Berry Elsner, Hammond LLP ~ C170043 October 3,2017 City Of Tigard
Beery Elsner &Hammond LLP
Attn: Nancy Werner
1750 SW Harbor Way Ste 380
Portland OR 97201
REF.: Franchise Attorney Services Agreement
Period:January 1, 2018 through December 31,2018
CONTRACT NOTICE-OF AWARD— RENEWAL
Contract# C170043
Dear Ms.Werner
The City of Tigard has determined that your company has performed in accordance with the requirements
of our Agreement. Therefore, the City of Tigard, pursuant to the renewal/extension clause contained in the
terms and conditions of the Agreement, desires to exercise its first (1) one-year extension to the Contract
effective from January 1, 2018 through December3l, 2018. This renewal period shall be governed by the
specifications, pricing, and the terms and conditions set forth per the above referenced Contract. Per
Section 3B in the contract, rates may be adjusted upon written mutual acceptance. Any proposed new price
must be in writing sixty (60) days prior to a new contract year. Please submit along with the signed renewal
letter new legal counsel pricing.
Please acknowledge acceptance of this renewal by signing this document in the space provided
below and returning it to me within ten (10) days. You may keep a copy for your records.
The City looks forward to doing business with Beery Elsner&Hammond LLP.
Sincerely,
Jamie Greenberg
Purchasing Assistant
503-718-2492
jamie@tigard-or.gov
I/We hereby acknowledge acceptance of this Contract renewal, and agree to be bound by all requirements,
terms, and conditions as set forth in the above referenced Contract.
Company: ,,, �.+' h f s } igned: Ctikl A - TOICf, $
Date: Printed: 1"1611-7
Exhibit 1 —New Rates effective January 1,2018
Partners and Of Counsel: $250.00 per hour
Senior Associates: $240.00 per hour
Associates: $230.00 per hour
Paralegals: $135.00 per hour
Legal Assistants: $110.00 per hour
CITY OF TIGARD,OREGON-CONTRACT SUMMARY FORM
(Tars FORMMus T ACCOMPANYEVERY CONTRACT)
Contract Title: Franchisc Le -Service Number: 0170043
Contractor: Beery Elsner C;otittact Total: NTE 5100,000 life of contract
Contiact O,:erview. Provide legal smices for fianchise related matters.
Initial Risk Level: ❑ E treme ❑ High ❑ Moderate ❑ Low
Risk Reduction Steps:
Risk Comments:
Risk Signature:
Contract Manager: Baan Rager Est- 2471 Department: Public Works
Type ❑ Purchase Agreement Personal Service ❑ General Sen�ice ❑ Public Improvement
❑ IG A Q Other: Professional Agreement Start Date: 1 h 17 End Date: 12/31/22
Quotes/Bids/Proposal: FIRM AmouNT/ScogE
No other proposals received.
Account String. Fund-Division-Account Work Order—AcfLidig T=e Amount
FY Y arious
FY
FY
FY
FY
Approvals- LCRB Date:
Department Comments:
Department Signature:
Putchas.ing Comments:
-.q;u
Purchasing Signature:
City.Manager Co ts:
City Manager Signature:
After securing all required approvals,forward original copy to the Contracting and Purchasing Office along truth a
completed Contract Checklist.
cowq3
CITY OF TIGARD,OREGON
FRANCHISE ATTORNEY SERVICES AGREEMENT
THIS AGREEMENT made and entered into this 1"day of December,2016 by and between the City of Tigard,
a municipal corporation of the State of Oregon, hereinafter called City, and Beery Elsner&Hammond LLP,
hereinafter called Legal Counsel.
RECITALS
WHREAS, the City's 2016-2017 Fiscal Year budget provides for attorney services related to various franchise
issues;and
WHEREAS City has need for the services of an attorney or attorney firm with a particular training, ability,
knowledge,and experience possessed by Legal Counsel,and
WHEREAS City has determined that Legal Counsel is qualified and capable of performing the professional
services as City does hereinafter require,under those terms and conditions set forth,
THEREFORE the Parties agree as follows:
1. LEGAL SERVICES TO BE PROVIDED
Legal Counsel shall initiate services immediately upon receipt of City's notice to proceed together with
an executed copy of this Agreement. Legal Counsel agrees to complete work that is detailed in Exhibit
A and by this reference made a part hereof. Any and all work assigned by the City will be contained in
subsequent scope of work as needed
2. EFFECTIVE DATE AND DURATION
This Agreement shall become effective upon the date of execution, and shall expire, unless otherwise
terminated or extended, on December 31, 2017. This Agreement may be extended at the written
agreement of both parties,with sixty(60) days notice,for up to four(4)additional one(1)year terms. All
work under this Agreement shall be completed prior to the expiration of this Agreement In accordance
with the City's best practice,the total duration of this agreement may not exceed five (5)years.
3. COMPENSATION
A. The City agrees to pay Legal Counsel in accordance with this section for performance of services
described herein. Payment shall be based upon a detailed monthly billing showing work performed
and identifying specific legal matters worked on.
B. H�dv Rates
Partners/Of Counsel $245
Senior Associates $235
Associates $225
Paralegals $135
Legal Assistants $110
The Parties may,by mutual agreement,adjust these rates each year upon written mutual acceptance
of an extension year. Any proposed new price must be in writing sixty (60) days prior to a new
contract year.
C. The direct cost for such items as long distance charges,messenger services,printing,mileage (at the
contract year's IRS approved rate),copy charges, faxes,and the like will be billed to the City with no
City of Tigard 1 13125 SW Hall Blvd.,Tigard, OR 97223 1 (503) 639-4171 www.ti-:xrd-rLr.vov
markup or overhead charge added. Mileage for trips between Legal Counsel's office(s) and the City
offices shall not be charged to the City.
D. Payment will be made in installments based on Legal Counsel's invoice,subject to the approval of
the City Manager, or designee, and not more frequently than monthly. Payment shall be made
only for work actually completed as of the date of invoice.
E. Payment by City shall release City from any further obligation for payment to Legal Counsel, for
services performed or expenses incurred as of the date of the invoice. Payment shall not be
considered acceptance or approval of any work or waiver of any defects therein.
F. Legal Counsel shall make payments promptly,as due,to all persons supplying labor or materials for
the prosecution of this work.
G. Legal Counsel shall not permit any lien or claim to be filed or prosecuted against the City on any
account of any labor or material furnished.
H. Legal Counsel shall pay to the Department of Revenue all sums withheld from employees pursuant
to ORS 316.167.
I. If Legal Counsel fails,neglects or refuses to make prompt payment of any claim for labor or services
furnished to Legal Counsel or a subcontractor by any person as such claim becomes due, City's
Finance Director may pay such claim and charge the amount of the payment against funds due or to
become due the Legal Counsel. The payment of the claim in this manner shall not relieve Legal
Counsel or their surety from obligation with respect to any unpaid claims.
J. Legal Counsel shall pay employees at least time and a half pay for all overtime worked in excess of 40
hours in any one week except for individuals under the contract who are excluded under ORS 653.010
to 653.261 or under 29 USC sections 201 to 209 from receiving overtime.
K. Legal Counsel shall promptly, as due, make payment to any person, co-partnership, association or
corporation,furnishing medical,surgical and hospital care or other needed care and attention incident
to sickness or injury to the employees of Legal Counsel or all sums which Legal Counsel agrees to
pay for such services and all moneys and sums which Legal Counsel collected or deducted from the
wages of employees pursuant to any law, contract or agreement for the purpose of providing or
paying for such service.
L. The City certifies that sufficient funds are available and authorized for expenditure to finance costs
of this contract
4. OWNERSHIP OF WORK PRODUCT
City shall be the owner of and shall be entitled to possession of any and all work products of Legal
Counsel which result from this Agreement, including any computations, plans, correspondence or
pertinent data and information gathered by or computed by Legal Counsel prior to termination of this
Agreement by Legal Counsel or upon completion of the work pursuant to this Agreement.
2017 PrS A-Franchise Legal Services 2
5. ASSIGNMENTMELEGATION
Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the
written consent of the other and no assignment shall be of any force or effect whatsoever unless and until
the other party has so consented. If City agrees to assignment of tasks to a subcontract,Legal Counsel
shall be fully responsible for the acts or omissions of any subcontractors and of all persons employed by
them, and neither the approval by City of any subcontractors nor anything contained herein shall be
deemed to create any contractual relation between the subcontractors and City.
6. STATUS OF LEGAL COUNSEL AS INDEPENDENT LEGAL COUNSEL
Legal Counsel certifies that
A. Legal Counsel acknowledges that for all purposes related to this Agreement, Legal Counsel is and
shall be deemed to be an independent Legal Counsel as defined by ORS 670.700 and not an employee
of City,shall not be entitled to benefits of any kind to which an employee of City is entitled and shall
be solely responsible for all payments and taxes required by law. Furthermore,in the event that Legal
Counsel is found by a court of law or any administrative agency to be an employee of City for any
purpose,City shall be entitled to offset compensation due,or to demand repayment of any amounts
paid to Legal Counsel under the terms of this Agreement, to the full extent of any benefits or other
remuneration Legal Counsel receives (from City or third party) as a result of said finding and to the
full extent of any payments that City is required to make (to Legal Counsel or to a third party) as a
result of said finding.
B. The undersigned Legal Counsel hereby represents that no employee of the City, or any partnership
or corporation in which a City employee has an interest,has or will receive any remuneration of any
description from Legal Counsel, either directly or indirectly, in connection with the letting or
performance of this Agreement,except as specifically declared in writing.
If this payment is to be charged against Federal funds, Legal Counsel certifies that he/she is not
currently employed by the Federal Government and the amount charged does not exceed his or her
normal charge for the type of service provided.
Legal Counsel and its employees,if any, are not active members of the Oregon Public Employees
Retirement System and are not employed for a total of 600 hours or more in the calendar year by any
public employer participating in the Retirement System.
C. Legal Counsel certifies that it currently has a City business license or will obtain one prior to delivering
services under this Agreement.
D. Legal Counsel is not an officer,employee,or agent of the City as those terms are used in ORS 30.265.
7. INDEMNIFICATION
City has relied upon the professional ability and training of Legal Counsel as a material inducement to
enter into this Agreement. Legal Counsel warrants that all its work will be performed in accordance
with generally accepted professional practices and standards as well as the requirements of applicable
federal,state and local laws,it being understood that acceptance of Legal Counsel's work by Cit;shall
not operate as a waiver or release.
Legal Counsel agrees to indemnify and defend the City, its officers, agents and employees and hold
them harmless from any and all liability,causes of action,claims,losses,damages,judgments or other
costs or expenses including attorney's fees and witness costs and (at both trial and appeal level,
2017 PrSA-Franchise Legal Services 3 1
whether or not a trial or appeal ever takes place) that may be asserted by any person or entity which
in any way arise from, during or in connection with the performance of the work described in this
contract, except liabilio- arising out of the sole negligence of the City and its employees. Such
indemnification shall also cover claims brought against the City under state or federal worker's
compensation laws. If any aspect of this indemnity shall be found to be illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this
indemnification.
8. INSURANCE
Legal Counsel and any subcontractors shall maintain insurance acceptable to City in full force and effect
throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out
of Legal Counsel's activities or work hereunder,including the operations of its subcontractors of any tier.
The policy or policies of insurance maintained by the Legal Counsel and its subcontractors shall provide
at least the following limits and coverages:
A. Commercial General Liability Insurance
Legal Counsel shall obtain,at Legal Counsel's expense, and keep in effect during the term of this
contract, Comprehensive General Liability Insurance covering Bodily Injury and Property
Damage on an "occurrence" form (1996 ISO or equivalent). This coverage shall include
Contractual Liability insurance for the indemnity provided under this contract. The following
insurance will be carried:
Coverage Limit
General Aggregate 3,000,000
Products-Completed Operations Aggregate 2,000,000
Personal&Advertising Injury 1,000,000
Each Occurrence 2,000,000
Fire Damage (Any one fire) 50,000
B. Legal Errors & Omissions/Lawyers Professional Liability Insurance
Legal Counsel shall obtain,at Legal Counsel's expense,and keep in effect during the term of this
contract, Legal Errors & Omissions/Lawyer's Professional Liability Insurance covering any
damages caused by an error, omission or any negligent acts. This coverage shall include Annual
Aggregate&Per Occurrence limits of$3,000,000 per attorney.
C. Commercial Automobile Insurance
Legal Counsel shall also obtain,at Legal Counsel's expense,and keep in effect during the term of
the contract, Commercial Automobile Liability coverage including coverage for all owned, hired,
and non-owned vehicles. The Combined Single Limit per occurrence shall not be less than
$2,000,000.
D. Workers' Compensation Insurance
The Legal Counsel,its subcontractors,if any, and all employers providing work,labor, or materials
under this Contract tha c are subject employers under the Oregon Workers'Compensation Law shall
comply with ORS 656.017, which requires them to provide workers' compensation coverage that
satisfies Oregon law for all their subject workers. Out-of-state employers must provide Oregon
workers'compensation coverage for their workers who work at a single location within Oregon for
more than 30 days in a calendar year. Legal Counsels who perform work without the assistance or
labor of any employee need not obtain workers'compensation coverage.All non-exempt employers
2017 PYSA Franchise Legal Services 4
shall provide Employer's Liability Insurance with coverage limits of not less than $1,000,000 each
accident.
E. Additional Insured Provision
The Commercial General Liability Insurance and Commercial Automobile Insurance policies and
other policies the City deems necessary shall include the City,its officers,directors,and employees
as additional insureds with respect to this contract.
F. Extended Reporting Coverage
If any liability insurance required by this contract is arranged on a"claims made"basis,Extended
Reporting coverage will be required at the completion of this contract to a duration of 24 months
or the maximum time period the Legal Counsel's insurer will provide if less than 24 months. Legal
Counsel will be responsible for furnishing certification of Extended Reporting coverage for 24
months following contract completion. Continuous "claims made"coverage will be acceptable in
lieu of Extended Reporting coverage, provided its retroactive date is on or before the effective
date of this contract.
G. Notice of Cancellation
There shall be no cancellation, material change, exhaustion of aggregate limits or intent not to
renew insurance coverage without 30 days written notice to the City. Any failure to comply with
this provision will not affect the insurance coverage provided to the City. The 30 days notice of
cancellation provision shall be physically endorsed on to the policy.
H. Insurance Carrier Rating
Coverages provided by the Legal Counsel must be underwritten by an insurance company deemed
acceptable by the City. The City reserves the right to reject all or any insurance carrier(s) with an
unacceptable financial rating.
I. Certificates of Insurance
As evidence of the insurance coverage required by the contract,the Legal Counsel shall furnish a
Certificate of Insurance to the City. No contract shall be effected until the required certificates
have been received and approved by the City. The certificate will specify and document all
provisions within this contract. A renewal certificate will be sent to the above address 10 days
prior to coverage expiration.
J. Independent Legal Counsel Status
The service or services to be rendered under this contract are those of an independent Legal
Counsel. Legal Counsel is not an officer, employee or agent of the City as those terms are used
in ORS 30.265.
K. Primary Coverage Clarification
The parties agree that Legal Counsel's coverage shall be primary to the extent permitted by law.
The parties further agree that other insurance maintained by the City is excess and not contributory
insurance with the insurance required in this section.
L. Cross-Liability Clause
A cross-liability clause or separation of insureds clause will be included in all general liability,
professional liability,pollution and errors and omissions policies required by this contract.
2017 Pr&-�-Franchise Legal Services 5 1 a
Legal Counsel's insurance policy shall contain provisions that such policies shall not be canceled or their
limits of liability reduced without thirty(30) days prior notice to City. A copy of each insurance policy,
certified as a true copy by an authorized representative of the issuing insurance company, or at the
discretion of City,in lieu thereof,a certificate in form satisfactory to City certifying to the issuance of such
insurance shall be forwarded to:
City of Tigard
Attn: Contracts and Purchasing
13125 SW Hall Blvd.
Tigard,Oregon 97223
Such policies or certificates must be delivered prior to commencement of the work. The procuring of
such required insurance shall not be construed to limit Legal Counsel's liability hereunder.
Notwithstanding said insurance, Legal Counsel shall be obligated for the total amount of any damage,
injury,or loss caused by negligence or neglect connected with this contract.
9. METHOD&PLACE OF SUBMITTING NOTICE,BILLS AND PAYMENTS
All notices,bills and payments shall be made in writing and may be given by personal delivery,mail or by
fax. Payments may be made by personal delivery,mail, or electronic transfer. The following addresses
shall be used to transmit notices,bills,payments,and other information:
Mtn: Marty Wine,City Manager Attn: Nancy Werner
Address: 13125 SW Hall Blvd., Address: 1750 SW Harbor Way,Suite 380
Tigard,Oregon 97223 Portland,Oregon 97201
Phone: (503) 718-2486 Phone: (503) 226-7191
Email Address: ms��-r,��:�;,;?<<t�,�=� Email Address: ri_rc- }�:•-ia-:;%.c<In►
and when so addressed,shall be deemed given upon deposit in the United States mail,postage prepaid,
or when so faxed, shall be deemed given upon successful fax. In all other instances,notices, bills and
payments shall be deemed given at the time of actual delivery. Changes may be made in the names and
addresses of the person to who notices, bills and payments are to be given by giving written notice
pursuant to this paragraph.
10. MERGER
This writing is intended both as a final expression of the Agreement between the parties with respect to
the included terms and as a complete and exclusive statement of the terms of the Agreement. No
modification of this Agreement shall be effective unless and until it is made in writing and signed by both
parties.
11. PROFESSIONAL SERVICES
The City requires that services provided pursuant to this agreement shall be provided to the City by a
Legal Counsel that does not represent clients on matters contrary to City interests. Further,Legal Counsel
shall not engage services of an attorney and/or other professional who individually,or through members
of his/her same firm,represents clients on matters contrary to City interests.
Should the Legal Counsel represent clients on matters contrary to City interests or engage the services on
an attorney and/or other professional who individually, or through members of his/her same firm,
2017 PrS A-Franchise Legal Services 6 1
represents clients on matters contrary to City interests,Legal Counsel shall consult with the appropriate
City representative regarding the conflict.
_after such consultation, the Legal Counsel shall have seven (7) days to eliminate the conflict to the
satisfaction of the City. If such conflict is not eliminated within the specified time period,the agreement
may be terminated pursuant to Section 13 (B) (3) of this agreement.
12. TERMINATION WITHOUT CAUSE
At any time and without cause,City shall have the right in its sole discretion,to terminate this Agreement
by giving notice to Legal Counsel. If City terminates the contract pursuant to this paragraph,it shall pay
Legal Counsel for services rendered to the date of termination.
13. TERMINATION WITH CAUSE
A. City may terminate this Agreement effective upon delivery of written notice to Legal Counsel, or at
such later date as may be established by City,under any of the following conditions:
1) If City funding from federal,state,local,or other sources is not obtained and continued at levels
sufficient to allow for the purchase of the indicated quantity of services. This Agreement may be
modified to accommodate a reduction in funds
2) If federal or state regulations or guidelines are modified, changed, or interpreted in such a way
that the services are no longer allowable or appropriate for purchase under this Agreement.
3) If any license or certificate required by law or regulation to be held by Legal Counsel, its
subcontractors,agents,and employees to provide the services required by this Agreement is for
any reason denied,revoked,or not renewed.
4) If Legal Counsel becomes insolvent,if voluntary or involuntary petition in bankruptcy is filed by
or against Legal Counsel,if a receiver or trustee is appointed for Legal Counsel,or if there is an
assignment for the benefit of creditors of Legal Counsel.
Any such temmination of this agreement under paragraph (a) shall be without prejudice to any
obligations or liabilities of either party already accrued prior to such termination.
B. City,by written notice of default(including breach of contract) to Legal Counsel,may terminate the
whole or any part of this Agreement:
1) If Legal Counsel fails to provide services called for by this agreement within the time specified
herein or any extension thereof,or
2) If Legal Counsel fails to perform any of the other provisions of this Agreement, or so fails to
pursue the work as to endanger performance of this agreement in accordance with its terms,
and after receipt of written notice from City, fails to correct such failures within ten (10) days
or such other period as City may authorize.
3) If Legal Counsel fails to eliminate a conflict as described in Section 11 of this agreement.
The rights and remedies of City provided in the above clause related to defaults (including breach of
contract)by Legal Counsel shall not be exclusive and are in addition to any other rights and remedies
provided by law or under this Agreement.
If City terminates this_agreement under paragraph B,Legal Counsel shall be entitled to receive as full
payment for all services satisfactorily rendered and expenses incurred, an amount which bears the
same ratio to the total fees specified in this Agreement as the services satisfactorily rendered by Legal
Counsel bear to the total services otherwise required to be performed for such total fee;provided,
2017 PrS.A Franchise Legal Services 7
that there shall be deducted from such amount the amount of damages,if any,sustained by City due
to breach of contract by Legal Counsel. Damages for breach of contract shall be those allowed by
Oregon law, reasonable and necessary attorney fees, and other costs of litigation at trial and upon
appeal.
14. ACCESS TO RECORDS
City shall have access to such books, documents, papers and records of Legal Counsel as are directly
pertinent to this Agreement for the purpose of making audit,examination,excerpts and transcripts.
15. BAR MEMBERSHIP/OCAA MEMBERSHIP REQUIREMENTS
Legal Counsel is responsible for maintaining Legal Counsel's professional standing as a member of
the Oregon State Bar Association and the Oregon City Attorney's Association.
16. FORCE MNEURE
Neither City nor Legal Counsel shall be considered in default because of any delays in completion and
responsibilities hereunder due to causes beyond the control and without fault or negligence on the part
of the parties so disenabled, including but not restricted to, an act of God or of a public enemy, civil
unrest,volcano,earthquake,fire,flood,epidemic,quarantine restriction,area-wide strike,freight embargo,
unusually severe weather or delay of sublegal Counsel or supplies due to such cause;provided that the
parties so disenabled shall within ten(10) days from the beginning of such delay,notify the other party in
writing of the cause of delay and its probable extent. Such notification shall not be the basis for a claim
for additional compensation. Each party shall, however, make all reasonable efforts to remove or
eliminate such a cause of delay or default and shall, upon cessation of the cause, diligently pursue
performance of its obligation under the Agreement.
17. NON-WAIVER
The failure of City to insist upon or enforce strict performance by Legal Counsel of any of the terms of
this Agreement or to exercise any rights hereunder should not be construed as a waiver or relinquishment
to any extent of its rights to assert or rely upon such terms or rights on any future occasion.
18. NON-DISCRIMINATION
Legal Counsel agrees to comply with all applicable requirements of federal and state civil rights and
rehabilitation statues, rules, and regulations. Legal Counsel also shall comply with the Americans with
Disabilities Act of 1990, ORS 659.425,and all regulations and administrative rules established pursuant
to those laws.
19. ERRORS
Legal Counsel shall perform such additional work as may be necessary to correct errors in the work
required under this Agreement without undue delays and without additional cost.
20. EXTRA(CHANGES)WORK
Only the City's Project Manager for this Agreement, Brian Rager, Asst. Public Forks Director, may
authorize extra (and/or change) work. Failure of Legal Counsel to secure authorization for extra work
shall constitute a waiver of all right to adjustment in the contract price or contract time due to such
unauthorized extra work and Legal Counsel thereafter shall be entitled to no compensation whatsoever
for the performance of such work.
21. WARRANTIES
All work shall be guaranteed by Legal Counsel for a period of one year after the date of final acceptance
of the work by the owner. Legal Counsel warrants that all practices and procedures,workmanship and
2017 PrSA-Franchise Legal Services 8 1 i-
materials shall be the best available unless other vise specified in the profession. Neither acceptance of
the work nor payment therefore shall relieve Legal Counsel from liability under warranties contained in
or`implied by this Agreement.
22. ATTORNEY FEES
In case suit or action is instituted to enforce the provisions of this contract, the parties agree that the
losing party shall pay such sum as the court may adjudge reasonable attorney fees and court costs,
including attorney's fees and court costs on appeal.
23. GOVERNING LAW
The provisions of this Agreement shall be construed in accordance with the provisions of the laws of the
State of Oregon. Any action or suits involving any question arising under this Agreement must be
brought in the appropriate court of the State of Oregon.
24. COMPLIANCE WITH STATE AND FEDERAL LAWS/RULES
Legal Counsel shall comply with all applicable federal, state and local laws, rules and regulations,
including, but not limited to, the requirements concerning working hours, overtime, medical care,
workers compensation insurance, health care payments,payments to employees and contractors and
income tax withholding contained in ORS Chapter 279B,the provisions of which are hereby made a
part of this agreement.
25. CONFLICT BETWEEN TERMS
It is further expressly agreed by and between the parties hereto that should there be any conflict between
the terms of this instrument in the proposal of the contract, this instrument shall control and nothing
herein shall be considered as an acceptance of the said terms of said proposal conflicting herewith.
26. AUDIT
Legal Counsel shall maintain records to assure conformance with the terms and conditions of this
Agreement, and to assure adequate performance and accurate expenditures within the contract period.
Legal Counsel agrees to permit City,the State of Oregon,the federal government,or their duly authorized
representatives to audit all records pertaining to this Agreement to assure the accurate expenditure of
funds.
27. SEVERABILITY
In the event any provision or portion of this Agreement is held to be unenforceable or invalid by any
court of competent jurisdiction, the validity of the remaining terms and provisions shall not be affected
to the extent that it did not materially affect the intent of the parties when they entered into the agreement.
28. CONDITIONS OF SUPPLYING A PUBLIC AGENCY
Where applicable,seller must make payment promptly as due to persons supplying Legal Counsel labor or
materials for the execution of the work provided by this order. Legal Counsel must pay all contributions or
amounts due from Legal Counsel to the Industrial Accident Fund incurred in the performance of this order.
Legal Counsel shall not permit any lien or claim to be filed or prosecuted against Buyer or any subdivision of
City on account of any labor or material to be furnished. Legal Counsel further agrees to pay to the
Department of Revenue all sums withheld from employees pursuant to ORS 316.167.
29. HOURS OF LABOR
If labor is performed under this order,then no person shall be employed for more than eight(8) hours in
any one day, or forty (40) hours in any one week,except in cases of necessity, or emergency or where the
public policy absolutely requires it,and in such cases,except cases of contracts for personal services as defined
2017 PrSA-Franchise Legal Services 9 1 t` r.
in ORS 279A.055,the labor shall be paid at least time and a half for all overtime in excess of eight(8)hours
a day and for all work performed on Saturday and on any legal holidays as specified in ORS 279C.540. In
cases of contracts for personal services as defined in ORS 279A.055,any labor shall be paid at least time and
a half for all hours worked in excess of forty(40)hours in any one week,except for those individuals excluded
under ORS 653.010 to 653.260 or under 29 USC SS 201-209.
30. MEDICAL CARE AND WORKERS'COMPENSATION
Legal Counsel shall promptly, as due, make payment to any person, co-partnership, association or
corporation, furnishing medical, surgical and hospital care or other needed care and attention incident to
sickness or injury,to the employees of such Legal Counsel,of all sums which the Legal Counsel agrees to
pay for such services and all moneys and sums which the Legal Counsel collected or deducted from the
wages of the employees pursuant to any law,Legal Counsel agreement for the purpose of providing or paying
for such service.
31. COMPLETE AGREEMENT
This Agreement and attached exhibits constitutes the entire Agreement between the parties. No waiver,
consent,modification,or change of terms of this Agreement shall bind either party unless in writing and
signed by both parties. Such waiver,consent,modification,or change if made,shall be effective only in
specific instances and for the specific purpose given. There axe no understandings, agreements, or
representations, oral or written, not specified herein regarding this Agreement. Legal Counsel, by the
signature of its authorized representative, hereby acknowledges that he has read this Agreement,
understands it and agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its duly authorized undersigned
officer and Legal Counsel has executed this Agreement on the date hereinabove first written.
CITY OF TIGARD BEERY EJSJ4ER&IIAMmoND,LLP
OLSBy: Marty Wine,City Manager By:Aut orized Agent of Legal Counsel
Date Date
2017 PrSA-Franchise Legal Services 10 -
EXHIBIT A
SCOPE OF SERVICES
Franchise (Cable,Electric, Gas, Solid Waste and Telecommunications Providers)Attorney Services
Unless otherwise directed by the City Manager or designee Legal Counsel shall be responsible,for providing
a full range of municipal legal services which includes but is not limited to the following:
1. Franchise law—federal,state and local;
2. Franchise license, site license and permit negotiations,renewal and competitive bidding of franchises;
3. Address franchise territorial poaching(i.e.,recycling collection);
4. Implement amendments to existing franchise agreements relating to performance and penalties to the
franchisee for failure to perform (i.e.,properly repairing City streets after franchise work,timely relocation
of utilities without undue interference in City project schedules, obtain and pay for permits for right-of-
way work,abide by permit requirements, failure to pay franchise fees timely;
5. Right-of-wap license,usage fees,privilege tax and other financing mechanisms;
6. Legislative proposals and strategy;
7. Regulatory requirements and impacts;
8. Development of local policy and procedures;
9. Represent City interests with cable franchise issues through Metropolitan Area Cable Commission
(MACC);
10.Identify new service methods of franchise providers and provide impact information on service/revenue
for City (i.e.,wireline,wireless and distributed antenna systems for telecommunications providers;) and
11.Litigation and claim support
12.Training of City staff.
Legal activities such as complex litigation and special project assignments which fall outside of the above
categories, and which would include costs exceeding the projections of the city's budget for specialized legal
services,must be authorized by the City Manager. Legal Counsel and the City Manager's designee will regularly
review the level of expenditures on specialized legal services and will prioritize projects in order to stay within
budgeted amounts.
2017 PrSA-Franchise Legal Services 11
EXHIBIT B
LEGAL COUNSEL'S PROPOSAL
2017 PrSA-Franchise Legal Services 12 1 ;
Y u Beery Elsner
w.y7, _..._- .p Hammond LLP
October 18, 2016
SENT VIA MESSENGER SERVICE
City of Tigard—Utility Billing Counter
Attn: Joseph Barrett, Senior Management Analyst
13125 SW Hall Blvd.
Tigard,OR 97223
Re: Response to Request for Proposals for Special Counsel
Dear Mr.Barrett:
Enclosed please find our firm's response to the City's Request for Proposals (RFP) for
Labor Relations/Employment Law, Real Estate and Franchise Attorney Services. We
have included one (1) original proposal, three (3) copies and (1) copy on a USB as
requested in the City's solicitation. Also enclosed are Certifications of Non-
discrimination and Resident Status, Signature Page, Acknowledgement Addendum and
Statement of Proposal.
We are delighted to be afforded the opportunity to submit this proposal and believe the
City will find it fully complies with the RFP. Beery Elsner & Hammond LLP is fully
capable of meeting the City's legal needs and of providing any and all of the services
stated in our response.
Please do not hesitate to contact us should you, members of the Council, or City staff
have questions. Thank you for the opportunity to respond and for your consideration of
the enclosed materials.
Sincerely,
ae''�
A.Jaco
Partner
CAJ/aw
Enclosures
T T T
503.226.7191 r 1750 SW Harbor Wny,Suite 380
503.226.2348 Portland,OR 97201-5106
infolr4gov-law.com www.gcv-iaw.com
BEERY, ELSNER & HAMMOND LLP
Response to the City of Tigard
Request for Proposals for Labor Relations/Employment Law,Real Estate and
Franchise Legal Services
Submitted on October 18`h 2016
City of Tigard
Joseph Barrett
Sr.Management Analyst
Utility Billing Counter
13125 SW Hall Blvd.
Tigard,OR 97223
Tel.503.718.2477
joseph@tigard-or.gov
s
d
1
Beery Elsner&Hammond, LLP
Ashley Whittaker,Firm Administrator
1750 SW Harbor Way, Suite 380
Portland,OR 97201
Tel. 503.226.7191
Fax. 503.226.2348
@Lhley@,&oy-jaw.com
c
BEERY, ELSNER & HAMMOND LLP
TABLE OF CONTENTS
I.FIRM AND TEAM QUALIFICATIONS................................................................................1
A.Background.................................................................................................................1
B.Qualifications for Specialty Areas............................................................................1
Labor and Employment Law..............................................................................2
RealEstate Law.................................................................................................................3
A
Franchise(Cable,Electric,Gas,Solid Waste and Telecom Providers).....................5
C.Anticipated Members Assigned to the Work............................................7
II.SERVICE UNDERSTANDING AND APPROACH.............................................................9
III.FEE STRUCTURE...............................................................................................................10
IV.ADDITIONAL SERVICES......................................................................... 11
V. ADDITIONAL FIRM ATTRIBUTES.................................................................................11
VI.REFERENCES......................................................................................................................12
VII. CONCLUSION.................................................................................... 13
APPENDICES A:
Attorney resumes(1-16)
Certifications of Non-Discrimination and Resident Status
Signature Page
Acknowledgment of Addendum and Statement of Proposal
APPENDICES B: (REAL ESTATE)
Sample Real Estate Motion
Sample Recent Purchase and Sale Agreement
Sample Public Utility Easement
APPENDICES C: (FRANCHISE)
Sample Agreement/Ordinance w/Northwest Natural Gas
Sample Letter re Franchise Fee
_��.� T T
���..��1
BEERY, ELSNER & HAMMOND LLP
I. FIRM& TEAM QUALIFICATIONS
A. Background
Beery Elsner&Hammond,LLP is a Martindale-Hubbell AV-rated law fern dedicated to the
provision of outstanding legal services to local governments. The firm limits its
representation to public bodies in Oregon and Washington and has developed a solid and
unparalleled foundation in local government law. Key strengths of our firm include:
» OVER 120 YEARS OF COMBINED EXPERIENCE dedicated exclusively to
representing local governments,both as in-house and outside counsel;
• WIDE-RANGING EXPERTISE in the areas of franchising and labor/employment
law as well as real estate law and litigation.
• AN UNPARALLELED REPUTATION in the Oregon local government
community as effective counsel to and advocates for our clients. Our depth and
expertise in areas relevant to city government is unmatched by any other law firm in
the state; and
» TAILORED, COST-EFFECTIVE LEGAL SERVICES, completely free of
conflicts of interest from non-public clients.
In 2010, BEH was named in the initial listing of America's "Best Law Firms" in four
categories by U.S. News & World Report and Best Lawyers rankings. This significant
recognition was awarded to BEH following intensive peer and client qualitative and
quantitative review by U.S.News&World Report and Best Lawyers. Firms with the highest
rankings are considered to be outstanding for both their individual lawyers as well as their
overall strength in serving their clients. BEH is proud to be recognized in the top tier in four
areas: Water Law,Municipal Law,Land Use and Zoning Law,and Eminent Domain and
Condemnation Law.
As requested in the City of Tigard's Request for Proposals,this proposal describes in detail
the manner in which Beery Elsner&Hammond,LLP meets the identified qualifications and
requirements of the City specifically in the areas of labor and employment law,real estate
law and franchise law. We understand and appreciate the desired qualifications of special
counsel identified by the City—and we hope you will agree the members of our firm possess
that precise set of qualities to create an effective,-and trusting relationship with our office.
B. Qualifications for Specialty Areas
The following is a description of our firm's experience in labor and employment law,real
estate law and franchise specialty areas,as identified in Section 4 of the City's Request for
Proposals.
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Labor and Employment Law
BEH has experience assisting our clients with labor law matters including labor
negotiations, labor arbitrations, representation and unit clarification matters, defending
unfair labor practice complaints,and settling grievances.BEH can also assist in interpreting
a client's collective bargaining agreements and applying the Oregon Public Employees
Collective Bargaining Act. Ashley Driscoll is the firm's specialist in this area. Ashley
joined BEH after practicing labor law at the Local Government Personnel Institute in Salem.
Paul Elsner,Heather Martin and Chad Jacobs also assist in this area of law.
Some of the firm's recent work includes representing multiple local governments—
including the cities of Sutherlin, Fairview, Gladstone and Molalla—in labor negotiations
and advising Tualatin Hills Park and Recreation District on the pros and cons of bargaining
or extending the collective bargaining agreement currently in place. We also recently
represented Douglas County before the Employee Relations Board and continue to advise
Douglas County in labor and bargaining matters. In addition,we regularly assist our clients
with issues involving discipline and discharge for represented employees. The firm has
experience conducting investigations,advising on discipline issues and representing public
employers in disciplinary arbitrations, when necessary. The firm recently represented the
City.of Sutherlin in such an arbitration and worked with the City of Gladstone and outside
counsel when an unfair labor practice was filed against the City. Our assistance included
advising the City on potential next steps and discovery issues and updating the City Council
on recent developments.
Four of our attorneys have extensive experience in human resource and employment law
matters. The firm's experience includes advising public bodies on discipline and discharge,
wage and hour compliance, reductions in force, military leave, medical leave and
accommodations,harassment investigations and complaints,whistleblowing and retaliation
complaints,and deferred compensation plans. We are also involved with updating personnel
handbooks,policies and forms and drafting employment contracts as well as separation and
settlement agreements.
Recently we have assisted Canby Utility and the Cities of Gladstone and Banks with rewrites
of their personnel handbooks to make them more user-friendly and ensure consistency with
updates to state and federal law. We also assisted Gladstone's Fire Department with
revisions to their standard operating procedures. BEH has also responded to Bureau of
Labor and Industry (BOLI) and Equal Employment Opportunity Commission (EEOC)
complaints filed by employees. Responses to these types of complaints include explaining
the procedure and process to our clients, collecting the appropriate factual information
through documentation and interviews,responding to the factual and legal allegations in the
complaint, and assisting employees through BOLI and EEOC investigator interviews.
Finally,we assisted the City of Hubbard in resolving an investigation being conducted by the
United States Department of Justice into alleged violations of the Americans with
Disabilities Act related to the City's hiring practices.
6 T7 ,fT
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Real Estate Law
As general counsel for numerous cities and other local governments for more than 17 years,
BEH has negotiated,advised and executed a broad range of real estate transactions for our
municipal clients, primarily in the area of development but also to establish new parks,
public buildings and other public facilities.
For example,in 2008 voters approved a 100 million dollar bond measure for the Tualatin
Hills Park and Recreation District (THPRD) for the purchase of new park lands and to
improve existing parks. Not less than 50 million dollars was targeted for new land
acquisition.BEH advised THPRD on all aspects of the land acquisition program,including
preparing the transactional documents (primarily purchase and sale agreements, deeds,
easements, amendments, closing date extensions and escrow instructions), the tax
implications of various transactions(for example, acquiring farmland subject to farm-tax
deferral),the internal mechanisms for prioritizing acquisitions,monitoring and accounting
for bond revenues and assisting with due diligence, appraisal and title report exception
issues.
The firm has prepared life estate and right of first refusal documents as well.We advised a
client on a 99-year lease with an option to purchase the property in order to serve the client's
growing infrastructure needs. Additional examples include acquiring the right-of way for
the City of Sherwood's new potable-water reservoirs and the related water transmission
lines, which was accomplished through a combination of purchase, donation and
condemnation.We also advised the City of Happy Valley on the acquisition of land for the
recently constructed City Hall,the City of Gladstone on the purchase of land for a new City
library and the City of Dayton on acquiring property for a new Community Center.
With respect to brown fields and Prospective Purchaser Agreements(PPAs),BEH worked
with the City of Sherwood and the DEQ to negotiate a FPA for the acquisition of a former
tannery site in the city. The acquisition was complicated by a foreclosure proceeding
relating to unpaid property taxes. Nonetheless,BEH successfully negotiated remediation of
the site and it ultimately returned to active use.
Another less known tool to address brown field issues is the environmental covenant,which
restricts specific uses on the site that may exacerbate the contamination. For example,for a
site that has been capped, the covenant may restrict the use of structural foundations or
footings that extend more than a limited distance below the surface.
This non-regulatory tool allows a site to be returned to active use without requiring complete
mitigation-which can be prohibitively expensive or in some cases impossible to achieve.
Chris Crean served on a subcommittee of the Oregon Law Commission tasked with
investigating whether legislation is necessary to facilitate the use of environmental
covenants.
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BEERY, ELSNER & HAMMOND LLP
Before proceeding with an acquisition,it is important for a municipality to thoroughly assess
the scope of the project to ensure that both the size of the property and the nature of the
property are appropriate to the project. The client also needs to determine whether there are
any outstanding environmental concerns,zoning compliance issues or restrictive covenants
that would preclude putting the property to its intended use. With respect to the conveyance
documents,they should include provisions to protect the client from unreasonable exposure
to liability, including indemnification requirements,limitations on or waiver of municipal
liability,proper due diligence processes and requirements of a warranty deed when acquiring
fee title. A title report is also recommended in some cases. We have also worked with
THPRD staffto streamline their acquisition process to ensure that closing deadlines are met.
We have assisted our clients with all manner of leasehold issues. For example, Heather
Martin has drafted commercial leases for the City of Hillsboro's Civic Center and
intermodal transportation facility. Further, we have assisted clients with landlord/tenant
issues as they arise,including both residential and commercial properties. BEH also played
an integral part in the development and oversight of the license agreement between the City
of Hillsboro and the Hillsboro Hops for the use of Ron Tonkin Field as well as between
THPRD and the Portland Timbers for the Timber's practice facility.
We generally recommend our clients retain the prerogative to require,review and approve
real property covenants and other forms of restrictions in the context of permitting new
development. However,it is important for clients to know their authority to enforce such
covenants and restrictions after development is limited.
Finally, BEH has unparalleled experience representing municipal governments in
condemnation proceedings including entities as large as City of Metro, City of Hillsboro,
City of Salem and the Portland Development Commission, and as small as the City of
Gervais. We are familiar with the full range of condemnation issues including determining
the scope of the public need,preparing pre-condemnation resolutions, assessing land and
severance values,the process for immediate possession,and the Federal Uniform Relocation
Assistance and Real Property Acquisition Policy Act. When necessary,BEH attorneys have
successfully resolved condemnation issues in court. For example,Paul Elsner obtained a
very favorable settlement on payment for property after he prevailed on a Motion to Exclude
the property owner's appraisal(A copy of his motion is attached in Appendices B). Chad
Jacobs and Paul Elsner have also recently assisted the City of Hillsboro in multiple
condemnation matters related to the development of South Hillsboro.
Heather Martin,Spencer Parsons,Chris Crean and Paul Elsner are the primary attorneys for
real estate matters. Chad Jacobs also works in this area,especially in condemnation matters.
Their resumes are included in Appendices A. Also,attached in Appendices B are examples
of a purchase and sale agreement and a public utility easement prepared by BEH.
Response to Me City of Tigard-Request for Proposals for Special Counsel BY~
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Franchise Cable Electric Gas Solid Waste and Telecom.Providers
Because of its impact on local rights-of-way and finances, franchising is one of the most
important municipal law issues. Franchising is subject to a changing and complex legal and
regulatory scheme that requires specialized legal counsel. BEH has developed this as a
prominent area of expertise, representing the Metropolitan Area Communications
Commission (a coalition of 13 local governments in Washington County, including
Washington County itself)and a number of cities in franchise negotiation and compliance
matters,drafting ordinances addressing right-of-way management and compensation from
utilities,and advising clients on issues of authority and preemption under the many state and
federal laws and regulations that impact franchising. The firm's franchising experience
includes telecommunications companies,cable companies,gas and electric providers and
solid waste haulers. In addition to our work for cities where we serve as city attorney,we
have been retained as special telecommunications and franchising counsel by several local
governments.
As a recognized expert in franchise law and regulations,Nancy Werner would be assigned to
meet the City's needs in this area. Nancy has experience in the vast array of franchising
issues, including the matters listed in Appendices C to the RFP, as more fully explained
below.
Nancy serves on the League of Oregon Cities statewide telecommunications task force as
one of its legal advisors. They developed the statewide model for franchising ordinances for
telecommunications and franchised utilities,and represent many local governments in this
complex area of municipal law. Our firm was instrumental in preserving statewide franchise
fees and right-of-way authority for Oregon cities in the 2001 to 2009 litigation filed by
Qwest Corporation.
BEH has years of experience in developing and negotiating franchise agreements and
franchise renewals with all utilities using the rights-of-way. We represented clients in
negotiations with Verizon when it sought one of the first competitive cable franchises in the
Portland metropolitan area. Nancy has negotiated franchises with Comcast, Wave
Broadband and Portland General Electric and has completed agreements with Northwest
Natural and several competitive telecommunications carriers. (A sample of an agreement
Nancy recently negotiated with Northwest Natural is attached in Appendices C.)
We have drafted numerous ordinances governing franchises, right-of-way access and
compensation. In 2000, we drafted the first state-wide Model Telecommunications
Ordinance in Oregon,which ordinance was repeatedly upheld in Qwest's challenge to local
right-of-way authority in Qwest v. Portland. In 2010, Nancy updated the Model
Telecommunications Ordinance and also drafted the first Model Utility Right-of-Way
Ordinance that governs right-of-way regulations for all utilities using the rights-of-way. The
ordinances provide different compensation options ranging from a revenue-neutral approach
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akin to existing franchise fees to maximizing compensation from all utilities that benefit
from using the right-of--way in providing services. The ordinances can be viewed and
downloaded at the League of Oregon Cities website at www.orcities.org.
Nancy also drafted a new telecommunications fee ordinance that is one of the few in the
state that applies to wireless telecommunications providers. She additionally worked on the
City of Tigard's current right-of-way ordinance when she served as the Right-of-Way
Administrator for the City,and has advised the City on franchise and right-of-way matters in
recent years while working as an attorney for BEH.
Our firm has extensive knowledge of the many federal and state laws and regulations that
impact franchising, including the Telecommunications Act of 1996, the Internet Tax
Freedom Act, state franchising, privilege tax and utility undergrounding statutes and
regulations.Our attorneys have given presentations to city officials and telecommunications
attorneys on these complex laws, including presentations at the League of Oregon Cities
Annual Conference,the Oregon City Attorney Association,and the National Association of
Telecommunications Officers and Advisors.
BEH has hands-on experience implementing these types of ordinances,including working
with staff,elected officials and affected utilities to ensure a final product that fully complies
with applicable Iaw and reflects the elected officials' policy choices. Nancy has worked
with cities on implementing new right-of-way regulations,including drafting or amending
ordinances, fee resolutions, licenses and permits. As part of this process, she facilitated
meetings with affected utilities to address concerns with the proposed ordinance and worked
with staff to provide timely, accurate and understandable information to member of the
public and elected officials regarding the impact of the proposed ordinances.
The firm also routinely assists clients with franchise monitoring and compliance issues.
These issues range from timely notice of services changes to enforcing timely relocation by
utilities, to accurate franchise fee payments. Nancy assisted many jurisdictions with
Verizon's request to transfer cable and telephone franchises to Frontier Communications
following their 5 billion dollar merger in 2009.
Members of our firm provided legal advice to the Oregon Municipal Audit Review
Committee, a state-wide audit of Qwest and Verizon franchise fee payments resulting in
refunds to cities totaling more than$2.5 million. The firm's experience extends to solid
waste franchises, including assisting clients with setting solid waste franchising rates and
dealing with territorial issues related to annexation.
Nancy recently assisted a city with obtaining compliance from a telecommunications
provider with the city's telecommunications ordinance. The provider is a major cable
operator that also provides Voice over Internet Protocol C VoIP")services in the city. The
provider raised numerous legal arguments to support its position that it was not subject to
the City's ordinance, including alleged violations of the Cable Act,Internet Tax Freedom
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Act and state law. Nancy used her extensive knowledge of these laws,associated case law
and Federal Communications Commission decisions interpreting them to rebut the
provider's arguments in written communications and conference calls. The provider
ultimately agreed to pay the franchise fee required in the city's municipal code. (A redacted
copy of one of the letters is attached in Appendices Q.
The firm actively works with the League of Oregon Cities on telecommunications and
franchising issues during the legislative session. Several ofourattorneys also have hands on
experience in drafting proposed legislation requested by our municipal clients and
advocating for and against proposed legislation impacting cities. For instance, Nancy
testified against legislation that would have limited municipal authority to manage its rights
of way with respect to certain telecommunications services.
Our firm also specializes in telecommunications and franchise litigation. The firm
successfully defended federal court litigation through the Ninth Circuit Court of Appeals for
cities throughout Oregon in the landmark case of Qwest Corporation v. City of Portland.
We also successfully dismissed a portion of a case brought by Verizon Communications in
which the U.S. District Court agreed the city had home rule authority to order utilities to
underground facilities as directed by the city.
Finally, our lawyers have extensive experience in negotiating and assisting with the
oversight of solid waste franchises. Recently, Chad Jacobs assisted the City of Hillsboro
with negotiating a complete overhaul of the City's solid waste ordinance as well as resolving
a boundary dispute between two franchised haulers. In addition, Chad has been working
closely with City staff to address the application of the City's franchise to emerging
technologies that collect and transform composted and recycled materials. Nancy Werner
has also assisted various cities with the negotiation of solid waste franchises.
C. Anticipated Members Assigned to the Work
Our firm has built an unparalleled reputation representing the interests of local governments,
and we are recognized experts in the practice areas of labor and employment,real estate and
franchising law. We have a solid reputation of thoroughness, responsiveness and
effectiveness with public bodies.
Each of our proposed attorneys have years of experience in these special practice areas.The
firm does not anticipate retaining any other attorneys as subcontractors in connection with
this work.
Following is a summary of the specific areas of their expertise,classified by attorney. Also
attached to this response are full resumes of our attorneys showing their experience and
credentials.
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As mentioned above, Ashley Driscoll and Heather Martin will be the attorneys primarily
responsible for working with the City on Labor and Employment issues. Chad Jacobs and
Paul Elsner will provide support to Ashley Driscoll and Heather Martin on these issues.
Heather and Spencer Parsons will be the attorneys primarily responsible for working with
the City on real estate matters. They will be supported by Chris Crean and Paul Elsner on
these issues. Finally,Nancy Werner will be primarily responsible for working with the City
franchising issues,and she will be supported by Spencer,Paul and Chad as necessary.
Chad A.Jacobs,Partner—California Bar 2000(inactive),Oregon Bar 2008
Municipal law,charters and governance I elections and ballot measures I public meetings,
records and ethics laws I intergovernmental agreements I constitutional and administrative
law I municipal liability and risk management,including law enforcement liability I urban
renewal law I employment and labor law I litigation (condemnation law I government
relations,legislative drafting and advocacy
David F.Doughman,Partner—Oregon Bar 2000,Washington Bar 2010
Land use,growth management and development review,including land use litigation and
appeals I public contracting, purchasing, construction agreements I utility law, including
water and electric issues I Measure 91, the Oregon Medical Marijuana Act, and the U.S.
Controlled Substances Act
Paul C. Elsner,Of Counsel--Oregon Bar 1982,Washington Bar 2012
Employment law I municipal liability and risk management, including law enforcement
liability I building codes, enforcement and nuisance abatement I litigation and appellate
practice I property acquisition,including condemnation I constitutional law,including civil
rights,ADA and discrimination issues
Christopher D.Crean,Of Counsel—Oregon Bar 1994
Land use,growth management and development review I litigation and appellate practice
water law and public works I real property transactions I government relations, legislative
drafting and advocacy I constitutional and administrative law
Nancy L. Werner,Of Counsel—Oregon Bar 2004,Illinois Bar 2002,California Bar
1999
Franchising, utility regulation, right of way management ( litigation, appellate and
administrative law practice I telecommunications law I water law and public works I real
estate transactions and financing
i
{ Heather R.Martin,Senior Associate—North Carolina Bar 2006,Oregon Bar 2007
Employment law I land use and development review I litigation and appellate practice I water
and utility law real estate transactions and conveyancing.
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Ashley O.Driscoll,Associate—Oregon Bar 2012
Employment and labor law I land use and development review I public meetings,records and
ethics laws I litigation and administrative law I general governance I municipal liability and
risk management,including law enforcement liability
Spencer Q.Parsons-Associate—Oregon Bar 2003
Land use and community development land use litigation and appeals I public contracting E
code enforcement I constitutional law real estate transactions I public meetings and open
records I general governance municipal governance
In addition to the firm's eight attorneys,we have two seasoned paralegal/legal assistants who
help manage deadlines and assure the delivery of cost-effective and timely services.
Our depth, experience and commitment to local government gives the firm the ability to
provide a full range of legal service to each of our clients, whether as general counsel or
special counsel. Throughout their careers, the attorneys at BEH have established and
maintained outstanding reputations among their colleagues as municipal lawyers of the
highest caliber in both legal skill and ethical behavior.
The eight attorneys in our firm have more expertise and experience in key areas of local
government law than any other firm in Oregon and arguably the Northwest. The firm's
lawyers have dedicated their entire professional careers to the practice of local government
law and have served both as in-house and outside counsel to a variety of municipal clients.
Understanding the fiscal restraints facing local governments, BEH is committed to
maintaining fair and competitive rates and works closely with clients to control the cost of
legal services.
II. SERVICE UNDERSTANDING AND APPROACH
Our firm takes pride in providing the highest level of client care. We have a proven track
record of client satisfaction and work well with local government staff and the general
public.Business is conducted promptly,professionally and cordially. We respond to critical
time deadlines and produce complex products on short notice. We are accustomed to
balancing the needs of multiple clients while delivering quality products within the time
allotted.
Because of our long history advising local governments, BEH has an extensive library of
model ordinances,contracts,franchise agreements and charters. For this reason,we are able
to acknowledge requests immediately and usually within 1 to 3 days. More complicated
requests may take longer depending,for example,on the novelty of the issue or the number
of parties involved,but it is unlikely that it will ever take longer than 7 to 10 days to respond
to a request.
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We return all telephone calls the same business day or the following day. We request a due
date for every client request for legal service and meet that deadline or communicate the
need for additional time. We are able to attend meetings on very short notice,often the same
or the following day. We understand the City's meeting schedule and can accommodate it.
We have an office on the edge of downtown Portland that is easily accessible and fully
staffed during regular business hours. We routinely communicate by e-mail,telephone and
facsimile as necessary. This enables us to be in direct contact and to reduce costs and any
impact of distance from our office to the City offices.
The test of our responsiveness is our clients'satisfaction—we are confident that if the City
contacts any of our clients we will receive high marks. As requested in the Request for
Proposals,a short list of references is included below.
III. FEE STRUCTURE
There are few local government legal issues our lawyers have not seen before and,for this
reason,the firm is able to provide highly competent service at a competitive cost. We work
very much as a team,sharing knowledge and collaborating to be sure the City's interests are
fully protected.
The rates we offer are reasonable and in our view represent excellent value. They are:
Partners and Of Counsel: $245.00 per hour
Senior Associates: $235.00 per hour
Associates: $225.00 per hour
Paralegals: $135.00 per hour
Legal Assistants: $110.00 per hour
We submit statements each month showing all services performed,who performed them and
the cost of the services. We bill for out-of-pocket costs such as postage and mileage without
markup. We have a sophisticated in-house billing system and are capable ofproviding detail
at any level desired by the City or required by grants or other funding entities.
We work closely with city staff to stay within the identified budget and scope of work and
are willing to work on a not-to-exceed basis for special projects,as requested in the RFP. In
addition to consideration of rates,we believe it is important for our clients to consider the
overall cost of obtaining legal services. Our attorneys and staff are committed to serving
local governments,and therefore, strive to produce superior work while keeping costs to a
minimum. Our firm,based on the experience of its partners,and lower rates for associates
and support staff,offers highly expert and cost-effective legal services.
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We do this by taking advantage of our experience—we don't have to research every issue to
provide answers and have a library of model forms and documents we can draw upon.
As envisioned in the City's RFP,more routine tasks and work requiring research or time-
consuming production of documents or analysis can be done at least initially by an associate,
paralegal or legal assistant. Support Staff is trained to perform these functions. We have
years of experience representing a wide array of local governments as outside counsel and
often have ideas for cost-effective ways to get things done.
We are willing to consider a flat fee for travel time to the City for meetings.
IV. ADDITIONAL SERVICES
As a full service municipal law firm,BEH provides an on-call city attorney's office for local
governments in Oregon and Washington. Should the need arise,BEH is willing and able to
provide services to the City of Tigard above and beyond labor and employment,real estate
or franchising. As explained throughout this proposal,the depth of experience possessed by
our attorneys on municipal law issues is unparalleled,and because of this,we would be able
to assist the City on the myriad of issues that arise within and beyond the context of labor
and employment,real estate and franchising law.
V. ADDITIONAL FIRM ATTRIBUTES
Conflicts of Interest
Our firm was formed in January, 1998 with the objective of providing legal services and
counsel only to local governmental bodies. Our personal and professional goals are centered
on this work because we recognize how difficult it is to fully and effectively provide legal
counsel to local government when other members of the firm may be representing clients
with adverse interests to local government generally or specifically.
We have succeeded in limiting our practice exclusively to the representation of Iocal
governments and believe this to be one of the most important strengths we can offer to our
clients. In the rare circumstance when one local government client's interests are adverse to
another,we strictly follow the rules of professional responsibility for lawyers to assure that
every client receives full and competent representation.
We do not affiliate ourselves or belong to organizations that work against the interests of
local government. We are not aware of any other firm in Oregon that limits its
representation the way we do with the pure objective of avoiding conflicts of interest.
n r �-_r
Response to the City of Tigard-Request for Proposals for Special Counsel - 1 1
Page 11 of 13
BEERY, ELSNER & HAMMOND LLP
VI. REFERENCES
Beery,Elsner&Hammond is designed as a full-service law firm for local governments.The
firm is proud to have a growing list of clients from all over the state. We serve as general
counsel to over 20 cities and other municipalities and as special counsel in land
use,telecommunications law and many other areas for over 70 additional clients. A
partial client list includes:
Cities(where BEH serves as City Attorney):
City of Cornelius(18 years) City of Hillsboro(9 years)
City of Fairview(18 years) City of Sandy(35 years)
City of North Plains(18 years) City of Happy Valley(14 years)
City of Forest Grove(9 years) City of Gladstone(35 years)
Other governmental and intergovernmental entities:
Canby Utility Board(32 years)
Clackamas Community College(14 years)
Tualatin Hills Park and Recreation District(8 years)
Metropolitan Area Communications Commission(17 years)
Washington County Hearings Officer(8 years)
Clackamas County(18 years—telecommunications law)
Specific contract information for three references are as follows:
City of Hillsboro
Michael Brown
City Manager
tel. 503.681.6219
Michael_brown(a)hillsborq-oregon. ogovv
Happy Valley
Jason Tuck
City Manager
tel. 503.783.3800
Lp��h�--aRpyvalYor-8ov
City of Sandy
Seth Atkinson
City Manager
tel. 503.668.5767
satkinsorl@cjVofsand .c.com
-T" 'T r
Response to the City of Tigard Request for Proposals far Special Counsel �i4 ,moi
Page 12 of 13
BEERY, ELSNER & HAMMOND LLP
In addition to these references,please feel free to contact any of our other clients or
colleagues. We are confident that they will provide a positive assessment of our
capabilities and responsiveness.
In response to the request for information regarding a terminated client:we terminated our
contract for services to serve as the city attorney for the City of Sherwood,but we remain
under a contract with the City for specialized assistance including but not limited to
franchising issues.In this particular case,the City decided to create an in-house city attorney
position rather than retaining the services of an outside firm.
VII. CONCLUSION
Beery,Elsner&Hammond is honored to have the opportunity to submit this proposal to the
City of Tigard for its consideration. Please do not hesitate to contact us if we can provide
you with any additional information. We are confident, that if given the privilege to
continue serving the City, we will further nurture a strong and beneficial relationship.
Thank you for your consideration.
i
Response to the City of 77grd-Requestfor Proposalsfo-_r Special
_Counsel _.._
.11 l�11
Page 13 of 13
BEERY, ELSNER & HAMMOND LLP
SPEAKING TOPICS CHAD A. JACOBS
Government Ethics Chad has specialized in local
Public Meetings government law for over 15 years by
Public Records providing legal advice to public
officials at all levels of local
Urban Renewal government on a wide range of topics.
Bias in Land Use He has represented clients in both the
Proceedings court room and in administrative law
Limits on political
hearings.
activities by public
employees
Exclusion and trespass EXPERIENCE
ordinances
Anti-Harassment policies BEERY,ELSNER&HAMMOND,LLP
and procedures Partner 2014-Present
Senior Associate 2011-2014
Marijuana and local
governments Provides legal services to local governments on a wide range of topics
Social Media and Local including government ethics, public meetings, public records, elections,
Governments charters, governance, tort liability, risk management, civil rights,
constitutional issues, urban renewal, condemnation, intergovernmental
Systems Development agreements, and personnel and employment issues. Works with clients to
Charges negotiate complex transactions including public/private partnerships and
Legal Ethics. omen drafts charter provisions, ballot measures, ordinances and regulations.
Provides representation in court and before administrative agencies.
Speaker at conferences
including: LEWIS AND CLARK LAW SCHOOL
League of Oregon Cities, Adjunct Professor 2015-present
Oregon City/County
Managers Association, Teaches Oregon Local Government Law to second and third year students.
Oregon CityAttorneys
Association,City and LEAGUE OF OREGON CITIES
County Insurance General Counsel 2009-2011
Services,Oregon PRIMA,
Oregon City Clerks and Provided in-house legal representation to membership organization in all
Recorders Association, legal matters including personnel and employment issues, contracts,
Oregon ChapterAmerican litigation and organizational governance. Oversaw administration of legal
Planning Association,
International Municipal division including budgetary matters and supervision of employees.
Lawyers Association. Coordinated and drafted amicus briefs filed on behalf of the League of
Oregon Cities. Provided information related to municipal laws and legal
sig research to members.
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BEERY, ELSNER & HAMMOND LLP
CITY AND COUNTY OF SAN FRANCISCO
Senior Deputy City Attorney 2000-2008
ACHIEVEMENTS
Participated in all aspects of in-house counsel activities including client
Appointed Member,OSB consultations, advice and trainings, litigation, drafting of internal and
Bar Press Broadcasters external legal documents and risk management. Practice areas focused
Council(2011-present) on, but were not limited to issues concerning: constitutional law,statutory
Appointed Member OSB interpretation, administrative law, labor relations, legal ethics, election
Centralized Legal Notices law, government ethics, contracts, open meetings and public records.
Task Force(2014) Assisted with and participated in litigation matters before the Ninth
Circuit Court of Appeals,the United States District Court for the Northern
Former Chair of the District of California,the California Supreme Court,the California Court
Board of Directors,NE of Appeals and the San Francisco Superior Court.
Community Child
Development Center
Named to 2015 Best EDUCATION
Lawyers List for University of California Hastings
Municipal Law College of Law J.D.
Rated an AV Preeminent
Attorney by Municipal American University B.S.
Law Peers
MEMBERSHIPS
PUBLICATIONS
FreOregon State Bar
LOC Cocauent Focributor to California State Bar(inactive)
LOC Local Focus
Magazine
U.S.Federal Ninth Circuit,N.D.California and Oregon Bars
Oregon City Attorneys Association Executive Committee 2011-present
OSB—Government Law Section Executive Committee 2013-present
League of Oregon Cities Legal Advocacy Committee 2011-present
Multnomah Bar Association
AORA
IACP
BEERY, ELSNER $ HAMMOND LLP
i
SPEAKING TOPICS
Evolution of Exactions DAVID F. DOUGHMAN
Law , •
Relationship of David is the firm's procurement and
Comprehensive Plan to contracting expert and has over 13 years
Development code of experience specializing in land use and
Ethics public contracting law.
Public Meetings
Public Records
Public Contracting
Land Use Case Law EXPERIENCE
Update
BEERY,ELSNER&HAMMOND,LLP
Recreational Immunity Partner 2009-present
Smart Growth and Associate 2004-2009
Transit-Oriented
Development Advises municipalities' staff regarding land use and other legal matters, drafts findings,
reviews public contracts, drafts ordinances and resolutions, contracts, researches and
Subdivision and Platting writes court briefs, including actions before the Land Use Board of Appeals.
MEMBERSHIPS HUTCHISON,HAMMOND&WALSH,P.C.
Oregon State Bar Associate 2000-2004
Washington State Bar Provided legal services to local governments and utilities on a wide range of topics
American Bar including water,electrical energy,land use, litigation,construction,contract, labor
and organizational issues.
Association Multnomah
Bar Association MULTNOMAH COUNTY DISTRICT ATTORNEYS OFFICE
Grand Jury Specialist 1997
Oregon CityAttorneys
Association Assisted the grand jury division in preparing complaints and other documents,
AaREVEME S reviewing police records, advising and interviewing witnesses for Deputy District
Oregon Law Students' Attorneys.
Public Interest Fund
Executive Member EDUCATION
University Student University of Oregon
Conduct Board Panel Law School J.D.
Member
LandAir Water University of Minnesota B.A.(Summa Cum Laude)
Conference CLE Director
Named to 2015 Best
Lawyers List for Practice
areas of Land Use and
Zoning Law and
Municipal Law -r
1L7.J-d!_!l
BEERY, ELSNER $ HAMMOND LLP
MEMBERSHIPS PAUL C. ELSNER
Oregon State Bar Paul has 33 years of experience in local
Washington state Bar government law and was Deputy City
Attorney with the City of Portland and
U.S.Supreme Court Bar Assistant General Counsel with the Port
American BarAssociation of Portland. His special expertise is in
Multnomah Bar litigation, code enforcement and building
Association code regulatory matters.
Oregon CityAttorneys
Association
ACHIEVEMENTS
Judicial Review Board EXPERIENCE
Presiding Officer, BEERY,ELSNER&HAMMOND,LLP
Portland Civil Service Owner/Partner 1998—Present
Commission
Mentor,Multnomah Bar Provides legal services to various Oregon local governments on a wide
Association range of topics including public finance, risk management,
Chair,Portland Police and personnel/human resources, litigation,public safety and code enforcement.
Fire Disability and
Pension Fund O'DONNELL,RAMIS,CREW,CORRIGAN&BACHRACH
Recognition by Best Senior Associate 1996-1997
Lawyers in America,
10years Provided legal services to ten municipal corporations and other local public
Named to 2015 Best bodies in the Portland area on a wide range of legal topics including risk
L a wyers L istfo r management, personnel/ human resources, litigation, code enforcement,
Practice areas of finance,transactional and other topics as needed by the client.
Litigation-Municipal
and Municipal Law PORT OF PORTLAND
Assistant General Counsel 1991-1996
Responsible for legal advice on all matters relating to human resource
issues including employment and discrimination law, compensation, labor
law, benefits and OSHA issues. Represented Port before administrative
agencies (BOLI and ERB), as well as during labor arbitrations.
Responsible for providing legal advice/analysis on all matters relating to
risk management and advice/analysis for Port police, marine/maritime
operations, public records requests, and various other municipal and
corporate topics. Varied transactional work such as leases, sale documents
and terminal use agreements.
77 T T T
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BEERY, ELSNER & HAMMOND LLP
CITY OF PORTLAND
Deputy City Attorney 1982-1991
Law Clerk 1980-1982
Responsible for all civil enforcement matters for the City. Litigation
and appellate practice before all state and federal courts on topics
involving municipal issues including constitutional, civil rights,
employment, and regulatory power. Legal advisor to the Bureau of
Buildings, Bureau of Community Development, Office of
Neighborhood Associations and Intergovernmental Affairs. Drafted
state-wide legislation on nuisance abatement,judicial review and the
Oregon Housing Receivership Act. Drafted model Drug-Free Zone and
Drug-House ordinances now successfully used in numerous cities
nationwide. Speaker on municipal topics to various community, state
and national groups.
MULTNOMAH COUNTY LEGAL AID SERVICE
Paralegal 1977-1980
Handled ongoing caseload of approximately 35 cases in addition to
developing and staffing consumer hotline. Interviewed clients on a
wide range of consumer and housing issues;conducted depositions and
motion practice(as certified law student). Negotiated settlements with
creditors, landlords and utilities. Participated in community outreach.
FEDERAL JUDICIAL CENTER
Research Assistant 1976-1977
Researched the causes of appellate delay in the federal system.
Prepared preliminary study on computer-assisted transcription.
Researched implementation of computer-assisted transcription for the
U.S.Court of Appeals for the District of Columbia.
MUHI.ENBERG HOSPITAL
ER Social Worker 1974-1975
Provided crisis intervention in emergency room of large(800 bed)
acute-care hospital. Liaison between in-house patients and outside
social service agencies.
SOUTHEAST KANSAS COMMUNITY ACTION AGENCY
(SEK-CAP)
VISTA Volunteer 1972-1973
Set up lay advocacy program for a three-county area, involving
welfare,food stamps,social security and landlord-tenant rights. Edited
a legal rights handbook dealing with above subjects for distribution to
indigent population and social service agency personnel.
TTT
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BEERY, ELSNER & HAMMOND LLP
EDUCATION
Lewis and Clark College J.D
Northwestern School of Law
The American University M.S.
(Administration of Justice)
Kenyon College B.A.
BEERY, ELSNER & HAMMOND LLP
■
SPEAKING TOPICS CHRISTOPHER D. CREAN
Planning and Zoning "1k Christopher D. Crean has over 20 years
Law of experience advising public agencies,
Constitutional Law including the Oregon Legislature,
Multnomah County and, for the last ten
Annexation and ears,cities counties and special districts
Withdrawal y �
statewide. Chris's practice emphasizes
Infrastructure Finance land use law, annexation, infrastructure
and Government 1
Relations finance, water law, municipal litigation
}
` and governmental relations.
Frequent speaker at -
events organized by the
Oregon State Bar,the EXPERIENCE
Real Estate and Land
Use section of the BEERY,ELSNER&HAMMOND,LLP
Oregon State Bar and Of Counsel 2006—Present
Oregon Law Institute,
and various groups Provides legal services to cities, counties, and special districts. Practice
engaged in real estate
development areas include municipal governance, land use and development review,
infrastructure financing, litigation, government relations, and appellate
PUBLICATIONS practice. Represents local governments before the Land Use Board of
Legislative Highl(ghts Appeals and all levels of Oregon's judicial courts. Advises and advocates
1999-2007,Real Estate on behalf of cities and special districts before the Oregon Legislature.
and Land Use Chapter,
Oregon State Bar. LEWIS AND CLARK LAW SCHOOL
Adjunct Professor 2015—present
MEMBERSHIPS Teaches course on local government law to second and third-year law
students.
Oregon State Bar
U.S.Federal Ninth Circuit OFFICE OF MULTNOMAH COUNTY ATTORNEY
Bar Assistant County Attorney 2003-2006
Multnomah Bar Advised county agencies and elected officials on land use and development
Association
review, property taxation, public contracts, school-based and emergency
OSB Real Estate and Land services. Litigated land use appeals before the Land Use Board of Appeals
Use section, and represented County officials in Circuit Court and before the Court of
Subcommittee on Land Appeals. Advised Board of County Commissioners and county
Use Legislation
departments on legislation affecting the county. Served as Special Counsel
to Senate Committee on Environment and Land Use. Drafted county
ordinances.
BEERY, ELSNER & HAMMOND LLP
MILLER NASH
ACHElT/EMENTS Associate Attorney 2000-2002
Named to 2015 Best Practice areas included land development, water rights, general
Lawyers List for Practice administrative law, government relations, telecommunications and
areas of Land Use and public contracting. Advised clients in obtaining land use approval for
Zoning Law and development projects. Litigated land use appeals, real property claims
Municipal Law and water rights proceedings in Circuit Court, before the Court of
Recognition by Best Appeals and the Land Use Board of Appeals. Represented clients in
Lawyers in America for local legislative proceedings and before the Oregon Legislature.
5 years
OFFICE OF LEGISLATIVE COUNSEL
Deputy Legislative Counsel 2002-2003, 1995-2000
Provided legal advice to the Oregon Legislature in the areas of land
use,real estate,utility regulation,economic development,constitutional
and administrative law. Testified before legislative committees
regarding proposed legislation and related matters. Drafted legislation
and provided legal advice regarding same. Reviewed administrative
rules for compliance with enabling legislation.
EDUCATION
American University
Washington College of Law J.D.
Earlham College B.A.
.1J)-1--4Y1
BEERY, ELSNER & HAMMOND LLP
SPEAKING TOPICS
Telecom
NANCY L.WERNER
Right of Way Nancy brings 15 years of experience in
Utility Franchising litigation and telecommunications law.
FreqShe is a recognized expert in Oregon on all
engauementnt a t aspects of franchising, telecommunications
engagements at
associations such as: and utility regulation.
NA TOA OCAA,REL U
MEMBERSHIPS
Oregon State Bar
Illinois State Bar EXPERIENCE
California State Bar BEERY,ELSNER&HAMMOND,LLP
National Association of Of Counsel 2014-Present
Women Lawyers Associate 2007-2014
National Association of Provides legal services to local governments on a wide range of topics
Telecommunications including telecommunications law,real estate, government relations litigation and Advisors
and appellate practice.
Oregon CityAttorneys
Association CITY OF TIGARD,OREGON
International Municipal Right-of-Way Administrator 2005-2007
Lawyers Association
Negotiated, prepared and implemented contracts for public utility access to
City rights-of-way; analyzed federal and state laws and pending legislation
potentially impacting City revenue and right-of-way management, including
telecommunications and energy statutes and regulations; analyzed and
recommended revisions to the Municipal Code to comply with federal and
state law and more effectively manage the City rights-of-way; co-Chair of
multi-city audit of telecommunications franchise fees.
KI AND&ELLIS
Associate 2003-2004
Of Counsel 2004-2005
Researched, prepared and argued motions, drafted pleadings and discovery
documents,conducted discovery including depositions,managed multiple cases,
including coordinating junior attorneys and staff, and regularly appeared in
court on a variety of litigation matters, including negligence,breach of contract,
fraud,fiduciary duty,insurance coverage and consumer fraud.
i
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BEERY, ELSNER & HAMMOND LLP
MCGUIREWOODS,LLP
Associate 2001-2003
Researched, drafted and argued motions, drafted pleadings and discovery
documents, took depositions, managed multiple cases, interviewed new and
lateral attorneys, and regularly appeared in court on a variety of litigation
matters, including breach of contract, fraud, products liability, consumer
fraud, environmental remediation, Title VII, patent infringement, and pro
Bono criminal matters. Represented clients in administrative proceedings at
the EEOC,Illinois Industrial Commission and the NLRB.
O'MELVENEY&MYERS,LLP
Associate 1999-2000
Researched and drafted memoranda, Iegal briefs and discovery documents
on intellectual property, antitrust and general litigation issues. Formulated
and drafted financing documents, leases and offering statements for airport
finance transactions. Co-editor of the firm's Handbook for Corporate
Officers.
UNIVERSITY OF SOUTHERN CALIFORNIA
Research Assistant 1997-1998
Examined and analyzed case law, drafted portions of a petition for habeas
corpus in a death penalty case and researched case law in support of various
other post-conviction appeals for the Law School's Post-Conviction Justice
Project.
EDUCATION
University of Southern
California Law School J.D.
Augustana College B.A.Summa Cum Laude
t
I
BEERY, ELSNER & HAMMOND LLP
SPEAKING TOPICS HEATHER R. MARTIN
Social Media
Employment � -�•
Practice focuses on land use and
BOLI Prevailing Wage
Rate Coverage development and employment law.
a.:
Determination Process
MEMBERSHIPS
Oregon State Bar
North Carolina State Bar .
Oregon Women Lawyers EXPERIENCE
Multnomah Bar
Association BEERY,ELSNER&HAMMOND,LLP
American BarAssociation Associate 2007-Present
Political Subcommittee of Provides legal services to local governments on general municipal issues.
the OWLS Leadership Practice focuses on land use,employment and election law.
Committee
�
Oregon City Attorneys
PARKS POE,ADAMS&BERNSTEIN,LLP
Association Associate 2005-2006
Represented and advised local governments and private interests on planning,
ACHIEVEMENTS land use, zoning, annexation, public records and open meetings issues.
Prepared complaints, responses, discovery motions and assisted with other
Recipient of the American litigation matters in addition to drafting and reviewing contracts and
Administration's Lours
Society Public settlement agreements.
Brownlow Award
UNIVERSITY OF NORTH CAROLINA,SCHOOL OF LAW
PUBLICATIONS CD Intern 2005-2006
Frayda Bluestein and Assisted local community groups and individuals with the following types of
Maureen Berner, nonprofit ventures: minority entrepreneurship,after school tutoring,affordable
Documenting Dis as housing and health and nutrition. Enabled new nonprofits to file articles of
in Ming_ft C6ntr acting: incorporation and federal tax exempt status forms, drafted by-laws, and
Legal fturrentsend created new employment and membership policies. For existing non-profits,
Recommendationsf)r researched tax exempt status issues, filed copyright and trademark
Policy-Makers Public applications and assisted with general transactional concerns.
Administration Review
NORTH CAROLINA GENERAL ASSEMBLY
Research Assistant 2004
C Fiscal Analyst 2003
L1JL
BEERY, ELSNER & HAMMOND LLP
Assisted legal staff with questions from legislators and state agencies related
to a wide-range of issues including education, annexation, health care,
gambling, tax increase proposals,trade property and other state regulations.
Staffed the Natural and Economic Resources Appropriations Subcommittee
and prepared portions of the North Carolina 2003-05 Biennium Budget in
addition to assisting legislators and constituents with agriculture, labor and
tobacco settlement fund questions.
MACWILLIAMS ROBINSON&PARTNERS
Senior Associate 1996-2001
Coordinated strategic media budgets for various presidential, congressional,
senatorial, gubernatorial and ballot initiative campaigns including Bill
Bradley for President. Evaluated demographic,polling and research data to
create targeted media campaigns for political candidates and interest groups.
Supervised staff of 5 and coordinated media activities with other firm
divisions.
EDUCATION
The University of North Carolina J.D.
School of Law
University of North Carolina Master of Public Admin.
School of Government
Miami University Bachelor of Arts,Political
Science&Journalism
lE�L l l
BEERY, ELSNER & HAMMOND LLP
I
SPEAKING TOPICS
Personnel issues
Legislative and Employment ASHLEY O. DRISCOLL
Relation
_ Ashley's practice focuses on labor and
Effective Discipline and employment law, public records, open
Discharge meetings,and land use.
Navigating the Public
Employees Collective
Bargaining Act
"PECBA 101"NewporC
Oregon,2/2/13
Public Employee Unions:
Trends,Decisions and the EXPERIENCE
Future,"CIS Conferenc4
Portland,Oregon 2/13/13 BEERY,ELSNER&HAMMOND,LLP
"PECBA 101"Pendleton, Associate October 2014-Present
Oregon,5/14/13
Provides legal services to local governments on general municipal issues.
"Supervisor Training:
Discipline,"OSJCC,Bend Practice focuses on labor and personnel and employment law.
Oregon 6/3/13
LOCAL GOVERNMENT PERSONNEL INSTITUTE
"PECBA and Discipline"City Labor Attorney Sept.2012—October 2014
of Newport Newport
Oregon 6/28/13 Represented cities, counties and special districts across Oregon. Advised
"PECBA and Discipline," local governments on labor and employment issues including PECBA,
Lincoln County,Newport ADA, FMLA/OFLA, FLSA and discrimination. Represented clients in
Oregon 7/1/13 labor contract interpretation arbitrations. Successfully defended clients
against unfair labor practice complaints and unit representation petitions.
"Public Employee unions:
Recent Decisions and Appeared before the Employment Relations Board panel in oral arguments,
Legislation,"Oregon City as well as in front of mediators, arbitrators and administrative law judges.
and County Managers Lead negotiations for 15 new and successor collective bargaining
Association 7/9/13 agreements. Presented at numerous city council and board of
commissioner meetings, conferences and trainings. Familiar with Oregon
"ACA Impacts for Public
Employers,"LGPIAnnual Public Records and Meetings Law.
Conference,8/22/13
BENNETT,HARTMAN,KAPLAN&MORRIS,LLP
Panelist Oregon State Bar Law Clerk Jan.2011-August 2012
Association,Labor and
Employment Section, Conducted legal research and drafted motions and memoranda. Produced
Employment Relations
Board Decisions,9/20/13 high quality work submitted with minor changes to state and federal court.
� rTzr
BEERY, ELSNER & HAMMOND LLP
OREGON DEPT OF JUSTICE,TRIAL DIVISION
Torts&Employment May 2010-December 2010
"Public Employee Unions: Section Law Clerk
Recent Decisions and Drafted motions and conducted research for claims under the Civil
Legislation,"Oregon City Rights §1983, Oregon Torts Claims Act, Oregon RICO,
Attorney Association,LOC
Conference,9/26/13 "whistleblower" and employment retaliation laws. Attended motion
hearings, depositions, trials and mediations. Participated in all stages
Public Employer's of litigation from answering the initial complaint to composing the
Legislative Update," court order.
Association of Counties
Annual Conference,
10/19/13 EDUCATION
"Recent Interest Lewis&Clark Law School J.D.,Magna Cum Laude
Arbitration Awards;
LGPI Annual Conference, College of the Holy Cross B.A.,Magna Cum Laude
August 2014
"Constitutional Issues in Trinity College Junior Year Abroad program
Discipline and Discharge"
and"SB 87:Veterans'
"Labor Law Update: ACA
Impacts,Arbitrations,
Decisions and Other
Changes You Need to
Know,OCAA Spring 2015
"PECBA and ERB Update"
OSB Government Law
CLE,Winter2015
MEMBERSHIPS
Oregon State Bar
Multnomah Bar
Association
Oregon Woman Lawyers
T' y 11r
BEERY, ELSNER & HAMMOND LLP
ACCOMPLISHMENTS
i Dean's3Scholarship(z000- SPENCER Q. PARSONS
Oregon Scholar's Award
(2000) Spencer focuses his practice on the
areas of land use, real estate, public
Review of Internationnalal Law
Operations Editor,ocontracting and general governance.
L
Law&Entrepreneurship
Student Association
Golden Key Honors Society
(1997-1998)
Swig Honors Thesis Winner EXPERIENCE
(1997)
BEERY,ELSNER&HAMMOND,LLP
University Writing Associate Associate 2016-Present
(1998)
Represents Oregon cities, counties and special districts. Practice focuses
on the areas of land use, real estate, public contracting and general
governance
SPENCER Q.PARSONS P.C.
Land Use Attorney 2014-2016
Represented clients before local governments and state administrative
agencies on a broad variety of matters, with a particular emphasis on land
use; represented property owners, developers, general contractors in all
manner of real estate and land use law matters, as well as small businesses
in all components of running a business, including: financing matters,
contract negotiation/drafting/review, internal controls and personnel
managementloversight.
COLUMBIA COUNTY
Law Clerk 2007-2010
Counsel to the Land Development Services Department, the Forest, Parks
& Recreation Department, Roads Department, as well as legal support to
Animal .Control and Code Enforcement officers. Attended Planning
Commission and Board of County Commissioner meetings as legal counsel
on a regular basis. Represented Columbia County in state and federal
district courts and before state administrative bodies including the Land
Use Board of Appeals.
,,ll 11.E i 1
BEERY, ELSNER & HAMMOND LLP
BEERY ELSNER&HAMMOND
Associate 2003-2006
MEMBERSHIPS Counseled several local government bodies in the Metro region and
Oregon State Bar elsewhere in Oregon, with particular emphasis on land use law.
Attended City Council and Planning Commission meetings on a regular
OSB Heritage Committee basis and advised decision-making bodies on various legal matters.
Concordia Neighborhood Represented clients in district courts; appeared before the Land Use
Association and Land Use Board of Appeals or land use matters; also represented clients at
&Transportation County Commission meetings. Legal briefing for the Federal District
Committee Court of Oregon,the Oregon Court of Appeals, several Oregon district
courts, the Land Use Board of Appeals, the Metro Boundary Appeals
Volunteer Land Use
Counsel Commission and other state administrative agencies.
BEERY ELSNER&HAMMOND
Law Clerk 2002-2003
Worked on behalf of the League of Oregon Cities in its complex
litigation with Qwest Communications involving Federal
Telecommunications Law. Extensive research and writing of the topic.
EDUCATION
University of Oregon J.D.
School of Law
University of Oregon B.A.cum laude
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JU�tALl
SECTION 7
PROPOSAL CERTIFICATIONS
Non-discrimination Clause
The Contractor agrees not to discriminate against any client, employee or applicant for employment or for
services, because of race,color,religion,sex,national origin,handicap or age with regard to,but not limited
to,the following:employment upgrading,demotion or transfer;recruitment or recruitment advertising;layoffs
or termination;rates of pay or other forms of compensation; selection for training;rendition of services. It
is further understood that any contractor who is in violation of this clause shall be barred from receiving
awards of any purchase order from the City,unless a satisfactory showing is made that discriminatory practices
have terminated and that
�a"recurrence of such acts is unlikely.
Agreed by: AS�'[ W h(,, _
Firm Name: f1,Snr-rr f I+Gt ?�y)ph[� LL. P
Address: I so S GU /40.0'b0 r r VAI S fC 3 80
00-
Resident
0-Resident Certificate
Please Check One:
IN Resident Vendor: Vendor has paid unemployment taxes and income taxes in this state during the last
twelve calendar months immediately preceding the submission of this proposal.
Or
❑ Non-resident Vendor.Vendor does not qualify under requirement stated above.
(Please specify your state of residence:
Officer's signature: Ui/wg kz____::� —
Type or print officer's name: 5 / W A f Aer
RFP—Labor Relations/Employment Law,Real Estate,Prosecutor,And Franchise Legal Services 13 [ 1' a r e
Close—Tuesday,October 18,2016
SECTION 8
SIGNATURE PAGE
The undersigned proposes to perform all work as listed in the Specification section, for the price(s) stated;
and that all articles supplied under any resultant contract will conform to the specifications herein,
The undersigned agrees to be bound by all applicable laws and regulations,the accompanying specifications
and by City policies and regulations.
The undersigned,by submitting a proposal,represents that:
A) The Proposer has read and understands the specifications.
B) Failure to comply with the specifications or any terms of the Request for Proposal may disqualify
the Proposer as being non-responsive.
The undersigned certifies that the proposal has been arrived at independently and has been submitted without
any collusion designed to limit competition.
The undersigned certifies that A addenda to the specifications has been received and duly considered and
that all costs associated with all addenda have been included in this proposal:
Addenda: No. through No. inclusive.
We therefore offer and make this proposal to furnish services at the price(s)indicated herein in fulfillment of
the attached requirements and specifications of the City.
Name of firm: f'.i'Lrt '�S J1Q,i^, r tYy01'?
d LLP
� (
Address: ) cu- p(?Y- W 0
Rb�^ ar of 0 n- 9 20
Telephone Number: SZ3• 226 • 1411Fag Number: 03 • 2- - 2.3
By: ' ' ' - .._.. .'C Date:
(Signature o . uthorized 61ficiah.4partnership,signature of one partner.)
Typed Name/Title:, nc.-al Iq CD
If corporation,attest:
(Corporate Officer)
❑ Corporation PPartnership ❑Individual
: 93 - /2-3V90 /
Federal Tax Identification Number(TIN)
RFP—Labor Relations/Employment Law,Real Estate,Prosecutor,And Franchise Legal Services 141 P a k e
Close—Tuesday,October 18,2016
ATTACHMENT A
CITY OF TIGARD,OREGON
ACKNOWLEDGMENT OF ADDENDA
Project Title:Labor Relations/Employment Law.Real Estate,PrmegL r and Franchise LeW Services
Close:: Tuesday_October 18.20.16-2:00 pm
I/WE HAVE RECEIVED THE FOLLOWING ADDENDA{,Laone rredmd agits gone Receiwd'�:
1. no YUP. re ak 3.
2. 4.
Date
Signature of Proposer
Qd"nLo-ts or-
Title
VS kg - *- nKa1dLLP
Corporate Vne
RFP—Labor Relations/Employment Law,Real Estate,Prosecutor,And Franchise Legal Services 15 1 P a g c
Close—Tuesday,October 18,2016
ATTACHMENT B
CITY OF TIGARD,OREGON
STATEMENT OF PROPOSAL.
Name of Consultant.. `
�.L
Mailing Address: l S—o .SL11 i4ti r 6 o r -W-t4 1 S-f e- 3g�w
11
Contact Person: Ask 6 w hi*6t[ t
Telephone:503.2�24-+-.1.9-f- Fax: 563, 2�2tb.2-3 qo Email:QS11 UU 1CM-, 10M.C41"tl�
accepts all the terms and conditions contained in the City of Tigard's Request for Proposal for Labor
Relations/Employment Law,Real Estate,Prosecutor,and Franchise Legal services and the attached attorney
services agreement(Attachment C):
00 I
Signature of authorized representative Date
SO3 . 2.2.Cv. 4-1 R
Type or prin name of authorized representative Telephone Number
Ch 0 d A-" Ja 0063 SD 3 . 27-6 7-
Type or print name of person(s) authorized to negotiate contracts Telephone Number
REFERENCES
03 .
Rfn _
e�fer ce# Telephone Number
tmber
Project Title Contact Individual
OJ�U 84 4�DALA 11AUSy 3 . TY 3 . 3?00
Rcfercnle#2 J Telephone Number
kG har ar:d Em, f rn-ev� 1 L��son I-Ud
Project Tide Contact Individual
Qn -1Z3 &6Y. Seo I
R.efere a#3 Telephone Number
Se l —e�com � kk nsom
Project Title tContact Individual
RFP—Labor Relations/Employment Law,Real Estate,Prosecutor,And Franchise Legal Services 16 [ 1'a g e
Close—Tuesday,October 18,2016
i
Appendices C:(Telecom)
Sample Agreement/Ordinance w/Northwest Natural Gas
Sample Letter re Franchise Fee
i
ORDINANCE NO.S939
AN ORDINANCE OF THE CITY OF HILLSBORO GRANTING A NON-EXCLUSIVE GAS
UTILITY FRANCHISE TO NORTHWEST NATURAL GAS COMPANY.
WHEREAS, the City of Hillsboro (the "City") is authorized by state statutes and its
charter to grant non-exclusive franchises to Persons desiring to occupy Rights-of-Way within the
City;and
WHEREAS, Northwest Natural Gas Company (the "Grantee"}, owns, maintains, and
operates, in accordance with regulations promulgated by the Public Utility Commission, a
natival gas utility system and desires to install,operate,and maintain its Gas Utility System in
Right"f-Way in the City;and
WHEREAS, the purposes of this Franchise are to: establish reasonable regulations
applicable to the construction, operation, and maintenance of a Gas Utility System in, along,
across, under,and over City property and the provision of Services within the City;protect the
health,safety and welfare of the public in the City;and Iimit the City's liability for claims arising
from the granting of this Franchise and the operations of Grantee thereunder,and
WHEREAS,,the City Council for the City deems it in the public interest to' grant a
franchise to Grantee under the terms and conditions provided in this ordinance.
NOW,THEREFORE,THE CITY OF HILLSBORO ORDAINS AS FOLLOWS_
Section 1, Definitions. For the purposes of this ordinance and Franchise, the following
words and terms have the meaning stated in this Section, except where the context clearly
indicates a different meaning. When not inconsistent with the context,words used inibe present
tense include the future tense, and words in the singular number include the plural number and
vice versa. The words"shall"and"will"are mandatory and the word"may"is permissive.
1.1 "City"means the City of Hillsboro,Oregon,an Oregon municipal corporation.
i 1.2 "City Council"means the Hillsboro City Council,or its successors,the governing
body of the City of Hillsboro,Oregon.
1.3 "City Facilities"means City-owned or partially-owned street light poles, fighting
fixtures,pipes,mains,service lines,manholes,meters,vaults,cabinets,structures,
cable, wire, conduit, or other City-owned or partially-owned structures or
equipment located within the Right-of-Way.
1.4 "City Limits" means the corporate boundaries of the City, as those boundaries
may change from time to time.
1.5 "Construct" or "Construction" means, without limitation, constructing,
acquisiti6n, installing, laying, testing, operating, extending,renewing, relocating,
Page 1 of 22
removing, replacing, repairing, and using all or any portion of the Gas Utility
System.
1.6 "Franchise" means this franchise ordinance and agreement as approved by the
City Council and accepted by Grantee under subsection 12.10 of this Franchise.
1.7 "Gas"means natural methane-based gas_
1.5 "Gas Utility System" means the Grantee's gas transmission, storage and
distribution facilities, including pipes, pipe lines, mains, laterals, conduits,
feeders,regulators,reducing and regulating stations,meters,fixtures,connections,
and all attachments, appurtenances, and a[1 accessories necessary and incidental
thereto located within the City Limits,whether the facilities are located above or
.below ground,and used by Grantee for the provision of Services to customers in
the City Limits. "Gas Utility System" does not include any fatalities for the
transmission of Gas through the City where such facilities do not provide service
within'or terminate in the City.
1.4 "Grantee"means Northwest Natural Gas Company, a corporation duly organized
and existing under the laws of the State of Oregon, and its lawful successors,
assigns,and transferees.
1.10 "Gross Revenues"means revenues derived from the operation of the Gas.Utility
System within the City Limits less related net uncollectibles. "Gross Revenues"
include revenues from the use,rental, or lease of the Gas Utility System_ "Gross
Revenues" do not include proceeds from the sale of bonds, mortgage, or other
evidence of indebtedness,securities or stocks,or sales at wholesale by Grantee to
any public utility or public agency when the public utility or public agency
purchasing the gas is not the ultimate customer."Gross Revenues"do not include
revenue from,Public Purpose Charges or additional Public Purpose charges,
subject to the requirements of this subsection. For purposes of this subsection,
"Public Purpose-Charges" means those charges collected by Grantee pursuant to
Schedule 301, Schedule 310 and/or Schedule 400 of Grantee's tariff on file with
the Public Utility Commission as of the effective date of this Franchise,a copy of
which is attached hereto as Exhibit A. Grantee may request exclusions from
Gross Revenues of new additional charges or surcharges to a gas customer of
Grantee, with prior written consent of the City, provided that such charges or
surcharges are required or authorized by federal or state statute, administrative
rule, or by tariff approved by the Public Utility Commission, and raise revenue
used solely for a public purpose activity and not to compensate Grantee for the
sale or use of Gas or for the use, rental, or lease of Grantee's Gas Utility System
in the City. Public purpose activities include, but are dot limited to, energy
efficiency programs, market transformation programs, low-income energy
efficiency programs, and carbon offset programs designed to benefit residential
and commercial customers.within Grantee's service territory in Oregon. Grantee
Page 2 of 22
MY repeal a Public Purpose Charge at any time and will provide notice to the
City within thirty(30)days of the repeal of such Public Purpose Charge.
l_l l "Maintenance,""Maintaining,"or"Maintain"mean,without limitation,repairing,
examining, testing, inspecting, installation of cathodic protection systems and
restoring operations of the Gas Utility System.
1.12 "Berson" means any individual, municipality, govemmental entity, sole
proprietorship, partnership, puublic or private corporation, limited liability
company,association,gr other organization authorized to act or do business in the
State of Oregon.
1.13 "Public Place"means any City-owned properly that is open to the public and that
is not a Right-of-Way,and includes without limitation public squares,fairgrounds
and parks.
1.14 "Public Utility Commission"means the Public Utility Commission of the State of
Oregon,or its successor agency.
1.15 "Public Utility Easement"means the space in,upon,above,along,across,over or
under an easement for the constructing, reconstructing, operating, maintaining,
inspecting,and repaving of utilities facilities. "Public utility easement"does not
include an easement solely for the constructin&. reconstructing, operating,
mainteming,inspecting,and repairing(&City Facilities.
1.16 "Right-of-Way" or "Rights-of-Way" means the space in, upon, above, or under
the public streets, mads, highways, lanes, courts, ways, alleys,• boulevards,
sidewalks, bicycle lanes, City--owned utility casements, and places'used or
intended to be"used by the general public for travel as the same now or may
hereafter exist;that the City has the right to allow Grantee to use.
1.17 "Services"means the Gas transmission,distribution,sales,and marketing services
provided by Grantee to its customers located within the City Limits. "Services"
does not include service provided through or by the use of any equipment, plant,
or facilities for the transmission of Gas which pass through or over but are not
` used to provide service in or do not terminate in the City.
Section 2. Nature and Term of Grant.
2.1 Grant of Franchise. Subject to the terms and conditions of this Franchise,the City
grants Grantee a right, privilege, and franchise during the term of this Franchise
to:
2.1.1 Construct, Maintain and operate a Gas Utility System and exercise all
authority conferred upon Grantee by state law within the City Limits for
the purpose of providing Services to customers within the City Limits.
Page 3 of 22
2.1.2 Install, operate, Maintain, remove, relocate, and replace a Gas Utility
System on and under the Right-of-Way and to use the Right-of-Way for
the provision of Services- This Franchise does not authorize Grantee.to
install or use the Gas Utility System in the Right-0f-Way for anything
other than the provision of Services. Except as set forth in subsection
24.6, no portion of the Gas Utility System may be placed or operated in
any Public PIace without separate written consent of the City.
2-1.3 Operate,Maintain,and remove existing Gas facilities for the transmission
of Gas which are located within the City Limits but (i) are not used to
provide Services or(i7 do not terminate in the City Limits a Transmission
Facilities"). Transmission Facilities may not be installed, upgraded,
relocated or replaced without a separate written agreement from the City.
2-1.4 Offer and sell Services to customers within the City Limits.
2.2 Duration. The term of this Franchise, and all rights and obligations pertaining
thereto, shall be ten (10) years from the date Grantee signs and accepts this
Franchise in accordance with subsection 12.10, unless terminated sooner as
provided herein.
2.3 Franchise Non-Exclusive. This Franchise is not exclusive. The City expressly
reserves the right to grant franchises or rights to other Persons similar to or
different from those granted by this Franchise. This Franchise is intended to
convey limited rights and interests only as to those Rights-of-Way in which the
City has an actual interest. It is not a warranty of tide or interest in any Right-of-
Way; it does not provide the Grantee with any interest in any particular location
within the Rights-of-Way; and it does not confer rights other than as expressly
provided in the grant hereof. This Franchise is subject to all deeds, easements,
dedications,conditions,covenants,restrictions,encumbrances,and claims of title
of record that may affect the Rights-of-Way. Nothing in this Franchise shall be
deemed to grant,convey,create,or vest in Grantee a real property interest in land,
including any fee,leasehold interest,or casement.
2.4 Reservation of City Rights. The City reserves the right to;
2.4.1 Construct, install, maintain and operate any City Facility, Right-of-Way,
public improvements,or Public Place.
2.4.2 Do any work that the City may find desirable on,over or under any Right-
of-Way
ightof-Way or Public Place. Whenever the City shall excavate or perform any
work in any Right-of--Way or Public Place, or shall contract, or issue
Permits,for such excavation or work where such excavation or work may
disturb Grantee's Gas Utility Systema, the City shall attempt to notify
Grantee sufficiently in advance of such contemplated excavation or work
Page 4 of 22
to enable Grantee to take such measures as may be deemed necessary to
Protect its Gas Utility System from damage and possible inconvenience or
injury to the public,consistent with the Oregon Utility Notification Center
requirements if applicable. In any such case, the Grantee, upon request,
shall furnish engineered maps or drawings to the City showing the
location of its Gas Utility System in the area involved in the proposed
excavation or other work. The City shall treat any such reap or drawing as
confidential, subject to the provisions of state law and the Oregon Public
Records Law, provided Grantee clearly marks it as confidential in the
manner described in subsection 3.4.
2.4.3 Exercise any non-regulatory power that the'City currently holds, or may
hereafter be authorized or granrted by the laws of the State of Oregon or
the City Charter.
2.4.4 Vacate, alter or close any Right-of-Way or Public Place. Whenever the
City shall vacate any Right-of-Way for the convenience or benefit of any
perm or governmental agency or instrumentality,the City shall provide
Grantee with the standard notice provided for street vacations_ If any
Right-of-Way or portion thereof used by Grantee is vacated by the City
during the term of this Franchise, unless the City Council specifically
reserves to Grantee the right to continue its installation in the vacated
Right-of-Way or grantee secures such right from the third party that will
have tide to the area in which Grantee has a portion of its Gas Utility
System,Grantee shell,at its own expense,relocate that portion of its Gas
Utility System and restore, repair,or reconstruct the Right-of-Way where
such relocation has occurred to the same or better condition as before the
relocation,unless otherwise instructed by the City. In the event of failure,
neglect, or refusal of Grantee,after thirty (30) days' written notice from
the City,to relocate.the portions of the On Utility System or to restore,
repair, or reconstruct the Right-of-Way, the City may do such work or
cause it to be done at Grantee's sole cost and expense. Upon the receipt of
a demand for payment from the City, Grantee shall promptly reimburse
the City for the costs the City incurred The City shall make reasonable
efforts. to assist Grantee in identifying potential available alternative
locations within the Rights-of-Way or, if requested by Grantee, will
cooperift with Grantee"s efforts to secure an alternate location in the
vacated night-of-Way from the third party that shall have ownership after
vacation.
2.4.5 Abate any nuisance or dangerous condition.
2.4.6 Control or prevent the use of any Public Place by Grantee and require
payment of additional compensation for tine use of the Public Place in any
amount that the City funds to be reasonable. Any portion of the Gas
Utility System located within a Public Piave,or within an easement within
Page 5 of 22
a Public Place, on the effective date of this Franchise may be maintained,
repaired, or replaced.without additional charge, subject to any special
conditions imposed by the City on Grantee at the time the City permitted
Grantee to place facilities in the Public Place.
2.4.7 In addition to the reservations contained in this Franchise and existing
applicable ordinances; adopt such additional generally applicable
regulations of the Construction, Maintenance and operation of Grantee's
Gas Utility System as the City finds necessary in the exercise of its policy
powers, or for the orderly development of the City (including but not
limited to zoning, land use, historic preservation ordinances, standard
specifications, design standards and drawings and other safety or
construction standards, and other applicable requirements), or for the
!� protection of City Facilities. These regulations shall be subject to any
superseding provisions of state or federal law or regulations and shall be in
conformance with standard engineering practices. The City May amend
and add to these regulations from time to time. The City strap make a
good faith effort to provide Grantee written notice and opportunity to
comment on any proposed new or amended regulations that would affect
the Construction, Maintenance, and operation of Grantee's Gas Utility
System, but the City's failure to provide such notice shall not affect
Grantee's obligation to comply with these regulations nor shall it be
deemed a material breach of this fYanchise. Grantee shall promptly
comply with these regulations.
2.5 Police Powers and Other Laws. Each and every term, provision, and condition
herein is subject to the provisions of federal law, Oregon law,the Charter of the
City of Hillsboro, and the ordinances and regulations enacted pursuant thereto.
Grantee's rights hereunder are subject to the police powers of the City to adopt
j and enforce ordinances necessary to the Safety, health, good order,comfort,and
general welfare of the public,and as may be deemed necessary in the exercise of
its police power. Grantee agrees to comply with all laws and ordinances of
general applicability enacted,or hereafter enacted,by the City or any other legally
constituted governmental unit having jurisdiction over the subject matter hereof.
".. 2.6 Franchise as Contract. This ordinance and the written acceptance by Grantee
constitutes a contract between the City and Grantee, and is binding upon and
inures to the benefit of Grantee and its successors, legal representatives and
assigns, under the conditions imposed herein. By accepting the Franchise,
Grantee acknowledges and accepts the City's legal right to issue and enforce the
Franchise and agrees to comply,with each and every lawful provision of this
Franchise consistent with applicable law.
Page 6 of22
Section 3. Compensation.
3.I Amount As compensation for the benefits and privileges granted under this
Franchise,and for Grantee's entry upon and deployment within the Right-0f--Way,
Grantee shall pay to the City an amount equal to three percent(3%)of Grantee's
Gross Revenues (the "Franchise Fee"). Grantee agrees that, upon ninety (90)
days' written notice, the City may increase the. Franchise Fee to be paid by
Grantee,up to five percent(5%)of Grantee's Gross Revenues. If any applicable
state law limitations on the City's authority to collect franchise fees permit the
City to collect a franchise fee greater than five pc=nt(59/6) of Grantee's Gross
Revenues, upon thirty (30)days' notice from the City,Grantee agrees to engage
in good faith negotiations to modify this subsection 3.1 up to applicable state law
limitations.
3.2 Due Date. The Franchise Fee shall be due for each quarter ending March 31,June
30, September 30, and December 31, or fraction thereot within forty--five (45)
days after the close of such quarter, or fraction thereof. Widen forty-five (45)
days after the termination of this Franchise, compensation shall be paid for the
period elapsing since the close of the, last quarter for which compensation has
been paid.
3.3 Late Payment. Any payment not made when due, including late payments and
any underpayment, shall accrue interest at nine percent-(9%) per annum until
paid. if any payment becomes ninety (90) days in arrears, an additional ten
percent(10%)penalty shall be applied to the amount pest due.
3A Report. The Grantee shall furnish to the City with each payment of compensation
required by this section a statement showing the amount of gross revenue of the
Grantee within the City for the period covered by the payment computed on the
basis set out in subsection 3.1 of this section. The compensation for the period
covered by the statement shalt be computed on the basis of the gross revue so
reported. if the Grantee fails to pay the entire amount of compensation due the
City through error or otherwise, the difference due to City shall W paid by the
Grantee within fifteen(15)days from discovery of the error or determination of
the correct amount Any overpayment to the City through.error or otherwise,
shall be offset against the next payment due from the Grantee.
3.5 Acceptance of payment and Recomputation. Acceptance by the City of any
Payment due under this Section shall not be deemed as an accord that the amount
Paid is the correct amount,nor shall any acceptance of payment be construed as a
release of any claim the City may have for additional funds or as a waiver by the
City of any breach of this Franchise.
3.6 New Business. The City specifically reserves the right to impose a fee or tax.as
allowed by generally applicable law,on any new business undertaking of Grantee
that is operated within the City. The City may otherwise separately regulate and
Page 7 of 22
Obtain compensation for any other use of the City's Rights-of-Way than those
specifically authorized herein. The provisions of this fiarichise agreement do not
impair the imposition of ad valorem taxes on the property of the Grantee as
allowed by law.
3.7 Additional Taxes. Payment of the franchise fee under this Section shall not
exempt Grantee from the payment.of any generally applicable license,permit fee
or other generally applicable fee, tax or charge on the business, occupation,
properly or income of Grantee that may be now or hereafter imposed,or from the
payment of any reimbursement or indemnity to the City. The City reserves the
right to impose and collect any privilege tax in addition to the franchise fee set
forth in this Franchise to the extent permitted by state and federal law_
tion 4. Services Standards,Safety Standards and Work Specifications_
4.1 Quality of Services. The .Grantee shall Maintain and operate an adequate
system for the distribution of Gas in the City. The Grantee shall use due
diligence to maintain continuous and uninterrupted 24-hour-a-day service
which shall at all times conform at least to the standards common in the
business and to the standards adopted by the Public Utility Commission and
other state and federal authorities. Under no circumstances shall the Grantee
be liable for an interruption or failure of service caused by act of God,
unavoidable accident or other circumstances beyond the control of the Grantee
through no fault of its own.
4..2 Construction and Maintenance of Gas Utility System. Grantee's Gas Utility
System shall be Constructed and Maintained in good order and condition,in a
safe manner, and in accordance with standard engineering practice and all
lawful governmental regulations.
4.3 Protection of Property. Grantee shall Construct and Maintain the Gas Utility
System in a manner that does not injure the Right-of-Way, City Facilities,
City property or the property belonging to another Person within the City
Limits. Grantee shall,at its own expense,repair,renew,change,and improve
the Gas Utility System from time to time as may be necessary to accomplish
this purpose.
4.4 Compliance with State and Federal Rcoatiom The rates to be,charged and
the rules and regulations in respect to the conditions, character, duality and
standards of service to be furnished by Grantee shall be those as may be
lawfully prescribed by the Public Utility Commission and any other applicable
state or federal law. 1n the event this jurisdiction or right of regulation,or any
part thereof,is abandoned by the Public Utility Commission and is not vested
exclusively by law in any other state regulatory body, and in the event this
jurisdiction may be lawfully exercised by the City,consistent with subsection
2.4.7,the City reserves the right to exercise this jurisdiction,and Grantee shall
Page 8 of 22
comPlY with all reasonable ordinances,rules and regulations made by the City
in the exercise of this jurisdiction or right of regulation_
et` n 5 Construction,Installation and Relocation.
5.1 Construction and Maintenance. Subject to City-established requirements
concerning work in the Rights-of-Way,including permitting,insurance,bonding,
work schdduling,,and payment of administrative fees for permits, Grantee may
enter upon the Right-of-Way to perform all work that is necessary to Construct,
operate, and Maintain all or any portion of a Gas Utility System in or wader the
surface of the Right-of-Way. Grantee shall be responsible for all Construction,
operation,and Maintenance work,regardless of who performs the work. Grantee
shall install all Gas Pipes. PiPelim, mains. extensions and other undergmtmd
Portions of the Gas Utility System at a minimum depth of twelve inches from the
finished grade of the Right-of-Way. Any Gas pipes.,pipelines,mains,extensions
and other underground portions of the Gas Utility System that do not comply with
the minimum depth requirement shall be lowered to meet the depth requirement
any time Grantee replaces the existing Gas pipes,pipelines,mains,.extensions and
other underground portions of the Gas Utility System. Grantee shall monitor its
induced current protection system to ensure the system does not adversely affect
City Facilities. All work shall be in accordance with the permit, all applicable
plans,specifications,rules,regulations,and ordinances of the City,and applicable
state and federal laws, rules and regulation& City representatives shall be
provided access to the work site and such further information they require to
ensure compliance with such requirements.
5.2 Permits and Fees. Consistent with its authority under Section 2A.7 of this
Franchise,and except when work is necessary during an emergency or to remedy
an immediate risk of harm to persons or property, the Grantee shall obtain a
Permit before commencing any Construction or Maintenance of any portion of its
Gas Utility System in the Right-of-.Way or a Public Place, if required by the City_
The City in all cases may charge Grantee any applicable permit fees. The City
shall promptl y respond to Grantee's requests for permits and sha11 otherwise
cooperate with Grantee in facilitating the deployment of equipment in the Might;
of-Way in a reasonable and timely mawr. Applications for permits to Construct
or Maintain a Gas Utility System,shall be submitted upon forms approved by the
City and shall be accompanied by engineering drawings,plans and specifications
in sufficient detafl to demonstrate:
5.2.1 That the Gas Utility System will be Constructed and Maintained in
accordance with all applicable codes,rules, and regulations, including this
Franchise.
5.2.2 The location and route of the Gas Utility System to be located under the
surface of the ground,including the line and grade proposed for the burial
at all points along the route. Existing portions of the Gas Utility System
Page 9 of 22
shall be differentiated on the plans from new construction. All existing
utility or other facilities and City Facilities shall be identified on the plans
along the route of the Gas Utility System being proposed.
5.23 The location and'plan view of all of existing portions of the Gas Utility
System which are within the Rights-of-Way along the route proposed by
the applicant. A profile and plan view shall be provided showing new
portions of the Gas Utility System in relation to the street,curb, sidewalk,
or Right-of-Way. -All existing utility or other facilities and City Facilities
shall be identified on the plans along the route of the Gas Utility System
being proposed.•The locations of utilities shall be defined using a survey
point or other identifiable monument or marker.
5.3 Restoration of Rights-of-Way.
5.3.1 Whenever the Construction, Maintenance, or any other work on any
portion of the Gas Utility System damages or disturbs the Right-of-Way,
Grantee,.at its sole cost and expense, shall promptly repair and return the
Right-of-Way to at least the condition it was in before it was damaged or
disturbed, as required and approved by the City. If Grantee does not
repair the Right-of-Way as just described, then the City may, upon thirty
(30) days' prior written notice to Grantee, repair the Right-of-Way at
Grantee's sole cost and expense. Upon the receipt of a demand far
payment from the City,Grantee shall promptly reimburse the City for the
costs the City incurred_
5.32 All restorations and repairs shall be in accordance with the permit, all
applicable plans, specifications, rules, regulations, and ordinances of the
City, and applicable state and federal laws, rules and regulations. City
representatives shall be provided access to the work site and such further
i information they require to ensure compliance with such requirements.
5.3.3 If weather or other conditions do not permit the complete restoration
- required by this Section, Grantee shall temporarily restore the affected
Rights-of-Way. Such temporary restoration shall be at Gr'antee's sole cost
and expense and Grantee shall promptly undertake and complete the
required permanent restoration when the weather or other conditions no
longer prevent such permanent restoration. In any event, permanent
restoration must be completed within thirty (30) days of initial
construction unless Grantee submits a written request and receives a
written extension from the City.
5A Non-Complying Work. Upon thirty (30) days' written notice from the City,all
work that does not comply with the terms and conditions of this Franchise shall be
brought into compliance, including removal or relocation if necessary, at the
discretion of the City and at Grantee's sole cost and expense. The City is
Page 10 of 22
authorized to stop work or take other actions, including invoking any penalties
provided herein,t6 ensure compliance with the provisions of this Franchise.
5.5 No Interference. The Gas Utility System of Grantee shall be Constructed.and
Maintained in such a manner as not to interfere with the use by'the City and the
public of the Right-of-Way and Public Places or with any public or private
irrigation or drain ditches, sewers, water mains, conduits, sidewalks, paving, or
other public improvements or utility structures. Further,if any of Grantee's Gas
Utility System unreasonably interferes with the construction or repair of any
Rigb"f-Way, public improvement-or City Facility by or on behalf of the City;
that portion of the Gas Utility System shall be removed or replaced in
coordination with the City pursuant to subsection 5.6.
5.6 Relocation.
5.6.1 In case of any future improvement, maintenance,or construction of City
Facilities in the Right-of-Way or upon a Public Place, or of any of the
streets,avenues,lanes,alleys,highways,sidewalks,or pedestrian ways in
the Right-of-Way where any Gas Facilities are located, and the City
determines it is necessary to change the location of the Gas Facilities in
connection with the improverrz K maintenance, or construction, Grantee
shall,upon reasonable notice by the City and after reasonable evaluation
of alternatives by the City in cooperation with Grantee,at Grantee's own
expense, move and change any Gas Facility to conform to the public
improvement.
5.6.2 If Grantee shall fail to relocate,remove,change or alter any portion of the
Gas Utility System as requested by the City by the date established or
agreed to by the City: (ii) the City may cause any portion of the Gas
Utility System to be removed by qualified contractors at Grantee's sole
cost and expense; and(ii)Grantee shall compensate the City for all costs,
damages, claims, and expenses assessed against, or payable by, the City
due to Grantee's failure to promptly remove, relocate,change, or alter its
Gas Utility System as directed by the City. Upon receipt of a demand for
payment from the City pursuant to this subsection,Grantee shall promptly
t
reimburse the City.
5.7 -Coordination of Construction Activities. If requested by the City,Grantee shall
meet with the City to schedule and coordinate construction in the Rights-of-Way.
At these scheduled meetings,the City shalt provide available information an
relevant plans for construction projects that are likely to impact the Rights &
Way. All construction locations,activities and schedules shall be coordinated,as
reasonably required by the City,to minimize public inconvenience,disruption or
damages.
Page I l of 22
5.8 Emergencies. In the event emergency repairs to the Gas Utility System are
necessary= work may commence prior to the application for a permit_ Grantee
shall notify the City of such emergency repairs as soon as reasonably practicable.
The application for a permit for an emergency repair must be submitted within 72
hours following the initial emergency.
5.9 Emergency Operation Provisions. The Grantee will provide the City with an
Emergency Response Plan detailing procedure for response to emergencies
involving the Gas Utility System. Grantee may update this plan from time to
time, and shall promptly provide all updates to the City. To the extent
practicable, the Emergency Response Plan vnill include at least the following
information.
5.9.1 The names and 24-hour telephone numbers of responsible parties with the
authority to commit the resources of the Grantee.
5.9.2 The naive and 24-hour telephone numbers of the Grantee's Emergency
Coordinator and other emergency contacts available to respond during
emergencies_
5.93 How the Grantee's response personnel will interface with local first
responders during emergencies.
5.10 Removal of Facilities. Within ninety(90)days' written notice from the City,or
such additional time as the City may approve in writing, if Grantee owns,
controls, or maintains tains any portion of the Gas Utility System that is unauthorized,
Grantee shall,at its sole cost and expense,remove such facilities from the Rights-
of-Way. The Gas Utility System, or any portion thereof, is unauthorized in the
following circumstances: (i) it was lnsWkd without the appropriate authority at
the time of installation; (ii) it was installed at a location not permitted by this
Franchise or other legally sufficient permit;or(iiQ it has been abandoned without
written permission from the City for abandonment in place. For purposes of this
I subse"tum, a portion of the Gas Utility System shall be considered abandoned
4 when, for a period of ninety (90) days or more, it is deactivated and decoupled
r4- from the Gas Utility System or not used consistent with the authority granted
under this Franchise. A facility will not be considered abandoned if it is
i temporarily out of service during performance of repairs or if the facility is being
replaced.
Sge'on 6_ General Financial,Liability and Insurance Provisions.
6.1 Insurance.
6.1.1 Throughout the term of this Franchise,Grantee shall maintain general
liability insurance,and shall furnish the City with Certificates of Insurance
in a form acceptable to the City,with the following limits and coverages:
Page 12 of 22
i. General Liability insurance covering Bodily injury,Property
Damage,and Personal Injury for at least one million dollars
($1,000,000)combined single limit per occurrence and at least
three million dollars($3,000,000)in the aggregate.
ii. Automobile liability for owned,non-owned,and hired vehicles
with combiired single limit coverage of not less than three million
dollars($.3,000,000)per accident for bodily injury and property
i damages.
iii. Workers'compensation coverage at a minimum consistent with
state law,and employer's liability insurance with limits of not less
than one million dollars($1,000•,000).
6.12 The insurance policies inay provide for self-retention or deductibles in
reasonable amounts,provided that any self-retention or deductibles shall
not in any way limit Grantee's liability to the City. The limits of the
insurance shall be subject to statutory ehanges as to increases in the
maximum limits of liability imposed on municipalities of the State of
Oregon during the term of this Franchise_
6.1.3 The insurance shall be without prejudice to coverage otherwise existing
and shall name as additional insureds the City,its elected and appointed
officials,officers,agents,employees and volunteers. Notwithstanding the
-naming of additional insureds,the insurance shall protect each insured in
the same manner as though a separate policy bad been issued to each,but
nothing in this subsection 6.1.3 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.
6.1.4 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. If the insurance is canceled or materially altered within
the term of this Franchise,Grantee shall provide a replacement policy with
the same terms as required by this Franchise. Grantee shall maintain
continuops uninterrupted coverage,in the terms and amounts required,
upon and after the effective date of this Franchise.
6.1.5 As an alternative to the coverage listed in this subsection 6.1,the Grantee
may provide proof of and keep in force self-insurance,or a self insured
retention plus insurance,equivalent to the coverage required above.
6.2 Indemnification.
6.2.1 Grantee hereby agrees and covenants to indemnify, defend, and hold the
City, its elected and appointed officials, officers, agents, employees and
Page 13 of 22
volunteers harmless from any claims for injury, damage, loss, liability,
cost, or expense, including court and appeal costs and attorney fees or
expenses, arising from any casualty or accident to person or property by
reason of any negligent act or willful misconduct done under this
Franchise,.by its agents, or employees, or by reason of any failure of
Grantee to keep its Lias Facilities in a safe condition. The duly to
indemnify shall not extend to any negligence or willful misconduct by the
City, its elect4d and appointed officials, officers, agents, employees and
vohmteers.
62.2 The City shall provide Grantee with prompt notice of any such claim,
which Grantee shall defend at Grantee's sole cost and expense. Grantee
shall not settle or compromise of any such claim without The prior written
approval of the City. Grantee and its agents,contractors,and others shall
consult and cooperate with the City while conducting its defense. The
City may,at its own cost,defend or participate in the defense of a claim.
a
Sccfipn Books,of Account and Reports and Audits. The Grantee shall keep accurate
books of account at an office in the Portland metropolitan area for the purpose of determining the
amounts due to the City under Section 3 of this Franchise. Authorized representatives of the
City may inspect the books of account at any time during business hours and may audit the
books from time to time. The City may require periodic reports from the Grantee relating to its
E operations and revenues within the City Limits. The City shall treat any public record relating to
i Grantee's operations or revenues as confidential, subject to the provisions of state law and the
Oregon Public Records Law.
The City shall have the right to conduct,or cause to be conducted,an audit or financial review of
c Gross Revenues as defined herein for the purpose of ascertaining whether Grantee's Franchise
Fee payments have met the requirements of this Franchise. The cost of any such audit or
financial review shall be borne by the City, unless the results of any such audit or financial
review reveal an underpayment of more than five percent (5%) of the Franchise Fee for the
period audited or reviewed,in which case the full cost of such audit or financial review shall be
paid by Grantee. In case of any underpayment in the correct amount of compensation due,the
City shall be paid the difference due within thirty (3D) days of discovery of the error or
determination of the correct'ainount, including the interest and any penalties as set forth in
subsection 3.3. Any overpayment to the City through error or otherwise shall be offset against
the next payment. All books will be made available to authorized representatives of the City,at
no cost to the City, during working hours and within thirty(30)days of receipt of written notice
from the City,or such later date agreed to in writing by the City.
All amounts of Franchise Fees paid by Grantee shall be subject to audit or financial review by
the City,provided that only payments that occurred or should have occurred during a period of
thirty-six (36)months prior to the date the City notifies the Grantee of its intent to perform an
audit or financial review shall be subject to such audit or financial review. Neither the City nor
Grantee shall be liable or responsible to the other for any underpayment or overpayment that
Page 14 of 22
may have occurred more than thirty-six (36) months prior to the date the City notifies the
Grantee ofits intent to perform an audit or financial review.
Section 8_ Supplying Maps Upon Request. The Grantee shall maintain on file, at an
Office in the Portland metropolitan area, record drawings and operational data pertaining to its
operations in the City Limits. Authorized of the City may inspect the record
drawings and data at any time during business hours. Upon request of the City,the Grantee shall
furnish to the City,without charge and on a current basis,record drawings showing the location
Of the ON Utility System of the Grantee in the City. The level of detail in record drawings
provided by Grantee shall be limited to that which is needed for the City's-administration of the
Right-of-Way in order to protect Grantee's confidential business information and the security of
Grantee's Gas Utility System.
The Grantee and the City may determine that the location of certaip portions of the Gas Utility
System should be confidential as the public interest may require. in such a case, the Grantee
j shall notify the City of which records disclosing the location of the Gas Utility System should be
i treated as confidential. The City shall treat any public record disclosing the location of these
facilities as confidential, subject to the provisions of state law and the Oregon Public Records
law. The City shall limit access to any such confidential record to trustworthy employees of the
City with a need to know the information sct out in the record. The City shall store any such
confidential record in a secure and private place and avoid making and distributing copies of the
record. This paragraph is not a limitation of Grantee's obligation to provide required permit
information as set forth in subsection 5.2 of this Franchise.
Section 9, Notices.
9.1 Manner. All notices that shall or may be given pursuant to this Franchise shall be
k in writing and delivered personally or transmitted (a)through the United States
` mail, by registered or certified mail, postage prepaid; (b) by means of prepaid
overnight delivery service; or(c) by facsimile or e-mail transmission, if a hard
copy of the same is followed by delivery through the United States mail or by
overnight delivery service as just described and there is written confirmation of
the facsimile or a-mail,addressed as follows:
If to the City: City of Hillsboro
Administration Department
150 E.Main Street
Hillsboro,OR 97123
Fax:(503)681-6232
Ifto Grantee: Risk,Environment and Land Department
NW Natural
220 NW Second Avenue
Portland,Oregon 97202
Fax: (503)220-2586
Page 15 of 22
With a copy to: Office of the General Counsel
NW Natural
220 NW Second Avenue
Portland,Oregon 97202
Fax:(503)220-2584
92 Date of Notices; Changing Notice Address. Notices shall be deemed effective
upon receipt in the case of permnai delivery,three (3) days after deposit in the
mail, or one(1)business day after in the case of facsimile,a-mail, or overnight
delivery. Either party may hom time to time designate other addresses for
providing notice,if the change of address is provided in writing and delivered in
the manner set forth above.
Section 10. Forfeiture and Remedies.
B
10.1 Forfeiture. In addition to any other rights set out in this Franchise, the City
reserves the right to terminate this Franchise for violation of any material
provision. Material provisions may include,but are not limited to,the following:
(A) The obligations of Grantee with respect to Construction, use and
Maintenance of facilities within the Public Rights of Way, including
obtaining and/or maintaining any permit required by any federal or state
regulatory body regarding Grantee's operation of its Gas Utility System in
the City. ,
(B) Construction or operation at an unauthorized location.
(C) Improper sale or assignment of the Franchise.
I
(D) Willful misrepresentation by or on behalf of Grantee in any application to
the City.
(E) Failure to relocate or remove facilities as required in this Franchise.
(F) Failure to pay taxes, compensation, fees, penalties or costs when and as
due the City under this Franchise.
(G) Insolvency or bankruptcy of Grantee.
10.2 Additional Remedies. In addition to any other rights set out in this Franchise and
the Hillsboro Municipal Code, the City reserves the right at its sole option to
establish some lesser sanction which may include imposing a fine of not more
than five hundred dollars ($500.00) for each offense. A separate and distinct
offense shall be deemed committed each day on which a violation occurs or
continues.
Page 16 of 22
10.3 Assessment of Remedies. In determination of the penalty, City may take into
consideration the nature, circumstances, extent, and gravity of the violation as
reflected by one or more of the following factors. Whether.
(A) The misconduct was egregious.
i
(B) Substantial harm resulted.
? (C) TIM violation was intentional.
(D) There is a history of prior violations of the same or other requirements.
There is a history of overall compliance.
(F) The violation was voluntarily disclosed,admitted or cured.
10.4 Notice and Opportunity to Cure. The City shall give Grantee ninety (90) days'
prior written notice of its intent to exercise its rights under this Section I0,stating
the reasons for such action. If Grantee cures the stated reason within the ninety
(90)-day notice period,or if Grantee initiates efforts to remedy the stated reason
and,to the City's satisfaction,the efforts continue in good faith,the City shall,tiot
exercise its rights to terminate or seek other remedies. If Grantee fails to cure the
stated reason within the nicety (90)-day notice period, or if Grantee does not
undertake and/or maintain efforts to remedy the stated reason to the City's
satisfaction, then the City may impose any or all of the remedies available under
this Section 10. In no event shall the City exercise its right to terminate under
subsection 10.1 if a bona fide, good-faith dispute exists between the City and
Grantee as to the basis of the forfeiture.
10.5 Remedies Not Exclusive. All remedies and penalties under this Franchise,
including termination of the Franchise, are cumulative, and the recovery or
enforcement of one'is not a bar to the recovery or enforcement of any other such
remedy or penatty: The remedies and penalties contained in this Franchise.
including termination of the Franchise,are not exclusive and the City reserves the:
right to enforce the penal provisions of any ordinance or resolution and to avail
itself ofany and all remedies available at law or in equity. Failure to enforce shall
not be construed as a waiver of a breach of any term, condition or obligation
imposed upon the Grantee by or pursuant to this Franchise. Nothing in this
Section shall be deemed to waive, and Grantee reserves,its right to avail itself of
any and all remedies available at law or in equity to enforce the terms of this
Franchise.
all, Assignment. This Franchise shall not be sold, leased; mortgaged,assigned,
merged,or otherwise transferred(collectively referred to as a"1 iansf&'in this Section)without
Page 17 of 22
the prior written consent of the City, which consent shall not be unreasonably withheld. No
Transfer of the Franchise shall be approved unless the transferee has the legal, technical,
financial, and other requisite qualifications determined by the City to own, hold, and operate a
Gas Utility System pursuant to this Franchise. If a Transfer of Grantee's Gas Utility System is
subject to review and approval by the Public Utility Commission under ORS 757.490 to 757.516,
the City shall accept final approval by the Public Utility Commission of the Transfer as
conclusive evidence of the legal, technical, and financial qualifications of the prospective party
regarding operation of the Gas Utility System for the purposes of City approval of the Transfer.
Nothing in the preceding sentence prevents the City from considering or requiring additional
evidence regarding the prospective party's use of the Rights of Way consistent with this
Franchise.If the City consents to a Transfer of the Franchise,the Transfer shall not be effective
until the transferee has complied with the requirements in Section 6 and filed a signed
acceptance of the terns of this Franchise subst antially in the form set forth in Exhibit B.
Nothing in this Franchise requires the City's consent for any Transfer to entities that control,arc
controlled by,or are under common control with Grantee. Grantee shall give written notice to
the City of any Transfers to entities under such common control within ten (10)days of such
Transfer. Nothing in this Franchise shall be deemed to prohibit the mortgage, pledge, or
assignment of tangible assets of Grantee's Gas Utility System for the purpose of financing the
acquisition of equipment for or the Construction and operation of Grantee's Gas Utility 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 Franchise.
Section 12. Miscellaneous Provisions.
12.I Damage to Grantee's Facilities. Unless directly and proximately caused by
negligent,willful, intentional,or malicious acts by the City,the City shall not be
liable for any damage to or loss of all or any portion of the Gas Utility System
within the Rights-of-Way of the City as a iesult of or in connection with any
Public works, public improvement, construction, excavation, grading, filling, or
work of any kind in the Rights-of-Way by or on behalf of the City, or for any
consequential losses resulting directly or indirectly therefrom.
12.2 Force Majeure.
12.2.1 Whenever this Franchise sets forth a time for any act to be performed by
Grantee, such time shall be deemed to be of the essence and, subject to
subsection 12.2.2, any failure of Grantee to perform within the allotted
time may be considered a material breach of this Franchise,and sufficient
grounds for the City to invoke any relevant remedy. Grantee shall not be
excused by mere economic hardship nor by misfeasance or malfeasance of
its directors,officers,employees,or duly authorized agents.
I2.2.21 n the event Grantee is prevented or delayed in the performance of any of
its obligations under this Franchise as a result of a Force Majeure,Grantee
shall give prompt notice to the City of such Force Majeure and shall have
a reasonable time as defined by {he City, under the circumstances, to
Page 18 of 22
perform the affected obligation under this Franchise or to procure a
substitute for such obligation which is satisfactory to the City. For
purposes of this subsection 12.2, "Force Majeure" shalt mean any
conditions which are not within the control of Grantee and shall include,
but are not limited to, natural disasters, civil disturbances and severe or
unusual weather conditions which have'a direct and substantial impact on
Grantee's ability to provide Services in the City and which were not
caused and could not have been avoided by the Grantee which used
reasonable efforts in its operations to avoid such results.
12.2.31 f Grantee believes that a Force Majeure has prevented or delayed its
compliance with the terms of this Franchise, Grantee shall provide
documentation as reasonably required by the City to substantiae the
Grantee's claim. If Grantee has not yet cured the deMency,Grantee shall
also provide the City with its proposed plan for remediation,including the
timing for such cure.
12-3 Waiver of Breach. The waiver by either party of any breach or vidlation of any
provision of this Franchise shall not be deemed to be a waiver or a continuing
waiver of any subsequent breach or violation of the same or any other provision
of this Franchise.
I 12.4 Severability of Provisions. If any one or more of the provisions of this Franchise
is held by a court of competent jurisdiction to be invalid or unenforceable or pre-
empted by federal or state laws, rules or regulations, such provision(s) shall be
invalid, unenforceable or preempted only to the extent required by law. shall be
deemed severable from the remaining provisions of this Franchise and shall not
affect the legality,validity, or constitutionality of the remaining portions of this
Franchise. In the event such federal or state law, rule, or regulation is
subsequently repealed, rescinded, amended or otherwise changed so that the
provision hereof that had been preempted is no longer preempted,such provision
shall thereupon retum to full force and effect, and shall thereafter be binding,
without the requirement of furtber action on the part of either party.
12.5 Governing Law and Choice of Forum. This Franchise shall be governed and
construed by and in accordance with the laws of the State of Oregon without
reference to its conflicts of law principles. If suit is brought by a party to this
Franchise,the parties agree that trial of such action shall be vested exclusively in
the state courts of Oregon,County of Washington,or in the United States District
Court for the District of Oregon.
B
12.6 Representations and Warranties. Each of the parties to this Franchise represents
and warrants that it has the fWl right,power,legal capacity,and authority to enter
into and perform the parties' respective obligations hereunder and that such
obligations shall be binding upon such patty without the requirement of the
approval or consent of any other Person or entity in connection herewith.
Page 19 of 22
12.7 No Third Party Beneficiaries. Nothing in this Franchise shalt be construed or
applied to create rights in or grant remedies to any third par-fy as a beneficiary of
this Franchise or any duty or obligation established in this Franchise.
12.8 Independent Contractor Status. When performing under this Franchise, Grantee
shall be an independent contractor and not an agent,employee or representative of
the City in the performance of work pursuant to this Franchise. No term or
provision of this Franchise,or act of the Grantee or its agents shall be construed
as changing that status.
12.9 Amendment of Franchise. This Franchise may not be amended,except pursuant
to a written instrument signed by Grantee and approved by the City Council.
12.10 Acceptance. Within thirty(30)days after the Council adopts this Franchise and
the Mayor signs the Franchise,Grantee shall file with the City Recorder a written
unconditional acceptance of this Franchise in the form attached hereto as Exhibit
B. If Grantee fails to file its acceptance,this Franchise shall be void, unless the
City grants Grantee an extension of time.
12.11 Entire Agreement. This Franchise contains the entire understanding between the
Parties with respect to the subject matter herein. There are no representations,
agreements,or understandings(whether oral or written)between or among the
Parties relating to the subject matter of this Franchise that are not fully expressed
herein.
First approval of the Council on this 2&day of April 2010.
Second approval and adoption by the Council on this 4n'day of May 2010.
Approved by the Mayor this 4ei day of May 2010.
Mayo
1 K
ATTEST.
City R rder
Page 20 of 22
Exhibit A
NORTHWEST NATURAL GAS COMPANY
P.U.C.Or.24 Second Revision of Sheet 301-1
Cancels First Revision Sheet 301-1
SCHEDULE 301
PUBLIC PURPOSES FUNDING SURCHARGE
PURPOSE:
To specify the method of billing of a Public Purposes sumbarge Met Is to fund public purposes
activities to be administered through one or more independent entities. Public purposes acWides
include,but may not necessarily be timfted In,energy efficiency programs,market transformation
programs,residential low-income energy eflicr ie W urns,and residential(oW-income bill payment
asM211ce programs designed to benefit Residential and Commercial Customers within MW NaturaPs
service territory in Oregon.
APPLICABLE:
{ To Residential and Commerdal Customers served on the following Rate Schedules of this TeritF
Roddlift Sommenm
f Schedule 1 Schedule 1
ii
Schedule 2 Schedule 3
Schedule 31(CSF)
{ Schedule 311(CSI)
`t ADJUSTMENT TO RATES- Effsct'vi e: November 1,2009
A Public Purposes surcharge will be assessed on the total energy use billed(the total of the
Customer Charge plus-the per theme usage charges)and shown as a tine stern on each customers
monthly bili as fotlahhws:.
: Residentiat: 4.74%of the total energy use blued
Commensal: 4.41%of the total energy use billed
B
The funds collected from such Public Purposes aurudharge shall be allocated to specific separate
accounts to fund the specified public purposes prOgram(s)as follows:
RESIDENTIAL
4.16%will support pubic purpose funding for Schedule 350 energy effidency programs
delivered and administered by the Energy Trust of Oregon(Enegy Trusty_
0.58%will support public purpose tending for Schedule 310 loWwcome bill payment
assistance activities.
0.00%will support public purpose funding for Schedule 320 law-income energy efficiency
activities.
COMMERCIAL:
4.1.5%will support public purpose funding for Schedule 350 energy efficiency programs
delivered and administered by the Energy Trust.
0.25%will support public purpose funding for Schedule 320 low4nccome energy efficiency
activities.
(continue to Sheet 301-2)
Issued October 15,2009 Effective with service on
NWN Advice tufo.OPUC 09-13A and after November 1,2009
bsued y:NWRWT XNA-MM cols COWAYr
db a.NW Astaral
220 ft W.Sacwtd Rvwu®
PtrdrenQ Oregon 972093997
NORTHWEST NATURAL GAS COMPANY
P.IJ.C,.Or.24 Second Revision of Sheet 301-2
Cancels First Revision of Sheet 301-2
SCHEDULE 301
PUBLIC PURPOSES FUNDING SURCHARGE
(ecntinued)-
DETERmimmoN OF RATE
The Company*0 annually determine if the Public Purpose Furling Surcharge for the Schedule 350
energy efficiency programs needs to be adjusted,effective November 1.so that forecasted
collections.plus unspent collections held by the Energy Trust are sufficient for acquiring cost-effective
demand side management based upon resource portfolio and conservation supply crave
methodologies consistent with the Company's last ackrhowledged Integrated Resource Plan or
Integrated Resource Plan update,plus a spending reserve appropriately"for economic
conditions and forecasted growth.
SPECIAL tNS:
I. Each mordh,the Company will bill the Public Purposes surcharge on all Residential and
Commercial Customer bills, By the 2e of the month following the ix'iting month.the Company
will forward the amount of funds expected to be collected from billings issued for the prior
calendar month,less a reserve for uncollectibles in an amount equal to NW Natural's average
Percentage of net wdk vita,to the respective fund administrator or program account. Funds-
retained in the accounts after the 20"orfhe month will eam teterest at the Company's currently
authored rate of return unbl distributed,unless otherwise specified In an approved program or
Other agreement,
2. The Company vill retain an amount not to exceed$50,000 per year from the monies collected to
fund Schedule 320 low-income energy efficiency programs to be used for the purpose of an
independent program performance evaluation.
3. The monies collected far Schedule 350 programs will be transferred to the Energy Trust. The
Energy Trust is the entity approved by Be Oregon PublicUdlity Commission(OPUC)to receive
such public purposes fuhds,and to use such funds to design;promote and administer Natural
Gas energy elGdency programs in accordance with agreements executed between the Company
and the Energy Trust.
4. The monies colected for Schedule 310 and Schedule 320 programs will be transferred to the
appropriate kdemal program accounts(OLGA and OUEE,respectively)based on the allocation
set forth in this Schedule 301. -
5. Each year,to be effective October 1.or such other date as the Commission may approve,the
Company will determine the amount of residential low4neome public purposes fonds that will be
allocated between Schedule 310 and Schedule 320 programs. In maidng this determination,the
Company will consult with at least one representative from:(a)the staff of the Public Utility
Commission,(b)Citizens Utility Board,a"(c)Community Action Partnership of Oregon. The
minimum public purposes fund allocation for Schedule 310 programs shad be 0.33°x6 of monthly
residential customer bills.
(continue to Sheet 301-3)
Issued Oclober-15,2009 Effecl'nre with service bn
NINN Advice No.OPUC 09-13A and after November 1,2009
rasuadby.NoRnMERMARME 9A-9 coomily
d.6.a.NW Nalund
290N.W Swmdilvenue
Podland,Omyon 97209-399!
NORTHWEST NATURAL GAS COMPANY
P.U.C:Or.24 Original Sheet 301-3
SCHEDULE 301
PUBLIC PURPOSES FUNDING SURCHARGE
(condnued)
e. The Company,anti any independent enft selected to administer public Purposes program
under this Tariff,will report program results as directed by the Commission. Copies of all.reports
provided by the fund adaiNsbatots to the Commission shell also be subndW to the Company
for review
7. AN bunds collected from NW Natural Customers wig be allocated only to programs that are
available within the Company's service territory in Oregon.
�ti�t;AL.Tt_RAAS:
This fteduie is governed by the terms of Ihfs Rate Schedule,the Grmerat Rules and Regulations
cootalhed in this Tariff and.by all rules and regulations praastaibed by regulatory aulhorift.as
amended from time to time.
Issued October 15,2009 Effective with service on
NWN Advfce No.OPUC 09-13A and after November 1,2009
rssued 6Y NORTNWESThrATrgLAt GAS COMMIF
d.,ti.a.MNJWdflnal
220 PAW.Semad Awmus
PWOMd.OMM 97XV-1NI
NORTHWEST NATURAL GAS COMPANY
P.U.C.Or.24 Second Revision of Sheet 310-1
Cancels First Revision of Sheet 310-1
SCHEDULE 310
OREGON LOW-INCOME GAS ASSISTANCE(OLGA)
PURPOS�:
To describe the program within which that portion of the fUnds collected and designated for use for
low-income big payment assistance activities under Schedule 301"Public Purposes Funding
Surcharge'will be administered and delivered to eligible customers_ This program is filed pursuant to
ORS757.515.
APPLICABLE:
To ResidentialCustomers taking service under Rate Schedule 1 and Rate Schedule 2 of this Term.
SPECIAL CONMMUS•
1. Funds collected under Schedule 301 will be disbursed from the OLGA Account directly to
individual customer utility accounts based on electronic voudws received from each participating
Community Action Agency(Agency)_
2. All funds collected under this program will be distributed only to income-eligible Residential
Customers of NW Natural. Funds distribution will be accomplished using a cashless voucher
system. The cashless voucher system will allow the transfer of authorized payments to an
individual customer's utility account from the OLGA program account based on an electronic
voucher fist submitted to the camp"by each participating Agency. The Company will process
vouchers as soon as possible fdlowing receipt. to the event the Company receives a voucher
authorization for a single customer from two or more agencies,the Company will process only
one voucher authorization_
3. In order to participate in the OLGA program.an Agency must be a legal entiiy,contracting or
subcontracting with the State of Oregon,Department of Housing and Community Services
(OHCS),which is eligible to administer funding under the Federal Low Income Energy Assistance
Program(UEAP).
4. Each participating Agency will have sale responsibililyto screen and approve bill payment
assistance applicants for eligibility. Except where funds are spedricallyy authorized by the
Company�r customized bili payment assistance pians,which may be evadable from time to
time,each Agency shall follow the established protocols for the quallficatlorl of and disbursement
to ellgibte participants in accordance with the guidelines promulgated by OHCS and the Low-
Income Energy Assistance Act of igel and subsequent amendments,as outlined in the OHCS
Omnibus Contract. The amount of assistance from LIEAP and OLGA for eligible porildpants
shall be based on the LIEAPIOF_A Poverly Guidelines and Payment Mallin from the OHCS
Operations Manual for these programs.Except when;different allocations may be allowed under
any special program that may be offered during a program year,any voucher authorizations
received by the Company that exceed these guidelines will be appropriately adjusted.
(continue to Street 310-2)
Issued September 29,2008 Effective with service an
NWN Advice No.OPUC 08-8 and after November 1,2008
las--ad 6y:NORTMEOrNATUML GAS COMPA Y
d e,NW Natwsl
22O M W.Seca dAvemo
PaBand OMM 97209.3991
r
NORTHWEST NATURAL GAS COMRANY
P_U.C.Or.24 Second Revision of Sheet 310-2
Cancels First Revision of Sheet 310-2
SCHEDULE 310
OREGON LOW-INCOME GAS ASSISTANCE(OLGA)
(continued .
2MC1AL CONDITIONS fcontinued):
5. The Comparhy will determine the allocation of OLGA funds to participating agencies at the
beginning of each program year based on the same aftWon used to allocate funds dulfng
the previous program year. Except that,in the Company's sole discretion,funds may be re-
allocated to other Agencies at any time during the program year whenever the Comparry
determines that such a re-allocation is the most effective and elliclent use of the available
.funds.
S. Each Agency will be reimbursed from the OLGA Account for certain administrative coats and
direct program costs incurred by them in the admNristration and delivery of the OLGA
program to NW Natural customers. At the beginning of each program year,the Company
udll negotiate with each palating Agency to determine the specific reimbursements that
will be allowed in that program year Agency reimbursements Mall be determined by the
following guidelines: Up to 5%for Administrative Costs;and up to 15%for Mod Program
Costs. Any Agency requesting air amount gre w than that provided for In these guidelines
ydll be requUed first to support such request to the comparry'e satisfadflum in no event aA-6
the combination of Administration and Dinrd Program costs for any one Agency exceed 30
percent of thb total Ol.GA funds actually disbursed by such Agency.
T Tire company will re&nburse each Agency for their administhalive and direct program costs on
the 2e business day of the month following the nxx th for whidireimbursement is requested.
Reimbursement will-be based on the amount of OLGA funds actually disbursed by the
agency in that month.as determined by the electronic voudw lists submitted by the Agency.
The Company must receive all reports by,the a business day of each month.
8. Any amounts not disbursed In the program year will carry over to the next program year.
S. 'thea OLGA program yearwill extend from October 1 through September 30. The Company
WIN provide an annual summary evaluallon report on the progress of the OLGA program for
review by the Commission by December 31 following the end of each program year
G_RAL TERMS,
'this Schedule is governed by the terms of this Rate Schedule,the General Rules and Regulations
contained in this Tariff and,by all rules and regulations prescribed by regulatory auNwrilles.as
amended from time to time.
Issued September 29,2008 Effective with service on
N1NN Advice No.OPUC 08-8 and after November 1,2008
UxMd W. NORTMO G+gJrrr'ANY
d b s.NW fimuM
ZYO N W.SewWAvenue
PoMand,O"oo 972ag-Mol
NORTHWEST NATURAL GAS COMPANY
P.U.-C.Or.24 Original Sheet 400-1
SCHEDULE 400
SMART ENERGY PROGRAM(Pilot)
PURPOSE:
To set forth the terms and conditions for billing,payment and disbursement or funds collected under
the Smart Energy Program(Program).
AVAILABLE:
This Program is available to the Residential and Commercial Customer Classes. Customers may
enroll in the Program at any lime. The rales for participation in this Program will be reflected on the
Customer's next regular moribly bill following the date of enrollmenL
s
PROGRAM TERM:
The Smart Energy Program wit operate qs a*&-year pilot from its irdtial effective date. Prior to the
end Of the pilot period,the Company will analyze Its benefits and determine If the program should be
continued as is,modified or discontinued. The Commission or the Company and The Climate Trust
can cat for a review of the program at anytime.
PROGRAM DESC!MEDON:
Smart Energy is a voluntary program thatenab bs residential and coMmerdel customers to offset
greenhouse gas embolons assodated with their natural gas use by purchasing high quality projed-
based emission reductions from offset projects developed by The Climate Trust. Priority will be given
to projects that help bring biogas to the region.
CANCELLATION OF PROMM PARTICIPATWIt
Customers may terminate participation in the Program at any time by notifying NW Natural In writing,
by telephone or by Internet The termination will be reflected with the Customer's neat regular
monthly bill foMwing the date of termination.
MON HLY RATES:
Smart Energy charges are in addition to all other charges due for gas service to the Customer,and
I shall be subject to tate charges as set forth in Schedule C of this Tariff.
Residential Customer Class Options.
Residential customers may choose one of two rate options: (1)Fixed Rate,or(2)Volumetric Rate to
j offset their greenhouse gas emissions.
Fixed Rate: ;8.00 per bill
Volumetric Rate: $0.10488 par therm
The Fixed Rate option is based on the cost,as of June 29,20117,of offsetting emissions associated
with natural gas from an average residential home that uses 888 therms per year. Customers that
select this option will never pay more than the stated Fixed Rate per bill. The total offsets purchased
from The Ctanate Trust may vary based on the cost of those offsets.
(continua to Sheet 400-2)
Issued June 29,2007 Effective with service on
NWN Advice No.OPUC 074 and after September 1,2007
isawed y=NOWAIMST HATLAIM GAS COMPANY
dA.s.NWftrerar
2W AW.Seaw dArenuo
PbAfN4 omm 97209-.3991
NORTHWEST NATURAL GAS COMPANY
P.U_C.Or,24 Original Sheet 400-2
k SCHEDULE 400
SMART ENERGY PROGRAM(Pilot)
(continued)
Residential Customer Class Options.(contfhuedj
The Volumetric Rate provides the option to offset emissions associated wish natural gas usage on the
basis of the customer's actual monthly usage. Customers that select this option will tend to pay more
during the winter healing months. The volumebt Rate is based an the cost of offsets as of June 29,
2007. The total offsets purchased from The Climate Trust may vary based on the cost of time
offsels.
Commercial Customer Class Option_
Commercial customers may choose a Fired Rate of their choice(sot less than$10 per bili). The
Fond Rate can be in any amount of Customer's choosing;but cannot be less than$10per monUrty
trill.
At the time of enrobnent,Customers will be given an estimate of the resulting Monthly Percentage of
Offset being purchased for the Fired Rate selected. The monthly Percentage of Offset amount will
be calctdated basad on the Customer's past 12 months of usage at the litre of enrollment and the
cod of offsets as of June 29,2007. The total oftsts purchased from The Climate Trust may vary
based on the cost of those offsets,
FUNDS COLLECTION AND AGENCY�()aOffi §;
Each month.the company will bill and collect Smart Energy funds In accordance VAhh this Schedule
400. I3y the 2dh of the month following the ging month.fie amount collected,not of an allowance
for Mallectibles,will be deposited into a rnarlcet4msed interest bearing bank account dedicated to
the Smart Energy Program(Smart Energy Accounl). The reserve for uncollectibles shall be in an
amount equal to NW Naturars average percentage of residential net write-offs.
ROt3RAM AD IffMMN COSTS.
The Company will be reimbursed from tate Smart Energy Account each month for aclum program
administration costs incurred.
REMUS:
Annual Report The Company will file a report wllh the Commission within sixty(60)days following
the end of each program year.The report wR include participation detafts,an analysis of funds
Collected and expenditures related to lire product and a review of offset expenditures by the Climate
Trustort behalf of participants.
Third-Year Report in addition to the Annual Rsport,at the end of the third full program year,the
Company vAll file a more detailed report that includes a program-to-date evaluation as well as a
discussion of any stals,fedenal.regulatory or other changes that have or will ailed the Program.
GENERAL TERMS:
This scherinte is governed by the terms of this Schedule,the General Rules and Regulations
contained In this Tariff end by all rules and regulations prescribed by regulatory authorities,as
amended from time to time.
Issued June 29,2007 Effective with service on
NWN Advice No.OPUC,07-4 and after September 1,2007
byr. NoRrN&wsrNn GA9
db L NWNnfund
MALW.Se=dAvemw
Fbdrend,OnMw 97209-Ml
r
EXHIBIT B
ACCEPTANCE
NW NATURAL GAS COMPANY
Ann. Risk,Environment and Land Dept_
220 NW 2a°Avenue
Portland,OR 97209
This is to advise the City of Hillsboro, Oregon that Northwest Natural Gas Company (the
"Grantee')hereby accepts the terns and provisions of Ordinance No. .passed by the
Hillsboro City Council on ,2010(the"Franchise')granting a Fiancliise for ten(10)
yearn to Northwest Natural Gas Company. The Grantee agrees to abide by each and every term
of the Franchise.
flVamej .
BY
T1TLE
DATE
This Acceptanee was received by the City of Hillsboro an ,2910.
City Recorder
Page22 of 22
YT Beei Elsner
& Hammond LLP
"Re 04C �
October 6,2010
SENT VIA EMAIL AND US MAIL
Davis Wright Tremaine U2
1919 Pennsylvania Avenue NW
Suite 800
Washington,DC 20006-3402
Dear W.
As you know, this office represents the City,.of• (the "Cit} ') with respect to the above-
referenced matter. I received your letter to ,_ City Attomey, dated Septemmber 23,
2010, in which you state that"' is not
obligated to comply with Chapter 12.36 of the', 'Municipal Code. The City does not agree
with the position stated in your letter or that of:' dated August 9,2010,which is cited
in your letter. I hope that the following response to your letter will cause: to reevalu ate its
position.
first asserts that Section 622 of the Communications Act"prohibits the City from charging
a franchise fee in excess of 5%of gross revenue derived from the provision of cable service over
the cable system." While this may be an ac cumte statement,it does not apply to flys situation.
The City is not attempting to charge a fee for the provision of cobte service, nor is the City
asserting that the franchise agreement is the source of t obligation to pay a franchise fee
for the provision of telecommunications service. Further,the franchise fee required by Chapter
12.36 is not a.fee imposed an' :solely because of its stabus as a cable aperat^r. R is a fee-
imposed
eeunposed on all telecommunications service providers, and thus it is not a "franchise fee" as
defined in Section 622. As I am sure you are wail aware, the recent Oregon Circuit Court case
cited in your letter reaches the same conclusion_' See City of Eugene-sr_ Conrenst of Oregon Il,
.LEC,slip op.at 16.
1 The cases cited on page 2 of your letter—al]of which concern the inlerpretation of Section 622)with respect to
cable modem service--are inapposite. Those cases appear to involve cities attempting to use the cable francbise to
collect#bee fromncabk modem services. Hera,ft City is not using its cable franchise with` ! nor any other
cable zegulat ion.,as a basis to require payment for use of the rights of way to provide Voll?service.
-"T"+TY
E 503.226.7191 1750 SW Harbor Way Sidle 390 J I L 1 J-
f 503.226.2348 Portland OR 97201-5106
e Infamov-law.com I www.gov.lawcam
October 6,2010
Page 2
also asserts that the FCC has not determined that Va>P service is a telecommunications
service under federal law but rather has `classified Vo1P as something else." It is my
understanding that the FCC has not classified the type of VoIP service provides in any
manner, though it has ordered interconnected Vo1P providers to comply with many of the
regulations imposed upon providers of telecommunications services. See In the Matter of IP-
Enabled Services,24 FCC Rcd. 6039,per.5(May 13,2009)(listing the consumer protection and
public safety requirements applicable to interconnected Vo1P providers).
The FCC's failure to classify VoIP services has no bearing on the City's authority to require a
company to pay a franchise fee for use of the City's rights of way. The assertion that "because
the FCC has not classified VOIP service as a telecommunications service, it has affirmatively
preempted states and localities from attempting to regulate VoIP service..."is inconsistent with
federal law. With respect to use of local rights of way by VoIP providers—the only"regulation"
at issues here---there is simply rio basis for the assertion that the City is preempted. .has not
cited any applicable law that preempts local authority to manage rights of way or, to look at it
another way, requires cities to permit free and unconditional use of the streets by providers of
"unclassified"comm rsications services.'- .
Contrary to position,federal law recognizes local authority over the rights of way. For
example, the Internet Tax Freedom Act C T Wj expressly excludes VoIP services from the
preemption of taxes on intetnet access. 47 U.S.C. § 151,note, § 1105(5)(D). This exemption
would be unnecessary if,as contends,there were some other preemption of local authority.
Rather, Congress clearly intended through this exception to the ITFA to preserve local authority
to require payment for use of the rights of way to provide VoIp.3 Similarly, Section 253 of the
Telecommunications Act of 1996 states that "(n]othing in this section affects the authority of...
local government to manage the public rights-of-way or to require fair and reasonable
compensation from telecommunications providers..." 47 U.S.C. §253(c). Rather than granting
local authority, Section 253 preserves existing local authority by recognizing that it exists and is
not affected by the prohibitions in Section 253. ' :unsupported assertion that the FCC can
"affirmatively preempt" local authority simply by failing to classify Vo]P as a
2 letter cites In the Maiter of Nonage Holdings Corp.,19 FCC ltcd 22404,to support the assertion that
the FCC's lack of classification of VoIP is an affirmative preemption. This Order does not stand for that
proposition. Rather,it expressly states the opposite: "We express no opinion here an the applicability to Vo-nap of
Minnesota's general laws governing entities conducting business within the state,such as laws concerning taxation,
fraud,general commercial dealings,and marketing,advertising,and other business practices:' Id at 11 l (emphasis
added). Further, the Vonage Order is limited to state utility commission authority over nomadic VoIP services. It
dons not address local right of way management authority with respect to interconnected VoIP services.
3 The Court in the recent Otty ofEugeae case also makes clear that the ITFA does not preempt local fees or tFnxcs on
revenue from interact access services where such tax or fee is imposed for the privilege of using city rights of way.
77TYY
171.,1 A X
October 6,2010
Page 3
telecommunications service or information service is completely inconsistent with current
federal law.
Finally, you cite the recent Oregon Circuit Court opinion in City of Lilgene % Cour=t of
Oregon II, LLC for the proposition that the City cannot enact its own definition of
"telecommunications services." As with much of your letter,this case deals with the treatment
of cable modem service, not VOIP service, and specifically whether cable modem service is a
"transmission for hire"—a phrase not used in the City's existing Code. The City doubts whether
the analysis in this case would apply to VoIP service.
Further,to the extent reads the opinion to state that the City is preempted from drafting its
own definition of telecommunications services, such a bolding would be entirely inconsistent
with previous decisions by Oregon counts on the scope of cities' home rule authority as well as
interpretations of the language at issue in that case. Oregon courts have upheld the City of
Eugene's definition of telecommunications services despite its differences with the federal
dfffinition. See TCI Cablevision of 01-egolr, Inc. V. City of Eugene, 177 Or.App. 433, 38 P.3d
269 (2001), 1ei: denied, 334 Or..492 (2002); AT&T Communications v. City of Etegene, 177
Or-App. 379, 35 P.3d 1029 (2001), rev. denied, 334 Or. 492 (2002). Other courts have also
specifically held that local definitions of telecommunications may Iawfully include VoIP
services. See, e.g., Prange lite. a Cfty of Seattle, 152 Wash.App. 12 (Wa. Ct. App.
2009); Alayor and Cfiy Council of Baltimore a Yariage America Inc., 544 F.Siipp 2d 458 (D.
Md.2008).
The City firmly believes that -and/or an affiliate of" is subject to Chapter 12.36 of the
Codex based on the provision of Voll? services- Itis our sincere hope that - Will agree to
comply with the applicable provisions of that Chapter without further delay. If `j is not
Willing to do so—although we believe it to be unnecessary--6a City will continue to consider
amendments to this Chapterto address the issues raised by :, including applicability to
providers of Vo1P and internet access services, and will consider any legal action necessary to
obtain compliance with the Code.
Sincetel
Alan .Werner
In fact, ;has registered with the City ofEagene to provide its VDIP service. See bupJ/tivww.eugene-
argov/porta]/serverpt/gatewayffrAR(3S 0 2 13635 fl 0 18/Pmvidms.ittnL
`1t7 T TV
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