Ordinance 1253
BLACHLY-LANE FRANCHISE

ORDINANCE NO. 1253

AN ORDINANCE GRANTING AN ELECTRIC UTILTY FRANCHISE TO BLACHLY-LANE ELECTRIC COOPERATIVE (BLACHLY-LANE) AND FIXING TERMS, CONDITIONS, AND COMPENSATION OF SUCH FRANCHISE.

WHEREAS, the City is authorized by Constitutional home rule authority, state statutes, its Charter, and City ordinances to grant non-exclusive franchises to persons and entities desiring to occupy the City rights-of-way and public spaces within the City; and

WHEREAS, Blachly-Lane currently operates an electric power utility system within the City without a franchise agreement; and

WHEREAS, Blachly-Lane desires to continue to use the public right-of-ways for the operation of its electric power utility system with the City through a Franchise Agreement; and

WHEREAS, the purpose of this franchise is to establish reasonable regulations applicable to the construction, operation, and maintenance of electric facilities in, along, across, under, and over the City right-of way and the provision of electric services within the City, as well as to protect the health, safety, and welfare of the public and to limit the City’s liability for claims arising from the granting of this franchise; and

WHEREAS, the City and Blachly-Lane have negotiated a Franchise Agreement with terms agreeable to both parties and wish to execute the Franchise; now, therefore

THE CITY OF JUNCTION CITY ORDAINS AS FOLLOWS:

Section 1. The Franchise Agreement with Blachly-Lane, attached as Exhibit A, is hereby adopted by the City Council. The Mayor is authorized to execute the agreement on behalf of the Council.

Section 2. This Ordinance shall be in full force and effect 30 days after approval, in accordance with the City Charter. The City Recorder shall forward this Franchise Agreement to Blachly-Lane for acceptance. If not accepted in writing by Blachly-Lane within thirty (30) days after enactment hereof, this ordinance shall become void.

Read in full its first meeting on this 13th day of February, 2018.

Read in title only for its second reading this 13th day of February, 2018.

Passed by unanimous vote of the City Council this 13th day of February, 2018.

Approved by the Mayor this 13th day of February, 2018.

ATTEST:		APPROVED:
________________________		___________________________
Kitty Vodrup, City Recorder		Mark Crenshaw, Mayor

Exhibit A

Non-Exclusive Electric Utility Franchise Agreement between the City of Junction City and Blachly-Lane Electric Cooperative (Blachly-Lane)

Section 1. INTRODUCTION

1. Statement of Intent and Purpose. The City of Junction City intends, by the granting of this Franchise, to authorize the continued development and operation of an electric utility system to serve the citizens of Junction City. 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 Agreement shall be known as the Blachly-Lane Franchise Ordinance. Within this document, it shall be referred to as “this Agreement,” “this Franchise” or “the Franchise.”

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

a. Administrator: The City Administrator of the City of Junction City, or such person as may be designed by the City Administrator for the administration of this Franchise.

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

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

d. City: The City of Junction City, 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 Junction City.

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

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

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

h. 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.

i. 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.

j. Gross Revenue: Revenues derived from the sale of electricity or from the use, rental or lease of Blachly-Lane’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 Blachly-Lane 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.

k. May: Is permissive.

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

m. 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.

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

o. Shall: is mandatory.

p. State: The State of Oregon.

q. 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.

r. Technical Facilities or Facilities: All real property, equipment, and fixtures used by Blachly-Lane in the distribution of its services through its system.

s. Volumetric: A method of computing franchise fees based on the volume of electricity sold or transmitted through Blachly-Lane facilities with the City.

Section 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS

1. City Regulatory Authority. In addition to the provisions herein contained, the City at all times reserves the right to adopt 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, or the City Charter.

2. Grant of Authority. Subject to the conditions and reservations contained in the Agreement, City hereby grants to Blachly-Lane, the right, privilege, and franchise to install, maintain, and operate on, over or under the Public Rights of Way, including 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 Blachly-Lane’s ability to provide other utility services such as telecommunications and cable television, but does not allow Blachly-Lane to provide such services under this Franchise. Blachly-Lane shall be required to enter into separate franchise agreements for such services at the sole discretion of the City.

3. Duration, Renewal, and Renegotiation. This Franchise is granted for a period of ten (10) years from and after the effective date of this Agreement, 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 Blachly-Lane 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.

4. 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 Agreement.

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. Blachly-Lane shall maintain and operate an electric power utility system in the City that conforms to the standards of the National Electric Safety Code. Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane through no fault of its own.

2. Emergency Repair Service. As provided in Section 3.5 below, Blachly-Lane 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. Blachly-Lane 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. Blachly-Lane 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 Junction City Municipal Code, Blachly-Lane shall place its facilities underground. The City shall instruct the developer or property owner to give Blachly-Lane reasonable notice of such construction or development, including a copy of any final plat, and at least five (5) days’ notice of the particular date on which open trenching will be available for Blachly-Lane’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. Blachly-Lane shall also provide to City specifications as needed for trenching.

ii. Costs of trenching and easements required to bring service to the development may be borne by the developer or property owner, subject to applicable law City will encourage developers to provide written notice of trenching to Blachly-Lane at least five (5) working days before trenches are available.

iii. It shall be the policy of the City to encourage all utilities, including Blachly-Lane, to place overhead distribution facilities underground. Blachly-Lane 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. Blachly-Lane shall comply with City’s policy and ordinances, provided however, when safety is an issue, Blachly-Lane shall not be required to share locations with water or sewer utilities unless Blachly-Lane elects to do so.

iv. In cases of capital improvement projects undertaken by the City, Blachly-Lane shall convert existing overhead distribution facilities to underground if requested to do so by the City. Blachly-Lane is allowed to collect the incremental costs associated with the conversion from overhead to underground distribution facilities in accordance with Oregon law.

v. Blachly-Lane shall remove idle overhead facilities within a reasonable time, but in any case no later than thirty (30) days from the date the City provides notice.

b. In the event Blachly-Lane vacates or abandons a pole or facility, Blachly-Lane 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. Blachly-Lane shall operate its electric utility system authorized by this Agreement twenty-four (24) hours per day, seven (7) days per week, except Blachly-Lane may deenergize the system for maintenance from time to time.

4. Safety Standards and Work Specifications

a. Blachly-Lane 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 Blachly-Lane shall conform to:

i. The requirements of the State and Federal statutes, City ordinances, and applicable 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 Blachly-Lane 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. Blachly-Lane shall, within a reasonable time, remove graffiti on electrical facilities upon notification from the City.

Section 4. USE OF PUBLIC WAYS

1. All Electric Facilities shall be located so as to cause minimum interference with 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.

2. Excavation and Restoration.

c. Blachly-Lane 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.

d. All structures, lines, and equipment erected by Blachly-Lane 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.

e. Except in the case of emergency repairs, no newly overlaid street or newly constructed street shall be excavated by Blachly-Lane 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.

f. All installations by Blachly-Lane 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, Blachly-Lane shall not be required to share locations with other utilities.

g. When any excavation is made by Blachly-Lane, Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane. The City may grant an extension to the seven (7) calendar day requirement of this section.

h. Notwithstanding paragraph (e) above, the City may require that any excavation made by Blachly-Lane 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 Blachly-Lane.

i. 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 Blachly-Lane to the City in accordance with the standard billing policy of the City in effect at the time the excavation or restoration occurred.

3. Relocation of Facilities.

a. Blachly-Lane shall, at its expense, protect, support, temporarily disconnect or relocate any of its equipment or facilities that are required by the City to be so moved for the following reasons: to promote the public interest, improve traffic conditions, promote 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 Blachly-Lane, but in no event not later than sixty (60) days from City’s initial request.

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 Blachly-Lane 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. Blachly-Lane 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 Blachly-Lane fails to comply with any requirement of the City pursuant to this section, the City may remove or relocate the facilities at Blachly-Lane’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, Blachly-Lane may charge the expense of removal or relocation to the developer or customer.

4. Tree Pruning.

a. Subject to the provisions of this Agreement, Blachly-Lane 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 line clearance tree trimmer in accordance with applicable City ordinances, and it shall be done without cost or expense to the City.

b. Blachly-Lane shall provide written notice to the City Public Works Department and property owner and resident at least five (5) business days prior to any pruning to be done on the property. The City recognizes that a five (5) day notice may not be possible in emergency situations; however, the City does encourage Blachly-Lane 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.

5. Use of Bridges and Public Places by Blachly-Lane.

a. Before Blachly-Lane may use or occupy any bridge or public place, Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by Blachly-Lane, 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. Subject to the tort claim limitations in the Oregon Tort Claims Act and the Oregon Constitution, the City shall indemnify, protect, and hold Blachly-Lane, 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 Blachly-Lane by the City for any reason, Blachly-Lane shall provide service to affected customers over such alternate routes as shall be determined by Blachly-Lane 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 Blachly-Lane.

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 Blachly-Lane’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 Blachly-Lane sufficiently in advance of such contemplated excavation or work to enable Blachly-Lane 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, Blachly-Lane, 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, Blachly- Lane’s rights shall be preserved as to any of its facilities then lawfully existing in such street or public place.

2. Control of Construction. Blachly-Lane 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. Blachly-Lane shall be required to obtain a permit from the City with no permit fees to Blachly-Lane, before commencing the construction, extension or relocation of any of its electric utility transmission or distribution facilities within an easement.

3. Maps. Blachly-Lane 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 Blachly-Lane 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, Blachly-Lane 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 Blachly-Lane 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 Administrator or designee, shall detail the route of movement of the building or other objects, and shall provide that the actual expense incurred by Blachly-Lane in making the temporary rearrangement of its facilities, including the cost to Blachly-Lane of any interruption of service to its customers caused thereby, may be borne by the person giving the notice in accordance with Oregon law. It shall further provide that the person giving the notice will indemnify and save Blachly-Lane harmless from any and all damages or claims whatsoever caused directly or indirectly from such temporary rearrangement of Blachly-Lane’s facilities.

c. Blachly-Lane, 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 Blachly-Lane, to secure payment of the costs of rearrangement, as estimated by Blachly-Lane.

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, Blachly-Lane shall temporarily rearrange its facilities 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, Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane 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. Blachly-Lane shall furnish to the City with each payment of compensation required by this section, a statement showing the amount of gross revenue of Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane as provided in Section 6.4 of this Franchise or reimbursement or indemnity paid to the City.

e. In the event Blachly-Lane 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 Blachly-Lane 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, Blachly-Lane shall cooperate in the renegotiation of the compensation section.

f. In the event Blachly-Lane 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. 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 Blachly-Lane of its Electric Facilities. Blachly-Lane 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 Blachly-Lane’s use of the Public Rights of Way 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 Blachly-Lane of any claim, demand or lien with respect to which the City seeks indemnification hereunder; and (b) may permit Blachly-Lane to assume the defense of such claim, demand, or lien. If such defense is not assumed by Blachly-Lane, Blachly-Lane shall not be subject to liability for any settlement made without its consent. Notwithstanding any provision in this Agreement to the contrary, Blachly-Lane shall not be obligated to indemnify, defend or hold the City harmless to the extent any claim, demand or lien arises out of the City’s willful act or failure to act.

b. 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. Blachly-Lane 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.

c. Blachly-Lane 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 Administrator, 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. Blachly-Lane 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.

d. The City of Junction City, 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 Blachly-Lane has agreed to indemnify the City per the terms of this Franchise. Blachly-Lane 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 Blachly-Lane’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 Agreement shall be construed to limit the right of the City to require Blachly-Lane to obtain any necessary permits required by the Junction City Municipal Code.

5. Reflecting Expenditures on Billing Statements. Blachly-Lane 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 860-022-0040).

Section 7. CITY ADMINISTRATION OF FRANCHISE

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

2. Right to Inspect Records. Blachly-Lane 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 Agreement. The City may inspect and audit the records of account upon written request. The City Council may request periodic reports from Blachly-Lane relating to its revenue within the City.

3. Reports and Records.

a. Within thirty (30) days following any written request by the City, Blachly-Lane shall furnish to the City a report which will accurately identify the total number of Blachly-Lane’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 Blachly-Lane.

4. Assignment or Sale of Franchise or Facilities. Blachly-Lane 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 may be reasonably conditioned upon the proposed transferee’s ability and authority to operate an electric utility and upon transferee agreeing to the terms of this Agreement, provided, however, inclusion of this Franchise as property subject to the lien of Blachly-Lane’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 Agreement, 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 Agreement, 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. Blachly-Lane 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. Blachly-Lane practices any fraud upon the City or any customer.

c. Blachly-Lane becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt.

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

e. Blachly-Lane deliberately fails to operate the system without prior approval of the City or without cause.

7. Revocation Procedures.

a. The City shall provide Blachly-Lane with a written notice of the cause of termination and its intention to terminate or revoke the Franchise and shall allow Blachly-Lane 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, Blachly-Lane has not corrected the matter which provides grounds for termination, the Franchise may, at the option of the City, become null and void and Blachly-Lane shall thereafter be entitled to none of the privileges or rights herein extended to them under this Agreement, 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 Blachly-Lane 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 Blachly-Lane’s facilities.

b. Blachly-Lane 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 Blachly-Lane 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 Blachly-Lane’s facilities shall at all times comply with the rules and regulations of Blachly-Lane and shall not compete or interfere with Blachly-Lane’s provision of electric services.

b. The City shall have the right to observe and inspect all construction or installation of Blachly-Lane’s facilities subject to the provisions of this Agreement 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. Blachly-Lane is responsible for all work performed by or for Blachly-Lane or its agents.

2. Continuity of Service Mandatory. Upon expiration or the termination of this Franchise, Blachly-Lane will continue to operate the system until such time as there is a successor that acquires Blachly-Lane’s facilities and provides electric service to Blachly-Lane’s customers. Blachly-Lane shall, as trustee for its successor in interest, continue to operate the system under the terms and conditions of this Franchise. In the event Blachly-Lane 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 Blachly-Lane’s cost and expense. Nothing contained in this paragraph shall be deemed to represent a consent or acquiescence by Blachly-Lane to a condemnation or a sale of Blachly-Lane’s facilities or any evidence of the value of Blachly-Lane’s facilities, nor shall this paragraph be deemed an admission by Blachly-Lane 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, Blachly-Lane agrees to abide by such ordinance, provided that any specific conflicts between such an ordinance and this Franchise shall be mutually reviewed and resolve by the City and Blachly-Lane.

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

3. Rules of Construction. This Agreement shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this Agreement, 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 Agreement. Blachly-Lane shall not be relieved of its obligation to comply promptly with any provision of this Agreement by any failure of the City to enforce prompt compliance with any of its provisions.

c. Unless otherwise specified in this Agreement, 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 Agreement 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 Agreement 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 Agreement shall not abate, reduce or otherwise affect any other consideration or obligation required of Blachly-Lane 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 Agreement.

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 Junction City PO Box 250 Junction City, OR 97448 Attn: City Administrator
If to Blachly-Lane:	Blachly-Lane 90680 HWY 99N Eugene, OR 97402 Attn: General Manager

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. Blachly-Lane 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.

IN WITNESS WHEREOF, this Franchise Agreement has been executed by the duly authorized representatives of the parties as set forth below, as of the date set forth below:

Attest:		The City of Junction City
________________		By: _________________
Date: _________, 2018		Name: Mark Crenshaw
		Title: Mayor
		Blachly-Lane
		By:___________________________
		Name:
Date: ___________, 2018		Title: