Franchise Agreement_Constellation New Energy IP
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CI'T'Y OF TIGARD, OREGON
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT ("Agreement")is made and entered into by and between the City of
Tigard, an Oregon municipal corporation, ("City") and Constellation New Energy, Inc. a Delaware
corporation, ("Franchisee") qualified to do business in Oregon:
RECITALS
1. Pursuant to Federal law,State statutes,and City Charter and local ordinances,the City is authorized
to grant non-exclusive franchises to occupy the rights-of-way as defined in Chapter 15.06 of the Tigard
Municipal Code ("TMC"),in order to place and operate a Utility System within the municipal boundaries of
the City of Tigard ("Franchise Area"); and
2. Franchisee has requested a franchise to place and operate a telecommunications services (the"Utility
System"),as defined in TMC 15.06.020,within the Franchise Area;and
3. The City has found that Franchisee meets all lawful requirements to obtain a franchise,and therefore
approves the application.
NOW,THEREFORE, in consideration of the mutual promises contained herein, the parties agree
as Follows:
AGREEMENT
1. GRANT OF AUTHORITY - The City grants Franchisee the non-exclusive right to occupy City
rights-of-way to place and operate a Utility*System for a term of ten (10) years from and after the
Effective Date of this Agreement(the "Term"), except as set forth below.
2. AU'I'FiQR.ITY OT T� �'.i.1)S,IV; - This Agreement shall be nonexclusive, and is subject to all
prior rights,interests, agreements,permits, easements or licenses granted by the City to any person
to use the rights-of-way for any purpose whatsoever,including the right of the City to use same for
any purpose they deem fit, including the same or similar purposes allowed Franchisee hereunder.
The City may, at any time, grant to other persons authorization to use the rights-of-way for any
purpose. This Agreement does not confer on Franchisee any right, title or interest in any right-of-
way.
3. LIFEMENALIC -During the term of this Agreement,Franchisee agrees to comply with all lawful
terms and conditions of TMC Chapter 15.06,including but not limited to the permit and permit fee
requirements set forth in TMC 15,06.200 and TNTC Chapter 15.04, and the right-of-way ,:sage fee
set forth in TMC 15.06.100,the provisions of which are incorporated herein as though fully set forth.
4. CHANGE OF LAW:A11-NDMENT Off'F� ANC:HIS.E AGEEEMEUT
a. It is the intent of the parties that this Agreement may be amended from time to time to
conform to any changes in the controlling federal or state law or other changes material to
this.agmen=lt Each_paxty agrees to bargain in good f;i.tlx with the other_Darcy.concerning
such proposed amendments. This Agreement may be amended or terminated by the mutual
consent of the parties and their successors-in-interest.
Utility Frand-vse Agreement Page 1 of 3
City of Tigard,Oregon
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To the extent any lawful City rule, ordinance or regulation,including any amendment to the
provisions of TMC Chapter 15.06,including any change to TMC 15.06.100,is adopted on a
jurisdiction-wide basis and is generally imposed on similarly situated persons or entities, the
rule, ordinance or regulation shall apply without need for amendment of this Agreement.
The City shall provide Franchisee notice of any such change in local law.
5. TA)Ms _ Nothing contained in this Agreement shall be construed to exempt Franchisee froth any
license, occupation, franchise or excise tax or assessment, which is or may be hereafter lawfuny
imposed on Franchisee.
6. INSURANCE - By the Effective Date of this Agreement, Franchisee shall provide a certificate of
insurance that names the City as an additional insured and .is otherwise consistent -,Nid-i the
requirements of TMC 15.06.180.
7, SEVEIZIX - If any section, subsection, sentence, paragraph, term, or provision hereof is
determined to be invalid, or unconstitutional by any court of competent jurisdiction, such
determination shall have no effect on the validity of any other section, subsection, sentence,
paragraph, term or provision hereof,all of which will remain in full force and effect for the term of
the Agreement. If any material portion of the Agreement becomes invalid or unconstitutional so
that the intent of the Agreement is frustrated, the parties agree to negotiate replacement provisions
to fulfill the intent of the Agreement consistent with applicable law.
a. This Agreement shall be subject to termination as set forth in TMC 15.06.310,provided that
the City complies with the requirements set forth in TMC 15.06.32.0 and 15.06.330.
b. All remedies under this Agreement, including revocation of the Agreement, are cumulative
and not exclusive, and the recovery or enforcement by one available remedy is not a bar to
recovery or enforcement by any other such remedy. The City reserves the right to enforce
the penalty provisions of any ordinance or resolution and to avail itself of any and all
remedies available at law or in equity. Failure to enforce shall not be construed as a waiver
of a breach of any term,condition or obligation imposed upon Franchisee by or pursuant to
this Agreement. A specific waiver of a particular breach of any term,condition or obligation
imposed upon Franchisee by or pursuant to this Agreement shall not be a waiver of any
other,subsequent or future breach of the same or of any other term,condition or obligation,
or a waiver of the term,condition or obligation itself.
C. The right.is hereby reserved to the City to adopt, in addition to the reservations contained
herein and existing applicable ordinances,such additional regulations as it shall find necessary
for the regulation of the right-of-way, provided that such regulations, by ordinance or
otherwise, shall be reasonable and not in conflict with the rights herein granted. Franchisee
shall, at all times during the life of this Agreement, be subject to all lawful exercise of the
police power by the City, and to such reasonable regulations as the City may hereafter by
resolution or ordinance provide. The City hereby reserves the right to exercise,with regard
to this.Agreement, all authority now or hereafter granted to the City by state statute or City
charter, except where such authority may be modified or superseded by the Constitution of
the State of Oregon or the Constitution of the United States.
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City of Tigard,Oregon
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9. ASST 1i All rights and privileges granted and duties imposed by this Agreement upon
Franchisee shall extend to and be binding upon franchisee's successors, legal representatives and
assigns. This Agreement.nay not be transferred or assigned to another person unless such person
is authorized under all applicable laws to own or operate the Utility System and the transfer or
assignment is approved by all agencies or organizations required or authorized under federal or state
laws to approve such transfer or assignment. Franchisee shall provide the City with written notice
of any trans fer or assignment of this Agreement within twenty(20) days of requesting approval from
any state or federal agency.
10. TO4 -Unless specifically provided otherwise herein,all notices shall be mailed,postage prepaid,
to the following addresses or to such other addresses as Franchisee or the City may designate in
writing:
If to Franchisee: ATTN: Michael Kinasz
Constellation Neter Energy,Inc.
10 S Dearborn Street, 51"Floor
Chicago,11,60603
312-394-4547
If to City: City of Tigard.
Attention; Marty Wine, City Manager
13125 SW Fall Blvd.
Tigard,Oregon 91223
11. , lr- I -The.law of the State of Oregon governs the validity of this Agreement, and
its interpretation, performance and enforcement. Any action or suit to enforce or construe any
provision of this Agreement by any party shall be brought in the Circuit Court of the State of Oregon
for Washington County, or. the United States District Court for the District of Oregon.
12. EFF i C E, DATE-he effective date of this Agreement ("Effective Date") shall be the date it
is fully executed by the City and Franchisee.
CI'T'Y OF TIGARD FRANCHISEE
By: By.
iMZyor
Date: ......._ 7 Title:
Date: _ 4 ms
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City 01'rigarrl,Oregon