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Ord 2109 - PGE Franchise COUNCIL BILL NO. 1486 ORDINANCE NO. 2109 AN ORDINANCE GRANTING PORTLAND GENERAL ELECTRIC COMPANY, AN OREGON CORPORATION, A NON-EXCLUSIVE FRANCHISE TO OPERATE AN ELECTRIC LIGHT AND POWER SYSTEM WITHIN THE CORPORATE LIMITS OF THE CITY, FIXING THE TERMS AND CONDITIONS THEREOF, AND DECLARING AN EMERGENCY. THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Franchise Granted. Portland General Electric Company, an Oregon Corporation ("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 ("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 Engineer" means the duly appointed City Engineer of Woodburn, Oregon. "City Recorder" means the duly appointed City Recorder of Woodburn, Oregon. "Company" means Portland General Electric Company, an Oregon Corporation. "Company facilities" means all poles, wires, fixtures, equipment, underground circuits and other property owned or in possession of the Company, directly used in connection with the transmission and distribution of electricity and located 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, equipment, underground circuits and other property necessary or convenient to supply the City, its inhabitants and other persons and territory with electric energy Page 1 - Council Bill No. 1486 Ordinance No. 2109 r-- . ~_..-._..~~._.,.,.~.~-~."...._- . tor light, power and other purposes, upon, over, along, under and across any public right-at-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 operating facilities of the utility other than residential-type space and water heating equipment. 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 PUC for determining the amount of franchise fees allowed as operating expenses of a utility for rate-making purposes. "Person" includes any individual, group of individuals, or legal entity. "PUC" means the State of Oregon, Public Utility Commission, and any successor or additional agency empowered by the State of Oregon to regulate public utilities. "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 private property upon which a preliminary subdivision or partition plat has been approved by the City for provision of public utilities within the corporate limits of the City. "Public utility" means any individual, partnership, cooperative, corporation or government agency buying electric energy and distributing such electric energy to other customers or users. B. Facilities Subiect to Ordinance. All Company facilities shall be deemed to be covered by the terms of this ordinance. C. Unless otherwise specified in this ordinance, any action authorized or required to be taken by the City may be taken by the Woodburn City Councilor its designee. Section 2. Terms of Franchise. This ordinance shall become effective pursuant to the Woodburn Charter, is retroactive to January 1, 1993, and shall terminate on December 31, 2002, except: Page 2 - Council Bill No. 1486 Ordinance No. 2109 ~-~ ,~. - - or"" .--~~ .'u A. If the Company fails, neglects or refuses to perform any or all of its obligations or requirements pursuant to this Franchise for thirty (30) days following written notice by the City demanding such performance, then this Franchise may be terminated by the City Council and the Company shall forfeit all rights and privileges hereby granted. B. If the State of Oregon or the PUC 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. C. If the Company is found guilty of providing fraudulent financial information to the City or fails to obtain or maintain any permit required by federal or state law. 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. Section 3. Construction to be Aooroved bv 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. B. In the case of an emergency the Company shall file maps and drawings with the City Engineer 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. Section 4. Location and Relocation of Comoanv Facilities. A. Citv Aooroval Reouired for Comoanv 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 Page 3 - Council Bill No. 1486 Ordinance No. 2109 by the City. All poles of the Company shall be erected at the outside edge of the sidewalk unless otherwise directed 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 City Engineer prior to commencing work if the emergency occurs during working hours. If the emergency occurs after working hours or on the weekend, the Company shall notify the City by calling NORCOM Dispatch Center (982-5340) prior to commencing work. B. Notice Reauired. Except in an emergency, the Company shall provide not less than forty-eight (48) business day hours notice to the City Engineer 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 disrljpt City services or any other person using the right-of-way and to enable the City to inspect the work. C. Comoanv to Minimize Disruotions. 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. D. Restoration Reauired. 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 City Engineer and subject to the City Engineer's approval.lf 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 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 Councilor as may otherwise be provided by law. Section 5. Comoanv Reauired to Relocate Facilities Uoon Notice. A. Whenever the City finds it necessary to relocate any tompany facility, the Company shall, upon ten (10) days written notice from the City, relocate such equipment at the Company's expense. If the Company fails to do so, the City may relocate such equipment at the expense of the Company. Prior to any such relocation the City agrees to provide for suitable locatian for such relocated facilities sufficient to maintain services. Page 4 - Council Bill No. 1486 Ordinance No. 2109 ---..- ---....-.........-.;...-..- B. Subject to Oregon law, the City shall have the right to require the removal of overhead electric facilities and require the replacement of those facilities with underground electric facilities at the same or different locations. The expense of such a conversion shall be paid by the Company subject to OAR 860-22-046. The conversion shall be accomplished in the manner described by the rules of the PUC, or in another manner which is mutually agreeable to both the Company and the City. Section 6. Temoorarv Rearranaement of Facilities. On seven (7) days written notice from a person desiring to move a building, machinery or other object, the Company shall temporarily rearrange or remove aerial cables, wires or other apparatus of the Company to permit the passage of such object. The notice shall: (1) bear the approval of the City Engineer, (2) detail the route of movement of the building, machinery or other object; (3) provide that the costs incurred by the Company in making such rearrangements of its aerial plant will be borne by the person giving the notice; and (4) provide that the person giving such notice will indemnify and hold the Company and the City harmless of and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly from such temporary rearrangement of the aerial plant of the Company. The Company may require that the notice be accompanied by a cash deposit or a good and sufficient bond to pay any and all such costs as estimated by the Company. Section 7. Public Facilities and Imorovements. 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 sewering, 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 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. The Company shall permit the City to string wires on poles of the Company for any municipal purpose and to attach to the top of any pole city fife alarms and police signals, subject to the following conditions: Page 5 - Council Bill No. 1486 Ordinance No. 2109 (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; 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 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 permit 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. (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 Section 7(0). Section 8. 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 rules and regulations of the Oregon Public Utility Commission. Section 9. AcceDtance of Franchise Fees. The rights and privileges granted by this Franchise are granted upon the conditions herein contained and also upon the following conditions: Page 6 - Council Bill No. 1486 Ordinance No. 2109 ..- - ----T--.-'-_U -.--- A. Portland General Electric Company shall, within thirty (30) days from the effective date of this ordinance, file with the City Recorder its written acceptance of this Franchise (Exhibit "A". Acceptance of Franchise), subject to all the terms and conditions of this Franchise. If Company has not unconditionally accepted this ordinance within the above noted acceptance period, this ordinance shall become void. B. 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 %) percent of the gross revenue as defined herein for the immediately preceding calendar year. In the event that the Company shall agree to pay a franchise fee of more than three and one-half (3 %) percent to any city or municipal corporation served by the Company or in the event that the PUC permits the Company to pay any municipality a percentage rate of compensation exceeding that provided for herein as an operating expense of the Company, however, the Company shall immediately so inform the City of Woodburn. The City shall have the right to immediately require and receive the same percentage fee or compensation as that agreed to for the other municipality or provided for by the PUC. C. In consideration of the agreement of the Company to make such payments, the City agrees that no license, 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 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) The City shall retain the power to impose a privilege tax on the Company as permitted by Oregon law, so long as the combined franchise fee and privilege tax assessed against the Company does not exceed five (5) percent of the Company's gross revenue from within the City as defined in this ordinance. If the City decides to enact a privilege tax, the City shall provide the Company with sixty (60) days notice prior to the effective date of the ordinance enacting the tax. D. On or before the first day of March of each year during the term of this Franchise, beginning in 1993, 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 any privilege tax that may be assessed) for the year in which the statement is filed shall be computed on the gross revenue so reported. Such franchise fee (and any privilege tax that may be assessed) shall be payable annually on or before the first day of April, beginning in 1993. Any privilege tax enacted by the City shall be paid by the Page 7 - Council Bill No. 1486 Ordinance No. 2109 h-r Company to the City beginning with the annual payment following enactment of the tax. 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. 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 sell, assign, transfer or convey this Franchise without the consent of the City Council. G. 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 10. Books of Account and Reoorts. The Company shall maintain accurate books of account at an office in Oregon for the purpose of determining the amounts due to the City under Section 9 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 may audit the books from time to time. Section 11. Utility Rates Set bv PUC. The rates charged by the Company for electric energy shall be as fixed or approved by the PUC. Section 12. 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, it agents or employees in exercising the rights, privileges and franchise hereby granted. Section 13. Insurance. Company shall be self-insured for any tort liability for the first $1 million of coverage or maintain an equivalent insurance policy. Beyond the $1 million retention, Company shall maintain liability coverage in excess of $1 Page 8 - Council Bill No. 1486 Ordinance No. 2109 . _...,...._ ..__." "_~_......,..........,,......'h~"" __."......,.".~.. million for bodily injury and property damage, including liability assumed under contract. Company shall defend or negotiate any claims against the City, its officers, agents and employees, arising out of Company's exercise of its rights and privileges granted by this Franchise. Section 14. 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 15. Rights not to be Construed as Enhancement to Comoanv Prooertv. 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 16. 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 17. Severabilitv Clause. If any portion of this ordinance is deemed unlawful or void by a Court or regulatory body of competent jurisdiction, such decision shall not effect the validity of the remaining portions of this ordinance. Section 18. Prior Ordinance Reoealed. Ordinance No. 1333, as amended by Ordinance 2096, is hereby repealed, and upon acceptance by the Company of this Franchise, all rights and obligations arising under Ordinance No. 1333, as amended, shall terminate. Section 19. Emeraencv Clause. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the Council and approval by the Mayor. -'" /) /'\ ~ 'Z z 0,; '(_ Approved as to form~ ~ City Attorney ~ 0 te APPROVED: _____ ~~ LE KELLEY , MAY R Passed by the Council July 26, 1993 Page 9 - Council Bill No. 1486 Ordinance No. 2109 ~"""m___""'~ Submitted to the Mayor July 27, 1993 Approved by the Mayor July 27, 1993 Filed in the Office of the Recorder ATTEST: (Y! ~ --r;:~ Mary Tenna ,City Recorder City of Woodburn, Oregon July 27, 1993 Page 10 - Council Bill No. 1486 Ordinance No. 2109 'r,.m.