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Ordinance No. 72-55 CITY OF TIGARD, OREGON ORDINANCE No.72- ,�'} AN ORDINANCE GRANTING PORTLAND GENERAL ELECTRIC COMPAN:: All OREGON CORPORATION, ITS SUCCESSORS AND ASSIGNS, FOR A PERIOD Or' TWENTY (20) YEARS FROM AND AFTER THE EFFECTIVE DATE OF THIS ORDINANCE, THE RIGHT z_ AND PRIVILEGE TO ERECT, CONSTRUCT, MAINTAIN AND OPERATE WITHIN THE CORPORATE LIMITS OF TIGARD, OREGON, AS SUCH LIMITS NOW EXIST OR MAY BE HEREAFTER CONSTITUTED, AN ELECTRIC LIGHT AND POWER SYSTEM WITH THE POLES, WIRES, FIXTURES, UNDERGROUND CIRCUITS AND EQUIPMENT NECESSARY OR CONVENIENT TO SUPPLY SAID CITY AND THE INHABITAN'1S THEREOF AND OTHERS ullT`t ELECTpIC ­11-:wY F'0:; :,IO.T?T, T3nWx'n AND (7THFR pTTRPnsrs, UPON, OVER, ALONG, UNDER AND ACROSS THE STREETS, ALLEYS, ROADS AND OTHER PUBLIC WAYS AND PLACES WITHIN THE CORPORATE LIMITS OF SAID CITY; !'!XING THE TERMS AND CONDITIONS THEREOF; PROVIDING FOR AN EFFECTIVE DATE AND PRESCRIBING FOR THE REPEAL OF ORDINANCE No.62-5 AS OF THE EFFECTIVE DATE HEREOF, AND DECLARING AN EMERGENCY. THE CITY OF TIGARD ORDAINS AS FOLLOWS: Section 1: That Portland General Electric Company, an Oregon Corpora- tion, hereinafter sometimes referred to as the "Company, is hereby granted, subject to the terms and conditions hereof, the franchise right and privilege to erect, construct, maintain and oper- ate an electric light and power system within the corporate limits of Tigard, Oregon, herein sometimes referred to as the "City" as the same now exist, or may be hereafter constituted, and the franchise right and privilege to erect, construct, maintain and operate poles, wires, fixtures, equipment, underground circuits and other property necessary or convenient to supplying the City and the inhabitants thereof and other persons and territory with electric energy for light, power and other purposes, upon, over, along, under and across the streets, alleys, roads and other public ways and places within the corporate limits of the City as the same now are or may be hereafter constituted. All poles, wires, fixtures, equipment, underground circuits and other property owned or in the possession of the Company now located within the corporate limits of the City shall be deemed to be covered by the terms of this ordinance and to be located in accordance there- with, and the location and placement thereof is hereby approved. The City reserves the right to vacate, alter, or close any street, bridge or public place. Section 2: That all rights and privileges hereby granted shall be effective as of ;'Aprilf, 1, 1972, and shall terminate at the expiration of twenty (20) years from said date unless sooner terminated as provided in this ordinance, except that at any time after the expiration of the first 10-year interval hereof, the City shall have the right to renegotiate the franchise fee payable by the Company. The franchise fee so renegotiated shall be effective on January l of the calendar year next following the year in which the City notifies the Company in writing that the City is exercising its right to renegotiate the franchise fee. If the parties cannot agree with respect to such matter, then the matter shall be submitted to arbitration as provided in ORS Chapter 33, or any act amendatory thereto. The City shall, in any event, at its option be entitled to m receive a franchise fee after the expiration of the first 10-year interval hereof, computed at the then highest percentage rate of gross revenue as defined herein, being used to compute the franchise fee paid by the Company to any other municipality in the State of Oregon. ordinance N0.72- ,53 �} s f Y E 1n the event the Company shall fail, neglect or refuse for tu4 ty (30) days after demand in writing by the City to perform any nce or all of the obligations or requirements set forth irivilegesdherein 3 to be performed by the Company, then the rights and p unc granted may be terminated he Comganyushall lled bforfeit y the oall 1rights or eandlative body of the City, privileges hereby granted. a Section_ 3s That he Company shall, if requested so to do, file with the City engineer, or other City official designated by , or sketches showing any proposed construction the City, mapswork to be done by the Company within the corporate limits of the City. and i such construction work shall be done in a reasonably safe manner al Of the official designated by he Council of sub)eet to the oYYr applicable State laws the City and in accordance with requirements of and City ordinances. t Section 4. That the Company, under the direction of the City or its properly constitued authorities, may make all necessary excavations in any street. alley, road or other public way or place for the purpose of erecting, constructing, repairing, maintaining, removing and relocating poles and other supports its wire, conduits and pipes, and for placing, maintaining $ndshall be operating its wires and conductors. All poles of the Company erected at the outside edge of the sidewalk unless otherwise directed by the proper City authorities. i to the Section 5i That when any excavation shall be made anuzshall restore provisions of this ordinance, the Comp Y lace to the the portion of the street, alley, road or public way or p same condition to which it was prior to the excavation thereof, and all s work shall be done in strict compliance with the rules, regulations, ordinances. or orders which may be adopted from time to time during the continuance of this franchise by the Council of the City requireathat otherwise provided by law. The City, at its optstreetayalley, or any opening in any hard surface pavement in any public highway, may be filled in and the surface replaced by the City, , shall and the cost therefor, including inspeetiorequiresthrpriorndeposit be paid by the Company, and the City may sufficient to pay with the City Treasurer of a sum estidtto he excavation of said the cost to be borne by the Company prior street, alley, or public highway. r�� constituted authorities, Section 6s t the shall have l he right to causetheCompany to move the maw ver the relocation thereof shall be for location of any pole w�iene public necessity, and the expense thereof shall be paid by the Company. Section 7: That nothing in this ordinance shall be construed as paving, in any way to prevent the City from sewering, 4 u ing,widening, altering or doing any work that may be planking, repairing, desirable on any of the streets, alleys, roadsor publics waych s places but all such work shall be done, if go or prevent free use and operation of the said as not to obstruct, injure electric light and power system of the company. Section 8s That whenever it shall be necessary in sewering, grading, or in making any other improvement in pole, undergroundlconduitd or other public way or place, to reemoreorant which any light, wire, or or equipment belonging to the company shall circuit of the company shall be stretched or fastened, the Company upon ten (10) days' written notice from the City, or its properly ve such pole, underground condui constituted authorities, remo t, equip- or refuseSO ment, light, ire or circ may aauthoritiest wneglecsmay removes the to do, the City, by its prope y constituted same at the expense of the Company. Page 2 ordinance No. 72-.j, as . f Section 9; Whenever it ::comes necessary to temporarily rearrange, remove, lower or raise the erial cables or wires or { other apparatus of the grantee to permit the passage of any building, r machinery or other object, the said grantee will perform such re- I arrangement on seven (7) days' written notice from the person or persons desiring to move said building, machinery or other objects. f Said notice shall bear the approval of such official as the Council may designate, shall detail the route of movement of the building, machinery tt or other objects, shall provide that the costs incurred by the grantee if in making such rearrangements of its serial plant will be borne by the person or persons giving said notice and shall further provide that person or persons giving said notice will indemnify and save said grantee harmless of and from any and all damages or claims of whatso- ever kind or nature caused directly or indirectly from such temporary ! arrangement of the serial glatic of the grantee, and, if required by grantee, shall be accompanied by a cash deposit or a good and sufficient bond to pay any and all such costs as estimated by grantee. Section 10: That the rights and privileges granted by this ordinance { are granted upon the conditions herein contained and also upon the following considerations and conditions, to-wit: j t t (a) That Portland General Electric Company shall, within thirty (30) days from the date of this ordinance, file with the City its written acceptance of this ordinance, subject to all the terms, k obligations, restrictions,and provisions of this ordinance, and upon Ef the expiration of the allotted time for the acceptance of this ordinance, the same not having been accepted unconditionally, then this ordinance s shall become wholly void, inoperative and of no effect. (b) That in consideration of the rights and privileges herein granted, the Company shall pay to the Ci'!-,y a franchise fee of A°6, of the gross revenue for the period from April, 1, 1972 to December 31, 1972, both days inclusive and for each full calendar year during the life of this franchise beginning with the year 1973, an annual fee r of three and one-half per cent WPA) of the gross revenue as defined ; herein for the immediately preceding calendar year. The franchise fee for any part of a calendar year shall be determined by pro-rating the annual fee determined as hereinabove set forth. ) Gross revenue as used in this ordinance shall be deemed to ,�. include any revenue earned within the City from the sale of electric energy after adjustment for the net write-off of uncollectible accounts computed on the average annual rate for the entire Company and excluding sales of electric energy to large Industrial customers with nominal demands of 3,000 kw or greater and also excluding sales of electricl energy sold by the Company to any public utility purchasing such electric energy is not the ultimate consumer. A public utility as defined herein is any individual, partnership, cooperative, corporation or government agency buying electric energy and distributing such electric energy t to those utilizing such service. (c) That in consideration of the agreement of the Company to make such payments, the City agrees that no license, tax or charge on the business, occupation or franchise of the Company shall be imposed upon, exacted from, or required of the Company by the City during the term of this ordinance, but this provision shall not exempt the property of the Company from lawful ad valorem taxes. ' (d) That on or before the first day of March, 1973, and on or { before said day of each year 'thereafter during the term of this franchise, , the Company shall file with the City a statement under oath showing the amount of gross revenue of the Conpany within the City on the basis [ Page 3 - ordinance No. 72-,, - i outlined in paragraph (b) hereof for the calendar year immediately preceding the year in which the statement is filed, The annual franchise fee for the year in which the statement is filed shall be computed on the gross revenue so reported. Such franchise fee shall be payable annually on or before the first day of April, beginning in the year 1973. Upon receipt of such annual payment the City shall issue its receipt therefor, which shall be full acquittance of the Company for the payment. If controversy arises as to the amount of gross renvaue within the meaning of this ordinance, the amount of such gross revenue as determined by the, Public Utilities Commissioner of Oregon after examination of the Company's records shall be deemed the correct amount. Any difference of payment due either the City of the Company, through error or otherwise, shall be payable within fifteen (15) days 6f discovery of such error. Should the Company fail or neglect to pay any of said annual payments provided for in this Section for thirty (30) days aftar any annual payment shall become due and payable and after thirty (30) days' writt.n notice from the City, the City, by its properly constituted authority, may at its option eitnex continue This franchise in force and/or proceed by suit or action to collect said payment or declar a forfeiture of this franchise because of the failure to make such payment but without waiving the right to collect earned franchise payments. (e) That the City reserves the right to cancel this franchise at any time upon one year's written notice to the Company in the event that the City decides to engage in public ownership of light and power facilities and the public distribution of electric energy. (f) That the Company shall permit the City to string wires on poles of the Company for municipal fire, police and water departments, and for municipal telephone, telegraph and traffic signal systems and to attach any pole, city fire alarm and police signals, provided that such wires and signals shall be strung so as to interfere as little as possible with the wires of the Company and to conform to the provisions of the National Electrical Safety Code, and further, that the City shall indemnify and hold the Company harmless from loss or damage resulting from damage to property or injury or death to the City employees or the public arising from or connected with the use of said poles by the City. c (g) That the Company shall not during the term of this franchise sell, assign, transfer or convey this franchise without the consent of the Council of the City expressed by ordinance first obtained, and that upon obtaining such consent all of the provisions shall inure to and be binding upon the successors and assigns of the Company, and whenever the Portland General Electric Company shall be mentioned in this orflinance, it shall be understood to include such successors and assigns in interest of the Porland General Electric Company as shall have been so consented to by the Council of the City. (h) That the Company shall render the service hereby authorized to be supplied upon equal terms without unjust discrimination or undue preference to any users within the City. Section 11: That the rates to be charged by the Company for electric energy shall be such as may be fixed and/or approved by the Public Utilities Commissioner of Oregon, or any other governmental 'official, commission or body having jurisdiction. Section 12: That the Company hereby agrees and covenants to indemnify and save harmless the City and the officers thereof against all damages, costs and expenses whatsoever to which it or they may be subjected in consequence of negligence of the Company, or its agents or servants, in any manner arising from the rights and privileges hereby granted. Page 4 - ordinance Ho. 72- r 4, � Section 13; That the franchise hereby granted supplements the Public Utility Commissioner's order of January 21, 1963, under Chapter 757, Oregon Revised Statutes. section 14: That all rights, authority and grants herein contained or conferred are also conditioned upon the understanding and agreement that these privileges in streets, alleys, roads and other public ways and places of the City are not to operate in any way so as to be an enhancement of the c-vpany'e properties or values or to be an asset or item of ownership in any appraisal thereof. Section 15: The grantee shall maintain facilities in the City where its customers may pay their bills for electric service during normal business hours. Section 16: The City reserves the right to exercise, with regard to this franchise and the grantee, all authority now or hereafter granted to the City by state statutes. This franchise is granted subject to all the City's police powers. Section 17: Inasmuch as it is necessary for the peace, health and safety of the people of the City of Tigard that the additional revenues estimated to result herefrom be accruing in the City's treasury to defray maintenance and operation costs of the City, an emergency is hereby declared to exist and this ordinance ahall be effective on April 1, 1972, provided that in the event acceptance of this franchise by the Company is not given to the City on or prior to April 1, 1972, this ordinance shall become effective oil such date thereafter as acceptance by the Company of the franchise hereby granted is cor-municated to the City. Section 19: Effective with the effective date of this ordinance, ordinance No. 62-5 adppted by the Council on February 129 1962 shall be superseded hereby and shall have no further force k and affect 'thereafter, except as to any revenues accruing thereunder not previously paid to the City by the Company. ;3 PASSED: By unanimous vote of all Council members present, after be*ng read three times by title and number only, this 9thday of _ October , 1972QZZIZ, T,. <� Ci Recorder - Ci of Tigard . n APPTtOvN`nc By the Mayor, this 9__}_h day of October , 19 72 7 - �• ;. May City of Tigard z , k Page 5 - Ordinance No. 72%gL ACCEPTANCE OF FRANCHISE WHEREAS, The City of Tigard CREGCN under date October 9, 1972 , passed ORDINANCE NO. 72-55 , entitled as Follows, to wit. AN ORDINANCE GRANTING PORTLAND GENERAL ELECTRIC COMPANY, AN OREGON CORPORATION, ITS SUCCESSORS AND ASSIGNS, FOR A PERIOD OF TWENTY(20)YEARS FROM AND AFTER THE EFFECTIVE DATE OF THIS ORDINANCE, THE RIGHT AND PRIVILEGE TO ERECT, CONSTRUCT, MAINTAIN AND OPERATE WITHIN THE CORPORATE LIMITS OF TIGARD, OREGON, AS SUCH LIMITS NOW EXIST OR MAY BE HEREAFTER CONSTI- TUTED, AN ELECTRIC LIGHT AND POWER SYSTEM WITH THE POLES, WIRES, FIXTURES, UNDERGROUND CIRCUITS AND EQUIPMENT NECESSARY OR CONVENIENT TO SUPPLY SAID CITY AND THE INHABITANTS THERECF AND OTHERS WITH ELECTRIC ENERGY FOR LIGHT, POWER AND OTHER PURPOSES, UPON, CVER, ALCNG, UNDER AND ACROSS THE STREETS, ALLEYS, ROADS AND OTHER PUBLIC`NAYS AND PLACES WITHIN THE CORPORATE LIMITS OF SAID CITY; FIXING THE TERMS AND CONDITIONS THEREOF; PROVIDING FOR AN EFFECTIVE DATE AND PRESCRIBING FOR THE REPEAL OF ORDINANCE No. 62-5 AS OF THE EFFECTIVE DATE HEREOF, AND DECLARING AN EMERGENCY. NOW, THEREFORE, the undersigned, Portland General Electric Company, the grantee named in said Ordinance, does for itself and Its successors and assigns accept the terms, conditions and provisions of Ordinance No. 72-55 and agrees to be bound ,noreby and comply therewith. IN WITNESS WHEREOF, the Portland General Electric Company has caused this Instrument to La executed by its officers as below subscribed this 26th day of October 1972. PORTLAND GENERAL ELECTRIC COMPANY � `.. " Ant. Vice-resid.M T certify that this in a true coy> of the original *ACCEPTANCE OF FRANCHISE" which 11� i been duly filed in the Recorder's Office of the CITY OF TIGARD on the 3.kt.4 day,G£ October, 1972. ecor ,er, city of TTcard i December 7, 1972 Pete Perrine Tigard District Manager Portland General Electric Company 12259 S.W. Main Street Tigard, Oregon 97223 Dear Pete: Your letter of November 17th raises a4 possible question of the city°s 'Int ention about the pa yr-enst dates of compensation in our recently adapted revised franchise ordinance. Please refer to erection 10(b) . As T read this section, we are -not asking Portland General Electric to pay the 3h% fee based on projected revenue as was possibly interpreted by your letter. Subsection (b) in girt states an annual fee of three and one half percent (3 ) of the gross revenue ars defined herein for the immediately preceeding calendar year. As we have previously discussed, the City would greatly appreciate the payments being made on a semi-annual basis in carder to help i 7 that $12r Cffish flow �ssysaa�aus ua�v occur isec.r the end 0f the summer. 3'0 accomplish this T would propose an amendment to section 14 (d) that should read as follows t that on or before the lot day of Mauch and September respectively, and on or before said clays of each year thereafter during the term of this franchise, the Company shall. filen with the City a statement under oath showing the amount of gross revenue of the Company within the City on the basis outlined in paragraph (b) hereof for the half calendar year immediately proceeding the date an which the ,statement is filed. The semi- try annual franchise fee for the period in which the statement is fi led shall be computed can the gross revenue so reported. Such franchise fee shall be paya b e semi-annually on or before the lot day'of April. or October respe ctively# beginning in the year 1973, Upon receipt, of sum semi-annual payment, the City srhall, 'issue its receipt therefore which shall be full acquit ance of the Company for the paymen�. . . the remainder 'of the section can remain as it e� sts. x; a F, ........ ........ _ ...... ...... Pets Perrino -2- December 7, 1972 x.k As pointed out in your letter, section 10 subsection (b) also needs a correction to avoid misinterpretation due to a typographical exclusion. The words "when the public utility" should be inserted .. between the words "utility" and "purchasing" in the fifth line from the end of the section. If the Company concures with these amendments, please have the appropriate officials sign in the space indicated below and return all copies to this office. I will proceed to have the appropriate City officials sign on behalf of the City and return a copy to rt' you for your files. Thank you for your fine cooperation on •the revised franchise. Sincerely, Stephen M./Telfer City Administrator SNIT s lm f. yo:� idem f Asst. Secre ary Recorder... R S1'