Ord. 2614 - PGE Franchise COUNCIL BILL NO. 3221
ORDINANCE NO. 2614
AN ORDINANCE GRANTING PORTLAND GENERAL ELECTRIC COMPANY, AN
OREGON CORPORATION, A NONEXCLUSIVE FRANCHISE FOR TEN YEARS TO
OPERATE AN ELECTRIC LIGHT AND POWER SYSTEM WITHIN THE CORPORATE LIMITS
OF THE CITY OF WOODBURN, FIXING THE TERMS AND CONDITIONS OF SAID
FRANCHISE; PROVIDING AN EFFECTIVE DATE; REPEALING ORDINANCE 2507; AND
DECLARING AN EMERGENCY
WHEREAS, the City of Woodburn has the authority to regulate the public
right-of way and award Franchises to Utility providers for its use; and
WHEREAS, Portland General Electric Company has provided electric light
and power service under the City Franchise since the 1970s; and
WHEREAS, the existing Franchise of Portland General Electric Company was
for a 10-year period and expires on June 30, 2023; and
WHEREAS, the parties want to continue their historically good working
relationship under a new Franchise with terms and conditions similar to those
under the existing Franchise; NOW, THEREFORE,
THE CITY OF WOODBURN ORDAINS AS FOLLOWS:
Section 1 - Franchise Granted
Portland General Electric Company, an Oregon Corporation (the "Company"), is
hereby granted a non-exclusive Franchise to operate an electric light and power
system within the corporate limits of the City of Woodburn ("the City'), subject to
the terms and conditions of this ordinance,
A. Definitions. As used in this ordinance:
"City" means the City of Woodburn, a municipal corporation of the State of
Oregon, and its duly authorized officers, employees, agents or assigns.
"City Recorder" means the duly appointed City Recorder of the City of
Woodburn, Oregon.
"Company" means Portland General Electric Company.
"Company facilities" means all poles, wires, fixtures, equipment,
underground circuits, conduit, and other property necessary or convenient
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to the supply of electric energy owned or operated by the Company
within the corporate limits of the City.
"Corporate limits of the City of Woodburn" means the City boundary as it
now exists or may be amended during the term of this Franchise.
"Franchise to operate an electric light and power system" includes the right
and privilege to erect, construct, repair, maintain and operate poles, wires,
fixtures, conduit, equipment, underground circuits and other property
necessary or convenient to supply the City, its inhabitants and other
persons and territory with electric energy for light, power and other
purposes, upon, over, along, under and across the streets, alleys, roads
and any public right-of-way, property or place.
"Gross revenue" includes any revenue earned by the Company within the
City from the sale of electric energy after adjustment for the net write-off of
uncollectible accounts computed on the average annual rate for the
entire Company, excluding existing sales of electric energy sold by the
Company to any Public Utility when the Public Utility purchasing such
electric energy is not the ultimate consumer. Gross revenue shall include
revenues from the use, rental or lease of the Company's operating facilities
of the Utility other than residential-type space and water heating
equipment under tariffs filed with and approved by the Oregon Public
Utility Commission (OPUC). Gross revenue shall not include proceeds from
the sale of bonds, mortgages or other evidence of indebtedness, securities
or stocks, revenue from joint pole use, or revenue paid directly by the
United States of America or any of its agencies. The meaning of "gross
revenue" as used in this ordinance shall be amended and interpreted
consistently with regulations prescribed by OPUC for determining the
amount of Franchise fees allowed as operating expenses of a Utility for
ratemaking purposes.
"Person" includes any individual, group of individuals; or legal entity.
"OPUC" means the Oregon Public Utility Commission, and any successor or
additional agency empowered by the State of Oregon to regulate public
utilities.
"Public project" means any project for work in the right of way that is not
undertaken to benefit a specific development or redevelopment project
on private property and that is not undertaken to benefit a Public Utility or
service provider other than the City.
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"Public right-of-way" includes the public streets, alleys, roads, dedicated
rights-of-way, easements, and other public property, way or place within
the corporate limits of the City, and further includes that portion of private
property upon which a preliminary subdivision or partition plat has been
approved by the City for provision of public utilities within the corporate
limit of the City, which is expected to be dedicated to the City and over
which the City shall have administration, ownership and control.
"Public Utility" means any individual, partnership, cooperative, corporation
or government agency buying electric energy and distributing such
electric energy to other customers or users.
"Public Works Director" means the duly appointed Public Works Director of
the City of Woodburn, Oregon.
B. Facilities Subject to Ordinance. All the Company facilities within the City
limits shall be deemed to be covered by the terms of this ordinance.
C. Compliance with Laws. The Company shall at all times be subject to all
laws, statutes, ordinances, codes, rules, regulations, standards, and
procedures regarding Company's facilities, whether Federal, State or local,
now in force or which hereinafter, may be promulgated (including but not
limited to zoning, land use, historic preservation ordinances, safety
standards, and other application requirements), unless specifically
exempted.
Section 2 -Term of Franchise and Effective Date
This ordinance shall become effective July 1, 2023, and shall terminate on June
30, 2033.
Section 3 - Revocation
A. General. In addition to any rights set out elsewhere in this document, the
City reserves the right to declare a forfeiture or otherwise revoke this
Franchise, and all rights and privileges pertaining thereto, under certain
circumstances.
B. Conditions of Revocation. The grounds for which the City may declare
forfeiture or revoke the Franchise are the following:
1 . If the Company is in substantial violation of any material provision of
the Franchise agreement and fails to correct the violation after
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written notice of the violation and proposed forfeiture and a
reasonable opportunity thereafter to correct the violation;
2. The Company becomes insolvent, unable or unwilling to pay its
debts, or is adjudged bankrupt;
3. The Company is found by a court of competent jurisdiction to have
engaged in fraud or deceit upon the City; or
4. The Company fails to obtain and maintain any right granted by any
state regulatory body, required in order to provide electric service to
customers within the City or to construct, maintain and operate the
system; provided, however, that the Company shall be allowed a
reasonable time to cure failure to obtain any permit.
C. Due Process Upon the occurrence of one of the events set out above,
following 30 days written notice to the Company of the occurrence and
the proposed forfeiture and an opportunity for the Company be heard,
the City may by ordinance declare a forfeiture, In a hearing, the Company
shall be afforded due process rights. Findings from the hearing shall be
written and shall stipulate the reasons for the City's decision. In the event
the Company believes the City improperly has declared a forfeiture, the
Company may file such proceeding as is appropriate in a court of
competent jurisdiction.
D. The City reserves the right to cancel this Franchise at any time upon one
years written notice to the Company in the event that the City decides to
engage in public ownership of light and power facilities and the public
distribution of electric energy to customers throughout the City.
Section 4 - Construction to be Approved by City
A. Before the Company may conduct underground work involving
excavation, new construction or major relocation work in any public right-
of-way, the Company shall first notify the City, furnish appropriate maps
and drawings, and provide not less than forty-eight (48) business day hours'
notice, except in the case of an emergency. The City will not sell or
transmit Company maps or data to third parties unless permitted by the
Company. The City shall upon request make available to the Company
any City prepared maps or data which are a matter of public record, to
facilitate permitting or the Company's capital planning. These maps or
data shall be made available to the Company upon payment of the
applicable public records fees.
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B. In the case of an emergency the Company shall file maps and drawings
with the Public Works Director showing any construction work done by the
Company within the corporate limits of the City, within thirty (30) days after
completion of the work.
C. Such construction work shall be done in a reasonably safe manner . in
accordance with requirements of applicable ordinances, State laws, and
rules. In all circumstances pertinent to this Franchise, any actions by the
Company's contractors shall be the responsibility of the Company. Any
contractor of the Company shall be bound by all terms and conditions of
this Franchise.
D. Subject to any constitutional limitations to the City's authority that are
applicable, the City shall impose a condition on its land use development
approval that the developer either (i) provide a sufficient location in the
public right-of-way located in the land use development for Company
Facilities that meet the Company's construction standards as provided to
the OPUC and NESC requirements, or (ii) provide or obtain an easement
for Company Facilities that meets the construction standards as provided
to the OPUC and NESC requirements.
Section 5 - location and Relocation of Company Facilities
A. City Approval Required for Company Installations, Excavations and
Restorations. Subject to City approval, the Company may make all
necessary excavations in any public right-of-way for the purpose of
erecting, locating, installing, constructing, repairing, maintaining,
removing, and relocating Company facilities. The location of Company
facilities in the public right-of-way shall be at places approved by the City.
Except in emergencies, the City may require the Company to obtain a
permit prior to commencing any work pursuant to this section pursuant to
the City's ordinances or regulations. In emergencies, the Company shall
take reasonable measures to notify the Public Works Director prior to
commencing work.
B. Removal or Relocation — Temporary or Permanent. In accordance with
ORS 221 .420, the City may require the Company to remove and relocate
transmission and distribution facilities maintained by the Company in any
public rights of way, property or place of the City by giving notice to the
Company. The Company shall, upon ten (10) days written notice from the
City, respond and begin the design process to relocate such facilities. Both
parties will, to the greatest possible extent, agree on a relocation plan that
provides for a suitable location for both underground and above-ground
distribution facilities and aerial transmission facilities. In the event of a
disagreement regarding suitable location, the City's determination shall be
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final subject to state law and regulations including, but not limited to, the
National Electrical Safety Code. If the City's determination of a location
requires the acquisition of easements or right-of way, the required
easements or right-of way from private property owners for such relocated
facilities sufficient to maintain service will be obtained by the City. If
acquisition of easements or right-of-way is required to satisfy the
Company's location requirements, the required easements or rights-of-way
will be obtained by the Company from private property owners. The cost
of removal or relocation of its facilities for public projects shall be paid by
the Company. When the City requires the Company to relocate the same
facilities that were previously relocated on another public works project
that was completed within the past two years, the cost will be borne by
the City. This provision shall apply only to fully completed projects and shall
not apply to phases of the same project and minor relocation work.
C. Overhead to Underground Conversion. As permitted by law, administrative
rule, or regulation, and consistent with Ordinance 2416, the City may
require the Company to remove any overhead facilities and replace those
facilities within underground facilities at the same or different locations.
Both parties will, to the greatest possible extent, agree on a relocation plan
that provides for a suitable location. In the event of a disagreement
regarding suitable location, the City's determination shall be final subject
to state law and regulations including, but not limited to, the National
Electrical Safety Code. If the City's determination of a location requires the
acquisition of easements or right-of way, the required easements or right-of
way from private property will be obtained by the City. If acquisition of
easements or right-of-way is required to satisfy the Company's location
requirements, the required easements or rights-of-way will be obtained by
the Company from private property owners. The expense of such a
conversion shall be paid by the Company subject to OAR 860-022-0046
and the conversion itself shall be accomplished in the manner described
by the rules of the OPUC. The Company shall collect conversion costs in
accordance with OPUC rules. Nothing in this paragraph prevents the City
and the Company from agreeing to a different form of cost recovery on a
case-by-case basis.
D. Notice Required. Except in an emergency, the Company shall provide not
less than forty-eight (48) business day hours' notice to the Public Works
Director prior to any work by the Company which involves excavation in
the public right-of-way or relocation of Company facilities. The Company
shall exercise all reasonable efforts to provide advance notice of such
work so as not to disrupt City services or any other person using the right-of-
way and to enable the City to inspect the work.
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E. Company to Minimize Disruptions. Whenever work is performed in any
public right-of-way, the Company shall take all reasonable precautions to
minimize interruption to traffic flow, damage to property or creation of a
hazardous condition.
F. Restoration Required. When the Company makes any excavation or
installation pursuant to this ordinance, the Company or its contractors shall
restore the affected public right-of-way to the same condition which it was
in prior to the excavation. All work done shall be subject to the reasonable
rejection or correction requirements of the Public Works Director and
subject to the Public Works Director's approval. If the Company fails to
promptly restore the affected portion of the public right-of-way, the City
may restore the right-of-way and charge all costs to the Company. If the
Company inadequately restores the right-of-way, the City may repair the
restored area to correct the defect, using a qualified contractor in
accordance with applicable state and federal safety laws and
regulations, and charge the cost to the Company, provided that the City
gives the Company notice of the defect and ten (10) days opportunity to
correct the defect. All excavation and restoration work shall be done in
strict compliance with applicable rules, permits issued, regulations,
ordinances or orders of the City and other applicable laws and regulations
which may be adopted from time to time during the continuance of this
Franchise by the City Council or as may otherwise be provided by law.
G. Relocation at Request of or to Accommodate Third Party. In the event that
any relocation of Company Facilities is requested by or is to
accommodate a third party, Company shall seek reimbursement from the
third party consistent with the Company's tariff on file with the OPUC and
not from the City. Such relocation shall be consistent with any applicable
long-term development plan or projection of the City or approved by the
City. If the relocation of Company's 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 subsections (B) or (C)
of this Section 5.
H. PUBLIC ROW VACATION. If all or a portion of the public right-of-way used by
Company 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 Company Facilities in their then current location that prohibits any use
of the vacated property that interferes with Company's full enjoyment and
use of its easement, or permit Company Facilities to remain in a Public
Utility easement. If neither of these options is reasonably possible,
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Company shall, after notice from the City, remove Company Facilities from
such vacated public right-of-way. Should Grantee fail to do so, the City
may, after providing Company with ninety (90) days prior written notice,
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 borne by
Company. Upon request, the City will cooperate with Company to identify
alternative locations within the public right-of-way for Company Facilities if
they are not permitted to remain in the vacated area.
Section b - Public Facilities and Improvements
A. All Company facilities shall be placed so that they do not interfere with the
use by the City or the public of any public right-of-way and in accordance
with any requirements adopted by the City Council. Nothing in this
ordinance shall be construed to prevent the City from severing, grading,
paving, planking, repairing, widening, altering or doing any work that may
be desirable on or in any public right-of-way. If possible, all such work shall
be done so as not to obstruct, injure or prevent free use and operation of
the electric light and power system of the Company.
B. Whenever the City performs or contracts for work in the right-of-way that
may disturb but does not require the relocation of Company facilities, the
City shall take reasonable measures to notify the Company in advance to
enable the Company to take measures to protect its facilities from
damage or injury to the public. In such case, the Company shall furnish
field marking to the City or contractor showing the approximate location
of all of its facilities in the area involved in the construction.
C. If space is available, the Company shall permit the City to run wires on
Company poles or conduit for municipal purposes and to attach City
alarms and police signals to Company poles, subject to the following
conditions:
1 . Such wires and signals shall be strung so as not to interfere with the
wires of the Company and to conform to the provisions of the
National Electrical Safety Code and any other applicable building
code. The City shall maintain attachment agreements and submit
applications for permits for such attachments;
2. The City shall not lease or sell space on Company poles or conduit to
third parties, or in its facilities attached to Company poles or in
conduit. The City may provide space in its facilities at no charge to
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entities using such space for a public purpose as long as such
entities' use will cause no additional burden to Company poles or
conduit or require any separate attachment on or space in
Company poles or conduit; and
3. To the degree permitted by Oregon Law, the City shall defend,
indemnify and hold the Company harmless from loss or damage
resulting from damage to persons or property or injury or death to
City employees, Company employees, or the public arising from the
use of said poles by the City.
D. The Company shall by permit allow the City to attach banners or other
civic beautification or information items to poles of the Company subject
to the following:
1 . The attachments shall not interfere with the wires of the Company
and shall conform to the provisions of the National Electric Safety
Code and any other applicable Federal, State or PUC regulation.
The Company may regulate the location of such attachment or
may deny requests for such attachments on a case-by-case basis if
the attachment would violate the requirement of this subsection. In
addition, all such attachments shall be in accordance with POE's
banners and attachments policy; and
2. To the degree permitted by Oregon Law, the City shall defend,
indemnify and hold the Company harmless from loss or damage
resulting from damage to persons or property or injury or death to
City employees, Company employees, or the public arising from the
use of said poles by the City. The City shall maintain general liability
insurance in the amount of at least $1 ,000,000; which shall name the
Company as an additional insured, during use of the poles by the
City pursuant to sections 6 (c) and (d).
Section 7 - Continuous Service Safety Standards
A. The Company shall furnish adequate and safe service for the distribution of
electrical energy in the City. The Company shall use due diligence to
maintain continuous 24-hour a day service which shall at all times conform
at least to the standards common in the business and to the standards
adopted by the State. Under no circumstances shall the Company be
liable for an interruption or failure of service caused by an act of God,
unavoidable accident, or other circumstances beyond the control of the
Company.
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B. The Company shall comply with all the applicable rules and regulations of
the OPUC.
Section 8 - Acceptance of Franchise Fees
The rights and privileges granted by this Franchise are granted upon the
conditions herein contained and also upon the following conditions:
A. In consideration of the rights and privileges granted by this Franchise, the
Company shall pay to the City a Franchise fee each calendar year during
the life of this Franchise of three and one-half (3-1/2) percent of the gross
revenue as defined herein for the immediately preceding calendar year. If
the Company pays a Franchise fee of more than 3.5% to another
municipal corporation or the OPUC permits the Company to pay any
municipality a percentage rate of compensation exceeding that
provided for herein as an operating expense of the Company, the
Company shall inform the City. The City shall have the right to immediately
require and receive the same percentage fee permitted by the OPUC or
paid by the Company to another municipal corporation. The payment
described in this section is not subject to the property tax limitations
contained in the Oregon Constitution and is not a fee on property or on
property owners by fact of ownership.
B. In consideration of the agreement of the Company to make such
payments, the City agrees that no license, permit fee, fax or charge on
the business or occupation of the Company shall be imposed upon the
Company by the City during the term of this ordinance, except:
1 . This provision shall not exempt the property of the Company from
lawful ad valorem taxes, local improvement district assessments, or
conditions, exactions, fees and charges which are generally
applicable to the Company's real property, use or development as
required by the City's ordinances and regulations.
2. Pursuant to Ordinance 2114 the City has imposed a privilege tax on
the Company. As permitted by Oregon law, the combined
Franchise fee and privilege tax assessed against the Company may
not exceed five (5) percent of the Company's gross revenue from
within the City as defined in this ordinance.
C. On or before the first day of March of each year during the term of this
Franchise, the Company shall file with the City Recorder a statement
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under oath showing the amount of gross revenue of the Company within
the City on the basis outlined in paragraph (B) for the calendar year
immediately preceding the year in which the statement is filed. The annual
Franchise fee and privilege tax for the year in which the statement is filed
shall be computed on the gross revenue so reported. Such Franchise fee
and privilege tax shall be payable annually on or before the first day of
April. The City Recorder shall issue a receipt for such annual payment,
which shall be the full acquittance of the Company for the payment. Any
dispute as to the amount of the Company's gross revenue within the
meaning of this ordinance shall be resolved by the OPUC after
examination of the Company's records. Any difference of payment due
the City through error or otherwise shall be payable within fifteen (15) days
of written notice of discovery of such error. If the Company fails to pay any
part of the annual payment for thirty (30) days after such payment is due
pursuant to this ordinance, and after thirty (30) days written notice from
the City, the City may either continue this Franchise in force and/or
proceed by suit or action to collect said payment or declare a forfeiture of
this Franchise because of the failure to make such payment but without
waiving the right to collect earned Franchise payments. Any overpayment
to the City through error or otherwise shall be offset against the next
payment to the City.
D. The City may, consistent with state law and regulations, direct that the
Franchise fee and privilege tax, be calculated on volume-based
methodologies as specifically described in ORS 221 .655 instead of the gross
revenue formula set out in section 8 (B). Notice must be given to the
Company in writing, by October 30th of each calendar year for
implementation of volume-based methodology beginning January 1st of
the following year. The volumetric calculation must remain in effect for an
entire calendar year (January I to December 31 billings). No notice is
necessary if the City chooses to remain on the gross revenue-based
calculation.
E. The City reserves the right to cancel this Franchise at any time upon one
year's written notice to the Company in the event that the City decides to
engage in public ownership of light and power facilities and the public
distribution of electric energy.
F. The Company shall not unjustly discriminate or grant undue preference to
any users of the services provided by the Company pursuant to this
Franchise.
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Section 9 - Franchise Non-Transferable
A. No Transfer Without Consent. This Franchise may not be sold, assigned,
transferred, leased, or disposed of, either in whole or in part, either by
involuntary sale or by voluntary sale, merger, consolidation, nor shall title
thereto, either legal or equitable, or any right, interest, or property therein
pass to or vest in any person, nor may actual working control of the City be
changed, transferred or acquired without the prior written consent of the
City, which consent shall not be unreasonably withheld.
B. Notification. The Company shall promptly notify the City of any proposed
change in, or transfer of, or acquisition by any other party of control of
the Company.
C. Request for Approval. The Company shall make a written request to the
City for its approval of a sale or transfer of this Franchise and furnish all
information required by law and the City.
D. City Inquiry into Qualifications. In reviewing a request for sale or transfer of
this Franchise, the City may inquire into the legal, technical and financial
qualifications of the prospective transferee, and the Company shall assist
the City in so inquiring. The City may condition said sale or transfer of this
Franchise upon reasonable terms and conditions related to the legal,
technical, and financial qualifications of the prospective transferee.
E. Filing Evidence of Transfer. Within thirty (30) days of any transfer or sale of
this Franchise, if approved or deemed granted by the City, the Company
shall file with the City a copy of the deed, agreement, lease or other
written instrument evidencing such sale or transfer of ownership or control,
certified and sworn to as correct by the City and the transferee.
F. Approval Not Waiver. The consent or approval of the City to any transfer
by the Company shall not constitute a waiver or release of any rights of the
City, and any transfer shall, by its terms, be expressly subordinate to the
terms and conditions of this Franchise.
G. Exceptions. Notwithstanding anything to the contrary in this section, the
prior approval of the City shall not be required for any sale, assignment or
transfer of the Franchise to an entity controlling, controlled by or under the
same common control as the Company provided that the proposed
assignee or transferee must show financial responsibility as may be
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determined necessary by the City and must agree in writing to comply
with all provisions of the Franchise.
Section 10 - Continuity of Service Mandatory
A. As long as the City is included in the service territory allocated to the
Company by the OPUC pursuant to ORS 758.400 et seq., the Company
shall provide electric service to customers within the corporate limits of the
City in accordance with state statutes and regulations.
B. In the event of purchase, lease-purchase, condemnation, acquisition,
taking over and holding of plant and equipment, sale, lease or other
transfer to any other person, including any other Grantee of an Electric
Light and Power System Franchise, the Company shall cooperate with the
City and such person or other Grantee to make sure that customers within
the corporate limits of the City continue to receive electric service during
any period of transition.
Section 11 - Books of Account and Reports
The Company shall keep and maintain accurate books of account at an office
in Oregon for the purpose of determining the amounts due to the City pursuant
to section 8 of this ordinance. The City may inspect the books of account,
including computer retrieval information, at any time during the Company's
business hours and audit the books from time to time. The City Council may
require periodic reports from the company relating to its operation and revenues
within the City.
Section 12 - Audit
A. Audit Notice and Record Access. The City may audit the Company' s
calculation of Cross Revenues. Within ten (10) business days after receiving
a written request from the City, or such other time frame as agreed by
both parties, the Company shall furnish the City and any auditor retained
by the City: ( 1 ) information sufficient to demonstrate that the Company is
in compliance with this Franchise; and (2) access to all books, records,
maps and other documents maintained by the Company with respect to
Company facilities that are necessary for the City to perform such audit.
The Company shall provide access to such information to the City within
the City, or the Portland, Oregon metropolitan area, during the Company's
regular business hours.
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B. Audit Payment. If the City's audit shows that the amounts due to the City
are higher than those based on the Company's calculation of Gross
Revenue, then the Company shall make a payment for the difference
within sixty (60) days after the delivery to the Company of the audit results.
In addition to paying any underpayment, the Company shall pay interest
at the statutory rate designated in ORS 82.010 as it may be amended from
time to time, but not penalties, as specified in this Franchise, from the
original due date. In the event the City's audit shows that the Company's
calculation of Gross Revenue resulted in an overpayment to the City by
five percent (5%) or more in any one year, the Company may deduct
such overpayment from the next annual Franchise fee payment, including
interest at the statutory rate designated in ORS 82.010, as it may be
amended from time to time from the original due date. If the City's audit
shows that the amounts due to the City based on the Company's
calculation of Gross Revenue deviated by five percent (5%) or more in any
one year from the City's calculation during the audit, the Company shall
reimburse the City for the incremental cost associated with the audit, not
to exceed one percent (1 %) of the total annual Franchise fee payment
for the applicable audit period.
Section 13 - Utility Rates Set by the OPUC
The rates charged by the Company for electric energy shall be as fixed or
approved by the OPUC.
Section 14 - Changes in Statutes or Rules
If the State of Oregon or the OPUC amends or adopts a state statute or
administrative rule that would affect a material term, condition, right or
obligation under this Franchise, either party may reopen Franchise negotiations
with regard to such term, condition, right or obligation in order to address the
change required or allowed by the new or amended state statute or
administrative rule.
Section 15 - Indemnification
The Company shall indemnify, defend and save harmless the City and its officers,
agents and employees from any and all loss, cost and expense, including
reasonable attorney's fees, arising from damage to property and/or injury or
death of persons or any other damage resulting in whole or in part from any
wrongful or negligent act or omission of the Company, its agents or employees in
exercising the rights, privileges and Franchise hereby granted.
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Section 16 - Insurance
The Company shall obtain and maintain in full force and effect, for the entire
Term, the following insurance covering risks associated with the Company's
ownership and use of Company facilities and the Public ROW:
A. Commercial General Liability insurance covering all operations by or on
behalf of the Company for Bodily Injury and Property Damage, including
Completed Operations and Contractors Liability coverage, in an amount
not less than Two Million Dollars ($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 One Million Dollars ($1 ,000,000) per accident.
C. Workers' Compensation coverage as required by law and Employer's
Liability Insurance with limits of One Million Dollars ($1 ,000,000) With the
exception of Workers' Compensation and Employers Liability coverage,
the Company shall name the City as an additional insured on all
applicable policies. All insurance policies shall provide that they shall not
be canceled or modified unless thirty (30) days prior written notice is
provided to the City. The Company 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.
D. In Lieu of Insurance. In lieu of the insurance policies required by this section
16, the Company shall have the right to self-insure any and all of the
coverage outlined hereunder. If the Company elects to self-insure, it shall
do so in an amount at least equal to the coverage requirements of this
section 16 in a form acceptable to the City. The Company shall provide
proof of self-insurance to the City before this Franchise takes effect and
thereafter upon request by the City.
Section 17 - Franchise Nonexclusive
This Franchise shall not be exclusive and shall not be construed as any limitation
on the City to grant rights, privileges and authority to other persons or
corporations similar to or different from those herein set forth.
Section 18 - Rights not to be Construed as Enhancement to Company Property
Page - 15 - Council Bill No. 3221
Ordinance No. 2614
The City and the Company understand and agree that the privileges granted to
the Company by this Franchise in the streets, alleys, roads and other public
places of the City are not to operate so as to be an enhancement of the
Company' properties or values or to be an asset or item of ownership in any
appraisal thereof.
Section 19 - Remedies and Penalties not Exclusive
All remedies and penalties under this ordinance, including termination of the
Franchise, are cumulative and not exclusive. Failure to enforce shall not be
construed as a waiver of a breach of this Franchise. A specific waiver shall not
be construed to be a waiver of a future breach or of any other term or condition
of this Franchise.
Section 20 -Severability Clause
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 ninety (90) days after a portion of this Franchise is found to be invalid or
unconstitutional, either party may terminate this Franchise by delivering one
hundred and eighty (180) days notice to the other party.
Section 21 - Acceptance
Within thirty (30) days after the ordinance adopting this Franchise is passed by
the City Council, the Company shall file with the City Recorder its written
unconditional acceptance or rejection of this Franchise. If the Company files a
rejection, this Franchise shall be null and void. If the Company fails to file a
written unconditional acceptance or rejection of this Franchise, the City may
withdraw this Franchise at any time prior to 30 days from the effective date of
the ordinance.
Section 22 - Notice
Any notice provided for under this Franchise shall be sufficient if in writing and (1)
delivered personally to the following addressee, (2) deposited in the United
States mail, postage prepaid, certified mail, return receipt requested, or (3) sent
Page - 16 - Council Bill No. 3221
Ordinance No. 2614
by overnight or commercial air courier (such as Federal Express or UPS), or to
such other address as the receiving party hereafter shall specify in writing:
If to the City:
270 Montgomery Street,
Woodburn, Oregon 97071
FAX # (503) 982-5243
With a copy to: Woodburn City Attorney
270 Montgomery Street,
Woodburn OR 97071
If to the Company: Local Government Affairs
Portland General Electric Company
121 SW Salmon St, IWTC03
Portland, Oregon 97204
With a copy to: Portland General Electric Company
Attn: General Counsel
One World Trade Center
121 SW Salmon Street
Portland, Oregon 97204
Any such notice, communication or delivery shall be deemed effective and
delivered upon the earliest to occur of actual delivery, three (3) business days
after depositing in the United States mail, one (1) business day after shipment by
commercial air courier (or the first business day thereafter if faxed on a Saturday,
Sunday or legal holiday).
Section 23 - Prior Ordinance Repealed
Ordinance 2507 is repealed-upon acceptance by the Company of this
Franchise and all rights and obligations arising under Ordinance 2507,shall
terminate.
Section 24 - Emergency Clause
This ordinance being necessary for the immediate preservation of the public
peace, health and safety so that the franchised electric services provided by
PGE can continue, an emergency is declared to exist and this ordinance shall
take effect immediately upon passage and approval by the Mayor.
Page - 17 - Council Bill No. 3221
Ordinance No. 2614
IN WITNESS WHEREOF, the parties, through their duly authorized representatives,
have executed this Franchise as of the date indicated below.
fG l
PORTLAND GENERAL ELECTRIC
E=n), nl �c-Iton (J:i 1:, 107310 �§ PC)I
Benjamin Felton
EVP Chief Operating Officer
Approved as to form: �2�/�3
ACityAt�rney Date
Approved:
Frank Loner , Mayor
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
ATTEST:
Heather Pierson, City Recorder
City of Woodburn, Oregon
Page - 18 - Council Bill No. 3221
Ordinance No. 2614
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