HomeMy WebLinkAboutCouncil Resolutions 1455 RESOLUTION NO. 1455
A RESOLUTION OF THE CITY OF CENTRAL POINT, OREGON
GRANTING AVISTA CORPORATION, d/b/a AVISTA UTILITIES, A
WASHINGTON CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE
NONEXCLUSIVE RIGHT, PRIVILEGE, AUTHORITY AND FRANCHISE TO
LOCATE, CONSTRUCT, INSTALL, OWN, MAINTAIN, REPAIR, REPLACE,
EXTEND, OPERATE AND USE FACILITIES IN, UPON, OVER, UNDER,
ALONG, AND ACROSS THE FRANCHISE AREA FOR PURPOSES OF THE
TRANSMISSION, DISTRIBUTION AND SALE OF GAS.
RECITALS:
1. The City of Central Point holds rights-of-way in trust for the public and has the
responsibility and home-rule authority to manage and conserve the capacity of
such rights-of-ways.
2. The City of Central Point is authorized by Chapter 221 of the Oregon Revised
Statutes, the City of Central Point Charter and the Central Point Municipal Code
to regulate, and receive compensation from, utilities occupying right-of-way within
the City.
3. The existing ten-year natural gas utility franchise granted by the City to Avista
expired on April 30th, 2016.
4. The City and Avista Utilities desire to extend the franchise for an additional ten
years on the terms and conditions set forth in the attached franchise agreement.
Section 1. Franchise Aareement Adopted by City Council: The Franchise
Agreement between the City of Central Point and Avista Utilities is hereby adopted by
the City Council and approved for signature by the City Manager.
.Passed�bY the_ Council and signed by me in authentication of its passage this
ate day of N\hL! , 201,je.
Mayor Hank Williams
ATT
City Recorder
City of Central
Point and Avista
Corporation
Franchise
Agreement
Franchise Agreement Resolution No. 1455
Effective June 1, 2016
TABLE OF CONTENTS
CITY OF CENTRAL POINT, OREGON
SECTION 1.0 DEFINITIONS 1
SECTION 2.0 GRANT OF FRANCHISE 3
2.1 Grant 3
2.2 Effective Date 3
2.3 Term 3
2.4 Non-Exclusive Franchise 3
2.5 Notice of City's Intent to Compete with Avista 3
2.6 Assignment of Franchise 4
2.7 Payment of Franchise Fees 4
SECTION 3.0 AVISTA'S OPERATIONS AND MAINTENANCE 5
3.1 Compliance with Laws,Regulations,Codes and Standards 5
3.2 Facility Location by Avista and Non-Interference 6
3.3 Facility Location Information 6
3.4 Vegetation Management-Removal of Trees/Vegetation Encroachment 6
3.5 Right of Excavation 7
3.6 Emergency Work 7
SECTION 4.0 RESERVATION OF CITY'S RIGHTS AND POWERS 7
4.1 Reservation of Right 7
4.2 Necessary Construction/Maintenance by City 7
4.3 Expansion of Avista's Facilities 8
4.4 Change of Boundaries of the City 8
4.5 Removal of Abandoned Facilities 8
4.6 Vacation of Properties by City 8
SECTION 5.0 RELOCATION OF AVISTA'S FACILITIES 9
5.1 Relocation of Facilities Requested by City 9
5.2 Relocation of Facilities Requested by Third Parties 9
5.3 Availability of Other Funds 10
SECTION 6.0 INDEMNITY 10
6.1 Indemnification of City 10
6.2 Indemnification of Avista 10
SECTION 7.0 FRANCHISE DISPUTE RESOLUTION 10
7.1 Non-waiver 10
7.2 Dispute Resolution by the Parties 11
7.3 Right of Enforcement 11
7.4 Attorneys' Fees and Costs 11
SECTION 8.0 GENERAL PROVISIONS 11
8.1 Franchise as Contract,No Third Party Beneficiaries 11
8.2 Force Majeure 11
8.3 Prior Franchises Superseded 12
8.4 Severability 12
8.5 Changes or Amendments 12
8.6 Supremacy and Governing Law 12
8.7 Headings 12
8.8 Acceptance of Franchise 12
8.9 Abandonment or Suspension of Franchise Rights and Obligations 12
8.10 Franchise Effective Date 13
8.11 Venue 13
City's Language Attesting to Approval and Passage of the Ordinance 13
Letter of Acceptance by Avista 14
Gas Franchise ummary for Publication 15
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CITY OF CENTRAL POINT, OREGON
Avista Corporation Franchise Agreement
Resolution No. 14 5J
Avista Corporation dba Avista Utilities, a Washington Corporation, ("Avista"), which is
authorized to do business within the state of Oregon has filed with the City of Central Point,
State of Oregon (the "City") a written application for renewal of its Franchise to locate, construct,
operate, maintain and use such plants, works, underground pipelines, equipment and appurte-
nances over, under, along and across all of City's rights of way and public property in the City
for the purposes of the transmission, distribution and sale of Gas; and the City has determined it
is in the interest of persons and businesses in this jurisdiction to have access to Avista's ser-
vices;
NOW, THEREFORE, THE CITY OF CENTRAL POINT DOES HEREBY RESOLVE:
SECTION 1.0 DEFINITIONS
For the purposes of this Franchise the following terms, phrases, words and their deriva-
tions shall have the meaning given in this Section. When not inconsistent with the context,
words used in the present tense include the future, words in the plural include the singular, and
words in the singular include the plural. Words not defined shall be given their common and or-
dinary meaning.
Avista: means Avista Corporation, dba Avista Utilities, a Washington corporation, and its re-
spective successors and assigns, agents and contractors.
gitui means the City of Central Point, a municipal corporation of the State of Oregon, and its
respective successors, assigns, agents and contractors.
Commission: means the Oregon Public Utility Commission or such successor regulatory
agency having jurisdiction over investor-owned public utilities in the State of Oregon.
Days: means business days.
Effective Date: means the date that the final signature is obtained, upon which the rights, du-
ties and obligations of this Franchise shall come into effect, and the date from which the time
requirement for any notice, extension and/or renewal shall be measured.
Facilities: means, collectively, any and all gas transmission, and distribution systems and ap-
purtenances owned by Avista, now and in the future in the Franchise Area, including but not lim-
ited to, Gas plants, Gas pipes, pipelines, mains, laterals, conduits, services, regulators, valves,
meters, meter-reading devices, fences, vehicular protection devices, communication and control
systems and other equipment, appliances, fixtures, attachments, appurtenances and other
Central Point Gas Franchise Page 1 of 15
items necessary, convenient, or in any way appertaining to any and all of the foregoing for the
purposes of transmission, distribution, storage and sale of Gas.
Franchise: means the grant by the City of rights, privileges and authority embodied in this
Resolution
Franchise Area: means the surface and space above and below all public property and rights-
of-way owned or held by the City, including, without limitation, rights-of-way for:
• public roads, streets, avenues, alleys, bridges, tunnels, City-owned easements, and
highways as currently exist and/or as may hereafter be constructed, platted, dedicat-
ed, acquired or improved within the present limits of the City and as such limits may
be extended by annexation or otherwise during the term of this Franchise; and
• all City-owned utility easements dedicated for the placement and location of various
utilities, provided such easements would permit Avista to fully exercise the rights
granted under this Franchise within the area covered by the easement.
Gas: means natural, manufactured, renewable and/or mixed gases.
Maintenance. maintainina. or maintain: means, without limit, repairing, replacing, upgrading,
examining, testing, inspecting, and removing Avista Facilities, vegetation management, digging
and excavating, and restoration of affected Right-of-way surfaces.
Parties: means City and Avista collectively.
Party: means either City or Avista individually.
Person: means a business entity or natural person.
Riaht-of-wav: means the surface of and the space along, above, and below any street, road,
highway, freeway, bridge, tunnel, lane, sidewalk, alley, City-owned utility easement and/or right-
of-way now or hereafter held or administered by the City within its corporate limits.
State: means the State of Oregon.
Tariff: means the rate schedules, rules, and regulations relating to utility service, filed with and
approved by the Commission in effect upon execution and throughout the term of this Fran-
chise.
SECTION 2.0 GRANT OF FRANCHISE
2.1 Grant
City hereby grants to Avista the right, power, privilege and authority to enter upon all roads,
rights-of-way, streets, alleys, highways, public places or structures, lying within the Franchise
Area to locate, construct, operate and maintain its Facilities for the purpose of controlling,
transmitting and distributing Gas, as may be necessary to provide Gas service.
Central Point Gas Franchise Page 2 of 15
2.2 Effective Date
This Resolution will be effective upon signing by the Mayor of Central Point as required by law.
2.3 Term
2.3.1 The rights, privileges and Franchise granted to Avista will extend for an initial term
of ten (10) years from the Effective Date, and shall automatically extend for successive one (1)
year terms unless (a) a new agreement is entered into; (b) this Franchise is renewed for a 10-
year term subject to 2.3.2 below; (c) the Franchise is terminated by agreement between the Par-
ties; or (d) either party provides the other party not less than one hundred eighty (180) days pri-
or written notice of its intent not to renew a successive term.
2.3.2 In the event a party desire to renew the Franchise as provided in 2.3.1(b) above,
such party shall notify the other Party in writing a request to renew for a ten (10) year period pri-
or to the end of the initial term. If both Parties mutually agree to such a renewal, the renewal
date shall commence the day immediately following the expiration date of the initial term, and all
terms and conditions of the Franchise shall remain the same, except the effective date of such
term.
2.4 Non-Exclusive Franchise
This Franchise is not an exclusive Franchise. This Franchise shall not prohibit the City from
granting other franchises within the Franchise Area that do not interfere with Avista's rights un-
der this Franchise. City may not, however, award a Gas Franchise to another party under more
favorable or less onerous terms than those of this Franchise without this Franchise being
amended to reflect such more favorable or less onerous terms.
2.5 Notice of City's Intent to Compete with Avista
In consideration of Avista's undertaking pursuant to this Franchise, the City agrees that in the
event the City intends to engage in the business of providing Gas service during the life of this
Franchise or any extension of this Franchise, in competition with Avista, the City will provide
Avista with six (6) months' notice of such action.
2.6 Assignment of Franchise
Avista shall have the right to assign its rights, benefits and privileges under this Franchise. Avis-
ta shall, at least 30 days prior to such assignment, notify City in writing as to the proposed as-
signment and the name, address and contact information of said assignee. Upon effectuation of
such assignment, the assignee shall be bound to all terms and conditions of this Agreement and
shall provide to City, within 30-days of such assignment, its written acceptance of the terms and
conditions herein. As permitted by federal and state law and Commission regulation, Avista
shall have the right, without notice to or consent of the City, to mortgage or hypothecate its
rights, benefits and privileges in and under this Franchise as security for indebtedness.
2.7 Payment of Franchise Fees
Central Point Gas Franchise Page 3 of 15
2.7.1 In consideration of the rights, privileges, and franchise granted by City to Avista
under this Franchise, Avista will pay City five percent (5%) of Avista's gross rev-
enues derived from service to customers located within City (the "Franchise
Fee"). Avista will pay the Franchise Fee in quarterly installments, which quarterly
installments will be due not later than thirty (30) days following the end of the
quarter to which the payment relates. Except as otherwise provided in OAR 860-
022-0040, "gross revenue(s)" means revenues received from utility operations
within City, less related net uncollectables. Gross revenues of an energy utility
shall include revenues from the use, rental, or lease of the utility's operating fa-
cilities other than residential-type space and water heating equipment. Gross
revenues shall not include proceeds from the sale of bonds, mortgagor other evi-
dence of indebtedness, securities or stocks, sales at wholesale by one utility to
another utility purchasing the service is not the ultimate customer, or revenue
from joint pole use.
2.7.2 Contemporaneously with each quarterly payment, Avista will file with City a
sworn statement describing the total gross revenues Avista received during the
applicable quarter (the "Accounting Statement"). City's acceptance of any pay-
ments under this Section 2.7 will not constitute a waiver by City of any Avista
breach of this Franchise.
2.7.3 Inspection of Books and Records
On an annual basis, no more frequently than every twelve (12) months, upon thir-
ty (30) days prior written notice, the Grantor shall have the right to audit the
books and records of Grantee to determine whether the Grantee has paid the
franchise fees owed in accordance with generally accepted accounting princi-
ples. The audit shall not last longer than six (6) months. Grantee and Grantor
agree to reasonably cooperate to complete the audit within the six (6) month pe-
riod. Any undisputed additional amounts due to the Grantor as a result of the au-
dit shall be paid within sixty (60) days following written notice to the Grantee by
the Grantor, which notice shall include a copy of the audit findings. Reimburse-
ments for underpayments as a result of audit findings are subject to late payment
interest as set forth herein. In the event that any Franchise payment or recom-
puted payment is not made on or before the dates specified herein, the Grantee,
upon request from the Grantor, shall pay an interest charge, computed from such
due date, at the annual rate equal to the commercial prime interest rate, plus one
percent (1%) during the period such unpaid amount is owed. The period of limita-
tion for recovery of any franchise fee payable hereunder shall be three (3) years
from the date on which payment by the Grantee was due.
2.7.4 Eaualitv of Franchise Fees and Costs
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In the event that the City increases charges as prescribed by law upon Avista for
any fees, taxes or other costs in connection with the issuance, maintenance, ex-
istence, continuation, and/or use of the Franchise or public right-of-way granted
herein, City shall impose equivalent charges for any fees, taxes or other costs
upon any and all other franchisee(s) doing the same business as or competing
with Avista. In the event that City does not impose equivalent charges upon other
franchisee(s) doing the same business as or competing with Avista, the City will
charge Avista the fee imposed upon Avista prior to the increase until all franchi-
see(s) doing the same business as or competing with Avista are charged the
same.
2.7.5 Late Payments to Grantor
Except as provided for payments due under Section 2.7.3 herein, City may as-
sess any late franchise fees due under this Franchise at an annual interest rate
of prime plus one percent (1%).
2.7.6 Tax Liability
Payment of Franchise Fees to City shall not be a credit against any license, oc-
cupation, business, privilege, or excise taxes of general applicability which City
may now or hereafter legally impose upon Avista. Nothing contained in this Fran-
chise shall give Avista any credit against utility fees or systems development
charges imposed by City or any ad valorem property tax now or hereafter levied
against real or personal property within City limits, or against any local improve-
ment assessment, unless it can be considered Franchise Fees as defined by ap-
plicable law.
SECTION 3.0 AVISTA'S OPERATIONS AND MAINTENANCE
3.1 Compliance with Laws, Regulations, Codes and Standards
In carrying out any authorized activities under the privileges granted by this Franchise, Avista
shall meet accepted industry standards and codes and shall comply with all applicable laws,
regulations and ordinances of any governmental entity with jurisdiction over Avista's Facilities in
the Franchise Area. This includes all applicable, laws, regulations and ordinances existing as of
the Effective Date or as may be subsequently enacted by any governmental entity with jurisdic-
tion over Avista's operations within the Franchise Area. The City shall have the right to make
and enforce reasonable rules and regulations pertaining to the conduct of Avista's operations
within the Franchise Area. Prior to the adoption of any new rule, procedure or policy of general
applicability such as right-of-way construction standards, public works standards, right-of-way
permit fees, street cutting fees, and/or development permit fees, Avista shall be provided a writ-
ten draft document for comment with a response period of not less than thirty days. Notwith-
standing the foregoing, failure to provide such notice shall not invalidate such new rules, proce-
Central Point Gas Franchise Page 5 of 15
dures, or policies of general applicability, nor exempt Avista from compliance with such new
rules, procedures or policies. In the event new rules, procedures or policies would modify the
franchise fee payable by Avista, or modify the grant of franchise under Section 2.0 herein, the
provisions of this Franchise shall prevail Service shall be supplied to the City and its inhabitants
in accordance with Avista's rules and regulations and Tariffs currently or subsequently filed with
and approved by the Commission.
3.2 Facility Location by Avista and Non-Interference
Avista shall have the discretion to determine the placement of its Facilities as may be necessary
to provide safe and reliable Gas service, subject to the following non-interference requirements.
All construction, installation, repair or relocation of Avista's Facilities performed by Avista in the
Franchise Area will be done in such a manner as not to interfere with the construction and
maintenance of other utilities, drains, drainage and irrigation ditches and structures, and City-
owned property within the Franchise Area.
3.3 Facility Location Information
Avista shall provide the City, upon the City's reasonable request, Facility location information in
electronic or hard copy showing the location of its Facilities at specific locations within the Fran-
chised Area, to the extent such information is reasonably available. Avista does not warrant the
accuracy of any such Facility location information provided and, to the extent the location of Fa-
cilities are shown, such Facilities may be shown in their approximate location. With respect to
any excavations within the Franchise Area undertaken by or on behalf of Avista or the City,
nothing stated in this Franchise is intended (nor shall be construed) to relieve either party of
their respective obligations arising under the State one-call law with respect to determining the
location of existing underground utility facilities in the vicinity of such excavations prior to com-
mencing work.
3.4 Vegetation Management—Removal of TreesNegetation Encroachment
The right of Avista to maintain its Facilities shall include the right, as exercised in Avista's pro-
fessional discretion to minimize the likelihood that encroaching (either above or below the
ground) vegetation can interfere with or limit access to Avista's Facilities, or pose a threat to
public safety and welfare. Avista or its agents may accordingly remove or limit, without recourse
or payment of compensation at its sole expense, the growth of vegetation which encroaches
upon its Facilities and/or Gas transmission and distribution corridors within the Franchise Area.
3.5 Right of Excavation
For the purpose of implementing the privileges granted under this Franchise, and subject to the
conditions described herein, Avista is authorized to make any necessary excavations in, under
and across the streets, alleys, roads, rights-of-way and public grounds within the Franchise Ar-
ea. Such excavation shall be carried out with reasonable dispatch and with as little interference
with or inconvenience to the public as may be feasible. Avista shall remove all debris stemming
Central Point Gas Franchise Page 6 of 15
from excavation and construction. The Right-of-way surface shall be restored by Avista after ex-
cavation, in accordance with applicable City and Avista specifications. Prior to performing such
work, Avista shall obtain all legally required permits, including the opening or disturbance of any
Right-of-way-within the Franchise Area. City shall cooperate with Avista in granting any permits
required, providing such grant and subsequent construction by Avista shall not unduly interfere
with the use of such Rights-of-way. Avista shall adhere to all building and zoning codes current-
ly or hereafter applicable to construction, operation or maintenance of the Gas Franchise in the
Franchise Area, provided that such codes are of general applicability and such codes are uni-
formly and consistently applied by City as to other public utility companies and other entities op-
erating in the City. The payment of any generally applicable and non-discriminatory right-of-way
permit fees, street cutting fees, or development permit fees is required in addition to payment of
the Franchise Fee herein.
3.6 Emergency Work
In the event of an emergency requiring immediate action by Avista to protect the public health
and safety or for the protection of its Facilities, or the property of the City or other persons in the
Franchise Area, Avista may immediately proceed with excavation or other Right-of-way work,
with concurrent notice to the City to the extent possible.
SECTION 4.0 RESERVATION OF CITY'S RIGHTS AND POWERS
4.1 Reservation of Right
The City, in granting this Franchise, does not waive any rights which it may not have or may
subsequently acquire with respect to road rights-of-way or other property of City under this
Franchise, and this Franchise shall not be construed to deprive the City of any such powers,
rights or privileges which it now has or may hereafter acquire to regulate the use of and to con-
trol the City's roads, rights-of-way and other public property covered by this Franchise. Nothing
in the terms of this Franchise shall be construed or deemed to prevent the City from exercising
at any time and any power of eminent domain granted to it under the laws of the State.
4.2 Necessary Construction/Maintenance by City
The construction, operation and maintenance of Avista's Facilities authorized by this Franchise
shall not preclude the City, its agents or its contractors, from grading, excavating, or doing other
necessary road work contiguous to Avista's Facilities; provided that Avista shall be given not
less than ten (10) business days' notice of said work, except in events of emergency when there
exists an unforeseen and substantial risk or threat to public health, safety, welfare, or waste of
resources in which case the City will make reasonable efforts to contact Avista prior to doing the
necessary work; and provided further that the City, its agents and contractors, shall be liable for
any damages, including any consequential damages to third parties, caused by said work to any
Facilities belonging to Avista, up to the amount of liability under the Oregon Tort Claims Act.
Central Point Gas Franchise Page 7 of 15
4.3 Expansion of Avista's Facilities
Facilities in the City's Franchise Area that are incidental to the Franchise Area, or that have
been, or are at any future time acquired, newly constructed, leased, or utilized in any manner by
Avista shall be subject to all provisions of this Franchise.
4.4 Change of Boundaries of the City
Any subsequent additions or modifications of the boundaries of the City, whether by annexation,
consolidation, or otherwise, shall be subject to the provisions of this Franchise as to all such ar-
eas. The City shall notify Avista of the scope of any change of boundaries not less than thirty
(30) days prior to such change becoming effective or in accordance with applicable state laws
and shall include all prior installations authorized by permits or other action not previously cov-
ered by this Franchise.
4.5 Removal of Abandoned Facilities
During the Term of this Franchise, or upon a revocation or non-renewal of this Franchise, the
City may direct Avista to remove designated abandoned Facilities from the Franchise Area at its
own expense and as soon as practicable, but only where such abandoned Facilities constitute a
demonstrated threat to public health and safety. Avista shall not be required to remove, or pay
for the removal of facilities it has previously abandoned to another franchisee, or utility under a
joint use agreement, or Person granted permission to access Avista's facilities.
4.6 Vacation of Properties by City
If, at any time, the City shall vacate any road, right-of-way or other public property which is sub-
ject to rights granted by this Franchise, such vacation shall be subject to the reservation of a
perpetual easement to Avista for the purpose of constructing, reconstructing, operating, main-
taining, repairing and upgrading Avista's Facilities on the affected property. The City shall, in its
vacation procedure, reserve and grant said easement to Avista for Avista's Facilities and shall
also expressly prohibit any use of the vacated properties which will interfere with Avista's full en-
joyment and use of said easement.
SECTION 5.0 RELOCATION OF AVISTA'S FACILITIES
5.1 Relocation of Facilities Requested by City
Upon request of the City, Avista shall relocate its Facilities as necessary within the Franchise
Area as specifically designated by the City for such purpose. For purposes of this provision, all
reasonable efforts shall be made by the City, with input from Avista, to minimize the impacts of
potential relocation. The City shall provide Avista reasonable notice of any intended or expected
requirement or request to relocate Avista's Facilities. Said notice shall not be less than ninety
(90) calendar days prior to any such relocation and, depending on the circumstances, may be
greater than ninety (90) calendar days if necessary to allow Avista sufficient time to arrange for
•
Central Point Gas Franchise Page 8 of 16
relocation. In cases of emergency, or where not otherwise reasonably foreseeable by the City,
the notice requirements of this Section may be shortened by discussion and agreement be-
tween the Parties. The City shall use reasonable efforts to cause any such relocation to be con-
sistent with any applicable long-term development plan(s) of the City.
In the event a relocation forces Avista off City's existing Public Right(s) of Way then the City
shall accommodate such relocation by securing an acceptable, alternate location for utilities and
removing any obstructions, including, without limitation, trees, vegetation, or other objects that
may interfere with the installation, operation, repair, upgrade or maintenance of Avista's Facili-
ties on the affected Property.
If the City requires the subsequent relocation of any of Avista's Facilities within two (2) years
from the date of relocation of such Facilities or installation of new Facilities that is a result of the
same Right-of-way project, the City shall bear the entire cost of such subsequent relocation.
Avista agrees to relocate all Facilities promptly within a reasonable time. Upon notice from the
City, the parties agree to meet and determine a reasonable relocation time, which shall not ex-
ceed the time normally needed for construction projects of the nature of the City's relocation re-
quest unless otherwise mutually agreed.
Notwithstanding the above, Avista shall not be required to relocate facilities of other entities that
were abandoned to another franchisee. Such relocation of these types of facilities shall be ac-
cordance with Section 5.2 below.
This Section shall not apply to Facilities in place pursuant to private easement held by Avista,
regardless of whether such Facilities are also located within the Franchise Area. In the event the
City requests relocation of Facilities that are in place pursuant to an existing easement, said re-
location shall be treated in the same manner as a relocation requested by third parties under
Section 5.2, below, with the City bearing the expense of relocation.
5.2 Relocation of Facilities Requested by Third Parties
City acknowledges that Avista is obligated to provide gas service and related line extension or
relocation of Facilities for the benefit of its customers and to require compensation for such ser-
vices on a non-preferential basis in accordance with applicable Tariffs.
If Facilities are to be relocated at the request of or for the primary benefit of a third party, the
City shall not require Avista to relocate its Facilities until such time as a suitable location can be
found and the third party has entered into an agreement to reimburse Avista for its reasonable
costs of relocation.
5.3 Availability of Other Funds
In the event federal, state or other funds are available in whole or in part for utility relocating
purposes, the City agrees to use reasonable efforts to apply for such funds, provided such funds
do not interfere with the City's right to obtain the same or similar funds, or otherwise create any
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expense or detriment to the City. The City may recover all costs, including internal costs, asso-
ciated with obtaining such funds.
SECTION 6.0 INDEMNITY
6.1 Indemnification of City
Avista agrees to defend and indemnify the City, its appointed and elected officers and employ-
ees or agents, from any and all liabilities, claims, causes of action, losses, damages and ex-
penses, including costs and reasonable attorney's fees, that the City may sustain, incur, be-
come liable for, or be required to pay, as a consequence of or arising from the negligent acts or
omissions of Avista, its officers, employees or agents in connection with Avista's obligations un-
der this Franchise; provided, however, that this indemnification provision shall not apply to the
extent that said liabilities, claims, damages and losses were caused by or result from the negli-
gence of the City, elected officers and employees or agents. Liability of City is limited to the ex-
tent of the City's liability under the Oregon Tort Claims Act.
6.2 Indemnification of Avista
To the extent permitted by law, City agrees to defend and indemnify Avista, its officers and em-
ployees, from any and all liabilities, claims, causes of action, losses, damages and expenses,
including costs and reasonable attorney's fees, that Avista may sustain, incur, become liable for,
or be required to pay, as a consequence of or arising from the negligent acts or omissions of the
City, its appointed and elected officers and employees or agents in connection with City's obli-
gations under this Franchise; provided, however, that this indemnification provision shall not ap-
ply to the extent that said liabilities, claims, damages, losses and so forth were caused by or re-
sult from the negligence of Avista, its employees or agents.
SECTION 7.0 FRANCHISE DISPUTE RESOLUTION
7.1 Non-waiver
Failure of a Party to declare any breach or default of this Franchise immediately upon the occur-
rence thereof, or delay in taking any action in connection therewith, shall not waive such breach
or default, but the Party shall have the right to declare any such breach or default at any time.
Failure of a Party to declare one breach or default does not act as a waiver of the Party's right to
declare another breach or default. In addition, the pursuit of any right or remedy by the City shall
not prevent the City from thereafter declaring a revocation and forfeiture for breach of the condi-
tions of the Franchise.
7.2 Dispute Resolution by the Parties
Disputes regarding the interpretation or execution of the terms of this Franchise that cannot be
resolved by department counterparts representing the Parties, shall be submitted to the City's
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Attorney and an attorney representing Avista for resolution. If a mutually satisfactory or timely
resolution cannot then be reached by the above process, prior to resorting to a court of compe-
tent jurisdiction, the Parties shall submit the dispute to a non-binding alternate dispute resolution
process agreed to by the Parties.
7.3 Right of Enforcement
No provision of this Franchise shall be deemed to bar the right of the City or Avista to seek judi-
cial relief from a violation of any provision of the Franchise to recover monetary damages for
such violations by the other Party or to seek enforcement of the other Party's obligations under
this Franchise by means of specific performance, injunctive relief or any other remedy at law or
in equity pursuant to Section 7.4. Any litigation between the City and Avista arising under or re-
garding this Franchise shall occur, if in the state courts, in a court of competent jurisdiction, and
if in the federal courts, in the United States District Court for the District of Oregon.
7.4 Attorneys' Fees and Costs
Each Party shall pay for its own attorneys' fees and costs incurred in any dispute resolution pro-
cess or legal action arising out of the existence of this Franchise.
SECTION 8.0 GENERAL PROVISIONS
8.1 Franchise as Contract, No Third Party Beneficiaries
This Franchise is a contract between the Parties and binds and benefits the Parties and their
respective successors and assigns. This Franchise does not and is not intended to confer any
rights or remedies upon any persons, entities or beneficiaries other than the Parties.
8.2 Force Majeure
In the event the Parties are delayed in or prevented from the performance of any of its obliga-
tions under the Franchise by circumstances beyond said Party's control (Force Majeure) includ-
ing, without limitation, third party labor disputes, fire, explosion, flood, earthquake, power out-
age, acts of God, war or other hostilities and civil commotion, then said Party's performance
shall be excused during the period of the Force Majeure occurrence. Each affected Party will
use all commercially reasonable efforts to minimize the period of the disability due to the occur-
rence. Upon removal or termination of the occurrence, said Party will promptly resume perfor-
mance of the affected Franchise obligations in an orderly and expeditious manner.
8.3 Prior Franchises Superseded
As of the Effective Date this Franchise shall supersede all prior gas franchises for the Franchise
Area previously granted to Avista or its predecessors by City, and shall affirm, authorize and rat-
ify all prior installations authorized by permits or other action not previously covered by fran-
chise. Termination of the prior Franchise shall not, however, relieve the Parties from any obliga-
Central Point Gas Franchise Page 11 of 15
tions which accrued under said Franchise prior to its termination, including but not limited to,
any outstanding indemnity, reimbursement or administrative fee payment obligations.
8.4 Severability
The Franchise is granted pursuant to the laws of the State of Oregon relating to the granting of
such rights and privileges by City. If any article, section, sentence, clause, or phrase of this
Franchise is for any reason held illegal, invalid, or unconstitutional, such invalidity shall not af-
fect the validity of the Franchise or any of the remaining portions. The invalidity of any portion of
this Franchise shall not abate, reduce, or otherwise affect any obligation required of Avista.
8.5 Changes or Amendments
Changes or amendments to this Franchise shall be in writing and shall not be effective until law-
fully adopted by the City and agreed to by Avista.
8.6 Supremacy and Governing Law
This Agreement shall be interpreted, construed and enforced in all respects in accordance with
the laws of the State of Oregon. In the event of any conflict between this Franchise and any City
ordinance, regulation or permit, the provisions of this Franchise shall control. In the event of a
conflict between the provisions of this Franchise and Avista's applicable Tariff on file with the
Commission, the Tariff shall control.
8.7 Headings
The headings or titles in this Franchise are for the purpose of reference only and shall not in any
way affect the interpretation or construction of this Franchise.
8.8 Acceptance of Franchise
Avista shall, within thirty (30) days after passage of this Resolution, file with the City Recorder,
its acceptance of the terms and conditions of this Franchise.
8.9 Abandonment or Suspension of Franchise Rights and Obligations
Avista may at any time abandon the rights and authorities granted hereunder, provided that six
(6) months' written notice of intention to abandon is given to City. In addition, pursuant to Sec-
tion 8.6 and in the event a conflict exists between the terms of this Franchise and Avista's Tariff
with the Commission that cannot be resolved, Avista may suspend or abandon the rights and
obligations of this Franchise upon reasonable notice to the City.
8.10 Franchise Effective Date
The Effective Date of this Franchise shall be June 1 2016, after passage, approval and final
passage of this Resolution as provided by law, and provided that it has been duly accepted by
Avista as specified above.
Central Point Gas Franchise Page 12 of 15
This Franchise Agreement has been made entirely within the state of Oregon. If any suit or ac-
tion is filed by any party to enforce this Franchise Agreement or otherwise with respect to the
subject matter of this Agreement, venue shall be in the federal or state courts in Jackson Coun-
ty, Oregon.
PASSED by the Council and signed by me in authentication of its passage this ay
of tikcisa 2016.
/'
Mayor Hank Williams
ATTE
op
_
ity Recorder
Central Point Gas Franchise Page 13 of 15
Letter of Acceptance by Avista
HONORABLE MAYOR AND CITY COUNCIL
CITY OF CENTRAL POINT, COUNTY OF JACKSON, OREGON
IN RE: City of Central Point, Resolution No. 1455.
"Granting a Franchise to Avista Corporation for the Construction, Operation and
Maintenance of Natural Gas Facilities Within the City."
Avista Corporation dba Avista Utilities, for itself, its successors and assigns, hereby accepts the
terms and conditions of the Franchise Agreement contained in the subject Resolution and files
this written acceptance with the City of Central Point. This acceptance is executed on
. 20
Avista Corporation dba Avista Utilities
By:
Dennis Vermillion
President, Avista Utilities
Coov Received for the City of Central Point
On:
By:
City Representative - Name
Central Point Gas Franchise Page 14 of 15
Gas Franchise Resolution Summary
NOTICE: CITY OF CENTRAL POINT •
PROPOSED FRANCHISE RESOLUTION NO. 1455 SUMMARY
Resolution No. 1455 will grant Avista Corporation dba Avista Utilities a non-exclusive public utili-
ty franchise to locate, construct, install, own, maintain, repair, reconstruct, operate and use facil-
ities within the City's public right of way [the Franchise Area] for the purposes of the transmis-
sion, control and distribution of natural gas within the City for a term of 10 years. Avista agrees
to meet accepted industry standards and conform with applicable federal and state laws, as well
as the regulations of the appropriate state regulatory body with jurisdiction, in the conduct of its
operations under the Franchise. The City reserves the right to make reasonable rules and regu-
lations pertaining to the conduct of Avista's operations within the Franchise Area. Avista must
not interfere with any existing facilities of other utilities. Avista is authorized to make necessary
excavations within the Franchise Area; excavations must be carried out with reasonable dis-
patch, and the area restored, with as little interference to the public as may be reasonable. Avis-
ta must relocate its facilities in the franchise area at the City's request. Avista may remedy en-
croachment of vegetation in connection with franchised activities. Provisions are made for in-
formal dispute resolution.
(The Resolution is anticipated to be held before the Central Point City Council on May 26, 2016
at 7:00 pm in the City Council Chambers).
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