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Joint Review - PGE Franchise Fees INTERGOVERNMENTAL AGREEMENT This Intergovernmental Agreement("Agreement") is entered into on , 2001 ("Effective Date") between all of the municipalities listed in Exhibit A. Each of the municipalities listed in Exhibit A may be referred to individually herein as a "Party" and collectively as the "Parties".. Recitals A. The Parties desire to hire one or more consultants ("Consultant") to review and analyze revenues received from PGE for the rights and privileges to operate in the public right-of-way. B. There are savings available to the Parties by aggregating the review and analysis, retaining a Consultant to assist them in such review and jointly provide funds to pay such Consultant. C. This Agreement is made under the provisions of Oregon Revised Statutes (ORS) 190.003 to 190.030. ORS 190.010 authorizes municipalities.to enter into intergovernmental agreements for the performance Of any or all functions and activities that a Party to this agreement has the authority to perform. Agreement The Parties agree to the following: 1. The Parties desire to retain a Consultant to Work with the Parties in reviewing and analyzing franchise fees paid by Portland General Electric ("PGE")to the Parties, including but not limited to an evaluation of gross revenue calculations, and developing procedures to be used by member Parties in comparing customer database lists received from PGE with internal databases ("Consultant Services"). In performing the services, the Consultant shall analyze franchise fees paid to the Parties by PGE, pursuant to the Parties' respective electricity franchises or licenses, for calendar year 1999. In addition, the Consultant shall obtain PGE's customer lists for calendar year 2000 to assist the Parties in the database comparison portion of the Consultant Services. 2. The Consultant shall be retained through a formal Request for Proposal ("RFP") process. The Parties hereby delegate authority to the City of Hillsboro to prepare the RFP', make, an award rand enter into a' personal services contract with: the Consultant on behalf of all of the Parties. The Parties acknowledge and agree that the City of Hillsboro's standard personal services contract, attached hereto as Exhibit D, may be used for the procurement of the Consultant Services. Page 1 of 6 C IWINDOWSWEMMMI-lbDIr1LFRAG IGA Final Version.doc 04/19/01 1:57 PM 3. Each Party shall share in the cost of paying the Consultant to perform the work as outlined in the RFP. 4. The amount in Exhibit.-B labeled Estimated ..Budget for the Consultant Services may only be modified through separate written agreement signed by all Parties to this Agreement. 5. The percentage in Exhibit B labeled as Percentage of Contract Considered as Fixed may only be modified through separate written agreement signed by all Parties to this Agreement. 6. Each Party shall be responsible for paying an equal share of the Fixed Costs relating to the Consultant Services, as shown in Exhibit B. The Fixed Cost allocation is non-refundable in the event a Party should withdraw from this Agreement. 7. The Variable Costs, as shown in Exhibit C and defined as the Total Cost of the Consultant Services less the Fixed Costs, shall be apportioned on a pro- rata basis to each Party to this Agreement. The pro-rata basis shall be determined by comparing the gross PGE franchise or license revenues for each Party to the total gross PGE franchise or license revenues received by all Parties to this Agreement. Gross revenues shall be,the 1999 gross revenues as defined by PGE in the. letter accompanying the 1999 franchise fees received by each Party in calendar year 1999. 8. Each Party shall remit its share of the Fixed Cost within thirty (30) days after executing this Agreement. Upon finalization of the budget for the Consultant Services, each Party shall remit any remaining unpaid share of the total Fixed Cost estimate. The City of Hillsboro shall prepare and submit invoices to each Party immediately after the Agreement is executed and the budget estimate is finalized. 9. The City of Hillsboro shall prepare and submit Variable Cost invoices to each Party as soon as reasonably possible. The City of Hillsboro will include with each invoice all back-up information reasonably related to the invoice. Each Party shall pay its pro-rata share of the Variable Costs within thirty (30) days of the date of the invoice. 10. The Parties acknowledge and agree that in the event a Party withdraws from this Agreement, Exhibit C--Allocation of Variable Cost shall automatically be updated and revised to reapportion the Variable Cost among the remaining Parties. 11. The Parties further delegate .to the City of Tigard ("Lead Agency") and the City of.Hillsboro ("Managing Agency") the authority to make administrative Page 2 of 6 CAWINDOWSWEMPUACUbDIALFRAG IGA Final Version.doc 04/19/01 1:57 PM decisions on behalf of the Parties. The Lead Agency and the Managing Agency shall make reasonable efforts to keep the Parties. informed of any decisions made on behalf of the.Parties. 12. Any Party may terminate their participation in this Agreement so long as the. terminating Party meet all of the.following requirements ,(a) the terminating Party must provide seven (7) days prior written notice to both the Managing Agency and the Lead Agency; (b) such notice must be received' by both the Managing Agency and the Lead Agency prior.to the inception of any Variable Costs; and (c) the terminating :Party must submit full payment to the Managing Agency of any Fixed Costs owed to date by the terminating Party. 13. This Agreement shall terminate upon the earlier of full payment by all of the Parties of all sums due under this Agreement, or two (2) years from the Effective Date. This Agreement may be terminated earlier upon mutual consent of the majority of the Parties. 15. The parties shall comply with all applicable laws and regulations regarding the handling and expenditure of public funds. This Agreement shall be construed and enforced in accordance with the laws.of'the State of Oregon. 16.Time is of the essence in the performance of this Agreement. 17.This Agreement is for the benefit of the Parties only. Each Party agrees to indemnify and hold harmless each other Party and its officers, officials, employees, agents and volunteers, from and against all claims, demands and causes of actions and suits of any kind or nature for personal injury, death or damage to property on account of or rising out of services performed, the omission of services or in. any way resulting from the negligent or.wrongful acts or omissions of the indemnifying Party and its officers, officials, employees, agents and volunteers. In addition, each Party shall be solely responsible for any contract claims, delay damages or similar items arising from or caused by, the action or inaction of that Party under this Agreement. 18.No waiver, consent, modification or change of terms of this Agreement shall be binding unless in writing and signed by all Parties. 19.Any Party may institute legal action to enforce any covenant or agreement herein, or,to enjoin any threatened or attempted violation of this Agreement. All legal actions shall be initiated in Washington County Circuit Court. The Parties, by signature below of their authorized representatives, consent to the in personam jurisdiction of that court. 20.Performance by any Party shall not be in default where delays or default is due to war, insurrection, strikes, walkouts, riots, floods, drought, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated Page 3 of 6 C:IWINDOWSITEMPIMXUbDlALFRAG IGA Final Version.doc 04/19/01 1:57 PM by governmental entities other than the Parties, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulation, litigation or similar bases for excused performance that are not within the reasonable control of the Party to be excused. 21.If any one or more of the provisions contained 'in this Agreement is invalid, illegal or unenforceable in any respect, the validity, legality-and enforceability of the remaining provisions of this Agreement will not be affected or,impaired in any way. 22.This Agreement is the entire agreement of the Parties on its subject and supersedes any prior discussions or agreements regarding the same subject. 23.This Agreement may be executed in any number of counterparts by any one or more of the Parties hereto, and all of these counterparts will be one Agreement. To facilitate execution of this Agreement, the Parties may execute by facsimile transmission the counterparts of the signature pages. Page 4 of 6 C:\WINDOWS\TEMP\MXUbDir\LFRAG IGA Final Version.doc 04/19/01 1:57 PM Signature Page for Intergovernmental Agreement for Consultant Services: Review and Analysis of Portland General Electric Franchise and License Fees Name: Brian Moore, Tigard Council Name President By: By: Date: April 24, 2001 Date: Name: Name By: By: Date: Date: Name: Name By: By: Date: Date: Name: Name By: By: Date: Date: Name: Name By: By: Date: Date: Name: Name By: By: Date: Date: Name: Name By: By: Date: Date: Page 5 of,6 Q%WINDOWS%TEMP%MXUbDir1LFRAG IGA Final Version.doc 04/19101 1:57 PM Signature Page for Intergovernmental Agreement for Consultant Services: Review and Analysis of.Portland General Electric Franchise and License Fees Name: Name By: By: Date: Date: Name: Name By: By: Date: Date: Name: Name By: By: Date: Date: Page 6 of 6 C:\WINDOWS\TEMP\MXLibDir\LFRAG IGA Final Version.doc 04/19/01 1:57 PM CITY OF TIGARD, OREGON RESOLUTION NO. O 1-.1.0 A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT TO CONDUCT A JOINT REVIEW OF PGE FRANCHISE FEES PAID AND TO COLLECT BASE DATA NECESSARY TO A DETERMINATION OF THE FUTURE BASIS OF CALCULATION OF PGE. FRANCHISE FEES. WHEREAS, the City of Tigard has granted a franchise to Portland General Electric Corporation (PGE) for use of the public rights-of-way, and WHEREAS, under the terms of the franchise,PGE is required to pay the City an annual fee equal to 3.5% of its gross revenues generated within the City of Tigard, and WHEREAS, PGE's payment under this franchise agreement totaled over$930,000 in FY 2000-01, and WHEREAS, the City has never checked PGE's records to make sure that it is properly accounting for and reporting gross revenues generated within the City of Tigard,and WHEREAS, it is appropriate to periodically check the calculations leading to this source of revenue,and WHEREAS, the 1999 Oregon Legislature passed SB 1149-to deregulate the electrical industry effective October 1,2001, and WHEREAS, under SB 1149 cities will have to determine whether to. remain with the current basis of charging franchise fees to electrical utilities or to change to a volumetric approach, and WHEREAS, The City of Tigard needs to gather base data about franchise fees paid and classes of .customers within the City of Tigard prior to making the SB 1149 determination,and WHEREAS, several other cities within PGE's service area also wish to review franchise.fees paid and to collect base data prior to making an SB 1149 determination,and WHEREAS, it is cost effective for several cities to conduct a joint review of PGE' franchise fees paid. NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that: SECTION 1: The City of Tigard shall enter into an intergovernmental agreement with other cities in the PGE service area to conduct a joint review of PGE gross revenue calculations and customer.lists and to gather base data necessary to the determination of which basis the Citywishes to use for calculation of franchise fees in the future. RESOLUTION NO. 01-AP Page 1 SECTION 2: The.Mayor. athorized to sign an intergovernmenta' reement on behalf of.the City of Tigard in substantially the form included with this resolution as Attachment A. PASSED: This day 4 2001. Air-City f Tigard Council President ATTEST: City Recorder- City of Tigard iAcirywidelresolut.dot RESOLUTION NO.01 J LP Page 2