SMALL BUSINESS OUTREACH PROGRAM
FUNDING AGREEMENT
between
THE CITY OF PORTLAND, OREGON
and
PACIFICORP
This SMALL BUSINESS OUTREACH PROGRAM FUNDING AGREEMENT (“Agreement”) is entered into this ___ day of December, 2005, and is by and between THE CITY OF PORTLAND, OREGON, a municipal corporation organized under the laws of the State of Oregon (“City”) and PACIFICORP, an Oregon Corporation providing electric utility service to customers located within the municipal boundaries of the City.
RECITALS
WHEREAS, the City, through its Office of Sustainable Development, intends to develop and administer a Small Business Outreach Program (“Program”) for the purpose of providing small businesses within the City with information and referrals to energy efficiency and demand side management opportunities sponsored by the Energy Trust of Oregon; and
WHEREAS, PacifiCorp has agreed to assist in the funding of the initial phase of the City’s Program through a one-time payment in the amount of $150,000.00.
NOW, THEREFORE, the City and PacifiCorp hereby agree as follows:
ARTICLE 1: DEFINITIONS
As used in this Agreement the following terms when used with initial capitalization shall have the meanings assigned below:
1.1 “Agreement” shall mean this Small Business Outreach Pilot Program Funding Agreement between the City and PacifiCorp.
1.2 “City” shall mean the City of Portland, Oregon.
1.3 “Effective Date” shall mean the first day upon which this Agreement has been executed by both Parties.
1.4 “Party” shall mean either the City or PacifiCorp.
1.5 “Parties” shall mean both the City and PacifiCorp.
1.6 “Program” shall mean the small business outreach program to be developed and implemented by the City consistent with the Program Proposal made by the City and approved by PacifiCorp pursuant to Section 4.2 of this Agreement.
1.7 “Program Proposal” shall mean the proposal to be made by the City to PacifiCorp as required by Section 4.2 of this Agreement.
ARTICLE 2: TERM
2.1 Effective Date. This Agreement shall become effective on the Effective Date.
2.2 Term. Unless terminated earlier as provided herein, the term of this Agreement shall be (3) years from the Effective Date.
ARTICLE 3: PACIFICORP’S OBLIGATIONS
3.1 Funding Obligation. Within thirty (30) days of receipt of the City invoice required by Section 4.1 of this Agreement, PacifiCorp shall remit to the City payment of PacifiCorp’s $150,000.00 contribution to the funding the initial phase of the Program to be established by the City consistent with the terms of Article 4 of this Agreement. PacifiCorp’s funding obligations under this Agreement shall be limited to a one-time payment of such contribution.
3.2 Review and Approval of Program Proposal. Within thirty (30) days of receipt from the City of the written Program Proposal required by Section 4.2 of this Agreement, PacifiCorp shall review such Program Proposal and provide the City either: (1) PacifiCorp’s written approval of such Program Proposal; or (2) PacifiCorp’s written objection to the Program Proposal together with written reasons for such objection and suggested changes to the Program Proposal which, if adopted by the City, would make the Program Proposal acceptable to PacifiCorp. PacifiCorp’s approval of the Program Proposal shall not be unreasonably withheld.
ARTICLE 4: CITY’S OBLIGATIONS
4.1 Invoice PacifiCorp. Within fifteen (15) days of the Effective Date of this Agreement, the City shall submit to PacifiCorp a written invoice for payment of the $150,000.00 contribution due under Section 3.1 of this Agreement.
4.2 Project Proposal. Within One hundred fifty (150) days of the Effective Date of this Agreement, the City shall provide PacifiCorp with a written Project Proposal detailing the initial phase of the Project to be funded in part by PacifiCorp’s contribution under Section 3.1 of this Agreement. The Project Proposal shall describe and detail the small business outreach efforts to be administered by the City under during the first phase of the Program; such proposal shall include:
4.2.1 The Program shall be designed to provide small businesses located within the City with information regarding the availability of energy efficiency and other demand side management programs from the Energy Trust of Oregon.
4.2.2 The Program shall provide for annual reporting by the City to PacifiCorp, other funding entities, and the public regarding the number of small business customers reached, the number of small businesses taking advantage of energy efficiency programs promoted by the Project, the kilowatt-hour savings realized as a result, and the number of small business customers remaining to be served by the Project.
4.2.3 The Program Proposal shall include a definition of the population to be served by the Project (i.e., a definition of “small business customers”) and electric energy consumption shall be part of the metric used to identify such target population.
4.2.4 The Program Proposal shall expressly indicate that utilities serving customers located within the City, including but not limited to PacifiCorp, shall not be required to provide the City, the Energy Trust of Oregon, or any other entity with individualized customer data as part of the Program unless such data is requested to be released by a customer consistent with regular utility practices on release of customer information. If necessary, the City shall use the Energy Trust of Oregon as a resource to validate customer use information.
4.2.5 All written and oral information distributed as part of the Program’s promotion, operation and reporting shall include reference to PacifiCorp as a sponsor of the first three years of the Program. The form of such reference shall be subject to review and approval by PacifiCorp which approval shall not be unreasonably withheld.
4.2.6 The Program shall be designed and implemented such that the actions the program promotes result in target customers contacting the Energy Trust of Oregon and/or the City of Portland’s Office of Sustainable Development to fulfill requests for energy efficiency program services. The Program shall not direct target customers to utility providers, including without limitation PacifiCorp, for such services.
4.2.7 PacifiCorp’s participation in the Program shall be designed and characterized as a time-limited (i.e., three-year) commitment conducted by a uniquely qualified City entity (i.e., the Office of Sustainable Development) and funded by utilities serving customers located within the City for the purpose of performing outreach to a target population already be targeted by the City for other services.
4.3 Implementation of Project. Upon receipt of PacifiCorp approval of the City’s Project Proposal as provided for and required by Section 3.2 of this Agreement, the City shall implement and administer the Project described in the approved Project Proposal. The City’s implementation of the Project shall be consistent with the written Project Proposal approved by PacifiCorp.
ARTICLE 5: RATE RECOVERY
The Parties expect that PacifiCorp’s $150,000.00 contribution toward the funding of the Program to be recoverable as part of a general rate case as a prudently incurred customer service expense. In the event recovery of PacifiCorp’s contribution is denied, PacifiCorp may terminate this Agreement by providing the City with fifteen (15) days written notice.
ARTICLE 6: INDEMNIFICATION; LIMITATIONS OF LIABILITY
6.1 Indemnification. To the extent permitted by Oregon law, and subject to the limitations of the Oregon Tort Claims Act, ORS 30.260 to 30.300, the City shall indemnify and hold harmless PacifiCorp, its officers, agents and employees from any and all liability, damage, expenses, attorneys fees, causes of actions, suits, claims or judgments to the extent such liability, damage, expenses, attorneys fees, causes of actions, suits, claims or judgment are caused by the gross negligence or intentional misconduct of the City or its officers, agents and employees resulting from or arising out of the activities of the City or its officers, agents or employees in performance of the City’s obligations under this Agreement.
6.2 Limitations of Liability. Neither Party shall be liable to the other Party for economic losses, costs or damages, including but not limited to special, indirect, incidental, punitive, exemplary or consequential damages, whether arising from this Agreement, tort (including negligence), strict liability or otherwise.
ARTICLE 7: NOTICES
All notices, except as otherwise provided in this Agreement, shall be in writing; shall be directed as follows; and shall be considered delivered if delivered in person or when deposited in the U.S. Mail, postage prepaid by certified or registered mail and return receipt requested, or to such other address as the receiving party hereafter shall specify in writing:
To City: Michael Armstrong
City of Portland Office of Sustainable Development
721 NW 9th Avenue, Suite 350
Portland, OR 97209
Tel: 503-823-6053
Fax: 503-823-5311
To PacifiCorp: George Schreck
PacifiCorp Office of General Counsel
825 NE Multnomah, Suite 1700
Portland, Oregon 97121
Tel: 503-813-7211
Fax: 503-813-7190
ARTICLE 8: MISCELLANEOUS
8.1 Early Termination.
8.1.1 The City and PacifiCorp, by mutual written agreement, may terminate this Agreement at any time.
8.1.2 The City or PacifiCorp, on thirty (30) days written notice to the other Party, may terminate this Agreement for any reason deemed appropriate in its sole discretion.
8.1.3 Either the City or PacifiCorp may terminate this Agreement in the event of a breach of the Agreement by the other. Prior to such termination, however, the party seeking the termination shall give to the other party written notice of the breach and of the party's intent to terminate. If the party has not entirely cured the breach within fifteen (15) days of the notice, then the party giving the notice may terminate the Agreement at any time thereafter by giving a written notice of termination.
8.1.4 In the event this Agreement is terminated, the City shall refund to PacifiCorp any unspent portion of PacifiCorp’s $150,000.00 contribution made pursuant to Section 3.1 of this Agreement. For purposes of this Section, “any unspent portion of PacifiCorp’s contribution” shall mean any portion of the $150,000 contribution that has not been spent by the City for the purpose of funding the reasonable costs of the Program on or before the date of the notice initiating termination under this Agreement.
8.2 Choice of Law. Except to the extent preempted by Federal law, this Agreement shall in all respects be interpreted, and enforced in accordance with the laws of the State of Oregon without reference to rules governing conflicts of laws.
8.3 Choice of Forum. Any litigation arising under or regarding this Agreement shall occur, if in the state courts, in the Multnomah County Court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the District of Oregon, Portland Division.
8.4 No Agency or Similar Relationship. Nothing contained in this Agreement shall be construed to create an agency relationship, association, joint venture, trust, or partnership, or impose a trust or partnership covenant, obligation, or liability on or with regard to either of the Parties. Each Party shall be individually responsible for its own covenants, obligations, and liabilities under this Agreement. Nothing in this Agreement shall be construed to create any duty to, any standard of care with reference to, or any liability or inference of liability to any third party.
8.5 Performance. Each Party shall do all things, including without limitation the timely preparation, execution, delivery, filing, and recording of any instruments or documents, reasonably requested by the other Party to perform this Agreement.
8.6 Amendment. This Agreement may not be amended, except in writing and signed by duly authorized representatives of both parties.
8.7 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason by a court or governmental agency of competent jurisdiction, then the objectionable portions of the provision shall be stricken, and all other provisions of this Agreement shall remain unaffected and in force. The Parties shall be relieved of their obligations only to the extent necessary to eliminate the objectionable portions unless a court or governmental agency of competent jurisdiction holds that the invalidated provision is not separable from the remainder of this Agreement.
8.8 Waiver. Any waiver of a Party’s rights with respect to any breach of this Agreement, or with respect to any other matter arising in connection with this Agreement, shall not constitute a waiver with respect to any other breach or matter arising in connection with this Agreement. All waivers must be in writing and signed by an authorized representative of the Party granting the waiver.
8.9 Headings. The recitals, headings, and subtitles in this Agreement are for the convenience of the Parties and are not to be used for its construction or interpretation. Any use of the singular in this Agreement also includes the plural and any use of the plural also includes the singular.
8.10 Entire Agreement. This Agreement sets forth the entire agreement between the Parties on the subject matter of this Agreement, and supersedes all prior agreements of the Parties with respect to its subject matter. No amendment of any provision of this Agreement shall be effective unless set forth in a written document signed by authorized representatives of both Parties.
8.11 Interpretation of Agreement. Notwithstanding general rules of construction, both Parties acknowledge they had equal opportunity to negotiate the terms and conditions contained in this Agreement, and agree that the identity of the drafter of this Agreement is not relevant to any interpretation of the terms and conditions of this Agreement. No presumption against the draft shall be applied when construing this Agreement.
8.12 The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective successors.
IN WITNESS WHEREOF, the City and PacifiCorp have caused this Agreement to be executed in their respective names:
THE CITY OF PORTLAND, OREGON PACIFICORP
By: ____________________________ By: ________________________
Name: ____________________________ Name: ________________________
Title: ____________________________ Title: ________________________
J:\FRANCH\PCFCRP.BEW\Franchise Negotiations\C02 Funding Agreement.final.doc