PENDING ORDINANCES
ORDINANCE NO. 831
AN ORDINANCE GRANTING THE PORT OF UMATILLA AND THE CITY OF HERMISTON (COLLECTIVELY, "GRANTEE”) A NONEXCLUSIVE FRANCHISE (“FRANCHISE”) FOR THE PRIVILEGE TO USE PUBLIC RIGHTS-OF-WAY TO PROVIDE NON-POTABLE WATER SERVICES WITHIN THE CITY OF UMATILLA (THE "CITY")
WHEREAS, the City regulates and generally provides water services within the City; and,
WHEREAS, the City has the authority to regulate, and require a franchise, license or other use agreement to manage the use of public rights-of-way within the City; and
WHEREAS, the City believes that commercial development of data centers is a benefit to the citizens of the City; and
WHEREAS, the City does not currently have available sufficient non-potable water supply infrastructure to fully meet the industrial needs of users along that portion of Lind Road located within the City; and
WHEREAS, Grantee has executed an Agreement to provide non-potable water service to a proposed data center to be located within the City along Lind Road; and
WHEREAS, Grantee will use City rights-of-way to provide such water service to a parcel located within the City along Lind Road; and
WHEREAS, the City and Grantee (collectively, the “Parties”) now wish to establish the terms by which Grantee may use and occupy the public rights-of-way to provide such water service.
THE CITY OF UMATILLA, OREGON ORDAINS AS FOLLOWS:
SECTION 1. FRANCHISE GRANTED.   Subject to the terms and conditions provided in this Franchise and further subject to the applicable rules, regulations and ordinances of the City, the City hereby grants to Grantee the nonexclusive right and privilege to occupy public rights-of-way along Lind Road to provide and maintain non-potable water supply and delivery service  to that parcel currently identified as Tax Lot 200 on Umatilla County Assessors Map 5N 28 21, and which parcel is further depicted on the attached Exhibit A (the “Parcel”).
It is expressly understood that certain streets, roads and public rights-of-way within the City are or may be under the jurisdiction of either the State of Oregon or Umatilla County. This Franchise does not intend to convey rights on, under or over property or facilities not within the City's jurisdiction.
SECTION 2. FRANCHISE NONEXCLUSIVE.  The right and privilege hereby granted shall not be exclusive. The City expressly reserves the right, at any time during the Franchise, to grant rights or franchises similar to or different from those granted herein to other persons or corporations on a nondiscriminatory basis, as well as the right in its own name as a municipality to use said streets and roads for whatever purposes the City determines to be necessary, including the provision of municipal services to entities and person within the City. Notwithstanding the rights and privileges hereby granted, the siting of any new water lines or related infrastructure within public rights-of-way shall be subject to the applicable rules, and regulations of the City.  Further, nothing in this Franchise shall be deemed a waiver by the City under Oregon's Territorial Allocation Statutes currently set forth in ORS Chapter 758. This Ordinance does not confer on Grantee any right, title or interest in any public rights-of-way beyond that expressly conferred herein, or confer any right or privilege to use or occupy any other property of the City or any other entity.
SECTION 3. PERFORMANCE BY GRANTEE. Grantees shall provide sufficient water conveyance infrastructure to provide non-potable water to the Parcel.
SECTION 4. TERM.  As of the “Effective Date,” which is defined in Section 18 below, this Franchise shall be in full force and effect for an initial period of ten (10) years and will thereafter automatically renew for up to two (2) additional five (5)-year periods unless the City receives written notice of Grantee's intention to terminate no later than twelve (12) months prior to the date of expiration of the then applicable term period .
SECTION 5. FRANCHISE FEES.
Grantee shall pay to the City a franchise fee or charge equivalent to five percent (5%) of Grantee’s “Gross Operating Revenue,” which shall mean the gross revenues actually received by Grantee from the sale of water and water services to the public within the corporate limits of the City using the public rights-of-way.  The percentage of Gross Operating Revenues to be assessed by the City under this Section may be increased during the first and second 5-year periods of the Term so long as (1) the City provides Grantee notice of such amendment no less than fourteen (14) months prior to the next automatic renewal of this Franchise, (2) such increase is issued on a non-discriminatory basis, and (3) at no time during the Term shall such fee assessment exceed 7.5% of Grantee’s “Gross Operating Revenue.”
The franchise fee shall be paid on or before the 30'h of each April, July, October and January during the Term, beginning on January 30, 2019. The franchise fee shall be calculated based upon the Gross Operating Revenue received during the previous calendar quarter.
SECTION 6. INSURANCE REQUIREMENTS. Grantee shall provide and keep in force liability insurance in the amount of not less than one million dollars ($1,000,000) for injury to a single person, one million dollars ($1,000,000) to a group of persons and two million dollars ($2,000,000) property damage, all relating to a single occurrence which shall be evidenced by a certificate of insurance filed with the City Finance Director. Said Certificate shall name the City as additional insured.
SECTION 7. SUCCESSORS.  This Franchise shall be binding on all Grantee's authorized successors and assigns.
SECTION 8. LOCATION, INSTALLATION AND MAINTENANCE.  The location, methods of installation, and maintenance of any infrastructure located by Grantee within public rights-of-way for the delivery of water shall be subject at all times to reasonable regulation by the Council of the City on a non-discriminatory basis; and all such facilities shall be so constructed and maintained as to interfere as little as practicable with street or other traffic. All such facilities shall be installed in accordance with any applicable federal, state, or local laws and shall be maintained in good repair by Grantee.
SECTION 9. STREET EXCAVATIONS AND RESTORATIONS.
Subject to the provisions of this Franchise, Grantee may make necessary excavations in public rights-of-way for the purpose of constructing, installing, maintaining and operating its facilities. Except in emergencies, and in the performance of routine service connections and ordinary maintenance on private property, prior to making an excavation in the traveled portion of any right-of-way, bridge or public place, and, when required by the City, in any untraveled portion of any right-of-way, bridge, or any public place, Grantee shall obtain from the City approval of the proposed excavation and of its location, which approval shall not be unreasonably delayed, conditioned or withheld. Grantee shall give notice to the City by telephone, electronic data transmittal or other appropriate means prior to the commencement of service or maintenance work in public rights-of-way and as soon as is practicable after the commencement of work performed under emergency conditions.
When any excavation is made by Grantee pursuant to this Franchise, Grantee shall promptly restore the affected portion of the public right-of-way, bridge or public place to the same condition it was in prior to the excavation. The restoration shall be in compliance with specifications, requirements and regulations of the City in effect at the time of such restoration. If Grantee fails to promptly restore the affected portion of a public right-of-way to the same condition it was in prior to the excavation, the City may make the restoration, and the cost thereof shall be paid by the Grantee.
SECTION 10. INDEMNITY. To the extent allowed by law, Grantee shall indemnify and hold harmless the City, its officers, employees and agents, against and from any and all property damage and any and all third party claims, including all expenses of litigation, court costs and attorney fees arising from or caused by any wrongful or negligent act or omission of Grantee, its agents or employees with regards to construction, maintenance, operation, or repair of Grantee’s use or occupation of the public rights-of- way pursuant to this Franchise.
SECTION 11. ASSIGNMENT OF FRANCHISE. Grantee may not assign or otherwise transfer its interest in this Franchise without the prior written consent of the City.  Any approved successor or assignee shall sign an acceptance of this Franchise and shall file such written acceptance with the City within thirty (30) days of the assignment or transfer.  Grantee may pledge or encumber this Franchise as part of a reorganization, financing or refinancing without consent but upon giving prior notice to the City. 
SECTION 12. DEFAULT.
(a)   It shall be an Event of Default by Grantee if, after the City has provided thirty (30) days written notice to Grantee and has given Grantee an opportunity to cure:
Grantee violates any material term of the Franchise; or
Grantee commits any act of fraud or deceit toward the City; or
Grantee fails to obtain or maintain any permit required by, or otherwise fails to comply with, any applicable state laws, federal laws, or City ordinances adopted heretofore or hereafter during the Term of this Franchise, that are directly related to Grantee’s use of the public rights-of-way pursuant to this Franchise.
The foregoing shall not constitute a substantial breach if the violation occurs without the fault of Grantee or occurs as a result of circumstances beyond Grantee’s reasonable control. Grantee shall not be excused by mere economic hardship, nor misfeasance or malfeasance of its directors, officers or employees.
SECTION 13. REMEDIES OF DEFAULT. Upon an Event of Default that’s not timely cured by Grantee as allowed under this Franchise (or upon Grantee’s failure to initiate and diligently pursue the cure if it cannot reasonably be completed within the thirty (30) day notice period), the City may terminate this Franchise and extinguish all rights and privileges of Grantee under this Franchise.
SECTION 14. REMOVAL OF GRANTEE'S PROPERTY, ESCHEAT. All property and materials placed by Grantee pursuant to this Franchise in, on, upon, over, under or beneath any public rights-of-way, including highways, streets or alleys of this City, shall be removed by Grantee within one year after the expiration or termination of this Franchise, unless further time is granted by the City. Except as otherwise provided herein, if any of Grantee’s property and materials are not timely removed, such remaining property  shall be forfeited by Grantee and shall escheat to the City. The City may notify Grantee, however, that it waives forfeiture and escheat under this section and may thereafter bring legal action to compel such removal and restoration by Grantee or the payment of all the cost thereof by the Grantee.
SECTION 15. FEE NOT A TAX. The City Council determines that any fee imposed by this Franchise is not a tax subject to the property tax limitations of Article XI, Section 1(b) of the Oregon Constitution.
SECTION 16. SEVERABILITY. The invalidity of any section, clause sentence or provision of this Franchise shall not affect the validity of any other provision of this Franchise, which can be given effect without reference to the invalid part or parts. If any material portion of the Franchise becomes illegal, null or void so that the intent of the Franchise is frustrated, the Parties agree to negotiate in good faith replacement provisions to fulfill the intent of the Franchise consistent with applicable law.
SECTION 17. GOVERNING LAW.  The laws of the State of Oregon shall govern this Franchise including its interpretation, performance and enforcement.  Venue for resolution of any dispute arising under this Franchise shall be in the state circuit court located in Umatilla County, Oregon.
SECTION 18. EFFECTIVE DATE. This Franchise shall take effect thirty (30) days after its enactment by the Council of the City and approval by the City Manager (“Effective Date”), but shall become null and void unless, within sixty (60) days after such Effective Date, Grantee files written acceptance of the terms, conditions and obligations to be complied with or performed by it hereunder.
SECTION 19. NOTICES. All notices required under the terms of this Franchise to be given by any party shall be in writing and, unless otherwise specified in writing, shall be sent to the Parties at the following addresses:
CITY OF UMATILLA                   REGIONAL WATER SYSTEM
 
City Manager
City of Umatilla
P.O. Box 130
Umatilla, OR 97882
Executive Director
Port of Umatilla
P.O. Box 879
Umatilla, OR 97882
Manager
City of Hermiston
180 NE 2nd St.
Hermiston, OR 97838
 
PASSED and ADOPTED this    25th    day of    January      , 2019.
Voting yes, Council Members: Councilor Corinne Funderburk, Councilor Leslie Smith, Councilor Josy Chavez,
Councilor Ashley Wheeler, and Councilor Roak TenEyck.                      
Voting no, Council Members: --                              
Absent Council Members:      Councilor Michael Roxbury                   
Abstaining Council Members:                              
And SIGNED in authentication by the Mayor this ___29th____ day of January, 2019
Mayor
ATTEST:
___________________________________
City Recorder
APPROVED AS TO FORM:
___________________________________
City Attorney
ACCEPTANCE
This franchise ordinance is accepted by the City of Umatilla, an Oregon municipal corporation, this    day of   , 2019.
CITY OF UMATILLA, an Oregon municipal corporation
City Manager
This franchise ordinance is accepted by the Port of Umatilla, an Oregon municipal corporation, this    day of   , 2019.
PORT OF UMATILLA, an Oregon municipal corporation
Executive Director
This franchise ordinance is accepted by the City of Hermiston, an Oregon municipal corporation, this   day of   , 2019.
CITY OF HERMISTON, an Oregon municipal corporation
City Manager
EXHIBIT A