Ordinance No. 93-07 r s z
CITY OF TIGARD,OREGON
ORDINANCE NO.93-Q2
AN ORDINANCE RENEWING THE FRANCHISE OF PORTLAND GENERAL ELECTRIC COMPANY,AN OREGON
CORPORATION,ITS SUCCESSORS AND ASSIGNS,FOR A PERIOD OF TWENTY YEARS FROM AND AFTER
THE EFFECTIVE DATE OF THIS ORDINANCE, GRANTING THE RIGHT AND PRIVILEGE TO ERECT,
CONSTRUCT, MAINTAIN AND OPERATE WITHIN THE CORPORATE LIMITS OF THE CITY OF TIGARD,
OREGON,AS SUCH LIMITS NOW EXIST OR MAY BE HEREAFTER CONSTITUTED,AN ELECTRIC LIGHT AND
POWER SYSTEM WITH THE POLES, WIRES, FIXTURES, UNDERGROUND CIRCUITS AND EQUIPMENT
NECESSARY OR CONVENIENT TO SUPPLY SAID CITY AND THE INHABITANTS THEREOF AND OTHERS
WITH ELECTRIC ENERGY FOR LIGHT,POWER AND OTHER PURPOSES,UPON,OVER,ALONG,UNDER AND
ACROSS THE STREETS. ALLEYS, ROADS AND OTHER PUBLIC WAYS AND PLACES WITHIN THE
CORPORATE LIMITS OF SAID CITY,FIXING THE TERMS AND CONDITIONS THEREOF,AND PROVIDING FOR
THE MANNER OF DETERMINATION OF THE EFFECTIVE DATE THEREOF, AND REPEALING ALL
ORDINANCES AND PARTS OF ORDINANCES IN CONFLICT HEREWITH,AND DECLARING AN EMERGENCY.
j
WHEREAS, the twenty year franchise for electric, light and power system fWAities and services provided by
Portland General Electric Company, described in the title of this ordinance is now before the City Council for
renewal. The Council believes that the franchise should be renewed under the terns and conditions set forth in
Exhibit"A",attached hereto,and by this reference made a part hereof.
THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1. The terns and conditions of the attached franchise agreement,Exhibit"A",are hereby approved
and adopted as part of this ordinance as tl specifically set forth.
SECTION 2. The Mayor is authorized and directed to sign the attached'agreement on behalf of the Cwncii.
SECTION 3. Because of the need to have stable electrical energy and a stable revenue flow to the Cly from
franchise fees,an emergency Is declared and this ordinance shall take effect upon Its passage.
SECTION 4. The City Council determines that the fee imposed by this franchise is not a tax subject to the
property tax Umiations of Article Xi,Section 11 (b)of the Oregon Constitution.
SECTION S. This ordinance shall replace and repeat 09*prior frn-rw—*-Re with Portlant General Electric Company,
Ordinance No.72-55 adopted on October 9, 1972.
PASSED: By ananimouS vote of all Council members present after being read by number and
titleonly,thud day of jjWdgja 1993.
Clatherind Wheallft City Recorder
APPROVED: This y� day of 1 /
78CfilltG .41
Approved as to for ohn Schwartz, Council President
7Ae
City Attorney
Date
ORDINANCE No.93-�
Page 1
EXHIBIT"A"
C A FRANCHISE AGREEMENT BETWEEN THE CITY OF TIGARD AND PORTLAND GENERAL ELECTRIC
COMPANY,AN OREGON CORPORATION.
SECTION 1: That Portland General Electric Company,an Oregon corporation, hereinafter sometimes
referred to as the "Company," is hereby granted, subject to the terms and conditions
hereof,the franchise right and privilege to erect.construct,maintain and operate an electric
light and power system within the corporate limits of the City of Tigard,herein sometimes
referred to as the"City,"as the same now exist,or may be hereafter constituted,and the
franchise right and pchrilege to erect,construct,maintain and operate poles,wires,fixtures,
equipment,underground circuits and other properly necessary or convenient to supplying
the City and the Inhabitants thereof and other persons and territory with electric energy for
light,power and other purposes,upon,over,along, under and across the streets,alleys,
roads and other public ways and places within the corporate limits of the City as the same
now are or may be hereafter constituted.
it Is understood that this agreement can not grant approval for any company activity,herein
anticoated,which may be on,over or under any State or County road.
AN poles,wires,fixtures,equornent,underground circuits and other property owned or in
possession of the Company naw located within the corporate lima of the City shall be
deemed to be covered by the terms of this ordinance and to be located in accordance
therewith,and the location and placement thereof Is hereby approved.
SECTION 2: That all rights and privileges hereby granted shall be effective as of the date of signature
and shall terminate at the expiration of twenty years from said date, except that in the
event the Company shall fail,neglect or refuse for thirty(30)days after demand in writing
by the City to perform any or all of the obligations or requirements set forth in this
ordinance to be performed by the Company,then the rights and privileges herein granted
may be terminated and annulled by the City Council or other legislative body of the City,
and the Company shall forfeit all rights and privileges hereby granted. This franchise shall
be subject to any and ail State and f=ederal legislative enactments.
SECTION 3: The Company shall file with the City Engineer or designee maps and materials showing
all proposed underground construction work to inckide the installation of additional faatl'klas
or relocation or extension of existing facilities within any street,alley,road or other public
way or place. The City will review the submittals and notify the Company of any
requirements. For repair work or other work not considered underground constriction as
stated above,the Company shall ,if possible, notify the City of the location and general
description of the work before beginning work.
All work shah be dof*ire a react;nit safe manner taking into account City standard traffic
control procedures and in accordance with requirements of appiiedUe cdd—erem or state
laws or City Ordinances. in emergencies such filings shah occur within thirty(30)days of
completion of emergency construction work.
1
ORDINANCE No.93;QL
EXHIBIT"A"
Page 1 of 6
SECTION 4: That the Company, under the direction of the City or its properly constituted authorities,
may make all necessary excavations in any street,alley,road or other public way or place
for the purpose of erecting,constructing, repairing,maintaining,removing and relocating
poles and other supports for its wires, conductors, lights or street lights; and laying,
repairing and maintaining its underground conduits and pipes; and for placing,maintaining
and operating its wires and conductors. All poles of the Company shall be erected at the
outside edge of the sidewalk unless otherwise directed by the proper City authorities.
SECTION 5: That when any excavation shall be made pursuant to the provisions of this ordinance,the
Company shall restore the portion of the street,alley, road or public way or place to the
same condition to which it was prior to the excavation. All such work shall be done in strict
compliance with the rules,regulations,ordinances or orders which may be adopted from
time to time during the continuance of this franchise by the City Council,City Engineer,or
as may be otherwise provided by law. The City shall have the right to fix a reasonable
time within which such repairs and restoration shall be completed and upon failure by the
Company to make such repairs and restoration, the City may cause such repairs and
restoration to be made at the expense of the Company.
SECTION 6: That the City, by its properly constituted authorities, shall have the right to cause the
Company to move the iv�,tin of any Company structure in the public right-of-way
whenever the relocation thereof shall be for public necessity,and the expense thereof shall
be paid by the Company.
SECTION 7: That nothing in this ordinance shall be construed as in any way to prevent the City from
sewering,grading. paving, Flanking, repairing,widening, altering or doing any work that
may be desirable on any of the streets,alleys,roads or public ways or places; but all such
work shall be done, If possible,in such manner as not to obstruct, injure or prevent free
use and operation of the said electric light and power system of the Company. Upon
request by the City, the Company shall locate any underground conduit or equipment
belonging to the Company, as required for the preparation of constriction drawings.
SECTION 8: That whenever it shall be necessary in sewering,grading,removing obstructions,or making
Improvements for safety, or in making any other improvement in any street,alley, road or
public way or place, to relocate any pole,underground conduit or equipment belonging
to the Company or on which any light,wire or circuit of the Company shall be stretched
or fastened, the Company shall, upon written notice from the City, or its properly
constituted authorities,relocate such pole,underground conduit,equipment,light,wire or
circuit. In the instance of a construction or reconstruction project, Company shall have
thirty(30)days within which to comply. If Company fails,neglects or refuses to do so,the
City, by its properly constituted authorities,may relocate the same at the expense of the
Company. Prior to arty such relocation the City shall provide for suitable location for such
relocated facilities sufficient to maintain services. If City requests, when relocation is j
necessary,Comparry shall supply a feasibility report, including costs for undergrounding 1!
said facilities in an aftemate location.
SECTION 9: Whenever it becomes necessary to temporarily rearrange,remove,lower or raise the aerial
cables or wires or other apparatus of the grantee to permit the passage of any building,
machinery or other object,the said grantee will perform such rearrangement on seven(7)
days'written notice from the person or persons desiring to move said building,machinery
Cor other objects. Said notice shall bear the approval of such official as the City may
ORDINANCE No.93- !S7
EXHIBIT•A"
Page 2 of 6
desiap.:e,Shall detail the route of movement of the building,machinery,or other objects,
shall provide that the costs incurred by the grantee in making such rearrangements of its
aerial plant will be borne by the person or persons giving said notice and shag further
provide that the person or personas giving said notice will indemnify and save said grandee
harmless of and from any and all damages or claims of whatsoever kind or nature caused
directly or indirectly from such temporary arrangement of the aerial plana of the grantee,
and, If required by Grantee, shall be accompanied by a cash deposit or a good and
sufficient bond to pay any and all such costs as estimated by grantee.
SECTION 10: That the rights and privileges granted by this ordinance are granted upon the conditions
herein contained and also upon the following considerations and conditions to wit:
(a) That Portland General Electric Company shall, within sixty (60) days from the
passage of this ordinance, file with the Ci+y Ret arder of the City of Tigard its
written acceptance of this ordinance, subject to all the terms, obligations,
restrictions and provisions of this ordinance,and upon the expiration of the allotted
time for the acceptance of this ordinance,the same not having been accepted
unconditionally,then this ordinance shall become wholly void,inoperative and of
no effect.
(b) That in consideration of the rights and privileges herein granted, the Company
shall pay to the City a franchise fee for each full calendar year during the lila of
this franchise beginning with the year 1993 an anrwal fee of three and one-half(3-
1/2)percent of the gross revenue as defined herein for the immediately preceding
calendar year. However,in the event any City or rrwnidpal corporation served by
PGE shall charge PGE a franchise fee of more than 3-1/2 percent,and PGE does
not,or Is not permitted to itemize or bill any fee,or excess fee,to customers within
that City then City shall forthwith be informed and shall have the right to require
and shall receive,If it shall so elect,the same percentage fee as shall be charged
by such other City or municipal corporation on PGE's gross revenue within the City
as defined in the ordinance.
Gross raeeonua as used Int ells ordinance shall be deemed to Include any revenue
earned within the City from the sale of electric energy after adjustment for the net
write-off of uncollectible accounts computed on the average annual rate for the
entire Company and excluding sales of electric energy sold by the Company to
any public utility when the public utility purchasing such electric energy is not the
ultimate consumer. A public utility as defined herein is any individual,partnership,
cooperative, corporation or government agency buying electric energy and
distributing such electric energy to other customers or users.
(c) Within the limits prescribed by any applicable PUC rulings as now exist or as may
hereafter be modified,the fee provided for in this Section shall be considered as
an operating expense of PGE and shall not be itemized or billed separately to
consumers within the City.
(d) That in consideration of the agreement of the Company to make such payments
and except as otherwise provided herein,the City agrees that no license,tax or
charge on the business,occupation or franchise of the Company shall be Imposed
upon,eACiVIOY IIVIII VI re-qufred oil UM-COff"ny by the City during the term of this E
ordinance,but this provision shall not exempt the property? of the Company from i
lawful ad valorem taxes.
ORDINANCE No.93-07
EXHIBIT"A"
Page 3 of 6
(e) That on or before the first day of March,1993,and on or before said day of each
year thereafter during the tens of this franchise,the Company snail file with the
City Recorder a statement under oath showing the amount of grass revenue of the
Company within the City on the basis outlined In paragraph (b) hereof for the
Ccalendar year Immediately preceding the year In which the statement Is fled. The
annual franchise fee for the year In which the statement is filed shall be computed
on the gross revenue so reported. Such franc hire fee&W be pa,�ll*annually
on or before the first day of April beginning in the year 1993. Upon receipt of such
annual payment the City shall issue a receipt therefor, which shag be full
acquittance of the Company for the payment. City reserves the right to conduct,
or cause to be conducted, an audit of gross revenues as defined herein. N `
controversy arises as to the amount of gross revenue within the meaning of this
ordinance,the amount of such gross revenue as determined by the Public Utility
Commission of Oregon after examination of the Company's records shall be
deemed the correct amount. Any difference of payment due either the City or the
Company through error or otherwise shall be payable within fifteen(15)days of
discovery of such error. Should the Company fail or neglect to pay any of said
annual payments provided for in this Section for thirty(30)days after any annual
payment shall become due and payable and after thirty(30)days,written notice
from the City,the City,by its properly oonsiluted authority.may at Its option either
continue this franchise in force and/or proceed by suit or action to cored said
payment or declare a forfeiture of this franchise because of the failure to make
such payment but without watvin g the right to cord earned franchise payments.
(1) That the City reserves the right to cancel this franchise at any time upon one
year's written notice to the Company in the event that the City decides to engage
In public ownership of light and power facilities and the public distribution of
electric energy.
(g) That the Company shall permit the City to string wires on poles of the Company
for municipal fire, police and water departments, and for municipal telephone,
television,telegraph and traffic signal systems and to attach to the top of any pole
city fire alarm and police signals. provided that such wires and signals shall be
w We to ir1federe as lithe as possible with the wires of the Company and
to conform to the provisions of the National Electrical Safety Code; and further,
that the City shall indemnify and hold the Company harmless from loss or damage
resulting from damage to property or injury or death to city employees or the public
arising from or connected with the use of said poles by the City.
(h) That the Company shall riot during the tern of this franchise ser,assign,transfer
or convey this franchise without the consent of the City Council expressed by
ordinance first obtained,and that upon obtaining such consent all of the provisions
shall inure to and bind the successors and assigns ct the Company; and
whenever the Portland General Eleddc Company shall be mentioned in this
ordinance,it shall be understood to Include such successors or assigns in interest
of the Portland General Electric Company as shall have been so consented to by
the Common Council.
(1) PGE shall erect, maintain, and use poles,wires, cables,duds, appliances, and
apparatus in accordance with the National Electric Safety Code pertaining to the
v w y a a of tha shame;now or hereafter provided.
i
(� That the Company shall render the service hereby authorized to be supplied upon
equal terns without unjust discrimination or undue preference to any users within
the City.
ORDINANCE No.93-D!
EXHIBIT"A"
Page 4 of 6
• (k) The City shall retain the right,as permitted by Oregon Law,to charge a privilege
tax in addition to the franchise fee set forth herein in an amount not to exceed one
and one half percent(11/2%).based on the gross revenues of the Company.
C
(1) The City shall have the right to renegotiate the franchise fee payable by the
Company,If:
• At the end of each five-year interval hereof,there has been a substantial
change of circumstances affecting the reasonableness of said fee;or
• There are Judicial or Attorney General opinions,Public Utility Commission
rulings or statutory amendments which affect the City's collection of the
franchise fee,what portion of the fee Is paid directly by the local users,or
the amount or percentage of the franchise fee.
The City shall be responsible for providing written notice to Company stating its
desire to renegotiate and the justification for the request. The parties shall meet ,
within thirty(30)days of the notice with a goal of reaching agreement within sixty
(60)days of the initial meeting.
(m) If the State of Oregon or the PUC amends or adopts a state statute or
administrative rule that would affect a material terra,condition,right,or obligation
under this agreement, either party may reopen the Franchise at arty time with
regard to such material tern,condition,right or obligation in order to address the
change required or allowed by the new or amended state statute or administrative
rule.
SECTION 11: That the rates to be charged by the Company for electric energy shall be such as may be
fixed or approved by the Public Utility Commisslon of Oregon,or any other governmental
official,commission or body having jurisdiction.
SECT I%nv 12: 11T`ial llltl Cornparry hereby iigltlt►s and413Ve11a1I1i'i 6V nldelTlTi'y,Save iai'i'moa,and wfv.w
the City, its elected and appointed officials,officers,agents,employees, and volunteers
thereof against all damages,costs and expenses whatsoever to which it or they may be
subjected in consequence of negligence of the Company,or its agents or servants,in arty
manner arising from the rights and privileges hereby granted.
SECTION 13: That the franchise hereby granted shall not be exclusive and shall net be construed as any
limitation on the City to grant rights, privileges and authority to other persons or
corporations similar to or different from those herein set forth.
SECTION 14: That all rights, authority and grants herein contained or conferred are also conditioned
upon the understanding and agreement that these privileges in the streets,alleys, roads
and other public ways and places of the City are not to operate in arry way so as to be a1-u
enhancement of the Company s properties or values or to be an asset or item of ownership
in any appraisal thereof.
SECTION 15: It is expressly understood that certain streets, roads and public ways within the City are
under the jurisdiction of either the State of Oregon or Washington County. This ordinance
does not intend to convey any rights on,under or over facilities under such Jurisdictions.
Q ORDINANCE No.93-21
EXHIBIT'A"
Page 5 of 6
SECTION 16: it is necessary for the peace, health and safety of the people of the City that an
arrangement be made Immediately with the Company govemkg the continued two of
public property within the City; therefore,an emergency Is hereby declared to exist,and
this ordinance shall be In full force and effect upon its passage by the Council and
approval by the Mayor.
DATED this—&L_day of 1993.
i
By:
o n Schwartz, Council President
ATTEST: L&2��
Cathe Wheatley
City Recorder
E
ORDINANCE No.93.2-7
EXHIBIT'A'
Page 6 of 6
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