Note: Prior ordinance history: Ords. 271, 441 and 493.
(A) 
Scope. The City hereby grants to grantee and its successors and assigns, subject to the terms and conditions in this franchise, a nonexclusive franchise to erect, construct, repair, maintain, upgrade and operate an electric light and power system within the City as it now exists or may be extended in the future and grantee facilities (as defined in Section 12.04.030). This franchise includes the privilege to install, repair, maintain, upgrade and operate facilities necessary for the operation of grantee's electric light and power system (as defined in Section 12.04.030) upon, over, along, and across the surface of and the space above and below the streets, alleys, roads, highways, sidewalks, bridges, and other public ways over which the City has jurisdiction (collectively, "public ROW"), as well as public utility easements ("PUEs") on third party property on which a preliminary subdivision plat has been approved by the City, and which will be managed by the City thereafter, for the provision of public utility services within the City as grantee's electric light and power system now exists or is extended or upgraded in the future. Nothing in this franchise limits the City from granting others the right to carry on activities similar to, or different from the ones described in this franchise. This franchise is subject to all recorded deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record that may affect the right-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 easement.
(B) 
Existing Facilities. All grantee facilities in possession of grantee currently or during the term (as defined in Section 12.04.020(B)) that are located within the public ROW are covered by this franchise and the location and placement thereof is hereby approved for the purposes of this franchise. The City may require relocation of grantee facilities as further specified in Section 12.04.080.
(C) 
Park Property. This franchise also includes the privilege to repair, maintain, upgrade and operate grantee facilities located in City park property that are existing as of the effective date of this franchise in accordance with applicable safety laws and regulations. Grantee's right to install new grantee facilities in City park property on or after the effective date of this franchise, and to repair, maintain, upgrade and operate such grantee facilities, shall be subject to the City's approval of the location of such new grantee facilities, the City's permitting process and any other applicable land use restrictions, or easements on or regarding the park property. With respect to grantee facilities located in City park property existing as of the effective date of this franchise, and grantee facilities installed in City park property on or after the effective date of this franchise in accordance with the City permitting process, City park property shall be treated the same as the public ROW for purposes of Sections 12.04.040, 12.04.060 through 12.04.080, 12.04.100, 12.04.120, 12.04.140, 12.04.160 and 12.04.190.
(D) 
Limited Franchise. Should grantee offer telecommunications or cable services to the public, grantee agrees that it will obtain all necessary and applicable authorizations from the OPUC and enter into a separate franchise agreement with the City for the use of the public ROW for such purpose.
(Ord. 494 §1, 2012)
(A) 
Effective Date. The effective date of this franchise shall be August 1, 2012.
(B) 
Duration of Franchise. The term of this franchise ("term") shall commence on the effective date and all rights and obligations pertaining thereto shall expire 10 years after the effective date, unless renegotiated or terminated as provided herein. The term shall automatically renew for five years, unless either party provides the other party 180 days' advanced written notice of its desire not to renew this franchise prior to the expiration of the initial term or renewal term. (C) City Charter and Ordinances to Apply. To the extent authorized by law, this franchise is subject to the Charter of the City of Yamhill and general ordinance provisions passed pursuant thereto, including the applicable provisions of Titles 9 and 11 requiring underground utilities in subdivisions or partitions, and state statutes and regulations existing during the term. Nothing in this franchise shall be deemed to waive the requirements of the various codes, rules, regulations and ordinances of the City that are written and accessible to grantee, including, but not limited to: construction or building permit requirements, design standards, and licensing requirements, fees to be paid that are generally applicable to other similar businesses operating within the City, or the manner of construction. Grantee's rights hereunder are subject to the police powers of the City to adopt and enforce ordinances necessary for 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.
(Ord. 494 §2, 2012)
(A) 
Captions. Throughout this franchise, captions to sections are intended solely to facilitate reading and to reference the provisions of this franchise. The captions shall not affect the meaning and interpretation of this franchise.
(B) 
Definitions. For purposes of this franchise, the following terms, phrases, and their derivations shall have the meanings given below unless the context indicates otherwise. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.
"City"
means the City of Yamhill, Oregon, a municipal corporation, and all of the territory within its corporate boundaries, as such may change from time to time.
"City Council"
means the Council of the City.
"City Engineer"
means the City Engineer or Public Works Superintendent of the City.
"City Administrator"
means the City Administrator or City Recorder of the City.
"City Recorder"
means the Recorder of the City.
"Director of Finance"
means the Director of Finance or Treasurer of the City.
"Emergency"
means a situation involving: (a) an unscheduled outage affecting one or more customers; or (b) imminent danger to public safety. Emergency also includes situations where the failure of grantee to act would result in (a) or (b) of this subparagraph.
"Franchise"
means this franchise agreement as fully executed by the City and grantee and adopted by the City Council pursuant to Ordinance No. 494.
"Grantee"
means Portland General Electric Company, an Oregon corporation.
"Grantee facility"
means any tangible component of grantee's electric light and power system, including, but not limited to, any poles, guy wires, anchors, wire, fixtures, equipment, conduit, circuits, vaults, switch cabinets, transformers, secondary junction cabinets, antennas, communication equipment and other property necessary or convenient to supply electric light and power by grantee within the City.
"Grantee's electric light and power system"
means all real property and grantee facilities used by grantee in the transmission and distribution of its services that are located inside the boundaries of the City.
"Gross revenues"
shall be deemed to include any and all revenues derived by grantee within the City from grantee's electric light and power system, and includes, but is not limited to, the sale of and use of electricity and electric service, and the use, rental, or lease of grantee facilities, after adjustment for the net write-off of uncollectible accounts. Gross revenues do not include proceeds from the sale of bonds, mortgages or other evidence of indebtedness, securities or stocks, or sales at wholesale by one public utility to another of electrical energy when the utility purchasing such electrical energy is not the ultimate consumer. Gross revenues also do not include revenue from joint pole use. For purposes of this franchise, revenue from joint pole use includes any revenue collected by grantee from other franchisees, permittees, or licensees of the City for the right to attach wires, cable or other facilities or equipment to grantee's poles or place them in grantee's conduits.
"NESC"
means the National Electrical Safety Code.
"OPUC"
means the Oregon Public Utility Commission.
"Term"
shall have the meaning described in Section 12.04.020(B).
"Person"
means any individual, sole proprietorship, partnership, association, corporation, cooperative, People's Utility District, or other form of organization authorized to do business in the State of Oregon, and includes any natural person.
"Public ROW"
shall have the meaning described in Section 12.04.010(A).
"PUE"
shall have the meaning described in Section 12.04.010(A).
"Year," "annual," or "annually"
means the period consisting of a full calendar year, beginning January 1st and ending December 31st, unless otherwise provided in this franchise.
(Ord. 494 §3, 2012)
(A) 
Construction. Subject to the NESC, grantee's electric light and power system shall be constructed and maintained in such manner as not to interfere with sewers, water pipes, or any other property of the City, or with any other pipes, wires, conduits or other facilities that may have been laid in the public ROW by or under the City's authority. Grantee shall at its own expense repair, renew, remove, relocate, change or improve its facilities from time to time as may be necessary to accomplish this purpose. Grantee and City shall work together during any design process affecting the public ROW to establish suitable locations for grantee's facilities. Assuming there is sufficient space in the public ROW that meets the grantee's construction standards as provided to the OPUC and NESC requirements, all poles shall be placed between the sidewalk and the edge of the public ROW unless another location is approved by the City Engineer. For any land use development in the City requiring grantee's services, the City shall notify grantee of such pending land use development and grantee shall notify the City of grantee's construction standards that are provided to the OPUC and NESC requirements that are applicable to the pending land use development. The City shall impose a condition on its land use development approval that the developer either: (1) provide a sufficient location in the public ROW located in the land use development for grantee facilities that meet the applicable construction standards and NESC requirements; or (2) obtain an easement for grantee facilities that meet the applicable construction standards and NESC requirements.
(B) 
Acquisition. Subsequent to the effective date, upon grantee's acquisition of additional grantee facilities in the public ROW, or upon any addition or annexation to the City of any area, in which grantee retains grantee facilities in the public ROW of such addition or annexation, grantee shall submit to the City a statement describing all grantee facilities involved, whether authorized by a franchise agreement or upon any other form of prior right, together with a map, as described in Section 12.04.050, specifying the location of all such grantee facilities. Such grantee facilities shall immediately be subject to the terms of this franchise.
(C) 
Emergency Repairs. In the event emergency repairs to grantee facilities are necessary, grantee shall as soon as reasonably possible notify the City of the need for such repairs. Grantee may immediately initiate such emergency repairs and, if permits are required by City, apply for appropriate permits the next business day or as soon as reasonably possible following discovery of the emergency. In the event excavation is necessary in conjunction with the repairs, Section 12.04.060 shall also apply. The grantee will provide the City with the name and 24-hour telephone numbers of grantee's emergency contacts available to respond during emergencies.
(D) 
Reasonable Care. All work completed by grantee within the public ROW shall be conducted with reasonable care in accordance with any required permits issued by the City and with the goal of minimizing the risk to those using the public ROW and to minimize the risk of damage to public and third party property. All work shall be performed in accordance with all applicable laws and regulations, including, but not limited to, the NESC. Any work completed by grantee within the public ROW may be inspected by the City to determine whether it has been placed in its approved location according to grantee's permit issued by the City. If emergency work has been completed by grantee in the public ROW and the City determines such work was not completed in a City-approved location or in accordance with the City's applicable published standards, ordinances, rules or regulations that are written and accessible to grantee, the City shall notify grantee and provide grantee with 60 days after the emergency has passed (or less if the public safety is threatened) to reperform the work in a City-approved location, in accordance with the NESC.
(E) 
Cooperation between Grantee and City. In accordance with State law, rules and regulations, for purposes of this franchise, including, but not limited to, Sections 12.04.040, 12.04.080 and 12.04.100, grantee and City shall work together during any design process affecting the public ROW to establish suitable locations for grantee's facilities and to cooperate to minimize the economic impact associated with any relocation of grantee facilities. Grantee shall provide City with a report no more than once per year which lists any parties or corporate entities using or attaching to grantee's facilities located in the public ROW. To extent such information is on record with grantee, such report shall include the appropriate physical address(es), email address(es) and telephone number(s) of the person(s) or the appropriate departments responsible for managing the pole attachment for such attaching parties or entities. Additionally, grantee agrees to require each joint pole user who enters into a facilities attachment agreement with grantee on or after the effective date of this franchise to warrant that it has the necessary authority, including permits, licenses, franchises or any other applicable regulatory requirement, to operate its business where grantee's facilities are located.
(Ord. 494 §4, 2012)
Grantee shall maintain maps and data pertaining to the location of grantee facilities on file at its corporate offices or at an office in Oregon. After providing grantee with 24 hours' prior notice, the City may inspect the maps (excluding grantee proprietary information) at any time during grantee's business hours. Upon request of the City and without charge, grantee shall furnish current maps to the City by electronic data in read-only format showing the general location of grantee facilities, excluding grantee proprietary information. Unless required by law, the City will not sell or provide grantee prepared maps or data to third parties without written permission from grantee. Upon request of grantee, the City will make available to grantee any relevant City prepared maps or data. Such maps and data will be provided at no charge to grantee if no cost is incurred by City to produce and deliver them to grantee.
(Ord. 494 §5, 2012)
Subject to Sections 12.04.040 and 12.04.070, and after obtaining any permits, licenses or permission required by the City, as well as complying with ORS 757.542 et seq. (Oregon Utility Notification Center) as they may be amended from time to time, grantee may make all necessary excavations within the public ROW for the purpose of installing, repairing, upgrading or maintaining grantee facilities; except that in the case of an emergency, no permit shall be required prior to excavation. Should there be a direct conflict between any terms and conditions stated in a permit granted by the City and the terms of this franchise, the terms of this franchise shall control. All excavations made by grantee in the public ROW shall be properly safeguarded for the prevention of accidents. All of grantee's work under this section shall be completed in compliance with all applicable rules, regulations and ordinances of the City and State. Should a customer of grantee be required, pursuant to grantee's tariff on file with the OPUC, to make excavations that are located in the public ROW, grantee shall not be responsible or liable for any failure of such customer to comply with any applicable rules, regulations, ordinances of the City and/or with City standards. Notwithstanding the above, grantee shall be liable for any work done by grantee or grantee's agents, that fails to comply with applicable written rules, regulations, ordinances or standards of the City that are accessible to grantee.
(Ord. 494 §6, 2012)
Except as otherwise provided for in this section, grantee (including any grantee subcontractors or agents) shall restore the surface of the public ROW in the area disturbed by any excavation or by any work done by grantee, its subcontractors or agents, to at least the same condition that it was in prior to excavation, in accordance with generally applicable City standards that are written and accessible to grantee; provided, however, grantee shall not be required, at grantee's expense, to pave a gravel street that was gravel prior to the excavation, install sidewalk panels or curbs that did not exist prior to the excavation, or construct additional improvements in the public ROW that did not exist prior to the excavation. If grantee fails to restore the public ROW to at least the same condition that it was in prior to the excavation, in accordance with generally applicable City standards that are written and accessible to grantee, the City shall give grantee written notice and provide grantee a reasonable period of time, not to exceed 30 days, to restore the public ROW. If the work of grantee creates a public safety hazard as determined by the City Engineer, grantee may be required to repair or restore the public ROW within 24 hours' notice from the City, or within such other period of time as agreed upon between the City Engineer and grantee, taking into consideration weather and other relevant factors. Should grantee fail to make such repairs or restorations within the aforementioned time frames, the City may, after providing notice to grantee and a reasonable opportunity to cure, refill or repave (as applicable) any opening made by grantee in the public ROW and the expense thereof shall be paid by grantee within 30 days of demand for payment from the City. The City reserves the right, after providing notice to grantee, to remove or repair any work completed by grantee, which, in the determination of the City Engineer is inadequate, using a qualified contractor in accordance with applicable State and Federal safety laws and regulations, and grantee's construction standards as provided to the OPUC. The cost thereof, including the cost of inspection and supervision, shall be paid by grantee. In the event that grantee's work is coordinated with other construction work in the public ROW, the City Engineer, in his or her sole discretion, may excuse grantee from restoring the surface of the public ROW, providing that as part of the coordinated work, the public ROW is restored to good order and condition.
(Ord. 494 §7, 2012)
(A) 
Permanent Relocation Required by City. This subsection covers permanent relocation of overhead grantee facilities that will remain overhead, and underground grantee facilities that will remain underground. Subject to the applicable provisions of ORS Chapter 758, the City shall have the right to require grantee to change the location of grantee's electric light and power system located in the public ROW when it is necessary or in the interest of the public, and, unless otherwise agreed to by the City and grantee, the expenses thereof shall be paid by grantee. However, when the City requests a subsequent relocation of all or part of the same grantee facilities less than two years after the initial relocation that is necessary for a public project, and not at the request of or to accommodate a third party, the subsequent relocation shall be at the expense of the City. This subsection shall not apply if either of the following is true: (1) the project or improvement necessitating the change in location will not be owned by the City; or (2) the majority of the funding for the project or improvement does not come from the City, State or Federal government sources. Should grantee fail to relocate any such grantee facilities within 60 days after the date established by the City, or 60 days after grantee's acquisition of an easement pursuant to subsection (B), or within another mutually-agreed upon time period, the City may cause or effect such relocation, performed by a qualified contractor in accordance with applicable State and Federal safety laws and regulations, and the grantee's standards, and the expense thereof shall be paid by grantee no later than 30 days after a demand for payment from the City.
(B) 
Notice and Cooperation. The City will endeavor to provide as much notice prior to requiring grantee to relocate grantee facilities as reasonably possible. The notice shall specify the date by which the existing grantee facilities must be relocated. Grantee shall provide a proposed schedule for completing such relocation within a reasonable time after receiving City's notice regarding relocation; however, grantee's completion of the relocation shall occur no later than the timeframe specified in subsection A, unless a later date is mutually-agreed upon by City and grantee. Nothing in this provision shall prevent the City and grantee from agreeing, either before or after notice is provided, to a mutually-acceptable schedule for relocation. Grantee and City shall diligently work together in good faith during the design process for any project necessitating the relocation of grantee's facilities to establish a suitable location in the public ROW, or PUE, for grantee's facilities that meet the grantee's construction standards as provided to the OPUC, the NESC and generally applicable standards of the City that are written and accessible to grantee in order for grantee to maintain sufficient service and to minimize the economic impact associated with such relocation of grantee's facilities. In the event the City fails to diligently work with grantee in good faith to find a suitable location for grantee to relocate grantee's facilities in accordance with the preceding sentence, grantee shall provide the City with written notice of its obligation to diligently work with grantee in good faith under this subsection. If the City fails to cure such breach within 30 days after receiving such written notice from grantee, the City agrees to pay 50% of the direct and documented costs associated with grantee obtaining sufficient easements from private property owners to accommodate grantee facilities in order to maintain sufficient service. In the event grantee and City diligently work together in good faith to establish a suitable location in the public ROW, or PUE, for grantee's facilities, but it is physically or economically impracticable to relocate grantee's facilities in the public ROW or PUE, grantee shall be solely responsible for obtaining sufficient easements from private property owners to accommodate grantee's facilities in order to maintain sufficient service.
(C) 
Permanent Relocation—Under-grounding. The City may require grantee to convert any overhead grantee facilities to underground grantee facilities at the same or different locations, subject to the NESC and grantee's engineering and safety standards. This subsection shall not apply to grantee facilities used for or in connection with the transmission of electric energy at nominal voltages in excess of 35,000 volts or to pedestals, cabinets or other related above-ground equipment. The expense of such a conversion shall be paid by grantee, and grantee may recover its costs from its customers in accordance with State law, administrative rule, or regulation. The City may designate that grantee collect such costs from only a portion of its customers within the boundaries of the City in accordance with OAR 860-022-0046(4) as it may be amended from time to time. Nothing in this subsection prevents the City and grantee from agreeing to a different form of cost recovery consistent with applicable statutes, administrative rules, City Code or City Charter and grantee's tariff on file with the OPUC on a case-by-case basis.
(D) 
Temporary Relocation at Request of City. Subject to the applicable provisions of ORS Chapter 758 and the applicable City ordinances, rules, and regulations, the City may require grantee to temporarily remove and relocate grantee facilities, by giving 20 days' notice to grantee. The cost of relocation of grantee facilities that is necessary for public projects shall be paid by grantee; however, when relocation is to be temporary and both the initial and the subsequent relocation are necessary for public projects, including, but not limited to, those involving installation or relocation of essential government owned services, such as sewer, water and storm drainage, and not at the request of or to accommodate a third party, the initial relocation shall be at the expense of grantee and subsequent relocations occurring less than two years after the initial relocation shall be at the expense of the City unless the relocation is necessitated by a natural disaster that is not precipitated by the actions of the City or City's agent.
(E) 
Permanent Relocation at Request of or to Accommodate Third Party. In the event that any relocation is requested by or for a third party, grantee shall seek reimbursement from the third party and not from the City. If relocation of grantee facilities is caused or required by the conditions placed by the City on approval for projects of third parties, such relocation shall in no event fall under the provisions of subsection A, C or D of this section. The City and grantee agree to cooperate to minimize the economic impact of such relocation on each party.
(F) 
Temporary Relocation at Request of Third Parties. Whenever it is necessary to temporarily relocate or rearrange any grantee facility in order to permit the passage of any private and non-City owned building, machinery or other object, grantee shall perform the work after receiving 60 business days' written notice from the persons desiring to move the building, machinery or other object. The notice shall: (1) demonstrate that the third party has acquired at its expense all necessary permits from the City; (2) detail the route of movement of the building, machinery, or other object; (3) provide that the person requesting the temporary relocation shall be responsible for grantee's costs; (4) provide that the requestor shall indemnify and hold harmless the City and grantee from any and all damages or claims resulting either from the moving of the building, machinery or other object or from the temporary relocation of grantee facilities; and (5) be accompanied by a cash deposit or other security acceptable to grantee for the costs of relocation. Grantee in its sole discretion may waive the security obligation. The cash deposit or other security shall be in an amount reasonably calculated by grantee to cover grantee's costs of temporary relocation and restoration. All temporary relocations under this subsection shall comply with ORS 757.805.
(Ord. 494 §8, 2012)
If all or a portion of the public ROW used by grantee is vacated by the City during the term, the City shall either condition the approval of the vacation on the reservation of an easement for grantee facilities in their then-current location that prohibits any use of the vacated property that interferes with grantee's full enjoyment and use of its easement, or permit grantee facilities to remain in a PUE. If neither of these options is reasonably possible, grantee shall, after notice from the City and without expense to the City, remove grantee facilities from such vacated public ROW, restore, repair or reconstruct the public ROW where such removal has occurred in accordance with Section 12.04.070. In the event of failure, neglect or refusal of grantee, after City has provided grantee with 90 days' prior written notice, to repair, restore, or reconstruct such public ROW, the City may complete such work or cause it to be completed by a qualified contractor in accordance with applicable State and Federal safety laws and regulations, and the cost thereof shall be paid by the grantee within 30 days after City's demand for payment. Upon request, the City will cooperate with grantee in identifying alternative locations within the public ROW for grantee facilities if they are not permitted to remain in the vacated area.
(Ord. 494 §9, 2012)
Nothing in this franchise shall be construed in any way to prevent the City from excavating, grading, paving, planking, repairing, widening, altering, or completing any work that may be needed or convenient in the public ROW. The City shall inform grantee of any such work which may cause an obstruction or any injury to grantee facilities. The City shall be responsible for the costs to repair any damage to grantee facilities caused by such City's work. Nothing in this section relieves either party from its obligations set forth in Sections 12.04.040(E) and 12.04.080.
(Ord. 494 §10, 2012)
The City shall maintain attachment agreements and permits to string wires on grantee's poles or run wires in grantee's trenches and/or available conduit for municipal purposes and to attach fire and police alarm and communication equipment to grantee's poles, provided that such wires and equipment: (A) do not unreasonably interfere with grantee operations; (B) conform to the NESC; and (C) the City's excess capacity on such wires and equipment is not leased to, sold to or otherwise used by non-governmental third parties. Grantee shall not charge the City for such attachments to its poles or in its conduits; however, the City shall be responsible to pay grantee's reasonable and standard fees for any make-ready and inspections grantee must perform in order to provide access to grantee facilities for City wires and equipment in accordance with the NESC. Should any of the City's attachments to grantee facilities violate the NESC, the City shall work with grantee to address and correct such violations in an agreed-upon period of time. The City shall indemnify and hold grantee harmless from loss or damage resulting from the presence of City's wires and equipment on or in grantee facilities. This duty to indemnify shall not extend to any negligence or willful misconduct by grantee and shall be subject to the tort limitations of the Oregon Tort Claims Act and the Oregon Constitution. Grantee shall provide the City with prompt notice of any such claim. For purposes of this franchise, "make-ready" shall mean engineering or construction activities necessary to make a pole, conduit, or other support equipment available for a new attachment, attachment modifications, or additional facilities.
(Ord. 494 §11, 2012)
(A) 
Use of Public ROW. In consideration for its use of the public ROW in accordance with the terms of this franchise, grantee agrees to pay the City an amount equal to three and one-half percent of the gross revenue received by grantee from its customers within the City. The franchise fee shall be based on the gross revenue collected by grantee during the previous calendar year from grantee's customers, and shall be paid on an annual basis. To the extent permissible under State law and regulation, the payment imposed by this subsection shall be considered an operating expense of grantee and shall not be itemized or billed separately to consumers within the City. However, should the percentage of gross revenue permitted to be considered an operating expense of grantee be increased by regulation of the OPUC during the term of this agreement, the City shall have the right to require the percentage amount paid by grantee under this subsection be increased, not to exceed the maximum amount permitted to be included in grantee's operating expenses by regulation at that time.
(B) 
Property Tax Limitations Do Not Apply. The payment described in this section is not subject to the property tax limitations of Article XI, Sections 11(b) and 11(19) of the Oregon Constitution and is not a fee imposed on property or property owners by fact of ownership.
(C) 
Privilege Tax. The City shall retain the right, as permitted by Oregon law, to charge a privilege tax based on a percentage of the gross revenue, in addition to the payment amounts set forth in subsection A. Should the maximum percentage amount permitted by law and applicable to grantee be increased during the term of this agreement, the City shall have the right to increase any privilege tax it charges grantee as long as the combined amounts charged under this subsection and the amounts charged under subsection A do not exceed the maximum amount permitted by law. The City shall provide grantee at least 90 days' notice prior to any privilege tax or increase in privilege tax becoming effective. Grantee shall follow state regulations regarding the inclusion of such privilege tax as an itemized charge on the electricity bills of its customers within the City.
(D) 
Remittance of Annual Payment. Grantee shall remit to the City Recorder/Treasurer on or before the 1st of April of each year, the annual three and one-half percent franchise fee payment. Grantee shall remit to the City Recorder/Treasurer the quarterly privilege tax payment required in subsection C for each quarter ending March 31st, June 30th, September 30th, and December 31st, or fraction thereof, within 45 days after the close of such quarter, or fraction thereof. Payment must be made in immediately available Federal funds. With the franchise fee payment, grantee shall provide the City a statement, under oath, showing the gross revenue for the preceding calendar year on which the three and one-half percent franchise fee is based. The privilege tax payment shall be based on the gross revenue collected within the calendar quarter immediately preceding the payment, and shall be accompanied by a letter from grantee validating the gross revenue amount on which the payment was based.
(E) 
Acceptance of Payment. Acceptance by the City of any payment due under this section shall not be a waiver by the City of any breach of this franchise occurring prior to the acceptance, nor shall the acceptance by the City preclude the City from later establishing that a larger amount was actually due, or from collecting the balance due to the City.
(F) 
Late Payments. Interest on late payments shall accrue from the due date based on grantee's cost of debt as approved by the OPUC as of the due date, and shall be computed based on the actual number of days elapsed from the due date until payment. Interest shall accrue without regard to whether the City has provided notice of delinquency.
(G) 
No Exemption From Other Fees or Taxes. Payment of the amounts described in this section shall not exempt grantee from the payment of any other license fee, tax or charge on the business, occupation, property or income of grantee that may be lawfully imposed by the City or any other taxing authority, except as may otherwise be provided in the ordinance or laws imposing such other license fee, tax or charge.
(H) 
Direct Access and Volumetric Methodologies. The City may, consistent with State law, direct that the payments made under this section be based on volume-based methodologies as specifically described in ORS 221.655 instead of the formula set out in subsections A and C. Notice must be given to grantee in writing for the subsequent payments to be made using volume-based methodology. The volumetric calculation shall apply to payments made in one calendar year (based on January 1st to December 31st billings from the previous calendar year). The choice to use volumetric methodology must be renewed annually by the City. No notice is necessary if the City chooses to remain on the revenue-based calculation.
(I) 
Payment Obligation Survives Franchise. If, prior to the expiration of this franchise, the parties do not finish negotiation of a new franchise agreement or renew this franchise agreement, the obligations under this agreement shall survive expiration of this franchise until a new franchise agreement becomes effective and supersedes this franchise; provided both parties have entered into good faith negotiations. Either party may terminate negotiations for a new franchise agreement by providing notice of such desire to the other party. If a party terminates negotiations for a new franchise agreement, this agreement shall terminate. In the event this franchise is terminated before expiration, grantee shall make the remaining payments owed, if any, within 90 days of the termination date.
(J) 
Additional Franchises. The grantee acknowledges and agrees that the City reserves the right to grant additional franchises or other similar lawful authorization to other qualified electric and light providers.
(Ord. 494 §12, 2012)
(A) 
Audit Notice and Record Access. The City may audit grantee's calculation of gross revenues. Within 10 business days after receiving a written request from the City, or such other time frame as agreed by both parties, grantee shall furnish the City and any auditor retained by the City: (1) information sufficient to demonstrate that grantee is in compliance with this franchise; and (2) access to all books, records, maps and other documents maintained by grantee with respect to grantee facilities that are necessary for the City to perform such audit. Grantee shall provide access to such information to City within the City, or the Portland, Oregon metropolitan area, during regular grantee business hours.
(B) 
Audit Payment. If the City's audit shows that the amounts due to the City are higher than those based on the grantee's calculation of gross revenue, then grantee shall make a payment for the difference within 60 days after the delivery to grantee of the audit results. In addition to paying any underpayment, grantee shall pay interest at the prevailing annual average yield of the State of Oregon's local government interest pool (also called the Oregon Short-Term Fund – OSTF), but not penalties, as specified in this franchise, from the original due date. In the event the City's audit shows that grantee's calculation of gross revenue resulted in an overpayment to the City by five percent or more in any one year, the grantee may deduct such overpayment from the next quarterly franchise fee payment. If the City's audit shows that the amounts due to the City based on the grantee's calculation of gross revenue were underpaid by five percent or more in the audit period, grantee shall reimburse the City for its reasonable documented costs of the audit.
(Ord. 494 §13, 2012)
(A) 
By City for Cause. If grantee ceases to maintain grantee facilities in accordance with the maintenance commitments outlined in the Service Quality Measures Review filed with the OPUC, and this causes an increase in the risk to the public of personal injury or property damage, the City shall notify grantee and grantee shall have 30 days after the date of the notice to eliminate such risk or, if such risk can not be eliminated within 30 days, such mutually-agreed upon time period as is required to eliminate such risk and grantee shall bear all costs related to remedying the risk. If grantee does not eliminate the risk in accordance with the preceding sentence, the City may then terminate this franchise by providing grantee written notice of termination.
(B) 
By City if City Will Provide Service. The City may terminate this franchise upon one year's written notice to grantee in the event that the City decides to engage in public ownership of the electric facilities located in the public ROW and the public distribution of electric energy to customers throughout the City in accordance with ORS 758.470.
(C) 
City Reserves Right to Terminate. In addition to any other rights provided for in this franchise, the City reserves the right, subject to subsections E and F, to terminate this franchise in the event that:
(1) 
The grantee materially violates any material provision of this franchise;
(2) 
The grantee is found by a court of competent jurisdiction to have practiced any material fraud or deceit upon the City;
(3) 
There is a final determination that grantee has failed, refused, neglected or is otherwise unable to obtain or maintain grantee's service territory designation required by any Federal or State regulatory body regarding grantee's operation of grantee's electric light and power system; or
(4) 
Grantee becomes unable or unwilling to pay its debts, or is adjudged bankrupt.
(D) 
Material Provisions. For purposes of this section, the following are material provisions of this franchise, allowing the City to exercise its rights under this section or as set forth elsewhere in this franchise:
(1) 
The invalidation, failure to pay or any suspension of grantee's payments of franchise fees or privilege taxes to the City for use of the public ROW under this franchise;
(2) 
Any failure by grantee to submit timely reports as may be requested by the City, regarding the calculation of its franchise fees or privilege taxes paid or to be paid to the City;
(3) 
Any failure by grantee to maintain the liability insurance or self insurance required under this franchise;
(4) 
Any failure by grantee to provide copies of requested information as provided under Sections 12.04.040, 12.04.050 and 12.04.130; and
(5) 
Any failure by grantee to otherwise substantially comply with the requirements of Sections 12.04.040 through 12.04.200 of this franchise, unless otherwise agreed.
(E) 
Notice and Opportunity to Cure. The City shall provide grantee 30 days' prior written notice of its intent to exercise its rights under this section, stating the reasons for such action. If grantee cures the basis for termination to the City's reasonable satisfaction or if grantee initiates efforts satisfactory to the City to remedy the basis for termination and the efforts continue in good faith within the 30-day notice period, the City shall not exercise its remedy rights. If grantee fails to cure the basis for termination or if grantee does not undertake and/or maintain efforts satisfactory to the City to remedy the basis for termination within the 30-day notice period, then the City Council may impose any or all of the remedies available under this section.
(F) 
Remedies. In determining which remedy or remedies are appropriate, the City shall consider the nature of the violation, the person or persons burdened by the violation, the nature of the remedy required in order to prevent further such violations, and any other matters the City deems appropriate.
(G) 
Financial Penalty. In addition to any rights set out elsewhere in this franchise, as well as its rights under the City Code or other law, the City reserves the right at its sole option to impose a financial penalty of up to $500.00 per day per material violation of a material provision of this franchise, as long as the grantee has been granted a 30-day opportunity, or other mutually-agreed upon cure period, to cure and has not cured or made substantial progress towards curing within such cure period.
(Ord. 494 §14, 2012)
Grantee may not sell, assign, transfer, or convey this franchise to a third party without the City Council giving its consent in a duly passed ordinance. Upon obtaining such consent, this franchise shall inure to and bind such third party. Grantee shall not sell or assign this franchise to an entity that is not authorized by the OPUC to provide electric service to retail consumers in the City or is not otherwise authorized to provide electric service to retail consumers under Oregon law. Prior to any proposed transfer, grantee shall be in full compliance with this franchise and the proposed transferee shall agree in writing to be bound by this franchise. In the event grantee is purchased by or merged into another entity and grantee survives such purchase or merger as a public utility, grantee shall provide notice to the City of such purchase or merger, but shall have no obligation under this franchise to obtain the consent of the City Council for such purchase or merger. Nothing in this franchise requires the City's consent for any sale, lease, mortgage, assignment, merger, or other transfer to entities that control, are 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 10 days of such transfers. Nothing contained in this franchise shall be deemed to prohibit the mortgage, pledge, or assignment of tangible assets of grantee's electric light and power system for the purpose of financing the acquisition of equipment for or the construction and operation of grantee's electric light and power system, within or outside the City, without the City's consent, but any such mortgage, pledge, or assignment with respect to grantee's electric light and power system shall be subject to the City's other rights contained in this franchise. If the City consents to an assignment or transfer of the franchise, the transfer or assignment shall not be effective until the assignee or transferee has filed a signed acceptance of the terms of this franchise.
(Ord. 494 §15, 2012)
If this franchise is terminated or expires on its own terms and is not renewed or replaced by a new franchise agreement or similar authorization, the City may determine whether grantee facilities are to be removed, at grantee's expense, from the public ROW or remain in place. The City shall provide written notice of any requirement to remove grantee facilities and shall provide grantee 60 days to comment on such requirement to remove grantee facilities. Following consideration of any such comments, the City Council may issue an order requiring removal of grantee facilities no sooner than nine months after such order is declared.
(Ord. 494 §16, 2012)
Grantee shall provide service to electric light and power consumers in the City without undue discrimination or undue preference or disadvantage, in accordance with Oregon law.
(Ord. 494 §17, 2012)
Subject to the limitations set forth in the Oregon Constitution and the Oregon Tort Claims Act, each party hereby agrees and covenants to indemnify, defend, and hold the other party, its elected and appointed officials, officers, directors, agents, and employees 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 negligent act or omission or willful misconduct of the indemnifying party. The duty to indemnify shall not extend to any negligence or willful misconduct by the indemnified party, its elected and appointed officials, officers, directors, agents, and employees. The indemnified party shall provide the indemnifying party with prompt notice of any such claim, which the indemnifying party shall defend at the indemnifying party's sole cost and expense. The indemnified party and its agents, employees, and contractors shall consult and cooperate with the indemnifying party while the indemnifying party is conducting its defense. The indemnified party may, at its own cost, defend or participate in the defense of a claim.
(Ord. 494 §18, 2012)
Grantee shall obtain and maintain in full force and effect, for the entire term, the following insurance, covering risks associated with grantee's ownership and use of grantee facilities and the public ROW and consistent with grantee's risk management practices:
(A) 
Commercial general liability insurance covering all operations, subject to policy terms, conditions and exclusions, by or on behalf of grantee for bodily injury and property damage, including completed operations and contractors liability coverage, in an amount not less than $2,000,000.00 per occurrence and in the aggregate.
(B) 
Business automobile liability insurance to cover any vehicles used in connection with its activities under this franchise, with a combined single limit not less than $1,000,000.00 per accident.
(C) 
Workers' compensation coverage as required by law and employer's liability insurance with limits of $1,000,000.00.
(D) 
The insurance shall be without prejudice to coverage otherwise existing and, with the exception of workers' compensation and employers liability, shall name as additional insureds the City, its elected and appointed officials, its officers, agents, and employees; provided, however, that such additional insured status shall only extend to the extent of grantee's contractually assumed indemnity obligation as outlined under Section 12.04.180 of this franchise agreement. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing in this subsection 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. The insurance shall provide that the insurance shall not be canceled without 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 continuous uninterrupted coverage, in the terms and amounts required, upon and after the effective date of this franchise. Grantee shall provide the City with a certificate of insurance evidencing such coverage as a condition of this franchise and shall provide updated certificates upon request.
(Ord. 494 §19, 2012)
In lieu of the insurance policies required by Section 12.04.190, grantee shall have the right to self-insure any and all of the coverage outlined hereunder. If grantee elects to self-insure, it shall do so in an amount at least equal to the coverage requirements of Section 12.04.190 in a form acceptable to the City and such coverage shall have the same protections for City and requirements of grantee as provided in Section 12.04.190. Grantee shall provide proof of self-insurance to the City before this franchise takes effect and thereafter upon request by the City.
(Ord. 494 §20, 2012)
All rights and authority granted to grantee by the City under this franchise are conditioned on the understanding and agreement that the privileges in the public ROW shall not be an enhancement of grantee's properties or an asset or item of ownership of grantee.
(Ord. 494 §21, 2012)
This franchise is not exclusive and shall not be construed to limit the City from granting rights, privileges and authority to other persons similar to or different from those set forth in this franchise.
(Ord. 494 §22, 2012)
All remedies and penalties under this franchise, including termination, are cumulative and not exclusive, and the recovery or enforcement by one available remedy or imposition of a penalty is not a bar to recovery or enforcement by any other remedy or imposition of any other penalty. The City reserves the right to enforce the provisions of any City ordinance or resolution and to avail itself to any and all remedies available at law or in equity. Failure to enforce any term, condition or obligation of this franchise shall not be construed as a waiver of a breach of any term, condition or obligation of this franchise. A specific waiver of a particular breach of any term, condition or obligation of this franchise shall not be a waiver of any other, subsequent or future breach of the same or any other term, condition or obligation of this franchise.
(Ord. 494 §23, 2012)
If any section, subsection, sentence, clause, phrase, or other portion of this franchise is, for any reason, held to be invalid or unconstitutional by a court of competent jurisdiction, all portions of this franchise that are not held to be invalid or unconstitutional shall remain in effect until this franchise is terminated or expired. After any declaration of invalidity or unconstitutionality of a portion of this franchise, either party may demand that the other party meet to discuss amending the terms of this franchise to conform to the original intent of the parties. If the parties are unable to agree on a revised franchise agreement within 90 days after a portion of this franchise is found to be invalid or unconstitutional, either party may terminate this franchise by delivering 180 days' notice to the other party.
(Ord. 494 §24, 2012)
Within 30 days after the ordinance adopting this franchise is passed by the City Council, grantee shall file with the City Recorder its written unconditional acceptance or rejection of this franchise. If grantee files a rejection, or if grantee fails to file a written unconditional acceptance of this franchise, the franchise shall be null and void.
(Ord. 494 §25, 2012)
Any notice provided for under this franchise shall be sufficient if in writing and: (A) delivered personally to the following addressee; (B) deposited in the United States mail, postage prepaid, certified mail, return receipt requested; (C) sent by overnight or commercial air courier (such as Federal Express or UPS); or (D) sent by facsimile transmission with verification of receipt, addressed as follows, or to such other address as the receiving party hereafter shall specify in writing:
If to the City: City Recorder/Treasurer – Lori Gilmore
205 S Maple Street
PO Box 9
Yamhill, Oregon 97148
FAX: (503) 662-4589
With a copy to: City Attorney – Walt Howell
620 NE Fifth Street
McMinnville, Oregon 97128
FAX: (503) 472-4713
If to the grantee: Government Affairs – Portland General Electric Company
121 SW Salmon St., 1WTC0301
Portland, Oregon 97204
FAX: (503) 464-2354
With a copy to: Portland General Electric Company
Attn: General Counsel
One World Trade Center, 17th Floor
121 SW Salmon Street
Portland, Oregon 97204
FAX: (503) 464-2200
Any such notice, communication or delivery shall be deemed effective and delivered upon the earliest to occur of actual delivery, three business days after depositing in the United States mail, one business day after shipment by commercial air courier or the same day as confirmed facsimile transmission (or the first business day thereafter if faxed on a Saturday, Sunday or legal holiday).
(Ord. 494 §26, 2012)
At any time during the term of this franchise, the City, through its City Council, or grantee may propose amendments to this franchise by giving 30 days' written notice to the other party of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, will, within a reasonable time, negotiate in good faith in an effort to agree upon mutually satisfactory amendment(s). No amendment or amendments to this franchise shall be effective until mutually agreed upon by the City and grantee and formally adopted as an ordinance amendment, which is accepted in writing by grantee.
(Ord. 494 §27, 2012)
If grantee intends to discontinue using any grantee facilities within all or part of a particular portion of the public ROW and does not intend to use said grantee facilities within the next 24 months, grantee shall submit to the City, for the City's approval, a completed application describing such grantee facilities and the date on which grantee intends to discontinue using such grantee facilities. Grantee may elect to remove such grantee facilities, subject to this franchise agreement's excavation provisions, or may request that the City permit them to remain in place. The City may require grantee to remove the grantee facility from the public ROW or to modify the grantee facility in order to protect the public health and safety. Any such modification or removal shall be done at grantee's cost. If grantee is permitted to abandon such grantee facilities in place, upon consent of the City, the ownership of such grantee facilities in the public ROW shall transfer to the City and grantee shall have no further obligation therefor. Grantee's sale of a portion of its electric light and power system shall not, by itself, be considered a "discontinued use" under this section.
(Ord. 494 §29, 2012)
The provisions of this franchise shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors and assigns. Further, all work performed in relation to or in connection with this franchise, whether by the grantee, grantee's subcontractor or assignee, is subject to the terms of this franchise, including, but not limited to: Section 12.04.040 Construction; Section 12.04.050 Supplying Maps; Section 12.04.060 Excavation; Section 12.04.070 Restoration after Excavation; and Section 12.04.080 Relocation.
(Ord. 494 §30, 2012)