Ordinance 1274
EMERALD PEOPLE’S UTILITY DISTRICT FRANCHISE
ORDINANCE NO. 1274
AN ORDINANCE GRANTING AN ELECTRIC UTILITY FRANCHISE TO EMERALD PEOPLE'S UTILTY DISTRICT (EPUD), AN OREGON PEOPLE'S UTILITY DISTRICT, ORGANIZED UNDER ORS CHAPTER 261 AND FIXING TERMS, CONDITIONS, AND COMPENSATION OF SUCH FRANCHISE, REPEALING ORDINANCE NO. 1201 AND ORDINANCE NO. 1271, AND DECLARING AN EMERGENCY.
WHEREAS, the City of Junction City (City), through Ordinance 1201, AN ORDINANCE GRANTING A NONEXCLUSIVE ELECTRIC UTILITY FRANCHISE TO EMERALD PEOPLE'S UTILITY DISTRICT (EPUD), AN OREGON PEOPLES' UTILITY DISTRICT, ORGANIZED UNDER ORS CHAPTER 261 AND FIXING TERMS, CONDITIONS, AND COMPENSATION FOR SUCH FRANCHISE, consented to EPUD's desire to erect, construct, maintain, repair, replace and operate poles, wires, fixtures and equipment, underground circuits and other property necessary and convenient to operate an electric utility system within Public Rights-of-Way within the City; and
WHEREAS, the City has jurisdiction and exercises regulatory management authority over all City public rights of way pursuant to the City Charter and State law. The City's purpose for exerting its management authority over the public rights of way is to protect and efficiently manage the public’s resources, to ensure fair and non-discriminatory access to the public right of way, and to protect the public health, safety and welfare; and
WHEREAS, no Person may occupy or encroach on a public right of way without the permission of the City. The City grants permission to use public rights of way through Franchise Agreements and construction permits; and
WHEREAS, the City holds the health, safety, welfare, quality of life and opportunities to prosper, as well as such physical assets such as the public right of way, in trust for all of its citizens and has a fiduciary responsibility to assure that any use of City resources, especially its public ways, benefits all of the citizens and, where it is deemed appropriate, allows for the recovery of a fair and reasonable compensation from private entities using public resources; and
WHEREAS, EPUD has continuously operated an electric power utility system with the City since approximately 1983; and
WHEREAS, EPUD desires to continue to use the Public Rights-of-Way for the operation of its electric utility system within the City through a franchise agreement; and,
WHEREAS, the City deems it appropriate that a franchise be granted to EPUD; and,
WHEREAS, the City and EPUD have agreed to terms of a Franchise Agreement for the operation of a system within the public rights of way to provide electric services; and
WHEREAS, Ordinance No. 1271 adopted March 8, 2022 granting a franchise to EPUD contained a mistake regarding the time period for EPUD to submit its acceptance of the franchise; now, therefore
THE CITY OF JUNCTION CITY ORDAINS AS FOLLOWS:
Section 1. Authorization. The City Council hereby approves the Franchise Agreement attached as Exhibit A and delegates to and authorizes the City Administrator to sign and enter into the Franchise Agreement.
Section 2. Repeal. Ordinance No. 1201 and Ordinance No. 1271 are hereby repealed as of the Effective Date of this Ordinance.
Section 3. Emergency Clause. For the preservation of the peace, health and safety of Junction City, Oregon, due to the expiration of Ordinance No. 1201, an emergency is declared to exist, and this ordinance shall be in full force and effect from and after its passage by the Council, its approval by the Mayor, and receipt of Emerald People's Utility District acceptance of this Ordinance (the “Effective Date”).
Section 4. Approval. If not approved in writing by EPUD within sixty (60) days after enactment hereof, this Ordinance shall become void.
Read in full for its first reading on the 10th day of May, 2022.
Read by title only, for its second reading this 10th day of May, 2022.
Passed by unanimous vote of the Council this 10th day of May, 2022.
Approved by the Mayor this 10th day of May, 2022.
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ATTEST: |
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APPROVED: |
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Kitty Vodrup, City Recorder |
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Beverly A. Ficek, Mayor |
Exhibit A to Ordinance 1274
Franchise Agreement between the City of Junction City and Emerald People’s Utility District
Section 1. INTRODUCTION
1. Statement of Intent and Purpose. The City of Junction City (City) intends, by the granting of this Franchise, to consent to the continued operation and development of an electric utility system by Emerald People’s Utility District (EPUD) to serve the citizens of Junction City. Such operation and 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 Ordinance,” “this Franchise” or “the Franchise.”
3. Definitions. For the purpose of this Franchise, 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 designated by the City Administrator for the administration of this Franchise.
b. Bridge: Includes a structure erected within the City’s Public Rights-of-Way 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. It means all officers, employees, and representatives acting on behalf 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. Facilities: Electric facilities used for the distribution of electric power and energy to customers, including but not limited to poles, wires, fixtures and equipment, underground circuits, conduits and wires and other structures and property necessary and convenient to operate EPUD’s electric utility system.
h. Franchise Territory: The area within the legal boundaries of the City including areas annexed during the term of this Franchise.
i. Gross Revenue: Revenues derived from the sale of electricity or from the use, rental, or lease of EPUD’s Facilities within the Public Rights-of-Way 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.
j. May: Is permissive.
k. EPUD: Emerald People’s Utility District, an Oregon people’s utility district, its successors, City-authorized transferees, legal representatives, employees, contractors, subcontractors, agents, or City-authorized assigns.
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, grounds or City-preapproved trails or paths within the City but does not include Public Rights-of-Way.
n. Public Rights-of-Way: Includes, but is not limited to, streets, roads, highways, bridges, alleys, sidewalks, Public Utility Easements, and all other public ways which are used for transportation all of which are located within the Franchise Territory, including subsurface and air space rights.
o. Public Utility Easement: An easement granted to or owned by the City and acquired, established, dedicated, or devoted for public utility purposes but not including an easement dedicated solely for City use or a private utility easement for a customer’s service drop.
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 but does not include a bridge.
Section 2. CITY 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. Notwithstanding the above, this Franchise may not be unilaterally modified by the subsequent adoption of new City regulations.
2. Grant of Franchise. Subject to the conditions and reservations contained in this Franchise, City hereby consents to the continued operation, development, installation, repair, maintenance, and replacement of 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 over or under the Public Rights of Way. This Franchise does not limit EPUD’s authority to provide other utility services in its sole discretion 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 any such services. All poles, wires, fixtures, equipment, underground circuits now located within the Public Rights-of-Way shall be deemed to be covered by the terms of this Franchise and to be located in accordance therewith, and the location and placement thereof is hereby approved.
3. Duration. This Franchise is granted for a period of ten (10) years from and after the effective date of this Franchise, unless amended sooner under the provisions of Section 7.4 or terminated sooner under the provisions of Section 7.8. All terms of this Franchise must be unconditionally accepted by both parties in writing, signed by an authorized officer, within sixty (60) days after the date of this Ordinance is passed by the City.
4. Franchise Nonexclusive. So long as the City’s 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 regarding its own use of the Public Rights-of-Way or in granting Public Rights-of-Way use, rights, privileges, or authority to other persons.
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 operate its system consistent with prudent and industry-standard utility practices with the goal of maintaining continuous and uninterrupted service which shall conform at least to the standards adopted by State and Federal authorities. It is the Parties’ mutual expectation that EPUD shall operate its electric utility system twenty-four (24) hours per day, seven (7) days per week, but both parties understand that electric service is subject to interruptions for a variety of reasons. EPUD shall not be liable to the City or any customers in the City for any direct, indirect, consequential, or special damages, including lost profits, nor is EPUD in breach of this Franchise for any interruption or failure of service. Notwithstanding the immediately preceding, if service to the City is interrupted, and EPUD does not take reasonable steps under the circumstances to restore service, City may declare a default of this Franchise.
2. Emergency Repair Service. EPUD shall maintain and provide emergency repair service available to City customers on the same basis as it provides emergency service to its other customers on a twenty-four (24) hour per day, seven (7) day per week basis; however, EPUD reserves the right to prioritize such emergency repairs to its other customers in its sole discretion. Such emergency service shall be easily reached by phone during normal business hours and through an answering service at all other times. In the event of an emergency requiring repairs, EPUD shall keep the City reasonably informed about the repair schedule and efforts, which can be done through social media, posting on EPUD’s website, phone calls, texts, or emails.
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 is provided to newly created lots which are designated for utility undergrounding in accordance with standards of the Junction City Municipal Code, EPUD shall place its Facilities underground so long as such undergrounding is physically and technically possible and does not pose a safety risk. The City shall instruct the developer or property owner to give EPUD reasonable notice of such construction or development, including a copy of any final plat, and at least thirty (30) days’ notice of the particular date on which open trenching will be available for EPUD’s installation of conduit, pedestals and/or vaults, and laterals. EPUD may seek the costs of installing and providing such services to the development from the developer or private party in accordance with EPUD’s tariffs, policies, and applicable law. EPUD shall also provide to City any specifications as needed for trenching.
ii. The costs of trenching and easements required to bring service to the development may be borne by the developer or property owner consistent with EPUD’s line extension policies and in accordance with applicable law.
iii. It shall be the policy of the City to encourage all utilities, including EPUD, to place overhead distribution facilities underground. EPUD may collect costs of undergrounding in a manner consistent applicable law and with its tariffs, line extension policies and general terms and conditions to the extent not inconsistent with applicable law. It is also the policy of the City to encourage co-location of utilities in common underground facilities. EPUD shall comply with City’s lawful co-location requirements as long as they are consistent with applicable state and federal law and do not pose a safety risk or jeopardize continuous electrical service.
iv. In cases of capital improvement projects undertaken and paid for by the City, EPUD shall, if consistent with Federal, State, and local laws, regulations, and codes, convert existing overhead distribution facilities to underground if requested to do so by the City, subject to the ability to recover the incremental costs of the conversion as provided in Section 3(3)(a)(iii) above. The City and EPUD will mutually agree upon a timeline to convert any existing overhead facilities to underground.
v. EPUD shall remove idle overhead facilities within thirty (30) days from the date the City provides notice so long as such removal is consistent with safe utility practices.
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, EPUD may have the facilities removed at the expense of the owner of the facilities.
4. Safety Standards and Work Specifications. EPUD shall operate its system using safe and prudent utility practices and in compliance with applicable state and federal law, NESC safety regulations, and any applicable City laws and regulations which do not conflict with state or federal law or NESC regulations. 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. EPUD shall, within a reasonable time, remove graffiti on Facilities upon notification from the City.
Section 4. USE OF PUBLIC RIGHTS-OF-WAY
1. Compliance with City Requirements. All new Facilities shall be located so as to cause minimum interference with the Public Rights-of-Ways of the City and all Facilities shall be constructed, installed, maintained, cleared of vegetation, renovated, or replaced in accordance with applicable rules, ordinances, and regulations of the City, so long as the City’s rules, ordinances and regulations are consistent with applicable law.
2. Excavation and Restoration.
a. EPUD shall comply with all applicable ordinances, municipal codes, rules, or regulations that may pertain to its activities within Public Rights-of-Way of the City.
b. All Facilities erected by EPUD within the City shall be located so as to cause minimum interference with the proper use of Public Rights-of-Way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the Public Rights-of-Way.
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 unreasonably 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 unless such colocation poses a safety risk or jeopardizes continuous electrical service.
e. When any excavation is made by EPUD, EPUD shall, within ten (10) calendar days after the work is done, restore the affected portion of the Public Rights-of-Way to as 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 ten (10) calendar days after the work is done, the affected portion of the Public Rights-of-Way to as 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. EPUD may request and the City may grant an extension to the ten (10) calendar day requirement of this section.
3. Relocation of Facilities. EPUD shall, subject to its ability to recover the incremental costs of the relocation as provided by applicable law, 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 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 EPUD, but not later than sixty (60) days from City’s initial request. EPUD may request an additional extension beyond 60 days as long as the request describes why the relocation is not possible or inexecutable within 60 days. Under such circumstances, the City shall not unreasonably deny a reasonable additional extension.
a. 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. For removal or relocation requests from private developers or contractors, EPUD may, consistent with applicable law, 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.
b. All Facilities placed in the Public Rights-of-Way shall be placed in coordination with the City and other affected utilities.
c. If EPUD fails to comply with any requirement of the City pursuant to this section, the City may retain a licensed, bonded, and qualified contractor to, safely and consistent with existing laws and regulations, 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.
4. Tree Pruning.
a. Subject to the provisions of this Franchise, EPUD may prune trees in easements consistent with prudent utility practices and NESC’s vegetation management and the Public Utility Commission of Oregon’s vegetation clearance requirements.
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 an imminent safety hazard or to prevent an imminent service interruption.
5. City Use of Facilities.
a. If the City desires to install or affix and maintain equipment for municipal purposes upon the structures and installations owned and/or maintained by EPUD, the City shall utilize the National Joint Use Notification System (NJUNS) to request permission for any new City attachments to EPUD poles and EPUD may approve, deny, or require modifications to any request in its sole discretion consistent with applicable law and regulations. The City shall not be required to use the NJUNS for any City attachments existing at the effective date of this franchise. 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, repair, or replacement 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. In the event a City attachment interferes with the safe or convenient use of EPUD Facilities the City shall immediately remove such attachment.
d. The City shall pay for EPUD inspections and any make ready work required for the installation of attachments. If there is not sufficient space available on EPUD structures for City owned wires and equipment, EPUD shall change, alter, or re-arrange its structures at the City’s sole expense so as to provide proper clearance for such wires or appurtenant facilities.
e. Excluding the first attachment on any pole and any temporary attachments such as seasonal decorations and special event banners, EPUD’s annual standard rate for pole attachments shall apply to City attachments to EPUD poles. Streetlights shall not be considered an attachment for purposes of pole attachments.
f. City 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.
g. Subject to the tort claim limitations in the Oregon Tort Claims Act and the Oregon Constitution, 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 attachments for municipal purposes as described in this Section 5.
6. Use of Bridges and Public Places by EPUD. Before EPUD may use or occupy any bridge or Public Place to install Facilities, EPUD shall first obtain written permission from the City to do so and comply with any special conditions the City desires to impose on such use or occupation.
7. 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. In the event such repairs are required due to an act of the City, the costs for repairs shall be borne by the City. Under such circumstances, City shall first request that EPUD cut or move the wires. If EPUD is unable to cut or move said wires, equipment, or appurtenances in a mutually agreeable timeframe, or if the City and EPUD are unable to agree to a timeframe, the City shall perform any such emergency cutting consistent with all applicable safety regulations and by retaining a qualified, certified contractor.
b. Subject to the tort claim limitations in the Oregon Tort Claims Act and the Oregon Constitution, 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 Public Right-of-Way 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 Public Right-of-Way is denied to EPUD.
Section 5. CONSTRUCTION
1. Public Works and Improvements Not Affected by Franchise. Notwithstanding anything herein in the contrary, 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 Public Rights-of-Way.
c. Vacate, alter, or close any Public Right-of-Way.
d. Whenever the City excavates or performs any work in any of its 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 Facilities the City shall, 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 Facilities from damage and possible inconvenience to the public. In any such case, EPUD, upon receiving such notice, shall furnish any existing maps or drawings to the City or contractor, as the case may be, showing the approximate location of all its Facilities in the area involved in such proposed excavation or other work.
2. Control of Construction. EPUD shall file with the City, maps showing the location of any construction, extension, or relocation of any of its Facilities and must first obtain the City’s approval of the location and plans prior to the commencement of the work. City shall generally conduct its review within 30 days. EPUD shall be required to obtain a permit from the City, before commencing the construction, extension, or relocation of any of its Facilities within a Public Right-of-Way.
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 EPUD Facilities within Public Rights-of-Way. 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 private person or entity desiring to move a building or other object, EPUD shall temporarily raise, lower, or remove its Facilities upon any Public Right-of-Way within the City, when necessary to permit the person to move the building or other object across or along such Public Right-of-Way. The raising, lowering or removal of the Facilities of EPUD shall be in accordance with all applicable safety laws and regulations and ordinances and regulations of the City.
b. The notice required by Section 4.a of this section shall bear the approval of the Administrator or designee and shall detail the route of movement of the building or other objects. EPUD may at its discretion seek 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, from the private person giving the notice in accordance with EPUD policies and Oregon law. EPUD may also require that such notice provide that the person giving the notice will indemnify and hold EPUD harmless from any and all liabilities, 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, in its sole discretion, that 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 within City limits either in its governmental or proprietary capacity and for the benefit of the City, EPUD shall temporarily rearrange its Facilities; provided, however, that the indemnification provisions of Section 4.b of this section 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 Revenue derived from within the corporate limits of the City.
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, which the City may at its discretion waive in whole or in part.
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 EPUD or its employees, agents, or assigns of its Facilities. Subject to the limitations and conditions of the Oregon Tort Claims Act, ORS 30.260-30.300, EPUD 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 EPUD’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 EPUD of any claim, demand, or lien with respect to which the City seeks indemnification hereunder; and (b) may permit EPUD to assume the defense of such claim, demand, or lien. If such defense is not assumed by EPUD, EPUD shall not be subject to liability for any settlement made without its consent. Notwithstanding any provision in this Franchise to the contrary, EPUD 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 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 out of this Franchise when such liability, action, claim, loss, damage or other cost results from the action of that party in the course of this Franchise. Nothing in this Franchise shall be deemed to create a liability for any party in excess of the Oregon Tort Claims Act limits for either party.
c. 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 Administrator, good and sufficient insurance policies covering Employer’s Liability insurance with a minimum limit of $2,000,000, Commercial General Liability insurance, to include contractual liability with a minimum single limit of $2,000,000 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 $2,000,000 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.
d. The City 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 for such losses for which EPUD has agreed to indemnify the City per the terms of this Franchise.
3. Permits. Nothing in this Franchise shall be construed to limit the right of the City to require EPUD to obtain any necessary permits required by the Junction City Municipal Code.
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 and such updates may be provided via social media, posting on EPUD’s website, phone calls, texts, or emails. The City shall notify EPUD of any developments or issues concerning this 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 Section 6.1 of this Franchise. 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. Either party may audit the amount of gross revenue and payment amounts under this Franchise and request correction for any errors within two (2) years of payment as provided in this section. After the expiration of two (2) years from the date a payment is made under this Franchise, the payment shall be deemed final and no further corrections or modifications to the amount paid shall be made or requested.
3. Reports and Records.
a. Within thirty (30) days following any written request by the City, which may be done no more than twice a year, 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. Amendment of Grant. The City shall consider an amendment to this Franchise upon application from EPUD. An amended franchise shall be considered only if EPUD is in compliance with this Franchise.
5. 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, annexations, and service territory allocations, unless the City first gives its approval in writing. City’s 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 Franchise, provided, however, inclusion of this Franchise as property subject to the lien of EPUD’s mortgage(s) shall not constitute a transfer or assignment.
6. City Costs. Grantee shall reimburse the City for all the actual and documented costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Franchise, including the reasonable costs of the professional consultation on legal, technical, or financial issues related to the transfer or assignment.
7. Remedies Not Exclusive: When Requirement Waived. All remedies and penalties under this Franchise, including termination of this 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 Franchise, including termination of this 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.
8. 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.
b. EPUD becomes insolvent, unable, or unwilling to pay its debts or is adjudged bankrupt.
c. EPUD misrepresents a material fact in the application for or negotiation of or renegotiation or renewal of this Franchise.
9. Revocation Procedures.
a. The City shall provide EPUD with a written notice of the cause of termination and its intention to terminate or revoke this 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 that matter or taken significant steps to correct the matter which provides grounds for termination, this 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 Franchise, 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 if required under Federal or state statutes or Orders of the Public Utility Commission of Oregon.
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 this 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. INSPECTIONS AND CONTINUITY OF SERVICE
1. Inspection. The City shall have the right, but not the obligation, to observe and inspect all construction or installation of EPUD’s Facilities subject to the provisions of this Franchise and to make such inspections as it shall find necessary to ensure 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, and pay the franchise fees provided herein, until such time as there is a new franchise agreement or a successor that acquires EPUD’s Facilities and provides electric service to EPUD’s customers.
Section 9. MISCELLANEOUS
1. 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.
2. Rules of Construction. This Franchise shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this Franchise, 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 Franchise. EPUD shall not be relieved of its obligation to comply promptly with any provision of this Franchise by any failure of the City to enforce prompt compliance with any of its provisions.
c. Unless otherwise specified in this Franchise, 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.
3. Severability and Constitutionality. If any section, subsection, sentence, clause, or phrase of this Franchise 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.
4. 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:
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If to the City: |
City of Junction City |
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If to EPUD: |
EPUD |
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 computed 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 Franchise. When the last day of the period falls on Saturday, Sunday, or a legal holiday, that day shall be omitted from the computation.
Section 10. REPEAL
Ordinance No. 1201 and Ordinance No. 1271 are hereby repealed. The peace, health, and safety of the people of the City of Junction City is involved, an emergency is hereby declared to exist, and this ordinance shall be in full force and effect from and after its passage by the Council, its approval by the Mayor, and receipt of Emerald People’s Utility District acceptance of this Ordinance.
ACCEPTANCE OF ORDINANCE NO. 1274
City of Junction City, Oregon
TO THE MAYOR AND COUNCIL OF THE CITY OF JUNCTION CITY:
WHEREAS, on the 10th day of May, 2022, the City Council of the City of Junction City, Oregon, enacted Ordinance No. 1274, which is:
AN ORDINANCE GRANTING AN 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 FRANCHISE, REPEALING ORDINANCE NO. 1201 AND ORDINANCE NO. 1271, AND DECLARING AN EMERGENCY.
WHEREAS, the Ordinance was granted upon the condition that the Grantee, Emerald People’s Utility District, shall, within sixty (60) days of the passage and approval of this Ordinance, file with the City Administrator or the City of Junction City, its written acceptance of all terms and conditions of this Ordinance.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that Emerald People’s Utility District does hereby accept Junction City Ordinance No. 1274 and the terms and conditions of said Ordinance.
IN WITNESS WHEREOF, Emerald People’s Utility District has caused this acceptance to be duly executed this ____ day of ___________, 2022.
EMERALD PEOPLE’S UTILITY DISTRICT
By: ___________________________
Title: _________________________
Date: _________________________
Received by the City of Junction City:
By: ___________________________
Title: _________________________
Date: _________________________