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Portland General Electric Company - Electric, Light and Power 1 CITY OF TIGARD, OREGON 2 FRANCHISE AGREEMENT 3 4 THIS FRANCHISE AGREEMENT ( "Agreement") is made and entered into by and 5 between the City of Tigard, an Oregon municipal corporation, ( "City") and Portland General 6 Electric Company, a corporation, ( "Franchisee ") qualified to do business in Oregon. 7 8 RECITALS 9 10 1. Pursuant to Federal law, State statutes, and City Charter and local ordinances, the 11 City is authorized to grant non - exclusive franchises to occupy the rights -of -way as defined in 12 Chapter 15.06 of the Tigard Municipal Code ( "TMC "), in order to place and operate a Utility 13 System within the municipal boundaries of the City of Tigard ( "Franchise Area "); and 14 15 2. Franchisee has requested a franchise to place and operate an electric light and power 16 system (a "Utility System" as further defined in TMC 15.06.020), within the Franchise Area; 17 18 3. The City has found that Franchisee meets all lawful requirements to obtain a 19 franchise, and therefore approves the application. 20 21 NOW, THEREFORE, in consideration of the mutual promises contained herein, 22 the parties agree as follows: 23 24 AGREEMENT 25 26 SECTION 1. GRANT OF AUTHORITY. The City grants Franchisee the non - exclusive 27 right to occupy City rights -of -way to place and install, repair, maintain, upgrade and operate 28 Facilities necessary for the operation of Franchisee's Electric Light and Power System (as 29 defined below) upon, over, along, and across the surface of and the space above and below 30 the streets, alleys, roads, sidewalks, trails, paths, bridges, and all other public ways over which 31 the City has jurisdiction or manages (collectively, "Public ROW") as defined in TMC 32 15.06.020(5), as well as Public Utility Easements ( "PUEs ") on third party property which will 33 be managed by the City thereafter, for the provision of Franchisee's Electric Light and 34 Power System within the City for a term of ten (10) years from and after the Effective Date 35 of this Agreement (the "Term "), except as set forth below. All Franchisee Facilities in 36 possession of Franchisee currently or during the Term that are located within the Public 37 ROW are covered by this Franchise and the location and placement thereof are hereby 38 acknowledged for the purposes of this Franchise, subject to Grantee's acknowledgement 39 that the City has not inventoried or evaluated Grantee Facilities to ensure their compliance 40 with applicable state and federal laws, regulations and orders. 41 42 SECTION 2. PERFORMANCE. Except as provided elsewhere in this Agreement, 43 during the Term, Franchisee agrees to comply with all lawful terms and conditions of the 44 Charter of the City of Tigard and general ordinance provisions passed pursuant thereto 45 existing as of the effective date of this Agreement. All work performed under the terms of 46 this Franchise, including work performed by PGE, the City, or under the City's direction 47 shall comply with the requirements of the NESC and PGE's construction and operating 48 standards in effect at the time of installation. 49 Tigard /PGE Franchise Agreement 2013 Page 1 1 Any requirements for provision of financial security or performance bond by the 2 Franchisee related to work performed under the terms of this Franchise, including TMC 3 Chapters 15.04.135 -3 -c and 15.04.140 are hereby waived by the City. 4 5 Should there be a direct conflict between any terms or conditions stated in a permit 6 granted by the City and the terms of this Franchise, the terms of this Franchise shall control. 7 8 SECTION 3. TAXES. Nothing contained in this Agreement shall be construed to exempt 9 Franchisee from any license fee, permit fee, occupation tax, privilege tax, excise tax or 10 assessment, or other City fee or tax which is or may be lawfully imposed on Franchisee. 11 12 SECTION 4. INSURANCE. On or before the Effective Date of this Agreement, 13 Franchisee shall provide a certificate of insurance that names the City, its officers, directors, 14 and employees as an additional insured but only to the extent of Franchisee's contractually 15 assumed indemnity obligation under this Agreement and TMC 15.06.190. Franchisee 16 insurance shall offer the following coverage: 17 18 (A) Commercial General Liability insurance covering all operations by or on behalf of 19 Franchisee for Bodily Injury and Property Damage, including Completed Operations and 20 Contractors Liability coverage, in an amount equal to at least Three Million Dollars 21 ($3,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate. 22 23 (B) Business Automobile Liability insurance to cover any vehicles used in connection 24 with its activities under this Franchise, with a combined single limit equal to at least Three 25 Million Dollars ($3,000,000) per occurrence and Five Million Dollars ($5,000,000) in the 26 aggregate. 27 28 (C) Workers' Compensation coverage as required by law and Employer's Liability 29 Insurance with limits equal to One Million Dollars ($1,000,000). 30 31 (D) Franchisee shall have the right to self - insure any of the foregoing insurance 32 requirements under this Agreement, in compliance with TMC 15.06.180, excepting the 33 requirement for 30 days notice of cancellation. 34 35 SECTION 5. SEVERABILITY. If any section, subsection, sentence, paragraph, term, or 36 provision hereof is determined to be invalid, or unenforceable by any court of competent 37 jurisdiction, such determination shall have no effect on the validity of any other section, 38 subsection, sentence, paragraph, term or provision hereof, all of which will remain in full 39 force and effect for the term of the Agreement. If any material portion of the Agreement 40 becomes invalid or unenforceable so that the intent of the Agreement is frustrated, the 41 parties agree to negotiate replacement provisions to fulfill the intent of the Agreement 42 consistent with applicable law. If the parties are unable to agree on a revised franchise 43 agreement within ninety (90) days after a portion of this Franchise is found to be invalid or 44 unenforceable, either party may terminate this Franchise by delivering one hundred and 45 eighty (180) days' notice to the other party. In such case, to the extent Franchisee continues 46 to provide electricity service in the City using Franchisee Facilities within Public ROW, the 47 Franchisee's operations and Facilities shall be subject to lawful applicable state and local laws 48 and regulations. 49 Tigard /PGE Franchise Agreement 2013 Page 2 1 SECTION 6. REMEDIES. 2 3 (A) In determining which remedy or remedies are appropriate, the City shall consider the 4 nature of the violation, the person or persons burdened by the violation, the nature of the 5 remedy required in order to prevent further such violations, and any other matters the City 6 deems appropriate. 7 8 (B) Failure to enforce any term, condition or obligations imposed upon Franchisee shall 9 not be construed as a waiver of a breach of any term, condition or obligation imposed upon 10 Franchisee by or pursuant to this Agreement. A specific waiver of a particular breach of any 11 term, condition or obligation imposed upon Franchisee by or pursuant to this Agreement 12 shall not be a waiver of any other, subsequent or future breach of the same or of any other 13 term, condition or obligation, or a waiver of the term, condition or obligation itself. 14 15 SECTION 7. DEFINITIONS. In addition to the definitions contained in TMC Chapter 16 15.06, the following are made part of this Franchise. 17 1 (A) Captions. Throughout this Franchise, captions to sections are intended solely to 19 facilitate reading and to reference the provisions of this Franchise. The captions shall not 20 affect the meaning and interpretation of this Franchise. 21 22 (B) Definitions. For purposes of this Franchise, the following terms, phrases, and their 23 derivations shall have the meanings given below unless the context indicates otherwise. 24 When not inconsistent with the context, words used in the present tense include the future 25 tense, words in the plural number include the singular number, and words in the singular 26 number include the plural number. The word "shall" is always mandatory and not merely 27 directory. 28 29 (1) "City" means the City of Tigard, Oregon, a municipal corporation, and all of the 30 territory within its corporate boundaries, as such may change from time to time. 31 (2) "City Council" means the Council of the City. 32 (3) "City Engineer" means the City Engineer of the City. 33 (4) "City Manager" means the City Manager of the City. 34 (5) "City Recorder" means the Recorder of the City. 35 (6) "Director of Finance" means the Director of Finance of the City. 36 (7) "Emergency" shall have the definition contained in in TMC 15.06.020. 37 (8) "Franchise" means this Franchise Agreement as fully executed by the City and 38 Franchisee and adopted by the City Council pursuant to Ordinance No. 13- . 39 (9) "Franchisee" means Portland General Electric Company, an Oregon corporation. 40 (10) "Franchisee Facility" means any physical component of Franchisee's Electric Light 41 and Power System subject to this Franchise, including but not limited to any poles, guy 42 wires, anchors, wire /conductor, fixtures, meters, equipment, conduit, circuits, vaults, 43 switch cabinets, transformers, secondary junction cabinets, antennas, communication 44 equipment and other property necessary or convenient to supply electric light and power 45 by Franchisee within the Franchise Area. 46 (11) "Franchisee's Electric Light and Power System" means all Franchisee Facilities used 47 by Franchisee in the transmission and distribution of its services that are located within 48 the Franchise Area. 49 (12) "Gross Revenues" shall be deemed to include any and all revenues received by 50 Franchisee within the City from Franchisee's Electric Light and Power System, and Tigard /PGE Franchise Agreement 2013 Page 3 1 includes, but is not limited to, the sale of and use of electricity and electric service, and 2 the use, rental, or lease of Franchisee Facilities, after adjustment for the net write -off of 3 uncollectible accounts. Gross Revenues do not include proceeds from the sale of bonds, 4 mortgages or other evidence of indebtedness, securities or stocks, or sales at wholesale 5 by one public utility to another of electrical energy when the utility purchasing such 6 electrical energy is not the ultimate consumer. Gross Revenues also do not include 7 revenue from joint pole use. For purposes of this Franchise, revenue from joint pole use 8 includes any revenue collected by Franchisee from other franchisees, permittees, or 9 licensees of the City for the right to attach wires, cable or other facilities or equipment to 10 Franchisee's poles or place them in Franchisee's conduits. To the extent that the City's 1 1 authority to tax Gross Revenues of the Franchisee is limited by ORS 221.410 through 12 221.655, the City shall apply the statutory limitation to the definition of "Gross 13 Revenues." 14 (13) "NESC" means the National Electrical Safety Code. 15 (14) "OPUC" means the Oregon Public Utility Commission. 16 (15) "Person" means any natural person, individual, firm, sole proprietorship, 17 partnership, copartnership, association, corporation, cooperative, entity or other form of 18 organization authorized to do business in the State of Oregon. 19 (16) "Public ROW" shall have the meaning described in Section 1, and, in addition, 20 includes the subsurface under and airspace over the areas described. 21 (17) "Term" shall have the meaning described in Section 1. 22 (18) "TMC" shall mean the Tigard Municipal Code. 23 (19) "Year," "annual," or "annually" means the period consisting of a full calendar year, 24 beginning January 1 and ending December 31, unless otherwise provided in this 25 Franchise. 26 27 SECTION 8. CONSTRUCTION. 28 29 (A) Construction. Assuming there is sufficient space in the Public ROW that meets the 30 City's and the Franchisee's construction standards and NESC requirements, all facilities shall 31 be placed between the curb and the sidewalk or the adjacent PUE, unless another location is 32 approved by the City Engineer. For any land use development in the City requiring 33 Franchisee's services, the City shall notify Franchisee of such pending land use development 34 and Franchisee shall notify the City of Franchisee's construction standards that are provided 35 to the OPUC and NESC requirements that are applicable to the pending land use 36 development. To the extent the City has authority to do so, the City shall impose a 37 condition on its land use development approval that the developer either (i) provide a 38 sufficient location in the Public ROW located in the land use development for Franchisee's 39 Facilities that meet the applicable Franchisee construction standards and NESC 40 requirements, or (ii) provide or obtain an easement for Franchisee Facilities that meet the 41 applicable Franchisee construction standards and NESC requirements. 42 43 (B) Emergency Repairs. In the event Emergency repairs to Franchisee Facilities are 44 necessary and require excavation within the Public ROW, Franchisee shall notify the utility 45 one -call notification system prior to making any excavations. Franchisee may initiate such 46 Emergency repairs including any excavations necessary to effect such repairs upon making 47 the necessary notification to the utility one —call notification center. If Emergency work has 48 been completed by Franchisee in the Public ROW and the City determines such work was 49 not completed in a City approved manner in accordance with TMC 15.04.120, the City shall 50 notify Franchisee and provide Franchisee with thirty (30) days or as agreed to by the City Tigard /PGE Franchise Agreement 2013 Page 4 1 Engineer after the Emergency repairs are completed to reperform the work in a City 2 approved manner. 3 4 (C) Cooperation between Franchisee and City. In accordance with state law, rules 5 and regulations, for purposes of this Franchise, including but not limited to Sections 8, 9, 10, 6 11 and 12, Franchisee and City shall work together and timely respond to each party's 7 informational requests during any design process affecting the Public ROW including 8 construction, relocation, excavation and restoration to establish suitable locations for 9 Franchisee's Facilities and cooperate to minimize the economic and public inconvenience 10 impacts associated with any such work. The Franchisee and City shall meet at least annually 11 to forecast potential construction, relocation and other activities which may be subject to 12 this Franchise. To the extent each party has independent authority to control review times, 13 Franchisee and City agree to respond to any proposed improvement plans submitted to each 14 other and which may impact either party's facilities within 30 days of submission of 15 improvement plans by one party to the other; provided, however, the parties acknowledge 16 the land use response timelines may be shorter than 30 days and the parties will endeavor to 17 respond in accordance with such land use response timelines. Additionally, the Franchisee 18 and the City may mutually agree to a longer period of time to respond to plan submittals in 19 order to allow adequate time to review a larger or more complex project or as otherwise 20 agreed to by the City Engineer and PGE. 21 22 SECTION 9. SUPPLYING MAPS. After providing Franchisee with twenty -four (24) 23 hours prior notice, the City may inspect Franchisee maps (excluding Franchisee proprietary 24 information) at any time during Franchisee's business hours. Upon request of the City and 25 without charge, Franchisee shall furnish current maps to the City by electronic data in read - 26 only format showing the general location of Franchisee Facilities, excluding Franchisee 27 proprietary information. Unless required by law, the City will not sell or provide Franchisee 28 prepared maps or data to third parties without written permission from Franchisee, except 29 that City may furnish the publicly available portions of said maps or data to Persons 30 employed by or under contract to the City for the performance of services related to Public 31 ROW. Upon request of Franchisee, the City will make available to Franchisee any relevant 32 maps or data prepared by or held by the City and related to the Public ROW at no charge to 33 Franchisee. 34 35 SECTION 10. EXCAVATION. For Public ROW not subject to the four (4) year "no 36 cut" moratorium contained in TMC 15.04.135, and where boring operations are deemed 37 impractical, Franchisee may make all necessary excavations within the Public ROW for the 38 purpose of installing, repairing, upgrading or maintaining Franchisee Facilities subject to the 39 requirements of TMC 15.04.135. All borings and excavations made by Franchisee in the 40 Public ROW shall be properly safeguarded for the prevention of accidents in accordance 41 with adopted City Public Works construction standards. Except to the extent waived by the 42 City pursuant to this Agreement or otherwise, Franchisee's work under this Section shall be 43 completed in strict compliance with all applicable rules, regulations and ordinances of the 44 City. 45 46 SECTION 11. RESTORATION AFTER EXCAVATION. Whenever Franchisee 47 performs any excavation or other work affecting Public ROW, as required by TMC 48 15.04.120 and this Franchise, Franchisee shall at its own expense restore the Public ROW to 49 the same or better condition as the area was in prior to Franchisee's work. Franchisee shall 50 not be required, at Franchisee's expense, to pave a gravel street that was gravel prior to the Tigard /PGE Franchise Agreement 2013 Page 5 1 excavation, install sidewalk panels or curbs that did not exist prior to the excavation, or 2 construct additional improvements in the Public ROW that did not exist prior to the 3 excavation. This Section 11 shall in no way limit any conditions set forth in an approval 4 from the City of a Franchisee land use application. If Franchisee fails to restore and 5 properly maintain for two years following acceptance of the restoration the Public ROW to 6 at least the same or better condition that it was in prior to the excavation, in accordance with 7 generally applicable published City standards, the City shall give Franchisee written notice 8 and provide Franchisee a reasonable period of time, not to exceed thirty (30) days, to restore 9 the Public ROW. If the work of Franchisee creates a public safety hazard as determined by 10 the City Engineer, Franchisee may be required to repair or restore the Public ROW within 11 twenty -four (24) hours notice from the City, or such time as agreed between the City 12 Engineer and Franchisee, taking into consideration weather and other relevant factors. 13 Should Franchisee fail to make such repairs or restorations within the aforementioned time 14 frames, the City may, after providing notice to Franchisee and a reasonable opportunity to 15 cure, refill or repave (as applicable) any opening made by Franchisee in the Public ROW and 16 the expense thereof shall be paid by Franchisee. The City reserves the right, after providing 17 notice to Franchisee, to remove or repair any work completed by Franchisee, which, in the 18 determination of the City Engineer is inadequate, using a qualified contractor. The cost 19 thereof, including the cost of inspection and supervision, shall be paid by Franchisee within 20 30 (thirty) days after receipt of an invoice from the City. In the event that Franchisee's work 21 is coordinated with other construction work in the Public ROW, the City Engineer may 22 temporarily excuse Franchisee from restoring the surface of the Public ROW, providing that 23 as part of the coordinated work, the Public ROW is restored to good order and condition. 24 25 SECTION 12. RELOCATION. 26 27 (A) Permanent Relocation Required by City. This subsection (A) covers permanent 28 relocation of overhead Franchisee Facilities that will remain overhead, and underground 29 Franchisee Facilities that will remain underground. The City has authority to require 30 removal, relocation, change or alteration of a Franchisee Facility under TMC 15.06.260. The 31 City shall not exercise such authority if the project or improvement necessitating the change 32 in location will not be owned or managed by the City or another public entity. Should 33 Franchisee fail to remove or relocate any such Franchisee Facilities within ninety (90) days 34 after the date established by the City, which, except in the event of a public Emergency, shall 35 not occur sooner than ninety (90) days after the City provides written notice to remove/ 36 relocate to Franchisee, the City may cause or effect such removal or relocation, performed 37 by a qualified contractor, and the expense thereof shall be paid by Franchisee. However, 38 when the City requests a subsequent relocation of all or part of the same Franchisee 39 Facilities less than one year after the initial relocation that is necessary or convenient for a 40 public project, and not at the request of or to accommodate a third party, the subsequent 41 relocation shall be at the expense of the City. 42 43 (B) Notice. The City will endeavor to provide as much notice prior to requiring 44 Franchisee to relocate Franchisee Facilities as possible. The notice shall specify the date by 45 which the existing Franchisee Facilities must be removed or relocated. Nothing in this 46 Section 12 shall prevent the City and Franchisee from agreeing, either before or after notice 47 is provided, to a mutually acceptable schedule for relocation. Franchisee and City shall 48 diligently work together in good faith during the design process for any project necessitating 49 the relocation of Franchisee's Facilities to establish a suitable location for Franchisee's 50 Facilities in the Public ROW, or PUE, that meet Franchisee's construction standards as Tigard /PGE Franchise Agreement 2013 Page 6 1 provided to the OPUC, the NESC and generally applicable published City standards in order 2 for Franchisee to maintain sufficient service and to minimize the economic impact to 3 Franchisee and the City associated with such relocation of Franchisee's Facilities. 4 5 (C) Permanent Relocation - Undergrounding. This subsection (C) applies to 6 conversions of Franchisee Facilities from overhead to underground regardless of whether or 7 not such conversion is made in conjunction with a public project. As permitted by, and in 8 accordance with City ordinance and any applicable law, administrative rule, or regulation, the 9 City may require Franchisee to convert any overhead Franchisee Facilities to underground 10 Franchisee Facilities at the same or different locations, subject to the NESC and Franchisee's 11 engineering and safety standards. This subsection shall not apply to Franchisee Facilities 12 used for or in connection with the transmission of electric energy at nominal voltages in 13 excess of 35,000 volts or to pedestals, cabinets or other above ground equipment installed in 14 accordance with Franchisee's standard design criteria and any applicable City standards. Any 15 such underground relocation shall be consistent with applicable approved or adopted 16 development plans or projects of the City, or as approved by the City. The expense of such 17 a conversion shall be paid by Franchisee, and Franchisee may recover its costs from its 18 customers in accordance with state law, administrative rule, or regulation. Nothing in this . 19 subsection prevents the City and Franchisee from agreeing to a different form of cost 20 recovery on a case -by -case basis consistent with applicable statutes, administrative rules, or 21 regulations. 22 23 (D) Temporary Relocation at Request of City. This subsection (D) covers temporary 24 relocation of overhead Franchisee Facilities that will remain overhead, as well as 25 underground Franchisee Facilities that will remain underground. The City may require 26 Franchisee to temporarily remove and relocate Franchisee Facilities by giving sixty (60) days 27 notice to Franchisee. Prior to such relocation, the City agrees to provide a suitable location 28 in the Public ROW, as mutually agreed, or a temporary construction easement that meets the 29 Franchisee's construction standards and NESC requirements, and that allows the Franchisee 30 to place its Facilities on the easement in order to maintain sufficient service until such time 31 as the Franchisee moves its Facilities to their permanent location. The cost of temporary 32 removal or relocation of Franchisee Facilities that is necessary for public projects, as well as 33 cost of replacing Franchisee Facilities in their permanent location, shall be paid by 34 Franchisee. However, when the City requests a subsequent relocation of all or part of the 35 same Franchisee Facilities less than one year after the initial relocation, that is necessary or 36 convenient for a public project and not at the request of or to accommodate a third party, 37 the subsequent relocation shall be at the expense of the City. 38 39 (E) Relocation at Request of or to Accommodate Third Party. In the event that any 40 relocation of Franchisee Facilities is requested by or is to accommodate a third party, 41 Franchisee shall seek reimbursement from the third party consistent with the Franchisee's 42 tariff on file with the OPUC and not from the City. Such relocation shall be consistent with 43 any applicable long -term development plan or projection of the City or approved by the 44 City. If the relocation of Franchisee Facilities is caused or required by the conditions placed 45 by the City on approval for projects of third parties, such relocation shall in no event fall 46 under the provisions of subsections (A), (C) or (D) of this Section 12. 47 48 (F) Temporary Relocation at Request of Third Parties. Whenever it is necessary to 49 temporarily relocate or rearrange any Franchisee Facility in order to permit the passage of 50 any building, machinery or other object, Franchisee shall perform the work after receiving Tigard /PGE Franchise Agreement 2013 Page 7 1 sixty (60) business days written notice from the persons desiring to move the building, 2 machinery or other object. The notice shall: (1) demonstrate that the third party has 3 acquired at its expense all necessary permits from the City; (2) detail the route of movement 4 of the building, machinery, or other object; (3) provide that the person requesting the 5 temporary relocation shall be responsible for Franchisee's costs; (4) provide that the 6 requestor shall indemnify and hold harmless the City and Franchisee from any and all 7 damages or claims resulting either from the moving of the building, machinery or other 8 object or from the temporary relocation of Franchisee Facilities; and (5) be accompanied by 9 a cash deposit or other security acceptable to Franchisee for the costs of relocation. 10 Franchisee in its sole discretion may waive the security obligation. The cash deposit or other 11 security shall be in an amount reasonably calculated by Franchisee to cover Franchisee's 12 costs of temporary relocation and restoration. All temporary relocations under this 13 subsection shall comply with ORS 757.805. 14 15 SECTION 13. PUBLIC ROW VACATION. If all or a portion of the Public ROW used 16 by Franchisee is vacated by the City during the Term, the City shall either condition the 17 approval of the vacation on the reservation of an easement for Franchisee Facilities in their 18 then- current location that prohibits any use of the vacated property that interferes with 19 Franchisee's full enjoyment and use of its easement, or permit Franchisee Facilities to remain 20 in a PUE. If the facilities to remain in the easement or PUE are underground at the time of 21 the vacation, they shall remain underground and subsequent upgrades or expansions shall 22 also be placed underground. 23 24 SECTION 14. CITY PUBLIC WORKS AND IMPROVEMENTS. Nothing in this 25 Franchise shall be construed in any way to prevent the City from excavating, grading, paving, 26 planking, repairing, widening, altering, or completing any work that may be needed or 27 convenient in the Public ROW that is consistent with the NESC. The City shall coordinate 28 any such work with Franchisee to avoid, to the extent reasonably foreseeable, any 29 obstruction, injury or restrictions on the use by Franchisee of any Franchisee Facilities, and 30 the City shall be responsible for the costs to repair any damage to Franchisee Facilities 31 arising out of such work. Similarly, Franchisee shall be responsible for the costs to repair 32 any damage to City facilities arising out of Franchisee work in the Public ROW. Nothing in 33 this Section relieves either party from its obligations set forth in Sections 8, 10, 11 and 12. 34 35 SECTION 15. USE OF FRANCHISEE FACILITIES. 36 - 37 (A) City shall maintain attachment agreements and permits to string wires on 38 Franchisee's poles or run wires in Franchisee's trenches and /or available conduit for 39 municipal purposes and to attach fire and police alarm and communication equipment to 40 Franchisee's poles, provided that such wires and equipment: a) do not unreasonably interfere 41 with Franchisee operations; b) conform to the NESC; and c) the City's excess capacity on 42 such wires and equipment is not leased to, sold to or otherwise used by non - governmental 43 third parties. Franchisee shall not charge the City for such attachments to its poles or in its 44 conduits; however, the City shall be responsible to pay for any make -ready and inspections 45 Franchisee must perform in order to provide access to Franchisee Facilities for City wires 46 and equipment in accordance with the NESC. Should any of the City's attachments to 47 Franchisee Facilities violate the NESC, the City shall work with Franchisee to address and 48 correct such violations in an agreed -upon period of time. To the extent permitted by law, 49 the City shall indemnify and hold Franchisee harmless from loss or damage resulting from 50 the presence of City's wires and equipment on or in Franchisee Facilities. For purposes of Tigard /PGE Franchise Agreement 2013 Page 8 1 this Franchise, "make- ready" shall mean engineering or construction activities necessary to 2 make a pole, conduit, or other support equipment available for a new attachment, 3 attachment modifications, or additional facilities. 4 5 (B) Franchisee shall provide City with a report upon request by the City that lists utility 6 operators as defined in Tigard Municipal Code 15.06.020(11) using or attaching to 7 Franchisee Facilities located in the Public ROW. To the extent such information is on 8 record with Franchisee, such report shall include the appropriate address(es), email 9 address(es) and telephone number(s) of the person(s) or appropriate departments 10 responsible for managing the pole attachments for such attaching Persons. 11 12 SECTION 16. ACQUISITION AND ANNEXATION. Subsequent to the Effective 13 Date, upon Franchisee's acquisition of additional Franchisee Facilities in the Public ROW, or 14 upon any addition or annexation to the City of any area in which Franchisee retains 15 Franchisee Facilities in the Public ROW of such addition or annexation, Franchisee shall 16 submit to the City a statement describing all Franchisee Facilities involved, whether 17 authorized by a franchise agreement or upon any other form of prior right, together with a 18 map, as described in Section 9, specifying the location of all such Franchisee Facilities. Such 19 Franchisee Facilities shall immediately be subject to the terms of this Franchise. 20 21 SECTION 17. PAYMENT FOR USE OF PUBLIC ROW. 22 23 (A) Use of public ROW. In consideration for its use of the Public ROW in accordance 24 with the terms of this Franchise, Franchisee agrees to pay the City an amount equal to 3 25 percent of the Gross Revenue. The amount of the current year's franchise fee shall be based 26 on the Gross Revenue collected by Franchisee during the previous calendar year within the 27 City, and shall be paid on an annual basis for Franchisee's rights under this Agreement for 28 the full calendar year in which the payment is made. To the extent permissible under state 29 law and regulation, the payment imposed by this subsection shall be considered an operating 30 expense of Franchisee and shall not be itemized or billed separately to consumers within the 31 City. 32 33 (B) Property Tax Limitations Do Not Apply. The payment described in this Section 34 17 is not subject to the property tax limitations of Article XI, Sections 11(b) and 11(19) of 35 the Oregon Constitution and is not a fee imposed on property or property owners by fact of 36 ownership. 37 38 (C) Privilege Tax. The City has retained and shall continue to retain the right, as 39 permitted by Oregon law, to charge a privilege tax based on a percentage of the Gross 40 Revenue in addition to the payment amounts set forth in subsection (A). As of the date of 41 this Franchise, the City has enacted a 1 percent privilege tax. The City shall provide 42 Franchisee at least ninety (90) days' notice prior to any increase in privilege tax becoming 43 effective. Franchisee shall follow state regulations regarding the inclusion of such privilege 44 tax as an itemized charge on the electricity bills of its customers within the City. 45 46 (D) Remittance of Franchise Fee and Privilege Tax Payment. Franchisee shall 47 remit payment of the annual 3 franchise fee to the Director of Finance on or before the 48 first (1st) day of April of each year. Payment must be made in immediately available federal 49 funds. No later than the date of the annual payment, Franchisee shall provide the City a 50 statement, under oath, showing the Gross Revenue for the preceding year. Franchisee shall Tigard /PGE Franchise Agreement 2013 Page 9 1 remit payment of the 11/2% privilege tax to the Director of Finance on or before the 45 day 2 following each calendar quarter period. Payment must be made in immediately available 3 federal funds. No later than the date of the quarterly payment, Franchisee shall provide the 4 City a statement, under oath, showing the Gross Revenue for the preceding quarter. 5 6 (E) Acceptance of Payment. Acceptance by the City of any payment due under this 7 Section shall not be a waiver by the City of any breach of this Franchise occurring prior to 8 the acceptance, nor shall the acceptance by the City preclude the City from later establishing 9 that a larger amount was actually due, or from collecting the balance due to the City. 10 11 (F) Late Payments. Interest on late payments shall accrue from the due date based on 12 Franchisee's cost of debt as approved by the OPUC as of the due date, plus 100 basis points, 13 and shall be computed based on the actual number of days elapsed from the due date until 14 payment. Interest shall accrue without regard to whether the City has provided notice of 15 delinquency. 16 17 (G) No Exemption from Other Fees or Taxes. Payment of the amounts described in 18 this Section 17 shall not exempt Franchisee from the payment of any other license fee, 19 permit fee, tax or charge on the business, occupation, property or income of Franchisee that 20 may be lawfully imposed by the City or any other taxing authority, except as may otherwise 21 be provided in the ordinance or laws imposing such other fee, tax or charge. 22 23 (H) Direct Access and Volumetric Methodologies. The City may, consistent with 24 state law, direct that the payments made under this Section 17 be based on volume -based 25 methodologies as specifically described in ORS 221.655 instead of the formula set herein. 26 Notice must be given to Franchisee in writing for the subsequent payments to be made using 27 volume -based methodology, which notice may require semi -annual payment to the City. 28 The volumetric calculation shall apply to payments made in one calendar year (based on 29 January 1 to December 31 billings from the previous calendar year). The choice to use 30 volumetric methodology must be renewed annually by the City. No notice is necessary if the 31 City chooses to remain on the revenue -based calculation. 32 33 (I) Payment Obligation Survives Franchise. If prior to the expiration of this 34 Franchise the parties do not finish negotiation of a new franchise agreement, the obligation 35 to make the payments imposed by this Section 17 shall survive expiration of this Franchise 36 until a new franchise agreement becomes effective and supersedes this Franchise. In the 37 event this Franchise is terminated before expiration, Franchisee shall make the remaining 38 payments owed, if any, within ninety (90) days of the termination date. In either such case, 39 where Franchisee is operating in the City without a franchise agreement, the provisions of 40 the Tigard Municipal Code Chapters 15.04 and 15.06 shall apply to Franchisee and its 41 operations in the City with the exception of the timing of franchise fee payment which shall 42 be annually and the privilege tax shall be quarterly. 43 44 SECTION 18. AUDIT. 45 46 (A) Audit Notice and Record Access. The City may audit Franchisee's calculation of 47 Gross Revenues. Within ten (10) business days after receiving a written request from the 48 City, or such other time frame as agreed by both parties, Franchisee shall furnish the City 49 and any auditor retained by the City: (1) information sufficient to demonstrate that 50 Franchisee is in compliance with this Franchise; and (2) access to all books, records, maps Tigard /PGE Franchise Agreement 2013 Page 10 1 and other documents maintained by Franchisee with respect to Franchisee Facilities that are 2 necessary for the City to perform such audit. Franchisee shall provide access to such 3 information to City within the City, or the Portland, Oregon metropolitan area, during 4 regular Franchisee business hours. 5 6 (B) Audit Payment. If the City's audit shows that the amounts due to the City are 7 higher than those based on the Franchisee's calculation of Gross Revenue, then Franchisee 8 shall make a payment for the difference within sixty (60) days after the delivery to Franchisee 9 of the audit results. In addition to paying any underpayment, Grantee shall pay interest from 10 the original due date based on Grantee's cost of debt as approved by the OPUC as of the 11 due date, plus 100 basis points, but not penalties, as specified in this Franchise. In the event 12 the City's audit shows that Franchisee's calculation of Gross Revenue resulted in an 13 overpayment to the City by five percent (5 %) or more in any one year, the Franchisee may 14 deduct such overpayment from the next franchise fee payment. If the City's audit shows 15 that the amounts due to the City based on the Franchisee's calculation of Gross Revenue 16 deviated by five percent (5 %) or more in any one year from the City's calculation during the 17 audit, Franchisee shall reimburse the City for the incremental cost associated with the audit, 18 not to exceed one percent (1 %) of the total annual franchise fee payment for the applicable 19 audit period. 20 21 SECTION 19. TERMINATION AND PENALTIES. In addition to the provisions of 22 TMC 15.06.310 -330 the City may terminate this Franchise upon one year's written notice to 23 Franchisee in the event that the City decides to engage in public ownership of the electric 24 facilities located in the Public ROW and the public distribution of electric energy to 25 customers throughout the City in accordance with ORS 758.470. 26 27 SECTION 20. ASSIGNMENT. All rights and privileges granted and duties imposed by 28 this Agreement upon Franchisee shall extend to and be binding upon Franchisee's 29 successors, legal representatives and assigns. Franchisee may not sell, assign, transfer, or 30 convey this Franchise to a third party without the City Council giving its consent in a duly 31 passed ordinance. Upon obtaining such consent, this Franchise shall inure to and bind such 32 third party. Franchisee shall not sell or assign this Franchise to an entity that is not 33 authorized by the OPUC to provide electric service to retail consumers in the City or is not 34 otherwise authorized to provide electric service to retail consumers under Oregon law. Prior 35 to any proposed transfer, Franchisee shall be in full compliance with this Franchise and the 36 proposed transferee shall agree in writing to be bound by this Franchise. In the event 37 Franchisee is purchased by or merged into another entity and Franchisee survives such 38 purchase or merger as a public utility, Franchisee shall provide notice to the City of such 39 purchase or merger, but shall have no obligation under this Franchise to obtain the consent 40 of the City Council for such purchase or merger. 41 42 SECTION 21. REMOVAL OF FACILITIES. If this Franchise is terminated or expires 43 on its own terms and is not replaced by a new franchise agreement or similar authorization, 44 the City may determine whether Franchisee Facilities are to be removed from the Public 45 ROW or remain in place. The City shall provide written notice of any requirement to 46 remove Franchisee Facilities and shall provide Franchisee sixty (60) days to comment on 47 such requirement to move Franchisee Facilities. Following consideration of any such 48 comments, the City Manager may issue an order requiring removal of Franchisee Facilities 49 within nine (9) months after such order is declared. 50 Tigard /PGE Franchise Agreement 2013 Page 11 1 SECTION 22. NONDISCRIMINATION. Franchisee shall provide service to electric 2 light and power consumers in the City without undue discrimination or undue preference or 3 disadvantage, in accordance with Oregon law. 4 5 SECTION 23. DAMAGE TO FACILITIES. The City shall not be liable for any 6 consequential damages or losses resulting from any damage to or loss of any facility as a 7 result of or in connection with any work by or for the City unless the damage or loss is the 8 direct and proximate result of willful, intentionally tortious, negligent or malicious acts or 9 omissions by the City, its employees, or agents. In such case, the City shall indemnify and 10 hold harmless Franchisee against any and all claims, damages, costs and expenses, including 11 attorney's fees and costs, arising from, subject to any applicable limitations in the Oregon 12 Constitution and the Oregon Tort Claims Act. The obligations imposed by this Section are 13 intended to survive termination of this Franchise. 14 15 SECTION 24. REMEDIES AND PENALTIES NOT EXCLUSIVE. All remedies 16 and penalties under this Franchise, including termination, are cumulative and not exclusive, 17 and the recovery or enforcement by one available remedy or imposition of a penalty is not a 18 bar to recovery or enforcement by any other remedy or imposition of any other penalty. 19 The City reserves the right to enforce the penal provisions of any City ordinance or 20 resolution and to avail itself to any and all remedies available at law or in equity. Failure to 21 enforce any term, condition or obligation of this Franchise shall not be construed as a waiver 22 of a breach of any term, condition or obligation of this Franchise. A specific waiver of a 23 particular breach of any term, condition or obligation of this Franchise shall not be a waiver 24 of any other, subsequent or future breach of the same or any other term, condition or 25 obligation of this Franchise. 26 27 SECTION 25. LIMITATION ON PRIVILEGES. All rights and authority granted to 28 Franchisee by the City under this Franchise are conditioned on the understanding and 29 agreement that the privileges in the Public ROW shall not be an enhancement of 30 Franchisee's properties or an asset or item of ownership of Franchisee. 31 32 SECTION 26. GOVERNING LAW. The law of the State of Oregon governs the validity 33 of this Agreement, and its interpretation, performance and enforcement. Any action or suit 34 to enforce or construe any provision of this Agreement by any party shall be brought in the 35 Circuit Court of the State of Oregon for Washington County, or the United States District 36 Court for the District of Oregon. 37 38 SECTION 27. EFFECTIVE DATE. The effective date of this Agreement ( "Effective 39 Date ") shall be the date signed by Franchisee's authorized representative. Upon becoming 40 effective, this Franchise shall supersede and replace any and all other franchise agreements 41 that may be or have been in place between Grantee and the City as of or prior to the 42 Effective Date. 43 Tigard /PGE Franchise Agreement 2013 Page 12 1 SECTION 28. NOTICE. Unless specifically provided otherwise herein, any notice 2 provided for under this Franchise shall be sufficient if in writing and (1) delivered personally 3 to the following addressee, (2) deposited in the United States mail, postage prepaid, certified 4 mail, return receipt requested, (3) sent by overnight or commercial air courier (such as 5 Federal Express or UPS), or (4) sent by facsimile transmission with verification of receipt, 6 addressed as follows, or to such other address as the receiving party hereafter shall specify in 7 writing: 8 9 All notices shall be sent to the following addresses or to such other addresses as 10 Franchisee or the City may designate in writing: 11 12 If to the City: City of Tigard 13 Attention: City Manager 14 13125 SW Hall Blvd. 15 Tigard, Oregon 97223 16 FAX: (503) 684 -7297 17 18 If to the Franchisee: Government Affairs 19 Portland General Electric Company 20 121 SW Salmon St,1WTCO3 21 Portland, Oregon 97204 22 FAX: (503) 464 -2354 23 24 With a copy to: Portland General Electric Company 25 Attn: General Counsel 26 One World Trade Center, 17 Floor 27 121 SW Salmon Street 28 Portland, Oregon 97204 29 30 FAX: (503) 464 -2200 31 Any such notice, communication or delivery shall be deemed effective and delivered upon 32 the earliest to occur of actual delivery, three (3) business days after depositing in the United 33 States mail, one (1) business day after shipment by commercial air courier or the same day as 34 confirmed facsimile transmission (or the first business day thereafter if faxed on a Saturday, 35 Sunday or legal holiday). 36 37 IN WITNESS WHEREOF, the parties, through their duly authorized 38 representatives, have executed this Franchise as of the dates indicated below. 39 PORTLAND GENERAL CITY OF TIGARD, OREGON Q ELECTRIC COMPANY By: By: /612 l`'I (,VI.DISenci Name: -J n L L.. acxn, /K Title: 6v. V? W51 ' r Date: 1� � + I a � /� Date: � ';l f I 3 40 �! Tigard /PGE Franchise Agreement 2013 Page 13 RECEIVED JUN 0 6 2013 CITY OF TIGARD, OREGON TIGARD CITY COUNCTI. RISK MANAGEMENT ORDINANCE NO. 13 -09 AN ORDINANCE GRANTING A RENEWAL OF THE NON - EXCLUSIVE FRANCHISE WITH PORTLAND GENERAL ELECTRIC COMPANY (PGE) TO OPERATE AN ELECTRIC UTILITY SYSTEM IN THE CITY OF TIGARD, OREGON, INCLUDING THE RIGHT TO PLACE AND OPERATE THIS SYSTEM IN THE PUBLIC RIGHTS -OF -WAY; FIXING THE PERMS AND CONDITIONS FOR SAIDFRANCHISE, REPEALING ORDINANCE NO. 93 -07, AUTHORIZING THE MAYOR TO SIGN THIS AGREEMENT, AND DECLARING AN EMERGENCY. WHEREAS, the Tigard Municipal Code ( "TMC ") Section 15.06.060 allows the City Council to grant a non- exclusive utility franchise to any person providing utility services which meets the requirements of the TMC; and WHEREAS, Portland General Electric Company (PGE) last held a 20 -year franchise agreement with the City from 2/23/1993 through 6/23/2013 at which time it will expire; and WHEREAS, PGE and the City of Tigard have negotiated a new 10 -year franchise agreement; and WHEREAS, the existing franchise granted by Ordinance No. 93 -07 will expire on June 23, 2013, and the City Council finds that it is in the public interest to maintain continuous electric service within the City and to assure continuous management of and receipt of compensation for the use of the City's rights of way by PGE, and as such an emergency should be declared so that a franchise may remain in effect upon the expiration of the current agreement. • NOW, THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: A new, ten -year franchise for Portland General Electric Company (PGE) is hereby granted, including all of the terms and conditions as set forth in the agreement attached as Exhibit A to this ordinance. SECTION 2: The Mayor is authorized and directed to sign the agreement attached to this ordinance as Exhibit A on behalf of the Council. SECTION 3: The City Council determines that the fee imposed by this franchise is not a tax subject to the limitations of Article XI, Section 11 (b) and 11 (19) of the Oregon Constitution and is not a fee imposed on property or property owners by fact of ownership. SECTION 4: This ordinance shall replace and repeal the prior franchise with PGE, Ordinance No. 93- 07, adopted on February 23, 1993, which Ordinance remained in effect until the effective date of this ordinance. SECTION 5: Because of the need to maintain continuous electric service to citizens of Tigard and a stable flow of revenue from franchise fees, an emergency is declared and this ordinance shall take effect upon its passage and signing of the agreement attached as Exhibit A to the ordinance. ORDINANCE No. 13 -C I {00302223;1 } Page 1 PASSED: By unt,m't 5 vote of all council members present after being read by number and title only, thisc 2 day of "71'1--4 ....— , 2013. Catherine Wheatley, City tcfrcn '11/ APPROVED: By Tigard City Council this — day of , 2013. John ook, Mayor Approved as to form: ‘11111: Special Counsel 5/20//3 Date ORDINANCE No. 13 -C1 {00302223; 1 } Page 2