CARBON DIOXIDE EMISSIONS REPORTING AGREEMENT
between
THE CITY OF PORTLAND, OREGON
and
PACIFICORP
This CARBON DIOXIDE REPORTING 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. 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 Carbon Dioxide Emissions Reporting 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.
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, this Agreement shall have an initial term of five (5) years after the Effective Date. At its sole option, the City may chose to renew the Agreement for an additional five (5) year period, so long as the City provides written notice to PacifiCorp prior to the expiration of the initial term.
ARTICLE 3: PACIFICORP’S OBLIGATIONS
3.1 Reporting Obligation. Within the limits of Sections 3.2 and 3.3 of this Agreement, PacifiCorp shall provide the City with annual carbon dioxide emissions data per kilowatt of generation capacity (lbs/kWh).
3.2 Data Sources. Data provided by PacifiCorp to the City pursuant to this Agreement shall be based on any one of three possible sources chosen by PacifiCorp (which choice may change):
3.2.1 Voluntary corporate reporting into federal or state greenhouse registries (e.g., California Climate Action Registry, United states Department of Energy 1605(b) program);
3.2.2 Possible future state or federal regulatory requirements mandating greenhouse gas reporting; or
3.2.3 PacifiCorp’s internal data gathering and processing absent reporting to voluntary or mandated greenhouse gas reporting programs.
3.3 Limitations on Reporting Obligation and Data Sources. This Agreement shall not be interpreted or construed to require PacifiCorp to engage in voluntary or mandated reporting to greenhouse registries. In the absence of such voluntary or mandated reporting to greenhouse gas registries, PacifiCorp’s only obligation under this Article 3 shall be to provide the City with carbon dioxide emissions data which PacifiCorp otherwise generates, gathers or processes for internal purposes in its ordinary course of business. This Agreement shall not be interpreted or construed as requiring PacifiCorp to generate, gather or process carbon dioxide emissions data that it would not have generated, gathered or processed in the absence of this Agreement.
3.4 Greenhouse Gas Risk Assessment. PacifiCorp will report to the City on its preferred portfolio as identified in its integrated resource plan (IRP). PacifiCorp will also report on its valuation of greenhouse gas emissions for portfolio evaluation in the IRP.
ARTICLE 4: CITY’S OBLIGATIONS
The City will provide PacifiCorp with reasonable opportunities to fully participate in any future public evaluations of and discussions leading to revisions of the City’s Local Action Plan on Global Warming.
ARTICLE 5: INDEMNIFICATION; LIMITATIONS OF LIABILITY
5.1 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.
5.2 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 6: 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 7: MISCELLANEOUS
7.1 Termination.
7.1.1 The City and PacifiCorp, by mutual written agreement, may terminate this Agreement at any time.
7.1.2 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.
7.1.3 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.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
7.6 Amendment. This Agreement may not be amended, except in writing and signed by duly authorized representatives of both parties.
7.7 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.
7.8 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.
7.9 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.
7.10 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.
7.11 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.
7.12 Successors. 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: ________________________
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