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Ord 2507 - PGE FranchiseACCEPTANCE City Administrator City of Woodburn 270 Montgomery St. Woodburn, OR 97071 This is to advise the City of Woodburn, Oregon (the "Grantor ") that Portland General Electric Company (the "Grantee ") hereby accepts the terms and provisions of Ordinance No. 2507, passed by the City Council on June 10, 2013 (the Franchise) granting a Franchise for ten (10) years to Portland General Electric Company. The Grantee agrees to abide by each and every term of the Franchise. Portland Geger E ec C ny ® BY: TITLE: ,�-)V. V V C,( f - 5VC.�VGtV►� DATE: COUNCIL BILL NO. 2929 ORDINANCE NO. 2507 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 2328; 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, 2013; 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. Page 1 Council Bill No. 2929 Ordinance No. 2507 "Company facilities" means all poles, wires, fixtures, equipment, underground circuits, conduit, and other property necessary or convenient 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 Page 2 Council Bill No. 2929 Ordinance No. 2507 redevelopment project on private property and that is not undertaken to benefit a public utility or service provider other than the City. "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, 2013, and shall terminate on June 30, 2023. 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: Page 3 Council Bill No. 2929 Ordinance No. 2507 1. If the Company is in substantial violation of any material provision of the Franchise agreement and fails to correct the violation after 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 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 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 Page 4 Council Bill No. 2929 Ordinance No. 2507 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. 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 Page 5 Council Bill No. 2929 Ordinance No. 2507 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 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 Page 6 Council Bill No. 2929 Ordinance No. 2507 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. 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 Page 7 Council Bill No. 2929 Ordinance No. 2507 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, 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 6 - 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 Page 8 Council Bill No. 2929 Ordinance No. 2507 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 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: 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 PGE'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 Page 9 Council Bill No. 2929 Ordinance No. 2507 additional insured, during use of the poles by the City pursuant to sections b (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. 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, tax 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 Page 10 Council Bill No. 2929 Ordinance No. 2507 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 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 Public Utility Commission of Oregon 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 15 of the following year. The volumetric calculation must remain in effect for an entire calendar year Page 11 Council Bill No. 2929 Ordinance No. 2507 (January 1 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. 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. Page 12 Council Bill No. 2929 Ordinance No. 2507 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 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 Oregon Public Utility Commission ( "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 Gross Revenues. Within ten (10) business days after receiving a written request from the City, or such other Page 13 Council Bill No. 2929 Ordinance No. 2507 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. 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. Page 14 Council Bill No. 2929 Ordinance No. 2507 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 attorneys 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. 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 ($1,000,000.00) per accident. C. Workers' Compensation coverage as required by law and Employer's Liability Insurance with limits of One Million Dollars ($1,000,000.00). 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. Page 15 Council Bill No. 2929 Ordinance No. 2507 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 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's 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 Page 16 Council Bill No. 2929 Ordinance No. 2507 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, (3) sent by overnight or commercial air courier (such as Federal Express or UPS), or (4) 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: 270 Montgomery Street, Woodburn, Oregon 97071 FAX # (503) 982 -5243 With a copy to: Woodburn City Attorney 270 Montgomery Street, Woodburn OR 97071 FAX # (503) 982 -5243 If to the Company: Government Affairs Portland General Electric Company 121 SW Salmon St, 1 WTCO3 Portland, Oregon 97204 FAX: (503) 464 -2354 With a copy to: Portland General Electric Company Attn: General Counsel One World Trade Center, 17 Floor 121 SW Salmon Street Portland, Oregon 97204 FAX: (503) 464 -2200 Page 17 Council Bill No. 2929 Ordinance No. 2507 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 same day as confirmed facsimile transmission (or the first business day thereafter if faxed on a Saturday, Sunday or legal holiday). Section 23- Prior Ordinance Repealed Ordinance 2328 is repealed -upon acceptance by the Company of this Franchise and all rights and obligations arising under Ordinance 2328 , 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. IN WITNESS WHEREOF, the parties, through their duly authorized representatives, have executed this Franchise as of the dates indicated below. PORTLAND GENERAL ELECTRICAL THE CITY OF WOODBURN O COMPPAANNY�� - By: - f � / � L 1� By. Name: ' 6 1 �i 1 dno l S(i lq Name: Scott Derickson Title: Sr �' (1 iSt . V Va1V %-S5 id )q e: City Administrator 4 C>i stnlgiLt v Date: Date: Approved as to Form: Y G Z0 t City Attorney Date Figley, Page 18 Council Bill No. 2929 Ordinance No. 2507 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 same day as confirmed facsimile transmission (or the first business day thereafter if faxed on a Saturday, Sunday or legal holiday). Section 23- Prior Ordinance Repealed Ordinance 2328 is repealed -upon acceptance by the Company of this Franchise and all rights and obligations arising under Ordinance 2328 , 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. IN WITNESS WHEREOF, the parties, through their duly authorized representatives, have executed this Franchise as of the dates indicated below. PORTLAND GENERAL ELECTRICAL THE CITY OF WOODBURN COMPANY By: By: Name: Name: Scott Derickson Title: Title: City Administrator Date: Date: 1 Approved as to Form: ' /�� �Y�'d 6 z °' City Attorney Date Figley Page 18 Council Bill No. 2929 Ordinance No. 2507 Passed by the Council Submitted to the Mayor , Approved by the Mayor ta, aoL3 Filed in the Office of the Recorder 13 1 Heather Pierson, City Recorder City of Woodburn, Oregon Page 19 Council Bill No. 2929 Ordinance No. 2507