial
contributions. This difference in contributions shall have no effect on membership
rights, except that it may be reflected in return payments to members, which shall be
roughly proportional to the value of each member's contribution.
.
Section 8.
TERMINATION
The duration ofthis agreement shall be perpetual. Any member may terminate its
participation in the agreement and withdraw from the consortium upon 90 days written notice
of withdrawal to the consortium and other members. However, expenditures contracted for
by the consortium after the date of notice of intent to withdraw shall not constitute an
obligation on the part of the member providing notice of withdrawal. Any fiber, or right of
use of fiber, as well as other rights, including ownership of equipment or other goods
acquired by the consortium or contributed to the consortium by the withdrawing member
shall remain with the consortium. Where a member has the right to collect fees for the use of
the right of way, and where the consortium occupies the right of way within the jurisdiction
ofthe member, in the event that a member withdraws from the consortium, the consortium
shall become responsible for the payment of right of way fees or for franchise fees or other
like charges, in the same manner and to the same degree as would be true for any private
entity, unless other arrangements are made at the time of withdrawal.
Section 9.
MEDIATION
.
In the event of a dispute or disagreement regarding the performance, terms or conditions of
this agreement, unless otherwise provided, the dispute shall be submitted to mediation.
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 5 of8
.
Section 10. INDEMNITY
The Consortium and each of the parties agrees to defend, indemnify and save the other
harmless from any claim, liability or damage, including attorney fees, resulting from any
error, omission or act of negligence on the part of the indemnifying party, its officers or
employees in the performance of its responsibilities under this agreement. The parties
indemnity and hold harmless obligations are subject to the limitations of the Oregon Tort
Claims Act and the Oregon Constitution, as applicable.
In providing the services specified in this agreement (and any associated services) all the
parties are public bodies and maintain their public body status as specified in ORS 30.260.
All the parties understand and acknowledge that all parties retain all immunities and
privileges granted them by the Oregon Tort Claims Act (ORS 30.260 through 30.295) and
any and all other statutory rights granted as a result of their status as local public bodies.
Section 11. EFFECTIVE DATE
.
As required by ORS 190.085, prior to becoming effective, each of the parties to the
intergovernmental agreement shall enact an ordinance ratifying the creation of the
intergovernmental entity, declaring that it is the intent of the governing body enacting the
ordinance to create an intergovernmental entity by intergovernmental agreement, specifying
the effective date of the agreement, setting forth the public purposes of the intergovernmental
entity and describing the powers, duties and functions of the intergovernmental entity. Not
later than 30 days after the effective date of the intergovernmental agreement, each member,
upon joining, must file with the Secretary of State copies of the enacting ordinance and
copies of this intergovernmental agreement.
This agreement shall become effective for the first and second member of the consortium
upon the adoption of an enacting ordinance by the second member adopting such an enacting
ordinance, and shall thereafter become effective for each additional member of the
consortium upon adoption of an enacting ordinance.
Section 12. NOTICE
Until notice of a change is provided to all then current members of the consortium, all notice
to the consortium shall be directed to:
Milo Mecham
Lane Council of Governments
125 E 8th Ave.
Eugene, OR 97401
541-6824023
fax 541- 6824099
.
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 6 of8
DEFINITIONS
.
For purposes of this agreement the following terms shall mean:
A. Member. A local government that has accepted the terms of this
intergovernmental agreement and has been accepted as a member of the consortium.
B. Consortium. A local government formed as an organization of governments by an
intergovernmental agreement having the power to own property, enter into
agreements and such other powers as described in this agreement.
C. Right-of-way permit. A permit or license granted by a member government to an
entity, such permit allowing the entity to install telecommunications facilities within
the public right-of-way within the jurisdiction of a member government.
D. Associate Member. A nonvoting member of the association who may attend all
meetings and participate in the activities of the consortium to the extent allowed by
law or by agreement between the consortium and the associate member.
.
E. Fiber Optic System. A system for telecommunications consisting of the physical
fiber optic cable, the electronic systems necessary to communicate signals along the
fiber cable, such other equipment to facilitate the introduction and transmission of a
communication signal, and a means of connection to the source and destination for a
communications signal.
SIGNED:
Jurisdiction
Signature (Title)
~A;}A~
Signature (Title)
Date
Date
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
Date Date
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
. Date Date
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 7 of8
.
Date
Date
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
Date Date
Jurisdiction Jurisdiction
Signature (Title) Signature (Title)
Date Date
REVIEWED BY
CITY OF SPRINGFIELD
ISK AGEMENT
/0-/2-7,
DATE
.
REVIEVVED g, A.PPC1Q\!ED
t\S~ TO ;-.:>.;:
-~~--:>\""~'...._~..~,~
\ 0 \ \ "'2._Lj~______.
_ "0__, i
'f .....
r~ 1\j .;'::\1
Intergovernmental Agreement for the Fiber South Consortium July 12, 1999
Page 80f8
.",//