APPENDIX II. POWER AND LIGHT FRANCHISES

APPENDIX II.
POWER AND LIGHT FRANCHISES

ORDINANCE NO. 2199

AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE, PROVIDING FOR TERMS AND CONDITIONS THEREFORE AND REPEALING ORDINANCE NO. 1526.

(Repealed By Ord. 2788)

ORDINANCE NO. 2490

AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE FOR SUPPLYING ELECTRICITY AND ELECTRICAL SERVICE AND DECLARING AN EMERGENCY.

(Repealed By Ord. 3031)

RESOLUTION 1547

A RESOLUTION EXTENDING A NON-EXCLUSIVE FRANCHISE FOR SUPPLYING ELECTRICITY AND ELECTRICAL SERVICE.

WHEREAS, the City of Cottage Grove has an existing non-exclusive franchise with Emerald People’s Utility District (EPUD) for the purpose of supplying electricity and electrical service within the City of Cottage Grove; and

WHEREAS, such franchise has expired; and

WHEREAS, the City of Cottage Grove and EPUD desire to extend such agreement; and

WHEREAS, the City Council may at its sole discretion extend the term of this franchise by not less than one year, nor more than five years.

NOW, THEREFORE, BE IT RESOLVED by the City Council that the City of Cottage Grove hereby extends the term of the franchise between the City of Cottage Grove and Emerald People’s Utility District by five years, expiring on December 31, 2010.

BE IT FURTHER RESOLVED, that this resolution will take effect immediately upon its passage by the City Council.

PASSED BY THE COUNCIL AND APPROVED BY THE MAYOR THIS 11th DAY OF April, 2005.

____________________________

Richard Meyers, City Manager

Date: April 11, 2005

____________________________

Gary Williams, Mayor

Date: April 12, 2005

ORDINANCE NO. 2788

AN ORDINANCE GRANTING TO PACIFICORP, AN OREGON CORPORATION, A FRANCHISE FOR THE PURPOSE OF SUPPLYING ELECTRICITY AND ELECTRICAL SERVICE TO THE CITY OF COTTAGE GROVE, AND REPEALING ORDINANCE NO. 2199.

(Repealed by Ord. 2937)

ORDINANCE NO. 2937

AN ORDINANCE GRANTING AN ELECTRIC UTILITY FRANCHISE AND GENERAL UTILITY EASEMENT TO PACIFICORP AND REPEALING ORDINANCE NO. 2788.

(Repealed by Ord. 3066)

ORDINANCE NO. 3031

AN ORDINANCE GRANTING A NON-EXCLUSIVE ELECTRIC UTILITY FRANCHISE TO EMERALD PEOPLE’S UTILITY DISTRICT (EPUD), AN OREGON PEOPLE’S UTILITY DISTRICT, ORGANIZED UNDER ORS CHAPTER 261 AND FIXING TERMS, CONDITIONS, AND COMPENSATION OF SUCH FRANCISE AND REPEALING ORDINANCE NO. 2490

WHEREAS, the City of Cottage Grove, through Ordinance 2490, has allowed EPUD to operate an electric power utility system within public right-of-ways within the City of Cottage Grove;

WHEREAS, EPUD has continuously operated an electrical power utility system with the City of Cottage Grove since 1983;

WHEREAS, EPUD desires to continue to use the public right-of-ways for the operation of its electric power utility system with the City of Cottage Grove through a franchise agreement; and,

WHEREAS, the City of Cottage Grove deems it appropriate that a franchise be granted to EPUD.

NOW, THEREFORE, the City of Cottage Grove does ordain as follows:

Section 1. INTRODUCTION

1. Statement of Intent and Purpose. The City of Cottage Grove intends, by the granting of this Franchise, to authorize the continued development and operation of an electric utility system to serve the citizens of Cottage Grove. Such development can contribute significantly to meeting the electrical needs and desires of many individuals, associations, and institutions in the City.

2. Short Title. This Ordinance shall be known as the EPUD Franchise Ordinance. Within this document, it shall be referred to as "this Franchise" or "the Franchise."

3. Definitions. For the purpose of this Ordinance, the following terms shall have the meaning given herein:

a. Bridge: Includes a structure erected within the City to facilitate the crossing of a river, stream, ditch, ravine or other place.

b. City: The City of Cottage Grove, Oregon, and the area within its boundaries including its boundaries as extended in the future and all property owned by the City, outside City limits. It means all officers, employees, and representatives of the City of Cottage Grove.

c. City Council: The legislative body of the City.

d. Conduit: An electrical raceway for the enclosure of electrical conductors and may consist of rigid conduit of electrical metallic tubing or plastic tubing.

e. Customer Base: The total number of individual customers in any given year within the City.

f. Distribution Facilities: Electric facilities of up to 35,000 kilovolts used for the delivery of electric power and energy to customers.

g. Easement: Public right-of-way, private utility easement on private or public property, or public utility easement on public or private property but not including a private utility easement for a customer’s service drop.

h. Franchise Territory: The area within the legal boundaries of the City, and all property owned by the City outside its boundaries, including areas annexed during the term of the Franchise.

i. Gross Revenue: Revenues derived from the sale of electricity or from the use, rental or lease of EPUD’s operating facilities other than residential-type space and water heating equipment within the City and within the meaning of net gross revenues under ORS 221.450, after deducting therefrom any amounts paid by EPUD to the United States or to the State of Oregon as excise, occupation, or business taxes upon the sale or distribution of electric service in the City, and after deducting net uncollectibles. Gross Revenues shall not include proceeds from the sale of bonds, mortgage or other evidence of indebtedness, securities or stocks, sales at wholesale by one utility to another when the utility purchasing the service is not the ultimate customer or revenue from joint pole use.

j. Manager: The City Manager of the City of Cottage Grove, or such person as may be designed by the City Manager for the administration of this Franchise.

k. May: Is permissive.

l. EPUD: Emerald People’s Utility District, an Oregon people’s utility district, its successors, transferees, legal representatives, employees, contractors, subcontractors, agents or assigns.

m. Person: Includes an individual, corporation, statutory entity (LLC, intergovernmental agency, etc.), firm, partnership, and joint stock company.

n. Public Place: Includes any City-owned or leased park, place facility, or grounds within the City that is open to the public, but does not include a street or bridge.

o. Public Rights-of-Way: Includes, but is not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, parking strips, public easement on private property, and all other public ways or areas, including subsurface and air space over these areas.

p. Shall: is mandatory.

q. State: The State of Oregon.

r. Street: Includes the surface, the air space about the surface, and the area below the surface of any public street, alley, avenue, road, boulevard, thoroughfare or public highway, and other public rights-of-way including public utility easements, but does not include a bridge or public place.

s. Technical Facilities or Facilities: All real property, equipment, and fixtures used by EPUD in the distribution of its services through its system.

t. Volumetric: A method of computing franchise fees based on the volume of electricity sold or transmitted through EPUD facilities with the City.

Section 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS

1. Grant of Authority. Subject to the conditions and reservations contained in the Ordinance, City hereby grants to EPUD, the right, privilege, and franchise to install, maintain, and operate on, over or under streets, bridges, and public places approved by the City, facilities for the transmission and distribution of electricity to be distributed to the City and to its inhabitants and to other customers and territory beyond the limits of the City. This Franchise does not limit EPUD’s ability to provide other utility services such as telecommunications and cable television, but does not allow EPUD to provide such services under this Franchise. EPUD shall be required to enter into separate franchise agreements for such services at the sole discretion of the City.

2. Duration, Renewal, and Renegotiation. This Franchise is granted for a period of ten (10) years from and after the effective date of this Ordinance, unless reopened sooner under the provisions of Section 6.1.e or .f, or terminated sooner under the provisions of Section 7.7. Notwithstanding the foregoing, the City and EPUD shall retain the right, upon sixty (60) days advance written notice to the other party, to reopen and renegotiate any provision of this Franchise at any time during or after the fifth year of the term of the Franchise. All terms of the Franchise must be unconditionally accepted by EPUD in writing, signed by an authorized officer, within thirty (30) days after the date of this Ordinance is passed by the City. If EPUD fails to do so, this Ordinance shall be void.

3. Franchise Nonexclusive. So long as the exercise of authority is consistent with state law, including but not limited to the Territorial Allocation Law (ORS 758.400 to 758.475), this Franchise is not exclusive and shall not be construed as a limitation on the City in:

a. Granting rights, privileges, and authority to other persons similar to, or different from, those granted by this Ordinance.

b. Constructing, installing, maintaining or operating any City-owned public utility, including but not limited to, an electric power and light utility system.

Section 3. SERVICE STANDARDS

1. Continuous Service. EPUD shall maintain and operate an electric power utility system in the City that conforms to the standards of the National Electric Safety Code. EPUD shall use due diligence to maintain continuous and uninterrupted service which shall conform at least to the standards adopted by the State and Federal authorities, and to the standards of the City which are not in conflict with those adopted by the State and Federal authorities. Under no circumstances is EPUD liable to the City for an interruption or failure of service caused by acts of God, unavoidable accident or other circumstances beyond the control of EPUD through no fault of its own.

2. Emergency Repair Service. As provided in Section 3.5 below, EPUD shall maintain emergency repair service available to City customers on a twenty-four (24) hour per day, seven (7) day per week basis. Such emergency service shall be easily reached by phone during normal business hours and through an answering service at all other times. EPUD shall designate these emergency repair facilities as a priority and provide all necessary information and assistance to resolve the emergency as soon as possible.

3. Provision of Service Standards. EPUD will, at all times, maintain the following service standards:

a. Underground Extension of System.

i. In cases of new construction where utilities are to be placed underground or service provided to newly-created lots which shall be underground in accordance with standards of the Cottage Grove Municipal Code, the developer or property owner shall give EPUD reasonable notice of such construction or development, including a copy of any final plat, and of the particular date on which open trenching will be available for EPUD’s installation of conduit, pedestals and/or vaults, and laterals to be provided at developer or property owner’s expense, in accordance with any applicable state law. EPUD shall also provide to City specifications as needed for trenching.

ii. Costs of trenching and easements required to bring service to the development shall be borne by the developer or property owner. Written notice must be given to EPUD five (5) working days before trenches are available.

iii. It shall be the policy of the City to encourage all utilities, including EPUD, to place overhead distribution facilities underground. EPUD has a right to collect costs of undergrounding in a manner consistent with its tariffs, Oregon statutes, and any applicable Oregon Public Utility Commission regulations. It is also the policy of the City to encourage co-location of utilities in common underground facilities. EPUD shall make its best effort to satisfy the City’s policy, provided however, when safety is an issue, EPUD shall not be required to share locations with water or sewer utilities unless EPUD elects to do so.

iv. In cases of capital improvement projects undertaken by the City, EPUD shall convert existing overhead distribution facilities to underground so long as EPUD is allowed to collect the incremental costs associated with the conversion from overhead to underground distribution facilities.

v. EPUD shall remove idle overhead facilities within a reasonable time.

b. In the event EPUD vacates or abandons a pole or facility, EPUD shall provide written notification at least thirty (30) business days prior to vacation or abandonment of such pole or facility to the City and all other utilities or persons sharing the pole through a joint use agreement. Affected utilities shall be provided a grace period of thirty (30) business days following the date of pole vacation or abandonment in which to remove their facilities. If facilities have not been removed within the thirty (30) day grace period, the City may have the facilities removed at the expense of the owner of the facilities.

c. EPUD shall operate its electric utility system authorized by this Ordinance twenty-four (24) hours per day, seven (7) days per week.

4. Safety Standards and Work Specifications

a. EPUD shall at all times keep and maintain all of its poles, fixtures, conduits, wires, and its entire system in a good state of repair and shall at all times conduct its operations under this Franchise, including installation, construction or maintenance of its facilities, in a safe and well-maintained manner so as not to present a danger to the public or the City.

b. The location, construction, extension, installation, maintenance, removal, and relocation of the facilities of EPUD shall conform to:

i. The requirements of the State and Federal statutes and regulations in force at the time of such work.

ii. Such reasonable specifications in force at the time of such work, as the City may from time to time adopt, provided such specifications do not contravene Federal or state statutes, the National Electric Safety Code or EPUD safety, construction or operational policies or procedures.

iii. All installations, rearrangements, removals, lowering or raising of aerial electric utilities, wiring or other apparatus shall be done in conformance with the requirements of the National Electric Safety Code, the laws of the State of Oregon, all Oregon Public Utility Commission rules, and all ordinances and municipal codes of the City.

iv. EPUD shall, within a reasonable time, remove graffiti on electrical facilities upon notification from the City.

5. Maintenance Personnel. Maintenance personnel shall, at a minimum, be on-duty eight (8) hours a day, during regular Monday through Friday working days, and shall be on-call at all times to respond to emergencies and system outages in a prompt and expedient manner.

Section 4. USE OF PUBLIC WAYS

1. Excavation and Restoration.

a. EPUD shall comply with all applicable ordinances, municipal codes, rules or regulations that may pertain to its activities within easements, public places, and public rights-of-way of the City.

b. All structures, lines, and equipment erected by EPUD within the City shall be located so as to cause minimum interference with the proper use of streets, alleys, and other public rights-of-ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the streets, alleys or other public rights-of-ways or places.

c. Except in the case of emergency repairs, no newly overlaid street or newly constructed street shall be excavated by EPUD for a period of five (5) years from the time of completion of the street overlay or the street construction unless specifically authorized by the City. Such authorization shall not be unreasonable withheld. This paragraph shall not prohibit boring under the streets so long as the road surface is undisturbed.

d. All installations by EPUD in new residential subdivisions shall be, wherever and whenever practical, placed in conjunction with all other utility installations in compliance with existing regulations. When safety is an issue, EPUD shall not be required to share locations with other utilities.

e. When any excavation is made by EPUD, EPUD shall, within seven (7) calendar days, restore the affected portion of the street, bridge, easement area, private property or public place to as reasonably good a condition as it was prior to the excavation. Any restoration by EPUD shall be done in compliance with City specifications, requirements, and regulations in effect at the time of such restoration and shall be guaranteed for a period of one year following inspection and acceptance of the restoration by the City. If EPUD fails to restore within seven (7) calendar days, the affected portion of the street, bridge, easement area, private property or public place to as reasonably good a condition in which it was prior to the excavation, the City may make the restoration and the reasonable costs of making the restoration, including the cost of inspection, supervision, and administration, shall be paid by EPUD. The City may grant an extension to the seven (7) calendar day requirement of this section.

f. Notwithstanding paragraph (e) above, the City may require that any excavation made by EPUD in any street, bridge or public place be filled and the surface replaced by the City, and that reasonable costs incurred by the City therefore, including the cost of inspection, supervision, and administration shall be paid by EPUD.

g. The reasonable costs of excavation and restoration incurred by the City pursuant to Section 4.1.e and 4.1.f of this Franchise, including the cost of inspection, supervision, and administration shall be paid by EPUD to the City in accordance with the standard billing policy of the City in effect at the time the excavation or restoration occurred.

2. Relocation of Facilities.

a. EPUD shall, at its expense, protect, support, temporarily disconnect or relocate any of its equipment or facilities that are required to promote the public interest by the City by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sanitary or storm sewer lines, water pipes, power lines, signal lines or tracks or any other type of structures or public improvements by the City or its agents. Relocation of facilities required by the City shall be completed within a time limit mutually agreed to by the City and EPUD.

b. A written request for facility relocation may be initiated directly by the City or by a private developer or contractor installing or modifying public infrastructure under the approval of the City, provided EPUD may charge the expense of removal or relocation to the developer or contractor that makes a request, directly or indirectly, if the removal or relocation is caused by an identifiable development of property in the area or is made for the convenience of a developer or contractor. EPUD shall not be reimbursed for removal or relocation requested by, and for the sole convenience of, the City.

c. All facilities placed in the public rights-of-way shall be placed in coordination with the City and other affected utilities.

d. If EPUD fails to comply with any requirement of the City pursuant to this section, the City may remove or relocate the facilities at EPUD’s expense, unless the removal or relocation would be in violation of any portions of ORS 757.800 or ORS 757.805.

e. If the removal or relocation of facilities is caused directly or otherwise by an identifiable development of property in the area or is made for the convenience of a customer, EPUD may charge the expense of removal or relocation to the developer or customer.

3. Tree Pruning.

a. Subject to the provisions of this Ordinance, EPUD may prune trees in easements, when necessary, for the operation of the utility lines, wires or other appurtenances, provided such pruning shall be performed by or supervised by a certified arborist in accordance with applicable City ordinances, and it shall be done without cost or expense to the City.

b. EPUD shall provide written notice to the City Public Works Department and property owner and resident at least ten (10) business days prior to any pruning to be done on the property. The City recognizes that a ten (10) day notice may not be possible in emergency situations; however, the City does encourage EPUD to provide as much advance notice to property owners and residents as is reasonably possible under such emergency circumstances. This paragraph shall not prohibit emergency pruning without notice to address safety or reliability issues.

4. Use of Facilities by the City.

a. As additional consideration for the Franchise and privileges granted to EPUD by this Ordinance, the City shall have the free right and privilege to install or affix and maintain street lights, wires, seasonal decorations and equipment for municipal purposes upon the structures and installations owned and/or maintained by EPUD. For the purpose of this section, the term "municipal purposes" means all municipal purposes except the distribution or sale of electric power to the public and includes, but is not limited to, the use of structures and installations for:

i. Municipal fire, police, water, wastewater, and storm water utility service wires and equipment.

ii. Municipal interdepartmental computers and communications.

iii. Municipal fire alarm and police and traffic signals, signs, and equipment.

iv. Seasonal decorations and special event banners and attachment authorized by the City.

b. The City shall install, affix, maintain, and operate its wires and equipment at its own expense and in accordance with the requirements of State and Federal law, and regulations adopted pursuant thereto, and in accordance with good engineering practice and safety standards. The wires and equipment of the City shall be subject to interference by EPUD only when necessary for the maintenance, operation or repair of the facilities of EPUD. EPUD’s actions shall not unduly interfere with the City’s safe and convenient use of its installations.

c. The City shall install, affix, maintain, and operate its wires and equipment in such a manner as not to impose any undue additional expense upon EPUD or unduly interfere with the safe and convenient use and maintenance by EPUD of its structures and installations. Any such activities by the City shall be conducted in accordance with Pole Attachment Agreements entered into by the City and EPUD. In no event shall there be an installation by the City without prior written notice to EPUD which states the pole location and number, the facilities to be installed, and the proposed date of the installation as well as any other information required by EPUD or an applicable Pole Attachment Agreement.

i. If there is not sufficient space available thereon for said purposes, EPUD shall change, alter or re-arrange its structures at the City’s expense so as to provide proper clearance for such wires or appurtenant facilities.

ii. Such facilities shall be subject to interference by EPUD only when and to the extent necessary for the proper construction, maintenance, operation or repair of EPUD’s facilities.

d. The City shall indemnify, protect, and save EPUD, its officers, employees, and agents, harmless against and from any and all damages, claims, loss, liability, cost or expense resulting from damage to property or injury or death to any third person to the extent caused by or arising out of the installation, maintenance, existence or use of the installations for municipal purposes as described in Section 4.4.

5. Use of Bridges and Public Places by EPUD.

a. Before EPUD may use or occupy any bridge or public place, EPUD shall first obtain permission from the City to do so and comply with any special conditions the City desires to impose on such use or occupation.

b. The compensation paid by EPUD for this Franchise includes compensation for the use of bridges and public places located within the City, as authorized. However, this subsection shall not be construed to prevent the City from requiring EPUD to pay the compensation or charges as provided in Section 6.1.

6. Emergency Removal and Alternate Routing of Facilities.

a. If at any time, in case of fire or disaster in the Franchise Territory, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, equipment or other appurtenances to the system of EPUD, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by EPUD, at its sole expense, provided that such repairs are not necessitated by a negligent act of the City, in which case costs for repairs shall be borne by the City.

b. The City shall indemnify, protect, and hold EPUD, its officers, employees, and agents harmless against and from all damages, claims, loss, liability, cost or expense resulting from damage to property or injury or death to any third person caused by the City’s cutting or moving any of the wires, equipment or other appurtenances.

c. In the event continued use of a street or easement is denied to EPUD by the City for any reason, EPUD shall provide service to affected customers over such alternate routes as shall be determined by EPUD within a reasonable period of time. The City shall provide or attempt to provide an alternate route if continued use of a street or easement is denied to EPUD.

Section 5. CONSTRUCTION

1. Public Works and Improvements Not Affected by Franchise. The City reserves the right to:

a. Construct, install, maintain, and operate any public improvement, work or facility.

b. Do any work that the City may find desirable on, over or under any street, bridge or public right-of-way.

c. Vacate, alter or close any street, bridge or public right-of-way.

d. Whenever the City excavates or performs any work in any of its streets, alleys or other public rights-of-way or contracts or issues permits to others for such excavation or work, where the excavation or work may disturb EPUD’s above-ground or underground electric utility wires, conduits, poles, transformers, equipment, pipes, conduits or other facilities and appurtenances, the City may, in writing, notify EPUD sufficiently in advance of such contemplated excavation or work to enable EPUD to take such measures as it deems necessary to protect its above-ground or underground electric utility, pipes, conduits, and appurtenances from damage and possible inconvenience to the public. In any such case, EPUD, upon receiving such notice, shall furnish maps or drawings to the City or contractor, as the case may be, showing the approximate location of all its structures in the area involved in such proposed excavation or other work.

e. Whenever the City vacates any street or public place for the convenience or benefit of any person or governmental agency or instrumentality other than the City, EPUD’s rights shall be preserved as to any of its facilities then lawfully existing in such street or public place.

2. Control of Construction. EPUD shall file with the City, maps showing the location of any construction, extension or relocation of any of its electric lines, conduits or facilities and must first obtain the City’s approval of the location and plans prior to the commencement of the work. EPUD shall be required to obtain a permit from the City with no permit fees to EPUD, before commencing the construction, extension or relocation of any of its electric utility transmission or distribution facilities within an easement.

3. Maps. EPUD shall file with the City a system "as built" map drawn to accurate scale and shall amend the map annually or as often as necessary to keep the City informed as to the location of all facilities installed in the Franchise Territory. The map shall clearly indicate the location of distribution and transmission lines within easements. Location of customer service drops in a specified underground area shall be provided promptly by EPUD upon the City’s request.

4. Rearrangement of Facilities to Permit Moving of Buildings and Other Objects.

a. Upon reasonable advance notice in writing from any person desiring to move a building or other object, EPUD shall temporarily raise, lower or remove its facilities upon any street, bridge or public place within the City, when necessary, to permit the person to move the building or other object across or along such street, bridge or public place. The raising, lowering or removal of the facilities of EPUD shall be in accordance with all applicable ordinances and regulations of the City.

b. The notice required by Section 5.4.a of this section shall bear the approval of the Manager, shall detail the route of movement of the building or other objects, and shall provide that the actual expense incurred by EPUD in making the temporary rearrangement of its facilities, including the cost to EPUD of any interruption of service to its customers caused thereby, will be borne by the person giving the notice. It shall further provide that the person giving the notice will indemnify and save EPUD harmless from any and all damages or claims whatsoever caused directly or indirectly from such temporary rearrangement of EPUD’s facilities.

c. EPUD, before making the temporary rearrangement of its facilities, may require the person desiring the temporary rearrangement to deposit cash or other adequate security reasonably acceptable to EPUD, to secure payment of the costs of rearrangement, as estimated by EPUD.

d. Upon advance notice by the City of its own intent to move a building or other object, either in its governmental or proprietary capacity and for the sole benefit of the City, the temporary rearrangement of EPUD’s facilities shall be accomplished by EPUD at no cost to the City provided, however, that the indemnification provisions of Section 5.4.b shall still apply to the City.

Section 6. FINANCIAL

1. Compensation

a. In consideration of the rights, privileges, and franchise hereby granted, EPUD shall pay to the City from and after the effective date of the acceptance of this Franchise, five percent (5%) of its gross revenues derived from within the corporate limits of the City. Notwithstanding any provision to the contrary, at any time during the term of this Franchise, the City may elect to increase the franchise fee amount as may then be allowed by state law. The City shall provide EPUD prior written notice of such increase following adoption of the change in percentage by the City. The increase shall be effective sixty (60) days after the City has provided EPUD with such written notice.

b. The compensation required by this section shall be due on or before the 25th day of each and every month for the month preceding. Within thirty (30) days after the termination of this Franchise, compensation shall be paid for the period elapsing since the end of the last month for which compensation has been paid.

c. EPUD shall furnish to the City with each payment of compensation required by this section, a statement showing the amount of gross revenue of EPUD within the City for the period covered by the payment and including an explanation of the basis upon which the amount of compensation is calculated. If EPUD fails to pay the entire amount of compensation due to the City through error or otherwise within the times allotted for payment in Section 6.1.b above, the amount of the compensation due for that month and not timely paid shall be subject to a late penalty of one percent (1%) per month on the amount of compensation due and unpaid from the date due until it is paid.

d. Nothing contained in this Franchise shall give EPUD any credit against any ad valorem property tax now or hereafter levied against real or personal property within the City or against any local improvement assessment or against any charges imposed upon EPUD as provided in Section 6.4 of this Franchise or reimbursement or indemnity paid to the City.

e. In the event EPUD is prohibited by State of Federal law from paying a fee or compensation based on gross revenues or the City is prohibited by State or Federal law from collecting such a fee or compensation, either the City or EPUD shall have the right to re-open the Franchise agreement to renegotiate the compensation section. Additionally, if at any time a volumetric approach to the calculation of fees or compensation is deemed by the City as advantageous, EPUD shall cooperate in the renegotiation of the compensation section.

f. In the event EPUD agrees to pay any other city in the State of Oregon a higher franchise fee or privilege tax than the amount established in Section 6.1.a, the City shall have the right to re-open the Franchise Agreement for the purpose of establishing the franchise fee or privilege tax in an amount equal to that being paid to such other city.

2. Indemnification and Insurance.

a. Subject to the limitations and conditions of the Oregon Tort Claims Act, ORS 30.260-30.300, each party agrees to hold the other harmless, to indemnify and to defend the other, its officers, agents, volunteers, and employees from any and all liability, actions, claims, losses, damages or other costs including attorneys’ fees and witness costs that may be asserted by any person or entity arising from, during or in connection with the performance of the work described in this agreement, when such liability, action, claim, loss, damage or other cost results from the action of that party in the course of this agreement. Nothing in this agreement shall be deemed to create a liability for any party in excess of the Oregon Tort Claims Act limits for either party. EPUD shall at all times comply with any lawful present or future charter provisions, ordinances, rules or regulations of the City relating to the manner of occupation or use or to the repair or improvement of all public rights-of-way.

b. EPUD shall, for the purposes of carrying out the provisions of this Franchise, prior to commencing construction of any kind, have in full force and effect and file evidence thereto with the City Manager, good and sufficient insurance policies covering Employer’s Liability insurance with a minimum limit of $1,000,000, Commercial General Liability insurance, to include contractual liability with a minimum single limit of $1,000,000 to protect against and from all loss by reason of injury to persons or damage to property based upon and arising out of the work performed under this Franchise, and Business Automobile Liability insurance with a minimum single limit of $1,000,000 for bodily injury and property damage with respect to vehicles, whether owned, hired or non-owned, assigned to or used by any contractor in the performance of the work. EPUD may self-insure for any or all of the above coverage and shall furnish the City with documentation, acceptable to the City, certifying evidence of self-insurance.

c. The City of Cottage Grove, its officers, agents, and employees, shall be named insureds in any policy or self-insurance covering losses caused in whole or in part by reason of the exercise of the rights and privileges herein granted but only such losses for which EPUD has agreed to indemnify the City per the terms of this Franchise. EPUD shall pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in Section 6.2.a above. These expenses shall include all out-of-pocket expenses, including consultants’ or attorneys’ fees.

3. Damages. Damages and penalties shall include, but shall not be limited to, damages arising out of personal injury, property damage, copyright infringement, defamation, antitrust, errors and omissions, theft, fire, and all other damages arising out of EPUD’S exercise of this Franchise, whether or not any act or omission complained of is authorized, allowed or prohibited by this Franchise provided, however, that damages shall not include punitive damages.

4. Permits. Nothing in this Ordinance shall be construed to limit the right of the City to require EPUD to obtain any necessary permits required by the Cottage Grove Municipal Code.

5. Reflecting Expenditures on Billing Statements. EPUD agrees to follow state regulations applicable to public utilities with respect to passing through the costs of any part of the franchise fee to its customers with the City (currently OAR 860-033-0040).

Section 7. CITY ADMINISTRATION OF FRANCHISE

1. Ongoing Communication. EPUD shall keep the City informed of all new developments, issues or concerns affecting the utility system. EPUD shall notify the Manager in advance of any public announcement that is to be made on such subjects. The City shall endeavor to notify EPUD of any developments or issues concerning the Franchise in advance of any public announcement on such subjects.

2. Right to Inspect Records. EPUD shall keep current, accurate records of account at any office within a reasonable day’s commute of the City for the purpose of determining the amounts due the City under Sections 6.1.a and 6.1.c of this Ordinance. The City may inspect and audit the records of account upon written request. The City Council may request periodic reports from EPUD relating to its revenue within the City.

3. Reports and Records.

a. Within thirty (30) days following any written request by the City, EPUD shall furnish to the City a report which will accurately identify the total number of EPUD’S customers, according to customer class, within the City limits.

b. The cost of preparing and furnishing to the City the records and reports required by this Franchise shall be borne by EPUD.

4. Assignment or Sale of Franchise or Facilities. EPUD shall not transfer or assign any rights under this Franchise to another person or entity, except transfers and assignments by operation of law including mergers and similar transactions, unless the City first gives its approval in writing. Which approval shall not be unreasonably withheld or delayed provided, however, inclusion of this Franchise as property subject to the lien of EPUD’s mortgage(s) shall not constitute a transfer or assignment.

Grantee shall reimburse the City for all direct and indirect fees, costs, and expenses reasonably incurred by the City in considering a request to transfer or assign the Franchise, including the reasonable costs of the professional consultation on legal, technical or financial issues related to the transfer or assignment.

5. Remedies Not Exclusive: When Requirement Waived. All remedies and penalties under this Ordinance, including termination of the Franchise, are cumulative and the recovery or enforcement of one is not a bar to the recovery or enforcement of any other such remedy or penalty. The remedies and penalties contained in this Ordinance, including termination of the Franchise, are not exclusive and the City reserves the right to enforce the penal provisions of any ordinance or resolution. Each party may enforce any and all remedies available at law or in equity. Any failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation by the non-enforcing party. A specific waiver of a particular breach of any term, condition or obligation imposed upon a party or acceptance of any payment due, shall not be a waiver of any other or subsequent or future breach of the same or any other term, condition or obligation itself.

6. City’s Right to Revoke. In addition to all other rights which the City has pursuant to law or equity, the City reserves the right to revoke, terminate or cancel this Franchise and all rights and privileges pertaining thereto in the event that:

a. EPUD repeatedly violates any material provision of this Franchise.

i. The following provisions are deemed to be material to the performance of the Franchise:

• Continuous Service (Section 3.1)

• Emergency Repair Service (Section 3.2)

• Excavation and Restoration (Section 4.1)

• Relocation and Facilities (Section 4.2)

• Compensation (Section 6.1)

• Insurance (Section 6.2)

• Damages (Section 6.3)

• Assignment or Sale of Franchise (Section 7.4)

b. EPUD practices any fraud upon the City or any customer.

c. EPUD becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt.

d. EPUD misrepresents a material fact in the application for or negotiation of or renegotiation or renewal of the Franchise.

e. EPUD deliberately fails to operate the system without prior approval of the City or without just cause.

7. Revocation Procedures.

a. The City shall provide EPUD with a written notice of the cause of termination and its intention to terminate or revoke the Franchise and shall allow EPUD a minimum of ninety (90) days after service of the notice in which to correct the violation. If, at the end of the ninety (90) day period, EPUD has not corrected the matter which provides grounds for termination, the Franchise may, at the option of the City, become null and void and EPUD shall thereafter be entitled to none of the privileges or rights herein extended to them under this Ordinance, and the City may, at its option, pursue any other and different or additional remedy provided to it by law or in equity. Revocation shall not prohibit EPUD from continuing to provide electric service to its customers in the City as required under tariffs and Federal or state statutes, rules, and regulations until such time as a successor provider acquires EPUD’s facilities.

b. EPUD shall be afforded due process and provided with an opportunity to be heard at a public hearing before the City Council prior to the termination of the Franchise. The City Council shall hear any interested persons, and shall determine, in its discretion, whether or not any failure, refusal or neglect by EPUD has occurred.

c. Any revocation of this Franchise shall be by formal action of the City Council by Ordinance.

Section 8. POST FRANCHISE

1. City Right in Franchise.

a. Notwithstanding the City’s right as outlined in Section 4.4, the City’s use of EPUD’s facilities shall at all times comply with the rules and regulations of EPUD and shall not compete or interfere with EPUD’s use. The City shall hold EPUD harmless from any claims arising out of the City’s use of said facilities hereafter.

b. The City shall have the right to observe and inspect all construction or installation of EPUD’s facilities subject to the provisions of this Ordinance and to make such inspections as it shall find necessary to insure compliance with governing laws, rules, and regulations. Except for emergencies, no construction shall be commenced prior to approval by the City. EPUD is responsible for all work performed by or for EPUD or its agents.

2. Continuity of Service Mandatory. Upon expiration or the termination of this Franchise, EPUD will continue to operate the system until such time as there is a successor that acquires EPUD’s facilities and provides electric service to EPUD’s customers. EPUD shall, as trustee for its successor in interest, continue to operate the system under the terms and conditions of this Franchise. In the event EPUD does not so operate the system, the City may take such steps as it, in its sole discretion, deems necessary to assure continued service to subscribers, at EPUD’s cost and expense. Nothing contained in this paragraph shall be deemed to represent a consent or acquiescence by EPUD to a condemnation or a sale of EPUD’s facilities or any evidence of the value of EPUD’s facilities, nor shall this paragraph be deemed an admission by EPUD that a condemnation is permitted.

Section 9. MISCELLANEOUS

1. Compliance with Laws, Rules, and Regulations. If at any time during the term of this Franchise, the City implements a generic "Right of Way Management Ordinance" or similarly titled document which may apply to all of the City’s utility franchises, EPUD agrees to abide by such ordinance, provided that any specific conflicts between such an ordinance and this Franchise Ordinance shall be mutually reviewed and resolve by the City and EPUD.

2. Discriminatory Practices Prohibited. EPUD shall make its services available without discrimination and shall not give any person any preference or advantage not available to all persons similarly situated. EPUD shall comply at all times with all other applicable Federal, State, and local laws and all executive and administrative orders relating to non-discrimination.

3. Rules of Construction. This Ordinance shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this Ordinance, the following provisions shall govern its interpretation and construction:

a. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include singular number, and words in the singular number include the plural number.

b. Time is of the essence of this Ordinance. EPUD shall not be relieved of its obligation to comply promptly with any provision of this Ordinance by any failure of the City to enforce prompt compliance with any of its provisions.

c. Unless otherwise specified in this Ordinance, any action authorized or required to be taken by the City may be taken by the City Council or by the City Council or by an official or agent designated by the City Council.

d. Every duty and every act to be performed by either party imposes an obligation of good faith on the party to perform such.

4. Severability and Constitutionality. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining positions hereof.

a. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause, and phrase hereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared illegal, invalid or unconstitutional. The invalidity of any portion of this Ordinance shall not abate, reduce or otherwise affect any other consideration or obligation required of EPUD by any franchise granted hereafter. If, for any reason, the franchise fee or compensation is invalidated or amended by the act of any court or authorized governmental agency, then the highest reasonable franchise fee or compensation allowed by such court or authorized governmental agency shall be the franchise fee or compensation charged by this Ordinance.

5. Written Notice. All notices, reports or demands required to be given in writing under this Franchise shall be deemed to be given when a registered or certified mail receipt is returned indicating delivery or on the next addressed business day if sent by express mail or overnight air courier to the party to which notice is being given as follows:

If to the City:	City of Cottage Grove
	400 E. Main Street
	Cottage Grove, Oregon 97424
	Attn: City Manager

If to EPUD:	EPUD
	33733 Seavey Loop Road
	Eugene, OR 97405
	Attn: _________________

Such addresses may be changed by either party upon written notice to the other party given as provided in this section.

6. Non-enforcement by the City. EPUD shall not be relieved of its obligation to comply with any of the provisions of this Franchise by reason of any failure of the City to enforce prompt compliance.

7. Captions. The paragraph captions and headings in this Franchise are for convenience and reference purposes only and shall not affect in any way the meaning of interpretation of this Franchise.

8. Calculation of Time. Where the performance of any act, duty, matter, payment or thing is required hereunder and the period of time or duration for the performance or doing thereof is prescribed and fixed herein, the time shall be computer so as to exclude the first and include the last day of the prescribed or fixed period or duration of time unless stipulated otherwise in this agreement. When the last day of the period falls on Saturday, Sunday or a legal holiday, that day shall be omitted from the computation.

9. Repeal. Upon the effective date hereof, but not otherwise, Ordinance No. 2490 of the City of Cottage Grove passed and approved December 12, 1983 is hereby repealed.

10. Acceptance of Franchise. If this franchise is not accepted in writing by EPUD within thirty (30) days after enactment by the City, this ordinance shall become void.

PASSED BY THE COUNCIL AND APPROVED BY THE MAYOR THIS 26th DAY OF AUGUST 2013.

ATTEST:
_____________________________		_____________________________
Richard Meyers, City Manager		Thomas C. Munroe, Mayor

Dated: August 26, 2013		Dated: August 26, 2013

ORDINANCE NO. 3066

AN ORDINANCE GRANTING AN ELECTRIC UTILITY FRANCHISE AND GENERAL UTILITY EASEMENT TO PACIFICORP AND REPEALING ORDINANCE NO. 2937

WHEREAS, PacifiCorp, an Oregon corporation, d.b.a. Pacific Power "PacifiCorp"), is a regulated public utility that provides electric power and energy to the citizens of the City of Cottage Grove, Oregon (the "City") and other surrounding areas;

WHEREAS, providing electrical power and energy requires the installation, operation and maintenance of power poles and other related facilities to be located within the public ways of the City;

WHEREAS, the City desires to set forth the terms and conditions by which PacifiCorp shall use the public ways of the City;

THE CITY OF COTTAGE GROVE ORDAINS AS FOLLOWS:

Section 1. Grant of Franchise and General Utility Easement. The City hereby grants to PacifiCorp the right, privilege and authority to construct, maintain, operate, upgrade, and relocate its electrical distribution and transmission lines and related appurtenances, including underground conduits and structures, poles, towers, wires, guy anchors, vaults, transformers, transmission lines, and communication lines (collectively referred to herein as "Electric Facilities") in, under, along, over and across the present and future streets, alleys, public ways and public places (collectively referred to herein as "Public Ways") within the City, for the purpose of supplying and transmitting electric power and energy to the inhabitants of the City and persons and corporations beyond the limits thereof.

Section 2. Term. The term of this Franchise and General Utility Easement is for ten (10) years commencing on the date of acceptance by the Company as set forth in Section 3 below.

Section 3. Acceptance by PacifiCorp. Within sixty (60) days after the passage of this ordinance by the City, PacifiCorp shall file an unqualified written acceptance thereof, with the City Recorder, otherwise the ordinance and the rights granted herein shall be null and void.

Section 4. Non-Exclusive Franchise. The right to use and occupy the Public Ways of the City shall be nonexclusive and the City reserves the right to use the Public Ways for city owned and operated public facilities. The City may also make the Public Ways of the City available for use by other entities that provide services to City residences; provided, however, that such use shall not unreasonably interfere with PacifiCorp’s rights granted herein.

Section 5. City Regulatory Authority. In addition to the provision herein contained, the City reserves the right to adopt such additional ordinances and regulations as may be deemed necessary in the exercise of its police power for the protection of the health, safety and welfare of its citizens and their properties or exercise any other rights, powers, or duties required or authorized, under the Constitution of the State of Oregon, the laws of Oregon or City Ordinances.

Section 6. Indemnification. The City shall in no way be liable or responsible for any loss or damage to property or any injury to, or death, of any person that may occur in the construction, operation or maintenance by PacifiCorp of its Electric Facilities. PacifiCorp shall indemnify, defend and hold the City harmless from and against claims, demands, liens and all liability or damage of whatsoever kind on account of PacifiCorp’s use of the Public Ways within the City, and shall pay the costs of defense plus reasonable attorneys’ fees for any claim, demand or lien brought thereunder. The City shall: (a) give prompt written notice to PacifiCorp of any claim, demand or lien with respect to which the City seeks indemnification hereunder; and (b) unless in the City’s judgment a conflict of interest exists between the City and PacifiCorp with respect to such claim, demand or lien, permit PacifiCorp to assume the defense of such claim, demand, or lien with counsel satisfactory to City. If such defense is not assumed by PacifiCorp, PacifiCorp shall not be subject to liability for any settlement made without its consent. Notwithstanding any provision hereof to the contrary, PacifiCorp shall not be obligated to indemnify, defend or hold the City harmless to the extent any claim, demand or lien arises out of or in connection with any negligent or willful act or failure to act of the City or any of its officers or employees.

Section 7. Annexation.

7.1 Extension of City Limits. Upon the annexation of any territory to the City, the rights granted herein shall extend to the annexed territory to the extent the City has such authority. All Electrical Facilities owned, maintained, or operated by PacifiCorp located within any public ways of the annexed territory shall thereafter be subject to all of the terms hereof.

7.2 Annexation. When any territory is approved for annexation to the City, the City shall, not later than fifteen (15) working days after effective date of the annexation, provide by certified mail to PacifiCorp: (a) each site address to be annexed as recorded on county assessment and tax rolls; (b) a legal description of the proposed boundary change; and (c) a copy of the action approving the proposed annexation. The notice shall be mailed to:

PacifiCorp Customer Contact Center

P.O. Box 400

Portland, Oregon 97202-0400

With a copy to:

PacifiCorp

Attn: Office of the General Counsel 825 N E Multnomah

Portland, OR 97232

Additional or increased fees or taxes, other than ad valorem taxes, imposed on PacifiCorp as a result of an annexation of territory to the City shall become effective on the date the notification is received by PacifiCorp. This provision shall be subject to any amendment of ORS 222.005.

Section 8. Planning, Design, Construction and Installation of Company Facilities.

8.1 All Electric Facilities installed or used under authority of this Franchise shall be used, constructed and maintained in accordance with applicable federal, state and city laws, codes and regulations.

8.2 Except in the case of an emergency, PacifiCorp shall, prior to commencing new construction or major reconstruction work in the public way or street or other public places, apply for a permit from the City which permit shall not be unreasonably withheld, conditioned, or delayed. PacifiCorp will abide by all applicable ordinances and all reasonable rules, regulations and requirements of the City, and the City may inspect the manner of such work and require remedies as may be necessary to assure compliance. Notwithstanding the foregoing, PacifiCorp shall not be obligated to obtain a permit to perform emergency repairs. PacifiCorp will provide information on emergency work performed within the City. Information shall include the date, time, address, cross street location along with what type of work was performed within five (5) business days after the emergency event.

8.3 All Electric Facilities shall be located so as to cause minimum interference with city owned and operated public facilities e.g. water, waste water, storm water and streets in the Public Ways of the City and shall be constructed, installed, maintained, cleared of vegetation, renovated or replaced in accordance with applicable rules, ordinances and regulations of the City. If, the City imposes material or design specifications that exceed the standard materials or design for Grantee’s facilities, the additional, marginal increase in costs shall not be considered costs that are the Grantee’s responsibility.

8.4 If, during the course of work on its Electrical Facilities, PacifiCorp causes damage to or alters the Public Way or public property, PacifiCorp shall (at its own cost and expense and in a manner approved by the City) replace and restore it to a condition comparable to that which existed before the work commenced.

8.5 In addition to the installation of underground electric distribution lines as provided by applicable state law and regulations, PacifiCorp shall, upon payment of all charges provided in its tariffs or their equivalent, place newly constructed electric distribution lines underground as may be required by City ordinance.

8.6 The City shall have the right without cost to use all poles and suitable overhead structures owned by PacifiCorp within Public Ways for City wires used in connection with its fire alarms, police signal systems, or other communication lines used for governmental purposes; provided, however, any such uses shall be for activities owned, operated or used by the City for a public purpose and shall not include the provision of CATV, internet, or similar services to the public. Provided further, that PacifiCorp shall assume no liability nor shall it incur, directly or indirectly, any additional expense in connection therewith, and the use of said poles and structures by the City shall be in such a manner as to prevent safety hazards or interferences with PacifiCorp’s use of same. Nothing herein shall be construed to require PacifiCorp to increase pole size, or alter the manner in which PacifiCorp attaches its equipment to poles, or alter the manner in which it operates and maintains its Electric Facilities, or alter the manner in which PacifiCorp provides non-discriminatory access to other attaching entities on it Electric Facilities. City attachments shall be installed and maintained in accordance with the reasonable requirements of PacifiCorp and the current edition of the National Electrical Safety Code pertaining to such construction. Further, City attachments shall be attached or installed only after written approval by PacifiCorp.

8.7 PacifiCorp shall have the right to excavate the Public Ways subject to reasonable conditions and requirements of the City. Before installing new underground conduits or replacing existing underground conduits, PacifiCorp shall first notify the City of such work and shall allow the City, at its own expense, to share the trench of PacifiCorp to lay its own conduit therein, provided that such action by the City will not unreasonably interfere with PacifiCorp’s Electric Facilities or delay project completion.

8.8 Before commencing any street improvements or other work within a Public Way that may affect PacifiCorp’s Electric Facilities, the City shall give written notice to PacifiCorp.

8.9 No structures, buildings or signs shall be erected below PacifiCorp’s facilities or in a location that prevents PacifiCorp from accessing or maintaining its facilities.

Section 9. Relocation of Electric Facilities.

9.1 The City reserves the right to require PacifiCorp to relocate overhead Electric Facilities within the Public Ways in the interest of public convenience, necessity, health, safety or welfare at no cost to the City. Within a reasonable period of time after written notice, PacifiCorp shall promptly commence the overhead relocation of its Electrical Facilities. Before requiring a relocation of Electric Facilities, the City shall, with the assistance and consent of PacifiCorp, identify a reasonable alignment for the relocated Electric Facilities within the Public Ways of the City. The City shall assign or otherwise transfer to Company all right it may have to recover the cost for the relocation work and shall support the efforts of PacifiCorp to obtain reimbursement. In cases of capital improvement projects undertaken by the City, PacifiCorp shall convert existing overhead distribution facilities to underground, so long as PacifiCorp is allowed to collect the costs associated with conversion from overhead to underground distribution facilities consistent with OAR 860-22-0046, the Oregon Public Utility Commission rule on forced conversions.

9.2 PacifiCorp shall not be obligated to pay the cost of any relocation that is required or made a condition of a private development. If the removal or relocation of facilities is caused directly or otherwise by an identifiable development of private property in the area, or is made for the convenience of a customer, PacifiCorp may charge the expense of removal or relocation of the developer or customer. For example, PacifiCorp shall not be required to pay relocation costs in connection with a road widening or realignment where the road project is made a condition or caused by a private development. In such event, the City shall require the developer to pay PacifiCorp for such relocation costs as part of its approval procedures.

Section 10. Subdivision Plat Notification. Before the City approves any new subdivision and before recordation of the plat, the City shall mail notification of such approval and a copy of the plat to PacifiCorp:

PacifiCorp

Attn: Right-of-Way Department

P.O. 248

Albany, OR 97321

Section 11. Vegetation Management. PacifiCorp or its contractor may prune all trees and vegetation which overhang the Public Ways, whether such trees or vegetation originate within or outside the Public Ways, to prevent the branches or limbs or other part of such trees or vegetation from interfering with PacifiCorp’s Electrical Facilities. Such pruning shall comply with the American National Standard for Tree Care Operation (ANSI A300) and be conducted under the direction of an arborist certified with the International Society of Arboriculture. A growth inhibitor treatment may be used for trees and vegetation species that are fast-growing and problematic. Nothing contained in this Section shall prevent PacifiCorp, when necessary and with the approval of the owner of the property on which they may be located, from cutting down and removing any trees which overhang streets.

Section 12. Compensation.

12.1. In consideration of the rights, privileges, and franchise hereby granted, PacifiCorp shall pay to the City from and after the effective date of the acceptance of this franchise, five percent (5%) of its gross revenues derived from within the corporate limits of City. The term "gross revenue" as used herein shall be construed to mean any revenue of PacifiCorp derived from the sale and use of retail electric power and energy within the municipal boundaries of the City after adjustment for the net write-off of uncollectible accounts and corrections of bills theretofore rendered. Gross Revenues do not include proceeds from the sale of bonds, mortgages or other evidence of indebtedness, securities or stocks, or sales at wholesale by Grantee to another utility when the utility purchasing such electricity and electric services is not the ultimate consumer. Gross revenues also do not include revenue from joint pole use. Notwithstanding any provision to the contrary, at any time during the term of this Franchise, the City may elect to increase the franchise fee amount as may then be allowed by state law. The City shall provide PacifiCorp with prior written notice of such increase following adoption of the change in percentage by the City. The increase shall be effective sixty (60) days after City has provided such written notice to PacifiCorp.

12.2 The franchise fee shall not be in addition to any other license, occupation, franchise or excise taxes or charges which might otherwise be levied or collected by the City from PacifiCorp with respect to PacifiCorp’s electric business or the exercise of this franchise within the corporate limits of the City and the amount due to the City under any such other license, occupation, franchise or excise taxes or other charges for corresponding periods shall be reduced by deducting there from the amount of said franchise fee paid hereunder.

12.3 No acceptance of any payment pursuant to this section shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of any claim the City may have for further or additional sums payable. All amounts paid under this section shall be subject to an audit by the City; provided that only payments which occurred during a period of 36 months prior to the date the City notifies PacifiCorp of its intent to perform an audit shall be subject to such audit.

Section 13. Insurance. PacifiCorp shall obtain and maintain in full force and effect, for the entire Term, the following insurance, covering risks associated with PacifiCorp’s ownership and use of PacifiCorp Facilities and the Public Right-of-Way and consistent with PacifiCorp’s risk management practices:

(A) Commercial General Liability insurance covering all operations, subject to policy terms, conditions and exclusions, by or on behalf of PacifiCorp 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).

(D) The insurance shall be without prejudice to coverage otherwise existing and, with the exception of Workers’ Compensation and Employers Liability, shall name as additional insureds the City, its elected and appointed officials, its officers, agents, and employees; provided, however, that such additional insured status shall only extend to the extent of PacifiCorp’s contractually assumed indemnity obligation as outlined under Section 6 of this Franchise Agreement. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing in this subsection shall operate to increase the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage must apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not be canceled without thirty (30) days’ prior written notice first being given to the City. If the insurance is canceled or materially altered within the term of this Franchise, PacifiCorp shall provide a replacement policy with the same terms as required by this Franchise. PacifiCorp shall maintain continuous uninterrupted coverage, in the terms and amounts required, upon and after the effective date of this Franchise. PacifiCorp 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.

(E) In Lieu of Insurance. In lieu of the insurance policies required by this Section, PacifiCorp shall have the right to self-insure any and all of the coverage outlined hereunder. If PacifiCorp elects to self-insure, it shall do so in an amount at least equal to the coverage requirements of this Section in a form acceptable to the City and such coverage shall have the same protections for City and requirements of PacifiCorp as provided in this Section. PacifiCorp shall provide proof of self-insurance to the City before this Franchise takes effect and thereafter upon request by the City.

Section 14. Renewal. At least 120 days prior to the expiration of this Franchise, PacifiCorp and the City shall agree to either extend the term of this Franchise for a mutually acceptable period of time or the parties shall use best faith efforts to renegotiate a replacement Franchise.

PacifiCorp shall have the continued right to use the Public Ways of the City as set forth herein in the event an extension or replacement Franchise is not entered into upon expiration of this Franchise.

Section 15. No Waiver. Neither the City nor PacifiCorp shall be excused from complying with any of the terms and conditions of this Franchise by any failure of the other, or any of its officers, employees, or agents, upon any one or more occasions to insist upon or to seek compliance with any such terms and conditions.

Section 16. Transfer of Franchise. PacifiCorp shall not transfer or assign any rights under this Franchise to another entity, except transfers and assignments by operation of law, unless the City shall first give its approval in writing, which approval shall not be unreasonably withheld; provided, however, inclusion of this Franchise as property subject to the lien of PacifiCorp’s mortgage(s) shall not constitute a transfer or assignment.

Section 17. Amendment. At any time during the term of this Franchise, the City, through its City Council, or PacifiCorp may propose amendments to this Franchise by giving thirty (30) days written notice to the other of the proposed amendment(s) desired, and both parties thereafter, through their designated representatives, will, within a reasonable time, negotiate in good faith in an effort to agree upon mutually satisfactory amendment(s). No amendment or amendments to this Franchise shall be effective until mutually agreed upon by the City and PacifiCorp and formally adopted as an ordinance amendment.

Section 18. Notices. Unless otherwise specified herein, all notices from PacifiCorp to the City pursuant to or concerning this Franchise shall be delivered to the City Recorder’s Office. Unless otherwise specified herein, all notices from the City to PacifiCorp pursuant to or concerning this Franchise shall be delivered to the Vice President, 825 NE Multnomah, Portland, Oregon 97232, and such other office as PacifiCorp may advise the City of by written notice.

Section 19. Severability. If any section, sentence, paragraph, term or provision hereof is for any reason determined to be illegal, invalid, or superseded by other lawful authority including any state or federal regulatory authority having jurisdiction thereof or unconstitutional, illegal or invalid by any court of common jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise or any renewal or renewals thereof.

Section 20. Upon the effective date hereof, but not otherwise, Ordinance No. 2937 of the City of Cottage Grove passed and approved October 9, 2006, is hereby repealed.

PASSED BY THE COUNCIL AND APPROVED BY THE MAYOR THIS 26TH DAY OF SEPTEMBER, 2016.

		_____________________________
		Thomas C. Munroe, Mayor
		Dated: September 26, 2016

ATTEST:
_____________________________
Richard Meyers, City Manager
Dated: September 26, 2016

APPENDIX II.POWER AND LIGHT FRANCHISES

APPENDIX II.
POWER AND LIGHT FRANCHISES