74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
SA to SB 443
LC 2165/SB 443-12
SENATE AMENDMENTS TO
SENATE BILL 443
By COMMITTEE ON BUSINESS, TRANSPORTATION AND WORKFORCE
DEVELOPMENT
May 21
On page 1 of the printed bill, line 2, after 'ORS' delete the
rest of the line and line 3 and insert '221.420, 221.450,
287.025, 757.511 and 757.612; appropriating money; and declaring
an emergency.'.
Delete lines 5 through 27 and delete pages 2 through 13 and
insert:
{ +
' OREGON COMMUNITY POWER + }
'
{ + (Definitions) + }
' { + SECTION 1. + } { + As used in sections 1, 2 and 3 to
39 of this 2007 Act:
' (1) 'Board' means the board of directors of Oregon Community
Power.
' (2) 'Incumbent utility' means an investor-owned utility that
is the subject of a transaction described in section 2 of this
2007 Act.
' (3) 'Investor-owned utility' means a utility that sells
electricity and that is operated by a corporation with
shareholders.
' (4) 'Rate' has the meaning given that term in ORS 756.010.
' (5) 'Service' has the meaning given that term in ORS 756.010.
' (6) 'Service territory' means the geographic area within
which a utility provides electricity to customers. + }
'
{ + (Acquisition Review Committee) + }
' { + SECTION 2. + } { + Creation of acquisition review
committee. (1)(a) Except as provided in subsection (9) of this
section, the Public Utility Commission shall give notice to the
cities and counties specified in paragraph (b) of this subsection
whenever the commission receives notice of a proposed transaction
under ORS 757.511 (2):
' (A) Relating to an investor-owned utility for which approval
of the Public Utility Commission is required under ORS chapter
757; and
' (B) Involving the sale of 50 percent or more of the voting
shares of the utility to a person that is not an affiliated
interest with the utility as defined in ORS 757.015.
' (b) Notice under subsection (1) of this section shall be
given to a city or county if the investor-owned utility that is
the subject of the proposed transaction has service territory
within the boundaries of the city or county.
' (2) Upon receiving notice under subsection (1) of this
section, each city or county may appoint a member to an
acquisition review committee formed to represent the affected
cities and counties. An acquisition review committee must be
formed not more than 60 days after notice is given by the
commission under subsection (1) of this section. If an
acquisition review committee is not formed within 60 days after
notice is given by the commission under subsection (1) of this
section, the commission shall proceed with any application made
under ORS 757.511 for approval of the transaction.
' (3) An acquisition review committee formed under this section
shall consider a proposed transaction described in subsection (1)
of this section for the purpose of determining whether:
' (a) Acquisition of the investor-owned utility by Oregon
Community Power would be in the best interests of the customers
served by the investor-owned utility; and
' (b) Acquisition of the utility can be accomplished in a
manner that is consistent with the policy described in section 27
of this 2007 Act.
' (4) An acquisition review committee created under this
section may decide to enter into negotiations for the acquisition
of an investor-owned utility that is the subject of a proposed
transaction described in subsection (1) of this section only by
the affirmative vote of members of the committee representing
counties in which reside not less than two-thirds of the
customers with billing accounts that are served by the incumbent
utility, and the affirmative vote of members of the committee
representing cities in which reside not less than two-thirds of
the customers with billing accounts that are served by the
incumbent utility. If an acquisition review committee determines
that negotiations should commence, the committee shall:
' (a) Enter into negotiations with the incumbent utility or
persons that have authority to negotiate the disposition of the
incumbent utility or the electric utility assets of the incumbent
utility; and
' (b) If the negotiations result in an agreement between the
committee and the incumbent utility or persons described in
paragraph (a) of this subsection, the committee shall immediately
give notice to the commission and file an application with the
commission under ORS 757.511 for approval of the transaction.
' (5) An acquisition review committee created under this
section may decide to acquire an investor-owned utility under
subsection (4) of this section only by the affirmative vote of
members of the committee representing counties in which reside
not less than two-thirds of the customers with billing accounts
that are served by the incumbent utility, and the affirmative
vote of members of the committee representing cities in which
reside not less than two-thirds of the customers with billing
accounts that are served by the incumbent utility. An acquisition
review committee may vote to acquire an incumbent utility under
this subsection only after public notice and consultation with
groups representing customers of the incumbent utility.
' (6) An acquisition review committee must complete
negotiations and vote to enter into an agreement not more than
150 days after notice is given to cities and counties under
subsection (1) of this section. If the incumbent utility agrees
in writing, the committee may request that the time limitation
imposed by this section be extended by 90 days.
' (7) If the commission approves acquisition of the incumbent
utility by Oregon Community Power, the commission shall inform
the Governor and the Governor shall activate Oregon Community
Power by convening an initial Oregon Community Power Board
Nominating Committee under section 7 of this 2007 Act. As soon as
the first board of directors of Oregon Community Power is
appointed under section 8 of this 2007 Act, the board shall
implement the agreement and acquire the incumbent utility or the
electric utility assets of the incumbent utility in the name of
Oregon Community Power.
' (8) An acquisition review committee shall give notice to the
commission immediately if the committee proposes to dissolve or
decides not to enter into negotiations under subsection (4) of
this section or if negotiations do not result in an agreement.
' (9) The commission may not give notice to cities and counties
under subsection (1) of this section if a person providing notice
of a proposed transaction under ORS 757.511 (2) also provides to
the commission written consent forms signed by persons with
authority to act on behalf of counties in which reside not less
than two-thirds of the customers with billing accounts that are
served by the incumbent utility and on behalf of cities in which
reside not less than two-thirds of the customers with billing
accounts that are served by the incumbent utility.
' (10) An acquisition review committee may enter into an
agreement for the acquisition of an incumbent utility or the
electric utility assets of the incumbent utility only if the
committee obtains approval for the acquisition from the
appropriate state agencies in all states in which the incumbent
utility serves retail electricity consumers.
' (11) Notwithstanding any other provision of law, Oregon
Community Power is responsible for and shall pay all costs
relating to the acquisition of an incumbent utility, including
but not limited to:
' (a) The costs of acquiring the electric utility assets of the
incumbent utility;
' (b) The costs of acquiring any necessary generating capacity
and transmission capacity dedicated to serving the customers in
the service area that will be acquired, including but not limited
to electricity generating assets and alternate energy generating
assets under construction but not yet in service;
' (c) Depreciation;
' (d) Loss of revenue to the incumbent utility; and
' (e) All electric utility assets necessary to reintegrate the
system of the incumbent utility after detaching the portion of
the utility acquired by Oregon Community Power. + }
' { + SECTION 2a. + } ORS 757.511 is amended to read:
' 757.511. (1) No person, directly or indirectly, shall acquire
the power to exercise any substantial influence over the policies
and actions of a public utility which provides heat, light or
power without first securing from the Public Utility Commission,
upon application, an order authorizing such acquisition if such
person is, or by such acquisition would become, an affiliated
interest with such public utility as defined in ORS 757.015 (1),
(2) or (3).
' { + (2) Notice must be given to the commission of an
application under this section at least 60 days before the
application is filed with the commission. The notice must
indicate whether the transaction is a transaction described in
section 2 (1) of this 2007 Act. If the transaction is a
transaction as described in section 2 (1) of this 2007 Act, the
commission shall give notice to cities and counties as required
by section 2 (1) of this 2007 Act. + }
' { - (2) - } { + (3) + } The application required by
subsection (1) of this section shall set forth detailed
information regarding:
' (a) The applicant's identity and financial ability;
' (b) The background of the key personnel associated with the
applicant;
' (c) The source and amounts of funds or other consideration to
be used in the acquisition;
' (d) The applicant's compliance with federal law in carrying
out the acquisition;
' (e) Whether the applicant or the key personnel associated
with the applicant have violated any state or federal statutes
regulating the activities of public utilities;
' (f) All documents relating to the transaction giving rise to
the application;
' (g) The applicant's experience in operating public utilities
providing heat, light or power;
' (h) The applicant's plan for operating the public utility;
' (i) How the acquisition will serve the public utility's
customers in the public interest; and
' (j) Such other information as the commission may require by
rule.
' { - (3) - } { + (4) + } The commission promptly shall
examine and investigate each application received pursuant to
this section { + . + }
{ - and - } { + Except as provided in subsection (5) of this
section, the commission + } shall issue an order disposing of the
application within 19 business days of its receipt. If the
commission determines that approval of the application will serve
the public utility's customers in the public interest, the
commission shall issue an order granting the application. The
commission may condition an order authorizing the acquisition
upon the applicant's satisfactory performance or adherence to
specific requirements. The commission otherwise shall issue an
order denying the application. The applicant shall bear the
burden of showing that granting the application is in the public
interest.
' { + (5) The commission may postpone issuance of an order
disposing of an application under this section if notice has been
given to cities and counties under section 2 (1) of this 2007
Act. In no event may the commission postpone issuance of an
order disposing of the application for more than 90 days under
the provisions of this subsection. + }
' { - (4) - } { + (6) + } Nothing in this section shall
prohibit dissemination by any party of information concerning the
acquisition so long as such dissemination is not otherwise in
conflict with state or federal law.
'
{ + (Oregon Community Power Created) + }
' { + SECTION 3. + } { + Oregon Community Power created. (1)
Oregon Community Power is created as a public corporation. Oregon
Community Power shall exercise and carry out all powers, rights
and privileges that are conferred upon Oregon Community Power
under sections 1, 2 and 3 to 39 of this 2007 Act.
' (2) Oregon Community Power is created as a public corporation
in order to carry out public services in sectors of the economy
in which activities or services are also provided by private
enterprise. Oregon Community Power is granted all needed
operating flexibility under sections 1, 2 and 3 to 39 of this
2007 Act in order to ensure the success of Oregon Community Power
while retaining principles of public accountability and
oversight.
' (3) The primary mission of Oregon Community Power is to
provide reliable, low-cost electricity to electricity consumers
in the service territory in which Oregon Community Power
undertakes to provide electricity service. + }
' { + SECTION 4. + } { + Laws applicable to Oregon Community
Power. (1) Except as provided in subsection (2) of this section,
the provisions of ORS chapters 35 (other than ORS 35.550 to
35.575), 180, 190, 192 and 244 and ORS 30.260 to 30.460, 200.005
to 200.025, 200.045 to 200.090, 221.450, 236.605 to 236.640,
243.650 to 243.782 (other than ORS 243.696), 297.040, 307.090 and
307.112 apply to Oregon Community Power under the same terms as
they apply to any other subdivision of state government.
' (2) Except as otherwise provided by law, the provisions of
ORS chapters 182, 183, 238, 238A, 240, 270, 273, 276, 279A, 279B,
279C, 283, 286, 291, 292, 293, 294, 295 and 297 and ORS 35.550 to
35.575, 183.710 to 183.725, 183.745, 183.750, 184.305 to 184.345,
190.430, 190.480, 190.490, 192.105, 200.035, 236.380, 243.105 to
243.585, 243.696, 278.011 to 278.120, 278.315 to 278.415, 279.835
to 279.855, 282.010 to 282.150, 287.006, 287.452, 288.150 to
288.165, 288.600, 288.815 and 656.017 (2) do not apply to Oregon
Community Power.
' (3) Oregon Community Power is not a participating public
employer in the Public Employees Retirement System.
' (4) Any funds held by or under the control of Oregon
Community Power are not public funds, as defined in ORS
295.005. + }
' { + SECTION 5. + } { + Regulatory authority of Public
Utility Commission over Oregon Community Power. (1) Solely for
purposes of determining the authority of the Public Utility
Commission to regulate Oregon Community Power and the activities
and operations of Oregon Community Power, Oregon Community Power
shall be considered a consumer-owned utility, as defined in ORS
757.270, and the commission shall regulate Oregon Community Power
as a consumer-owned utility.
' (2) In addition to having the authority granted the
commission under subsection (1) of this section, the commission
has the authority to:
' (a) Regulate electricity service suppliers that conduct
business with or use the facilities of Oregon Community Power;
' (b) Determine a claim by an electricity service supplier that
Oregon Community Power has acted in an anticompetitive manner;
and
' (c) Take action against Oregon Community Power to enforce
consumer protection rules adopted under ORS 757.659 (3) and
applicable to direct access consumers.
' (3) Oregon Community Power may not be required to obtain the
approval of the Public Utility Commission to make an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act.
' (4) As used in this section, 'direct access' and '
electricity service supplier' have the meanings given those terms
in section 28 of this 2007 Act. + }
'
{ + (Board of Directors) + }
' { + SECTION 6. + } { + Nominating committee. (1) There is
established the Oregon Community Power Board Nominating
Committee. The purpose of the nominating committee is to assist
the Governor in appointing members to the board of directors of
Oregon Community Power under section 8 of this 2007 Act.
' (2) The nominating committee shall consist of five members,
as follows:
' (a) One member shall be a delegate from the Citizens' Utility
Board and shall represent the interests of residential
electricity consumers.
' (b) One member shall be a delegate from a qualified
organization that represents the interests of primarily
commercial electricity consumers.
' (c) One member shall be a delegate from a qualified
organization that represents the interests of primarily
industrial electricity consumers.
' (d) One member shall be a delegate from the League of Oregon
Cities and shall represent the interests of municipalities and
their residents.
' (e) One member shall be a delegate from the Association of
Oregon Counties and shall represent the interests of counties and
their residents.
' (3) Of the members described in subsection (2)(d) and (e) of
this section, one shall be from a local government that is within
the service territory of Oregon Community Power and one shall be
from a local government that is outside of the service territory
of Oregon Community Power.
' (4)(a) In order for the nominating committee to convene, the
board of directors of Oregon Community Power shall prepare a
proposed direction to convene as soon as is practicable following
the earlier of the date that a vacancy occurs on the board or the
date that it becomes known that a vacancy on the board will occur
within six months.
' (b) The proposed direction to convene shall state the
qualified organizations that are to provide the delegates
described in subsection (2)(b) and (c) of this section. The board
shall send copies of the proposed direction to the Public Utility
Commission and to each organization that served as a qualified
organization at a prior convening of the nominating committee.
' (c) Within 15 days after receipt of the proposed direction to
convene, the commission shall review the proposed direction. The
commission shall afford the opportunity for a hearing if
requested by any party. If the proposed direction lists
organizations that meet the qualifications of subsection (2)(b)
and (c) of this section, the commission shall approve the
direction. If the proposed direction does not list organizations
that are qualified organizations under subsection (2)(b) and (c)
of this section, the commission may modify the direction prior to
approval. A determination by the commission may be appealed as a
contested case under ORS chapter 183.
' (5) The nominating committee shall convene as soon as is
practicable after receiving an approved direction to convene
under subsection (4) of this section, and shall forward the first
slate of nominees to the Governor for consideration under section
8 of this 2007 Act no later than 90 days after the date an
approved direction to convene is issued.
' (6) The nominating committee shall nominate three individuals
for each position on the board to be filled.
' (7) A nominating committee that has been convened shall
remain convened until each vacant position on the board is
filled. The nominating committee shall forward a second slate of
nominees to the Governor if requested by the Governor under
section 8 (2) of this 2007 Act.
' (8) In forwarding nominees to the Governor, the nominating
committee shall strive to select individuals who:
' (a) Meet the qualifications described in section 8 (6) of
this 2007 Act;
' (b) If appointed, would result in a board of directors that
represents the geographic diversity of Oregon Community Power's
service territory; and
' (c) Have the ability and experience to fulfill the principal
duties of the board under section 18 of this 2007 Act.
' (9) As used in this section, 'qualified organization' means a
nonprofit organization that represents a broad class of
commercial or industrial customers and that has a substantial
record of representing the class before state agencies or the
Legislative Assembly in matters related to public utility rates,
terms and conditions and energy policy issues affecting the
class. + }
' { + SECTION 7. + } { + Initial nominating committee. (1)
Notwithstanding section 6 of this 2007 Act, the Governor shall
convene the initial Oregon Community Power Board Nominating
Committee for the first board of directors of Oregon Community
Power on the date the Governor activates Oregon Community Power
under section 2 of this 2007 Act.
' (2) The nominating committee shall forward the first slate of
nominees to the Governor for consideration under section 8 of
this 2007 Act within 30 days following the convening of the
committee by the Governor.
' (3) If necessary, the nominating committee shall forward a
second slate of nominees to the Governor for consideration within
10 days after the Governor's request for a second slate of
nominees under section 8 (2) of this 2007 Act.
' (4) For purposes of section 6 (3) of this 2007 Act, the
service territory of the incumbent utility is considered to be
the service territory of Oregon Community Power. + }
' { + SECTION 8. + } { + Board of directors. (1) Oregon
Community Power shall be governed by a board of seven directors
appointed by the Governor using the procedure set forth in this
section.
' (2)(a) Prior to making any appointment to the board, the
Governor shall consider the nominations of the Oregon Community
Power Board Nominating Committee.
' (b) If the Governor reviews an initial slate of nominees made
by the nominating committee and determines not to appoint a
nominee, the Governor shall request that the nominating committee
forward a second slate of nominees. If the Governor determines
not to appoint a nominee from the second slate of nominees, the
Governor may appoint any individual the Governor determines meets
the qualifications of subsection (6) of this section.
' (3) Notwithstanding the requirement that the Governor
consider the nominations of the nominating committee prior to
making an appointment, the Governor shall appoint an individual
to be a board member within 120 days following the vacancy of a
position on the board.
' (4) Each appointment shall be subject to confirmation by the
Senate in the manner prescribed in ORS 171.562 and 171.565.
' (5) The term of office for each board member shall be four
years. A board member may be nominated and appointed to
successive terms, but within 150 days prior to the expiration of
the term of the member, the board shall issue a proposed
direction to convene the nominating committee under section 6 of
this 2007 Act for the purpose of nominating individuals to fill
the board position.
' (6) A member of the board shall have significant experience
or expertise in one or more of the following areas:
' (a) Business operations;
' (b) Utility management;
' (c) Legal or financial affairs;
' (d) Regional energy issues; or
' (e) Developing public policy.
' (7) The Governor may remove any member of the board for
cause, after notice and public hearing. + }
' { + SECTION 9. + } { + Initial terms of directors. (1)
Notwithstanding section 8 (5) of this 2007 Act, the term of
office for the first board of directors of Oregon Community Power
shall be as follows:
' (a) Two members shall be appointed for a term that ends one
year following the date the Governor convenes the board;
' (b) Two members shall be appointed for a term that ends two
years following the date the Governor convenes the board;
' (c) Two members shall be appointed for a term that ends three
years following the date the Governor convenes the board; and
' (d) One member shall be appointed for a term that ends four
years following the date the Governor convenes the board.
' (2) Consistent with subsection (1) of this section, the
Governor shall designate the duration of the term of office of
each member of the first board of directors at the time the
Governor convenes the board. + }
' { + SECTION 10. + } { + Board meetings and procedures. (1)
The board of directors of Oregon Community Power shall meet at
least once each month to conduct the business of the board.
' (2) A majority of board members shall constitute a quorum.
' (3) The board shall select one of its members as chairperson.
' (4) The board shall adopt bylaws establishing rules of
procedure for board meetings and decisions.
' (5) A member of the board shall be compensated as provided in
section 20 (12) of this 2007 Act.
' (6) The board, not later than April 15 of each year, shall
file a report with the Governor and the Legislative Assembly. The
report shall explain the activities and operations of Oregon
Community Power for the preceding calendar year, including a
summary of the audit described in section 25 of this 2007
Act. + }
'
{ + (Acquisition of Incumbent Utility) + }
' { + SECTION 11. + } { + Acquisition of incumbent utility;
use of eminent domain. (1) As soon as practicable after being
appointed, the board of directors of Oregon Community Power shall
implement the agreement entered into by an acquisition review
committee under section 2 (4)(b) of this 2007 Act.
' (2) Notwithstanding section 21 (1) of this 2007 Act, Oregon
Community Power may not use the power of eminent domain to
accomplish all or a part of an acquisition described in
subsection (1) of this section unless the incumbent utility or
the persons that have the authority to negotiate the disposition
of the incumbent utility or the electric utility assets of the
incumbent utility consent to the use of eminent domain for
acquisition purposes. + }
' { + SECTION 12. + } { + Funding of preliminary activities
and negotiations. (1) Following a request by an acquisition
review committee under section 14 of this 2007 Act, the Public
Utility Commission shall transfer from the Public Utility
Commission Account to the Oregon Community Power Utility
Acquisition Fund established under section 13 of this 2007 Act
all amounts necessary to fund any preliminary activities needed
to determine:
' (a) The appropriateness or desirability of an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act;
' (b) The requirements and terms of the acquisition; and
' (c) Any due diligence activities related to the acquisition
and the negotiations for the acquisition.
' (2) Notwithstanding any other provision of law, the
commission may increase the rates of an incumbent utility in
order to recover the costs incurred in negotiating an acquisition
by an acquisition review committee under section 2 (4) of this
2007 Act.
' (3) Notwithstanding any other provision of law, the
commission may assess a fee on an incumbent utility in order to
fund the transfer described in subsection (1) of this
section. + }
' { + SECTION 13. + } { + Oregon Community Power Utility
Acquisition Fund. (1) The Oregon Community Power Utility
Acquisition Fund is established in the State Treasury, separate
and distinct from the General Fund. Interest earned by the Oregon
Community Power Utility Acquisition Fund shall be credited to the
Oregon Community Power Utility Acquisition Fund.
' (2) Moneys in the Oregon Community Power Utility Acquisition
Fund are continuously appropriated to the Public Utility
Commission for the purpose of transferring moneys to an
acquisition review committee as described in section 12 of this
2007 Act. + }
' { + SECTION 14. + } { + Request to Public Utility
Commission for transfer of funds. (1) An acquisition review
committee created under section 2 of this 2007 Act may request
that the Public Utility Commission transfer moneys appropriated
under section 13 of this 2007 Act in order to fund any
preliminary activities the committee undertakes to determine:
' (a) The appropriateness or desirability of an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act;
' (b) The requirements and terms of the acquisition; and
' (c) Any due diligence activities related to the acquisition
and the negotiations for the acquisition.
' (2) An acquisition review committee shall submit a budget and
plan of operations with a request under subsection (1) of this
section. The commission may approve the transfer only after
notice and public hearing on the request. + }
' { + SECTION 15. + } { + Conduct of business after
acquisition. If Oregon Community Power acquires an incumbent
utility under sections 1, 2 and 3 to 39 of this 2007 Act, all
electric utility operations undertaken by Oregon Community Power
after the acquisition shall be conducted under the name of Oregon
Community Power. + }
' { + SECTION 16. + } { + Oregon Community Power to be
successor in interest to incumbent utility. (1) If Oregon
Community Power acquires an incumbent utility under sections 1, 2
and 3 to 39 of this 2007 Act, unless otherwise required by the
Oregon Constitution, Oregon Community Power shall constitute the
successor in interest to the incumbent utility as of the date of
the acquisition for all purposes, including but not limited to:
' (a) Allocation of territory and contracts allocating
territory;
' (b) City franchise fee agreements; and
' (c) Contracts or obligations of any nature, to the extent the
contracts or obligations apply to a successor in interest to the
incumbent utility.
' (2) Until the board of directors of Oregon Community Power
establishes bylaws governing the procedures for conducting a
ratemaking hearing and establishing rates under sections 1, 2 and
3 to 39 of this 2007 Act and under those procedures establishes
one or more new rates or tariffs or establishes one or more
changes in rates or tariffs, Oregon Community Power shall:
' (a) Adopt all existing rate schedules in effect for the
incumbent utility on the date of acquisition;
' (b) Adopt the general rules and regulations of the incumbent
utility's tariffs; and
' (c) Maintain Oregon Community Power books and records in
accordance with generally accepted accounting principles and with
the uniform system of accounts established by the Federal Energy
Regulatory Commission.
' (3) If Oregon Community Power acquires an incumbent utility
under sections 1, 2 and 3 to 39 of this 2007 Act, Oregon
Community Power is subject to all privilege taxes imposed by
municipalities that the incumbent utility was required to pay to
municipalities immediately before the acquisition. + }
' { + SECTION 17. + } { + Equity and assets of incumbent
utility held in trust; disclaimer of state interest. (1) Any
equity of the incumbent utility, any electric utility assets of
the incumbent utility or any combination of equity and assets of
the incumbent utility that Oregon Community Power acquires under
sections 1, 2 and 3 to 39 of this 2007 Act shall be held in trust
by Oregon Community Power, acting as a trustee, for the exclusive
purpose of carrying out the powers, rights and privileges of
Oregon Community Power under sections 1, 2 and 3 to 39 of this
2007 Act for the benefit of the retail electricity consumers of
Oregon Community Power. Notwithstanding any other provision of
law, retail electricity consumers of Oregon Community Power may
not pursue any judicial remedy in any court of this state for any
action of Oregon Community Power, except as provided in sections
1, 2 and 3 to 39 of this 2007 Act.
' (2) The State of Oregon declares that it has no proprietary
interest in Oregon Community Power or in any tangible or
intangible property of any form owned or acquired by Oregon
Community Power. The state disclaims any right to reclaim any
contributions made to Oregon Community Power under sections 1, 2
and 3 to 39 of this 2007 Act.
' (3) Except as provided in sections 1, 2 and 3 to 39 of this
2007 Act, Oregon Community Power may not receive any moneys from
the State of Oregon other than:
' (a) Electric utility operational revenues;
' (b) Public purpose charge revenues under ORS 757.612;
' (c) Nonrecourse bond proceeds or proceeds from any other
nonrecourse borrowing; or
' (d) Loans, grants, payments or other assistance that any
local government as defined in ORS 174.116 would be eligible to
receive. + }
'
{ + (Duties and Powers of Oregon Community Power) + }
' { + SECTION 18. + } { + Board duties. The principal duties
of the board of directors of Oregon Community Power are to:
' (1) Establish policy and develop consistent positions on core
utility issues that promote and implement the primary mission of
Oregon Community Power under section 3 of this 2007 Act;
' (2) Oversee the investments and operations of Oregon
Community Power;
' (3) Take all actions to ensure that revenues and income from
electric utility operations are sufficient to satisfy all costs,
including principal and interest payments on all outstanding
bonds and other debt obligations issued by Oregon Community
Power, and to maintain financial integrity in the operation of
Oregon Community Power;
' (4) Make decisions that are in the best interests of the
consumers and communities within the service territory of Oregon
Community Power and that are consistent with the primary mission
of Oregon Community Power; and
' (5) Consider the social, economic and environmental impacts
of electricity generation, transmission and distribution in board
decision-making. + }
' { + SECTION 19. + } { + Payments in lieu of property
taxes. (1) Oregon Community Power shall make payments in lieu of
property taxes on all property that would otherwise be subject to
assessment under ORS 308.505 to 308.665 if owned by a taxable
owner. Oregon Community Power shall pay to each county in which
property of Oregon Community Power is located an amount equal to
the ad valorem property taxes that would have been charged by the
county if Oregon Community Power property had been assessed to a
taxable owner as of January 1 of the assessment year for which
payment is being made.
' (2) The Department of Revenue shall determine the assessed
value of Oregon Community Power property as if the property were
subject to assessment under ORS 308.505 to 308.665, and shall
transmit the value information as provided in ORS 308.505 to
308.665 to the appropriate county assessor. Oregon Community
Power shall comply with property reporting requirements under ORS
308.505 to 308.665 as if the property were subject to assessment
under ORS 308.505 to 308.665.
' (3) The amount of the in lieu payment to be made to each
county under this section shall be determined and certified
annually by the county assessor of the county. A notice of the
determination and certification shall be mailed to Oregon
Community Power not later than October 15. The notice shall
contain a statement of the value of the property and a complete
explanation of the method used in computing the amount of the in
lieu payment due under this section. Not later than November 15,
Oregon Community Power shall pay the amount due to each county
under this section, less a discount equivalent to that which is
provided in ORS 311.505. Payment shall be made to the county
treasurer. The county treasurer shall distribute the payment to
the taxing districts of the county in accordance with the
schedule of percentages computed under ORS 311.390. + }
' { + SECTION 20. + } { + Powers of Oregon Community Power.
The board of directors of Oregon Community Power shall establish
the policies of Oregon Community Power to be used in the exercise
of the powers enumerated for Oregon Community Power or the board,
and may thereafter modify those policies. The board may delegate
the exercise of powers enumerated for Oregon Community Power to a
president, chief executive officer or general manager of Oregon
Community Power. Delegated powers shall be exercised by the
delegatee in a manner that is consistent with the policies
established by the board. The powers of Oregon Community Power,
as exercisable by the board of directors or by a president, chief
executive officer or general manager under policies adopted by
the board, are as follows:
' (1) To acquire and hold, including by lease-purchase
agreement, real and other property necessary or incident to the
business of Oregon Community Power, within or outside of, or
partly within or partly outside of, the service territory of
Oregon Community Power, and to sell or dispose of that property.
' (2) To execute contracts to purchase, sell or lease assets,
power, services or property.
' (3) To execute contracts for the management or operation of
any Oregon Community Power facilities.
' (4) To issue bonds, notes or otherwise borrow moneys, incur
indebtedness or issue, sell or assume evidence of indebtedness to
the extent allowed under the Oregon Constitution.
' (5) To sue and be sued.
' (6) To refund and retire any indebtedness that may exist
against or be assumed by Oregon Community Power or that may exist
against the revenues of Oregon Community Power.
' (7) To build, acquire, own, operate and maintain generation,
transmission and distribution resources that are sufficient to
maintain an adequate supply of electricity to the service
territory.
' (8) To enter into agreements with local governments or other
state agencies or subdivisions of state government.
' (9) To periodically develop least-cost plans at regular
intervals. A least-cost plan may be developed only with public
participation. A least-cost plan shall take into consideration
economic and environmental risks of providing adequate and
reliable energy for consumers, energy efficiency, renewable
resources and cogeneration, in order to achieve adequate
resources at the least overall cost.
' (10) To oversee all aspects of Oregon Community Power
operations.
' (11) To hire and fire employees of Oregon Community Power.
' (12) To make contracts, to set wages, to set salaries and
provide compensation for services rendered by employees and by
board members, to provide for life insurance, hospitalization,
disability, health and welfare and retirement plans for employees
and to do all things necessary and convenient for full exercise
of the powers granted in this subsection. The provision of life
insurance, hospitalization, disability, health and welfare and
retirement plans for employees is in addition to any other right
or power of Oregon Community Power to participate in those plans
and does not repeal or modify any statutes except those that may
be in conflict with the provision of life insurance,
hospitalization, disability, health and welfare and retirement
plans.
' (13) To enter into contracts with the United States
Government, with any other state, municipality or utility
district or with any other person, for carrying out any
provisions of sections 1, 2 and 3 to 39 of this 2007 Act.
' (14) To fix, maintain and collect electric energy rates as
prescribed in sections 1, 2 and 3 to 39 of this 2007 Act and to
establish and collect charges for any other commodity or service
furnished, developed or sold by Oregon Community Power.
' (15) To construct works across or along any street or public
highway or over any lands that are the property of this state, or
of any city or other subdivision of this state, subject to any
franchise agreement, privilege tax or municipal regulation that
would apply to the works, and to construct works across or along
any stream of water or watercourse. Any works across or along any
state highway shall be constructed only with the permission of
the Department of Transportation. Any works across or along any
county highway shall be constructed only with the permission of
the county governing body. Any works across or along any city
street shall be constructed only with the permission of the city
governing body and upon compliance with applicable city
regulations and payment of any fees called for under applicable
franchise agreements, intergovernmental agreements under ORS
chapter 190 or contracts providing for payment of these
fees. Oregon Community Power shall restore any street or highway
to its former state as near as may be practicable, and may not
use the street or highway in a manner that impairs its usefulness
unnecessarily.
' (16) To enter into franchise agreements with cities and pay
fees under negotiated franchise agreements, intergovernmental
agreements under ORS chapter 190 and contracts providing for the
payment of such fees, and to pay privilege taxes imposed under
ORS 221.450 or other applicable privilege taxes.
' (17) To exercise the power of eminent domain, as prescribed
in section 11 or 21 of this 2007 Act.
' (18) To adopt bylaws as prescribed in section 26 of this 2007
Act.
' (19) To make payments in lieu of property taxes as prescribed
in section 19 of this 2007 Act.
' (20) To acquire property, execute contracts or otherwise
conduct business with or within the territory of any state or
local government that is outside Oregon, any Indian tribe
wherever located or Canada or any province of Canada.
' (21) To execute any contract necessary to acquire, hedge or
sell fuel or energy in any form, to manage electric utility
operations, to construct, maintain or repair any energy
generation or transmission facilities or equipment, to increase
capacity for energy generation or transmission, to transfer any
asset owned by Oregon Community Power or to acquire any asset for
use in electric utility operations conducted by Oregon Community
Power.
' (22) To establish any funds or accounts at depository banks
or other financial institutions that are determined to be
necessary, useful or convenient for the conduct of business by
Oregon Community Power.
' (23) To take any other actions necessary or convenient for
the proper exercise of the powers granted to Oregon Community
Power by sections 1, 2 and 3 to 39 of this 2007 Act. + }
' { + SECTION 21. + } { + Eminent domain. (1) Oregon
Community Power may exercise the power of eminent domain for the
purpose of acquiring any property, within or outside the service
territory of Oregon Community Power, necessary for carrying out
the electric utility operations of Oregon Community Power. Oregon
Community Power may use the power of eminent domain to acquire an
incumbent utility pursuant to an agreement under section 2 of
this 2007 Act only as provided by section 11 of this 2007 Act.
' (2) Notwithstanding subsection (1) of this section, eminent
domain may not be used:
' (a) To acquire service territory of another electric utility;
or
' (b) To acquire any property for a purpose that is unrelated
to electric utility operations. + }
'
{ + (Rates) + }
' { + SECTION 22. + } { + Ratemaking. (1) The board of
directors of Oregon Community Power shall establish rates for the
provision of electricity within the service territory of Oregon
Community Power using the procedure set forth under section 23 of
this 2007 Act.
' (2) The board shall establish a rate structure under which
rates that apply to a specific class of customers are designed to
recover the costs of providing electricity and related services
to that class of customers.
' (3) The rates adopted by the board shall be sufficient to
accomplish the following purposes:
' (a) To properly maintain and operate all Oregon Community
Power property and facilities;
' (b) To recover the overall costs of the electric utility
operations of Oregon Community Power;
' (c) To reflect the income tax exempt status of Oregon
Community Power so that the savings from tax exemption accrue to
the benefit of the customers of Oregon Community Power;
' (d) To pay all franchise fees, in lieu payments, privilege
taxes and other charges and assessments that are properly imposed
on Oregon Community Power or the property or facilities of Oregon
Community Power;
' (e) To pay principal and interest on all bonds, warrants or
other obligations of any character in accordance with the terms
and provisions of the obligations, including but not limited to
bonds issued by Oregon Community Power for an acquisition
described in sections 1, 2 and 3 to 39 of this 2007 Act;
' (f) To pay any other indebtedness or obligation for which
Oregon Community Power may be obligated to pay;
' (g) To pay any debt administration costs associated with
bonds, warrants, obligations or other indebtedness described in
paragraphs (e) and (f) of this subsection;
' (h) To fund operating reserves in sufficient amounts to
ensure the continued efficient operation of Oregon Community
Power; and
' (i) To establish and maintain any special funds that Oregon
Community Power is obligated to create for the purpose of paying
bond issues or other obligations. + }
' { + SECTION 23. + } { + Notice of ratemaking; ratemaking
hearings. (1) Whenever the board of directors of Oregon Community
Power determines to seek a modification in any rate imposed by
the board for electricity service, the board shall give notice of
a ratemaking hearing, at least 30 days in advance, as follows:
' (a) In newspapers of general circulation that are published
in the service territory;
' (b) As a separate insert accompanying billing statements sent
to customers;
' (c) To persons that have requested notice of ratemaking
action by the board; and
' (d) By publication on the Oregon Community Power website.
' (2) The notice shall state:
' (a) The date, time and location of the ratemaking hearing of
the board;
' (b) The new rates or modifications to existing rates being
proposed by the board; and
' (c) Any other information deemed relevant by the board.
' (3) At the time that the board issues a notice of a
ratemaking hearing, the board shall publish on the Oregon
Community Power website or otherwise make available to the public
the underlying utility information upon which the proposed rates
are based. The board shall provide the specific information
required by bylaws adopted under section 26 (1) of this 2007 Act.
' (4)(a) Pursuant to ORS 183.625, the board shall request, and
the Office of Administrative Hearings shall assign, an
administrative law judge to conduct the ratemaking hearing. The
ratemaking hearing shall be conducted under ratemaking hearing
procedures established by bylaws adopted under section 26 (2) of
this 2007 Act. The hearing shall be conducted in a manner that
allows interested parties to present information and argument and
to establish a record upon which the board may establish or
modify rates pursuant to section 22 of this 2007 Act.
' (b) The administrative law judge shall ensure that the rates
established at the ratemaking hearing are sufficient to
accomplish all of the purposes described in section 22 (3) of
this 2007 Act.
' (5) Notwithstanding section 4 of this 2007 Act, a decision by
the board to establish or modify rates may be appealed as a
contested case under ORS chapter 183. + }
'
{ + (Participation by Citizens' Utility Board) + }
' { + SECTION 24. + } { + (1) Whenever the Citizens' Utility
Board of Governors determines that an Oregon Community Power
proceeding may affect the interests of utility consumers, the
Citizens' Utility Board may intervene as of right as an
interested party or otherwise participate in the proceeding.
' (2) The Citizens' Utility Board shall have standing to obtain
judicial or administrative review of any action of Oregon
Community Power, and may intervene as of right as an interested
party or otherwise participate in any proceeding that involves
the review or enforcement of any action by Oregon Community
Power, if the Citizens' Utility Board of Governors determines
that the action may affect the interests of utility
consumers. + }
'
{ + (Audits) + }
' { + SECTION 25. + } { + The board of directors of Oregon
Community Power shall cause an independent audit to be performed
at least annually. The audit shall review and report on the
financial affairs of Oregon Community Power and on any other
aspects of Oregon Community Power as the board may direct. + }
'
{ + (Bylaws) + }
' { + SECTION 26. + } { + The board of directors of Oregon
Community Power may adopt bylaws necessary to administer sections
1, 2 and 3 to 39 of this 2007 Act, including but not limited to:
' (1) Bylaws establishing the information the board must make
available to the public prior to conducting a ratemaking hearing.
' (2) Bylaws establishing procedures for conducting a
ratemaking hearing that provide for substantially the same
procedures as set forth in ORS 183.415, 183.425, 183.440 and
183.450.
' (3) Bylaws to facilitate the implementation of the primary
mission of Oregon Community Power under section 3 of this 2007
Act. + }
{ +
' ELECTRICITY FROM BONNEVILLE POWER ADMINISTRATION + }
' { + SECTION 27. + } { + (1) The Legislative Assembly
declares that it is the policy of the State of Oregon to:
' (a) Ensure that the formation and operation of Oregon
Community Power does not directly or indirectly diminish the
amount of federal electric power available for purchase by
consumer-owned utilities to serve their retail electricity
consumers;
' (b) Ensure that the formation and operation of Oregon
Community Power does not, directly or indirectly, increase the
lowest cost-based rates charged by the Bonneville Power
Administration to consumer-owned utilities for the purchase of
federal electric power above the level that would most likely
have been charged absent the formation and operation of Oregon
Community Power;
' (c) Preserve the existing exclusive distribution rights of
consumer-owned utilities;
' (d) Ensure the preservation of contract rights currently
existing between consumer-owned utilities and an incumbent
utility;
' (e) Preserve the authority of cities to impose franchise fees
and privilege taxes and to execute contracts with Oregon
Community Power; and
' (f) Ensure that Oregon Community Power has access to benefits
from the Bonneville Power Administration, as mandated by the
federal Pacific Northwest Electric Power Planning and
Conservation Act, that are equivalent to the benefits received by
the incumbent utility at the time the utility is acquired by
Oregon Community Power.
' (2) As used in this section, 'federal electric power' means
electricity generated, distributed or sold by the Bonneville
Power Administration. + }
'
{ + DIRECT ACCESS + }
' { + SECTION 28. + } { + Definitions. As used in sections
28 to 33 of this 2007 Act:
' (1) 'Ancillary services' has the meaning given that term in
ORS 757.600.
' (2) 'Direct access' means the ability of a retail electricity
consumer to purchase electricity and ancillary services, as
determined by the board of directors of Oregon Community Power,
directly from an entity other than Oregon Community Power.
' (3) 'Economic utility investment' means all investments,
including plants and equipment and contractual or other legal
obligations, made by Oregon Community Power and properly
dedicated to generation or conservation, the full benefits of
which are no longer available to consumers as a result of
electing direct access, absent transition credits.
' (4) 'Electricity,' 'electricity services' and 'electricity
service supplier' have the meanings given those terms in ORS
757.600.
' (5) 'Nonresidential electricity consumer' means a retail
electricity consumer that is not a residential electricity
consumer.
' (6) 'Portfolio access' means the ability of a retail
electricity consumer to choose from a set of product and pricing
options for electricity determined by the board and may include
product and pricing options offered by Oregon Community Power or
by an electricity service supplier.
' (7) 'Retail electricity consumer' means the end user of
electricity for specific purposes that is served through the
distribution system of Oregon Community Power, whether or not the
end user purchases the electricity from Oregon Community Power.
' (8) 'Transition charge' and 'transition credit' have the
meanings given those terms in ORS 757.600.
' (9) 'Uneconomic utility investment' means all investments,
including plants and equipment and contractual or other legal
obligations, made by Oregon Community Power and properly
dedicated to generation, conservation and workforce commitments,
the full costs of which are no longer recoverable as a result of
direct access, absent transition charges. + }
' { + SECTION 29. + } { + Oregon Community Power required to
allow direct access. (1) Oregon Community Power shall allow
nonresidential electricity consumers direct access.
' (2) Unless the board of directors of Oregon Community Power
determines otherwise, Oregon Community Power shall provide all
retail electricity consumers of Oregon Community Power with a
regulated, cost-of-service rate option.
' (3)(a) Oregon Community Power shall supply default
electricity service to a nonresidential electricity consumer in
an emergency.
' (b) The board shall establish reasonable terms and conditions
for providing default service to a nonresidential electricity
consumer in circumstances in which the consumer is receiving
electricity services through direct access and elects instead to
receive electricity services through the default service.
' (4)(a) Oregon Community Power shall permit retail electricity
consumers that are eligible for direct access to voluntarily
aggregate their electricity loads.
' (b) A retail electricity consumer that is eligible for direct
access may voluntarily aggregate its electricity load with the
electricity load of any other retail electricity consumer that is
eligible for direct access. + }
' { + SECTION 30. + } { + Rights of electricity service
suppliers. (1) Every electricity service supplier is authorized
to use the distribution facilities of Oregon Community Power on a
nondiscriminatory basis.
' (2) Oregon Community Power shall provide:
' (a) Electricity service suppliers and retail electricity
consumers access to the Oregon Community Power transmission
facilities and distribution system that is comparable to that
provided for Oregon Community Power's own use; and
' (b) Electricity service suppliers and retail electricity
consumers timely access to information about the Oregon Community
Power transmission facilities and distribution system, metering
and loads comparable to that provided to Oregon Community Power's
own nondistribution divisions, affiliates and related parties.
' (3) Oregon Community Power shall allow any electricity
service supplier that has been certified by the Public Utility
Commission to provide direct access to nonresidential electricity
consumers. + }
' { + SECTION 31. + } { + Transition credits and charges.
(1) Each retail electricity consumer of Oregon Community Power
shall receive a transition credit or pay a transition charge as
determined under this section.
' (2) The total of all transition credits or transition charges
shall equal the net value of all economic utility investments and
all uneconomic utility investments of Oregon Community Power.
' (3) The board of directors of Oregon Community Power shall
adopt one of the following methods to establish the net value
described under subsection (2) of this section and all procedures
connected with the adopted method:
' (a) Auction;
' (b) Administrative valuation; or
' (c) Ongoing valuation.
' (4) The transition credit or transition charge that applies
to a retail electricity consumer under this section may change to
reflect the duration of the service option chosen by the
consumer, but may not be changed because of the electricity
service supplier chosen by the consumer. + }
' { + SECTION 32. + } { + Portfolio access to electricity
service providers. The board of directors of Oregon Community
Power shall determine whether and under what conditions Oregon
Community Power will offer retail electricity consumers portfolio
access to electricity service suppliers. The board shall have
sole authority to determine:
' (1) The quality and nature of electricity services, including
but not limited to different product and pricing options, that
will be made available to its retail electricity consumers.
' (2) The extent to which products and services will be
unbundled and the rates, tariffs, terms and conditions on which
they may be offered.
' (3) Whether one or more pilot programs for direct access,
portfolio access or other forms of access to alternative
suppliers will be offered.
' (4) The degree to which provision of portfolio access
necessitates modification of transition credits, transition
charges and the net value described in section 31 (2) of this
2007 Act on which transition credits or transition charges are
based.
' (5) The establishment of technical capability requirements,
financial responsibility requirements and other protections for
retail electricity consumers located within the Oregon Community
Power service territory in dealings with electricity service
suppliers.
' (6) Access to or use of the Oregon Community Power
transmission facilities or distribution system by retail
electricity consumers or electricity service suppliers.
' (7) Oregon Community Power's qualification standards for
electricity service suppliers in addition to any certification
standards established by the Public Utility Commission, provided
that the qualification standards are uniformly applied to
electricity service suppliers in a nondiscriminatory manner. + }
{ +
' CONSUMER-OWNED UTILITIES + }
' { + SECTION 33. + } { + Distribution rights; service
territories. (1) Notwithstanding any other provision of law, a
consumer-owned utility has exclusive distribution rights, to the
extent the distribution rights are provided by law other than
sections 1, 2 and 3 to 39 of this 2007 Act, and exclusive
responsibility for the performance and oversight of:
' (a) The utility's distribution system, including the
acquisition, construction, financing, operation and maintenance
of distribution facilities; and
' (b) Metering, billing, collection and consumer response
functions related to the distribution of electricity to retail
electricity consumers located within the utility's service
territory.
' (2) Sections 1, 2 and 3 to 39 of this 2007 Act do not:
' (a) Diminish or enlarge the rights of any person under ORS
758.400 to 758.475; or
' (b) Affect the administration or enforcement of ORS 758.400
to 758.475. + }
{ +
' FINANCING AGREEMENTS + }
' { + SECTION 34. + } { + As used in sections 34 to 38 of
this 2007 Act:
' (1) 'Credit enhancement agreement' means any agreement or
contractual relationship between Oregon Community Power and any
bank, trust company, insurance company, surety bonding company,
pension fund or other financial institution providing additional
credit on or security for a financing agreement or certificates
of participation authorized by sections 34 to 38 of this 2007
Act.
' (2) 'Financing agreement' means a bond, installment sale
agreement, loan agreement, note, note agreement, short-term
promissory note, commercial paper, line of credit or similar
obligation or any other agreement to finance real or personal
property, tangible or intangible, that is or will be owned and
operated by Oregon Community Power, to otherwise borrow money, or
to refinance previously executed financing agreements. + }
' { + SECTION 35. + } { + (1) Oregon Community Power may
enter into financing agreements in accordance with sections 34 to
38 of this 2007 Act upon such terms as the board of directors of
Oregon Community Power determines to be necessary or desirable.
Amounts payable by Oregon Community Power under a financing
agreement shall be limited to funds specifically pledged,
budgeted for or otherwise made available by Oregon Community
Power. If there are insufficient available funds to pay amounts
due under a financing agreement, the lender may exercise any
property rights that Oregon Community Power has granted to the
lender in the financing agreement against the property that was
purchased with the proceeds of the financing agreement, and may
apply the amounts so received toward payments scheduled to be
made by Oregon Community Power under the financing agreement.
' (2) Oregon Community Power may enter into a financing
agreement only following adoption by the board of directors of a
resolution authorizing the execution of the financing agreement
or a series of similar financing agreements.
' (3) Any obligation of any kind incurred by Oregon Community
Power shall state on its face that it is solely an obligation of
Oregon Community Power. + }
' { + SECTION 36. + } { + The board of directors of Oregon
Community Power may delegate to any board member, or to the chief
executive officer, president, general manager or chief financial
officer of Oregon Community Power, the authority to determine
maturity dates, principal amounts, redemption provisions,
interest rates or methods for determining variable or adjustable
interest rates, denominations, methods of sale, agreements for
the exchange of interest rates as an issuer under ORS 287.025 and
other terms and conditions of a financing agreement that are not
appropriately determined at the time of enactment or adoption of
a resolution authorizing the execution of the financing
agreement. The board may also delegate entering into a financing
agreement or any other instrument authorized by law. This
delegated authority shall be exercised subject to applicable
requirements of law and any limitations and criteria as may be
set forth in the resolution authorizing the execution of a
financing agreement or in Oregon Community Power bylaws. + }
' { + SECTION 37. + } { + Oregon Community Power may:
' (1) Enter into agreements with third parties to hold
financing agreement proceeds, payments and reserves as security
for lenders, and to issue certificates of participation in the
right to receive payments due from Oregon Community Power under a
financing agreement. Amounts so held shall be invested at the
direction of the board of directors of Oregon Community Power.
Interest earned on any investments held as security for a
financing agreement may, at the option of the board, be credited
to the accounts held by the third party and applied in payment of
sums due under a financing agreement.
' (2) Enter into credit enhancement agreements for financing
agreements or certificates of participation, provided that any
credit enhancement agreements shall be payable solely from funds
specifically pledged, budgeted for or otherwise made available by
Oregon Community Power and amounts received from the exercise of
property rights granted under the financing agreements.
' (3) Use financing agreements to finance the costs of
acquiring or refinancing real or personal property, either
tangible or intangible, plus the costs of reserves and credit
enhancements and the costs associated with obtaining the
financing.
' (4) Grant security interests in property to trustees or
lenders.
' (5) Make pledges for the benefit of trustees and lenders.
' (6) Purchase fire and extended coverage or other casualty
insurance for property that is acquired or refinanced with
proceeds of a financing agreement, assign the proceeds thereof to
a lender or trustee to the extent of their interest, and covenant
to maintain any insurance while the financing agreement is
unpaid, as long as available funds are sufficient to purchase the
insurance. + }
' { + SECTION 38. + } { + Oregon Community Power may consult
with and obtain advice from the State Treasurer on proposed or
executed financing agreements. The State Treasurer may recover
from Oregon Community Power any costs incurred by the State
Treasurer in providing consultation and advice. + }
{ +
' REVENUE BONDS + }
' { + SECTION 39. + } { + (1) Oregon Community Power may
issue and sell revenue bonds in accordance with the provisions of
the Uniform Revenue Bond Act under ORS 288.805 to 288.945.
However, ORS 288.815 does not apply to revenue bonds issued by
Oregon Community Power. Revenue bonds issued by Oregon Community
Power may not be a general obligation of Oregon Community Power
and may not be a charge upon any revenues or property of Oregon
Community Power that is not specifically pledged thereto. Any
obligation of any kind incurred by Oregon Community Power under
ORS 288.805 to 288.945 is not, and may not be considered, an
indebtedness of the State of Oregon.
' (2) Revenue bonds or other financing agreements issued by
Oregon Community Power pursuant to ORS 288.805 to 288.945 shall
be considered to be bonds or obligations of a political
subdivision of the State of Oregon for the purposes of all laws
of this state. + }
'
{ + MUNICIPAL PRIVILEGE TAX + }
' { + SECTION 40. + } ORS 221.420 is amended to read:
' 221.420. (1) As used in this section:
' (a) 'Public utility' has the meaning for that term provided
in ORS 757.005.
' (b) 'Commission' means the Public Utility Commission of
Oregon.
' (c) 'Council' means the common council, city council,
commission or any other governing body of any municipality
wherein the property of the public utility is located.
' (d) 'Municipality' means any town, city or other municipal
government wherein property of the public utility is located.
' (e) 'Service' is used in its broadest and most inclusive
sense and includes equipment and facilities.
' (f) 'Heating company' means any person furnishing heat but
not electricity or natural gas to its customers.
' (2) Every city may:
' (a) Determine by contract or prescribe by ordinance or
otherwise, the terms and conditions, including payment of charges
and fees, upon which any public utility, electric cooperative,
people's utility district or heating company { + , or Oregon
Community Power, + } may be permitted to occupy the streets,
highways or other public property within such city and exclude or
eject any public utility or heating company therefrom.
' (b) Require any public utility, by ordinance or otherwise, to
make such modifications, additions and extensions to its physical
equipment, facilities or plant or service within such city as
shall be reasonable or necessary in the interest of the public,
and designate the location and nature of all additions and
extensions, the time within which they must be completed, and all
conditions under which they must be constructed.
' (c) Fix by contract, prescribe by ordinance, or in any other
lawful manner, the rates, charges or tolls to be paid to, or that
may be collected by, any public utility or the quality and
character of each kind of product or service to be furnished or
rendered by any public utility furnishing any product or service
within such city. No schedule of rates, charges or tolls, fixed
in the manner provided in this paragraph, shall be so fixed for a
longer period than five years. Whenever it is proposed by any
city to enter into any contract, or to enact any ordinance, or
other municipal law or regulation concerning the matters
specified in this paragraph, a copy of such proposed contract,
ordinance or other municipal law or resolution shall be filed
with the Public Utility Commission of Oregon before the same may
be lawfully signed or enacted, as the case may be, and the
commission shall thereafter have 90 days within which to examine
into the terms thereof. If the commission is of the opinion that
in any respect the provisions of the proposed contract, ordinance
or other municipal law or resolution are not in the public
interest, the commission shall file, in writing, with the clerk
or other officer who has the custody of the files and records of
the city, the commission's reasons therefor. If the objections
are filed within said period of 90 days, no proposed contract,
ordinance or other municipal law or regulation shall be valid or
go into effect until it has been submitted to or ratified by the
vote of the electors of the city. Unless and until a city
exercises its powers as provided in this paragraph, the
commission is vested with all powers with respect to the matters
specified in this paragraph. If the schedule of rates, charges
and tolls or the quality and character of each kind of product or
service is fixed by contract, ordinance or other municipal law or
regulation and in the manner provided in this paragraph, the
commission has no power or jurisdiction to interfere with, modify
or change it during the period fixed thereby. Upon the expiration
of said period such powers shall again be vested in the
commission, to be exercised by the commission unless and until a
new schedule of rates or the quality and character for such
service or product is fixed or prescribed by contract, ordinance
or other municipal law or regulation in the manner provided in
this paragraph.
' (d) Provide for a penalty for noncompliance with the
provisions of any charter provision, ordinance or resolution
adopted by the city in furtherance of the powers specified in
this subsection.
' { + SECTION 41. + } ORS 221.450 is amended to read:
' 221.450. Except as provided in ORS 221.655, the city council
or other governing body of every incorporated city may levy and
collect { + a privilege tax + } from { + Oregon Community Power
and from + } every electric cooperative, people's utility
district, privately owned public utility, telecommunications
carrier as defined in ORS 133.721 or heating company { + . The
privilege tax may be collected only if the entity is + }
operating for a period of 30 days within the city without a
franchise from the city and actually using the streets, alleys or
highways, or all of them, in such city for other than travel on
such streets or highways { - , a privilege tax - } { + . The
privilege tax shall be + } for the use of those public streets,
alleys or highways, or all of them, in such city in an amount not
exceeding five percent of the gross revenues of the cooperative,
utility, district or company currently earned within the boundary
of the city. However, the gross revenues earned in interstate
commerce or on the business of the United States Government shall
be exempt from the provisions of this section. The privilege tax
authorized in this section shall be for each year, or part of
each year, such utility, cooperative, district or company { + ,
or Oregon Community Power, + } operates without a franchise.
' { + SECTION 42. + } { + Sections 1, 2 and 3 to 39 of this
2007 Act do not diminish, or authorize the adoption of rules that
diminish, the authority of a city to control the use of the
city's rights of way or to collect license fees, privilege taxes,
rent or other charges for the use of the rights of way of the
city. + }
'
{ + PUBLIC PURPOSE CHARGE + }
' { + SECTION 43. + } ORS 757.612 is amended to read:
' 757.612. (1) There is established an annual public purpose
expenditure standard for electric companies { + and Oregon
Community Power + } to fund new cost-effective local energy
conservation, new market transformation efforts, the above-market
costs of new renewable energy resources and new low-income
weatherization. The public purpose expenditure standard shall be
funded by the public purpose charge described in subsection (2)
of this section.
' (2)(a) Beginning on the date an electric company { + or
Oregon Community Power + } offers direct access to its retail
electricity consumers, except residential electricity consumers,
the electric company { + or Oregon Community Power + }shall
collect a public purpose charge from all of the retail
electricity consumers located within its service area for a
period of 10 years. Except as provided in paragraph (b) of this
subsection, the public purpose charge shall be equal to three
percent of the total revenues collected by the electric
company { + , Oregon Community Power + } or { + the + }
electricity service supplier from its retail electricity
consumers for electricity services, distribution, ancillary
services, metering and billing, transition charges and other
types of costs included in electric rates on July 23, 1999.
' (b) For an aluminum plant that averages more than 100 average
megawatts of electricity use per year, beginning on March 1,
2002, the electric company { + or Oregon Community Power + }
whose territory abuts the greatest percentage of the site of the
aluminum plant shall collect from the aluminum company a public
purpose charge equal to one percent of the total revenue from the
sale of electricity services to the aluminum plant from any
source.
' (3)(a) The Public Utility Commission shall establish rules
implementing the provisions of this section relating to electric
companies { + and Oregon Community Power + }.
' (b) Subject to paragraph (e) of this subsection, funds
collected by an electric company { + or Oregon Community
Power + } through public purpose charges shall be allocated as
follows:
' (A) Sixty-three percent for new cost-effective conservation
and new market transformation.
' (B) Nineteen percent for the above-market costs of new
renewable energy resources.
' (C) Thirteen percent for new low-income weatherization.
' (D) Five percent shall be transferred to the Housing and
Community Services Department Revolving Account created under ORS
456.574 and used for the purpose of providing grants as described
in ORS 458.625 (2). Moneys deposited in the account under this
subparagraph are continuously appropriated to the Housing and
Community Services Department for the purposes of ORS 458.625
(2). Interest on moneys deposited in the account under this
subparagraph shall accrue to the account.
' (c) The costs of administering subsections (1) to (6) of this
section for an electric company { + or Oregon Community
Power + } shall be paid out of the funds collected through public
purpose charges. The commission may require that an electric
company { + or Oregon Community Power + } direct funds collected
through public purpose charges to the state agencies responsible
for implementing subsections (1) to (6) of this section in order
to pay the costs of administering such responsibilities.
' (d) The commission shall direct the manner in which public
purpose charges are collected and spent by an electric company
{ + or Oregon Community Power + } and may require an electric
company { + or Oregon Community Power + } to expend funds
through competitive bids or other means designed to encourage
competition, except that funds dedicated for low-income
weatherization shall be directed to the Housing and Community
Services Department as provided in subsection (7) of this
section. The commission may also direct that funds collected by
an electric company { + or Oregon Community Power + } through
public purpose charges be paid to a nongovernmental entity for
investment in public purposes described in subsection (1) of this
section. Notwithstanding any other provision of this subsection
{ - , - } { + :
' (A) + } At least 80 percent of the funds allocated for
conservation shall be spent within the service area of the
electric company that collected the funds { - . - } { + ; or
' (B) If Oregon Community Power collected the funds, at least
80 percent of the funds allocated for conservation shall be spent
within the service area of Oregon Community Power. + }
' (e)(A) The first 10 percent of the funds collected annually
by an electric company { + or Oregon Community Power + } under
subsection (2) of this section shall be distributed to education
service districts, as described in ORS 334.010, that are located
in the service territory of the electric company { + or Oregon
Community Power + }. The funds shall be distributed to individual
education service districts according to the weighted average
daily membership (ADMw) of the component school districts of the
education service district for the prior fiscal year as
calculated under ORS 327.013. The commission shall establish by
rule a methodology for distributing a proportionate share of
funds under this paragraph to education service districts that
are only partially located in the service territory of the
electric company { + or Oregon Community Power + }.
' (B) An education service district that receives funds under
this paragraph shall use the funds first to pay for energy audits
for school districts located within the education service
district. An education service district may not expend additional
funds received under this paragraph on a school district facility
until an energy audit has been completed for that school
district. To the extent practicable, an education service
district shall coordinate with the State Department of Energy and
incorporate federal funding in complying with this paragraph.
Following completion of an energy audit for an individual school
district, the education service district may expend funds
received under this paragraph to implement the energy audit. Once
an energy audit has been conducted and completely implemented for
each school district within the education service district, the
education service district may expend funds received under this
paragraph for any of the following purposes:
' (i) Conducting energy audits. A school district shall conduct
an energy audit prior to expending funds on any other purpose
authorized under this paragraph unless the school district has
performed an energy audit within the three years immediately
prior to receiving the funds.
' (ii) Weatherization and upgrading the energy efficiency of
school district facilities.
' (iii) Energy conservation education programs.
' (iv) Purchasing electricity from environmentally focused
sources and investing in renewable energy resources.
' (f) The commission may establish a different public purpose
charge than the public purpose charge otherwise described in
subsection (2) of this section for an individual retail
electricity consumer or any class of retail electricity consumers
located within the service area of an electric company { + or
Oregon Community Power + }, provided that a retail electricity
consumer with a load greater than one average megawatt is not
required to pay a public purpose charge in excess of three
percent of its total cost of electricity services.
' (g) The commission shall remove from the rates of each
electric company any costs for public purposes described in
subsection (1) of this section that are included in rates. A rate
adjustment under this paragraph shall be effective on the date
that the electric company begins collecting public purpose
charges. { + Oregon Community Power shall adhere to tariffs that
were in existence on the date Oregon Community Power acquired an
incumbent utility under sections 1, 2 and 3 to 39 of this 2007
Act, or the electric utility assets of the investor-owned
utility, and that were designed to remove costs for public
purposes from the rates. + }
' (4) { + (a) + } An electric company that satisfies its
obligations under this section shall have no further obligation
to invest in conservation, new market transformation, new
renewable energy resources or new low-income weatherization or to
provide a commercial energy conservation services program and is
not subject to ORS 469.631 to 469.645, 469.860 to 469.900 and
758.505 to 758.555.
' { + (b) Oregon Community Power, for any period during which
Oregon Community Power collects a public purpose charge under
subsection (2) of this section:
' (A) Shall have no other obligation to invest in conservation,
new market transformation, new renewable energy resources or new
low-income weatherization or to provide a commercial energy
conservation services program; and
' (B) Is not subject to ORS 469.631 to 469.645, 469.860 to
469.900 and 758.505 to 758.555. + }
' (5)(a) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year
shall receive a credit against public purpose charges billed by
an electric company { + or Oregon Community Power + } for that
site. The amount of the credit shall be equal to the total amount
of qualifying expenditures for new energy conservation, not to
exceed 68 percent of the annual public purpose charges, and the
above-market costs of purchases of new renewable energy resources
incurred by the retail electricity consumer, not to exceed 19
percent of the annual public purpose charges, less administration
costs incurred under this subsection. The credit may not exceed,
on an annual basis, the lesser of:
' (A) The amount of the retail electricity consumer's
qualifying expenditures; or
' (B) The portion of the public purpose charge billed to the
retail electricity consumer that is dedicated to new energy
conservation, new market transformation or the above-market costs
of new renewable energy resources.
' (b) To obtain a credit under this subsection, a retail
electricity consumer shall file with the State Department of
Energy a description of the proposed conservation project or new
renewable energy resource and a declaration that the retail
electricity consumer plans to incur the qualifying expenditure.
The State Department of Energy shall issue a notice of
precertification within 30 days of receipt of the filing, if such
filing is consistent with this subsection. The credit may be
taken after a retail electricity consumer provides a letter from
a certified public accountant to the State Department of Energy
verifying that the precertified qualifying expenditure has been
made.
' (c) Credits earned by a retail electricity consumer as a
result of qualifying expenditures that are not used in one year
may be carried forward for use in subsequent years.
' (d)(A) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year may
request that the State Department of Energy hire an independent
auditor to assess the potential for conservation investments at
the site. If the independent auditor determines there is no
available conservation measure at the site that would have a
simple payback of one to 10 years, the retail electricity
consumer shall be relieved of 54 percent of its payment
obligation for public purpose charges related to the site. If the
independent auditor determines that there are potential
conservation measures available at the site, the retail
electricity consumer shall be entitled to a credit against public
purpose charges related to the site equal to 54 percent of the
public purpose charges less the estimated cost of available
conservation measures.
' (B) A retail electricity consumer shall be entitled each year
to the credit described in this subsection unless a subsequent
independent audit determines that new conservation investment
opportunities are available. The State Department of Energy may
require that a new independent audit be performed on the site to
determine whether new conservation measures are available,
provided that the independent audits shall occur no more than
once every two years.
' (C) The retail electricity consumer shall pay the cost of the
independent audits described in this subsection.
' (6) Electric utilities and retail electricity consumers shall
receive a fair and reasonable credit for the public purpose
expenditures of their energy suppliers. The State Department of
Energy shall adopt rules to determine eligible expenditures and
the methodology by which such credits are accounted for and used.
The rules also shall adopt methods to account for eligible public
purpose expenditures made through consortia or collaborative
projects.
' (7)(a) In addition to the public purpose charge provided
under subsection (2) of this section, beginning on October 1,
2001, an electric company { + or Oregon Community Power + }
shall collect funds for low-income electric bill payment
assistance in an amount determined under paragraph (b) of this
subsection.
' (b) The total amount collected for low-income electric bill
payment assistance under this section shall be $10 million per
year. The commission shall determine each electric company's
proportionate share of the total amount { + and Oregon Community
Power's proportionate share of the total amount + }. The
commission shall determine the amount to be collected from a
retail electricity consumer, except that a retail electricity
consumer is not required to pay more than $500 per month per site
for low-income electric bill payment assistance.
' (c) Funds collected by the low-income electric bill payment
assistance charge shall be paid into the Housing and Community
Services Department Revolving Account created under ORS 456.574.
Moneys deposited in the account under this paragraph are
continuously appropriated to the Housing and Community Services
Department for the purpose of funding low-income electric bill
payment assistance. Interest earned on moneys deposited in the
account under this paragraph shall accrue to the account. The
department's cost of administering this subsection shall be paid
out of funds collected by the low-income electric bill payment
assistance charge. Moneys deposited in the account under this
paragraph shall be expended solely for low-income electric bill
payment assistance. Funds collected from an electric company
{ + or Oregon Community Power + } shall be expended in the
service area of the electric company { + or Oregon Community
Power + } from which the funds are collected.
' (d) The Housing and Community Services Department, in
consultation with the federal Advisory Committee on Energy, shall
determine the manner in which funds collected under this
subsection will be allocated by the department to energy
assistance program providers for the purpose of providing
low-income bill payment and crisis assistance, including programs
that effectively reduce service disconnections and related costs
to retail electricity consumers and electric utilities. Priority
assistance shall be directed to low-income electricity consumers
who are in danger of having their electricity service
disconnected.
' (e) Notwithstanding ORS 293.140, interest on moneys deposited
in the Housing and Community Services Department Revolving
Account under this subsection shall accrue to the account and may
be used to provide heating bill payment and crisis assistance to
electricity consumers whose primary source of heat is not
electricity.
' (f) Notwithstanding ORS 757.310, the commission may allow an
electric company { + or Oregon Community Power + } to provide
reduced rates or other payment or crisis assistance or low-income
program assistance to a low-income household eligible for
assistance under the federal Low Income Home Energy Assistance
Act of 1981, as amended and in effect on July 23, 1999.
' (8) For purposes of this section, 'retail electricity
consumers' includes any direct service industrial consumer that
purchases electricity without purchasing distribution services
from the electric utility.
' { + (9) For purposes of this section, amounts collected by
Oregon Community Power through public purpose charges are not
considered moneys received from electric utility operations. + }
'
{ + REVENUE BOND CONFORMING AMENDMENTS + }
' { + SECTION 44. + } ORS 287.025 is amended to read:
' 287.025. (1) As used in this section:
' (a) 'Agreement for exchange of interest rates' or '
agreement' means a contract, or an option or forward commitment
to enter into a contract, for the exchange of interest rates that
provides for:
' (A) Payments based on levels of or changes in interest rates;
or
' (B) Provisions to hedge payment, rate, spread or similar
exposure including, but not limited to, an interest rate floor or
cap or an option, put or call.
' (b) 'Borrowing' means a bond, note, bond anticipation note,
commercial paper, certificate of participation or other agreement
made in exercise of the borrowing power of the issuer.
' (c) 'Counterparty' means the entity with which an issuer
enters into an agreement for exchange of interest rates.
' (d) 'Issuer' means a public body as defined in ORS
288.605 { + , + }
{ - or - } Oregon Health and Science University { + or Oregon
Community Power + }.
' (e) 'Related borrowing' means a borrowing for which the
issuer, or the State Treasurer on behalf of a state issuer,
enters into an agreement for exchange of interest rates.
' (f) 'Termination payment' means the amount payable under an
agreement for exchange of interest rates by one party to another
party as a result of termination, in whole or in part, of the
agreement prior to the expiration of the stated term.
' (2) If the issuer is a state issuer, including the State of
Oregon or an agency, department, board or commission of the State
of Oregon, the State Treasurer may exercise the authority granted
by this section on behalf of the state issuer or the state
issuer, with the approval of the State Treasurer, may exercise
that authority directly.
' (3) Subject to subsection (2) of this section, an issuer, or
the State Treasurer on behalf of a state issuer, may enter into
an agreement for exchange of interest rates for one or more
related borrowings that:
' (a) Exist when the agreement for exchange of interest rates
is executed;
' (b) Are reasonably expected to be executed when regularly
scheduled payments are due from the issuer under the agreement;
or
' (c) Are identified after the agreement for exchange of
interest rates is executed and substituted for a borrowing
described in paragraph (a) or (b) of this subsection as a result
of prepayment, refunding, conversion, ratings changes,
redemption, defeasance or other similar event related to one or
more of the borrowings described in paragraph (a) or (b) of this
subsection. An agreement may be made to manage payment, interest
rate, spread or similar exposure undertaken in connection with a
related borrowing upon a finding by the issuer, or the State
Treasurer on behalf of a state issuer, that the agreement
benefits the issuer.
' (4) The issuer, or the State Treasurer on behalf of a state
issuer, shall include in an agreement for exchange of interest
rates provisions related to payment, term, security,
collateralization, termination, default and remedy that the
issuer, or the State Treasurer on behalf of a state issuer,
determines necessary or appropriate upon consideration of the
covenants applicable to the related borrowing and the
creditworthiness of the parties.
' (5) The issuer, or the State Treasurer on behalf of a state
issuer, may enter into an agreement for exchange of interest
rates only if:
' (a) The credit ratings for obligations of the counterparty
that are similar to the termination payment obligations of the
counterparty, or the credit ratings for at least one of the
guarantors of the counterparty, are in one of the top three
rating categories without gradation by at least two nationally
recognized rating agencies and satisfy any other requirements
that may be imposed by the Oregon Municipal Debt Advisory
Commission or the State Treasurer, as applicable, pursuant to
subsection (13) of this section; or
' (b) The termination payment obligations of the counterparty,
or at least one of the guarantors of the counterparty, with whom
the issuer, or the State Treasurer on behalf of a state issuer,
enters the agreement are collateralized by cash or obligations:
' (A) That are rated in one of the top three rating categories
without gradation by at least two nationally recognized rating
agencies as determined by the Oregon Municipal Debt Advisory
Commission or the State Treasurer, as applicable, pursuant to
subsection (13) of this section;
' (B) That are deposited with the issuer, or the State
Treasurer on behalf of a state issuer, or with an agent of the
issuer;
' (C) That have a market value sufficient to collateralize that
portion of the termination payment obligations of the party under
the agreement as determined at the discretion of the issuer, or
the State Treasurer on behalf of a state issuer; and
' (D) That are revalued at least quarterly.
' (6) An issuer, or the State Treasurer on behalf of a state
issuer, may agree, based on the issuer's reasonable expectations
when the agreement is executed:
' (a) If the borrowing bears interest at one or more variable
rates, to pay sums equal to interest at one or more fixed rates
or one or more different variable rates determined under a
formula set forth in the agreement for exchange of interest rates
on an amount not to exceed the outstanding principal amount of
the borrowing when the agreement is entered into or, if the
borrowing has not been issued, the principal amount of the
borrowing reasonably anticipated to be outstanding when payments
are required to commence under the agreement in exchange for an
agreement for the issuer, or the State Treasurer on behalf of a
state issuer, to be paid sums calculated based on the same
principal amount at a variable rate determined under a formula
set forth in the agreement.
' (b) If the borrowing bears interest at one or more fixed
rates, to pay sums calculated based on one or more variable rates
or one or more different fixed rates determined under a formula
set forth in the agreement for exchange of interest rates on an
amount not to exceed the outstanding principal amount of the
borrowing when the agreement is entered into or, if the borrowing
has not been issued, the principal amount of the borrowing
reasonably anticipated to be outstanding when payments are
required to commence under the agreement in exchange for an
agreement for the issuer, or the State Treasurer on behalf of a
state issuer, to be paid sums calculated based on the same
principal amount at a fixed rate or rates set forth in the
agreement.
' (7) The issuer, or the State Treasurer on behalf of a state
issuer, may not enter into an agreement under this section that:
' (a) Has a term that exceeds the original term of the related
borrowing for which the agreement for exchange of interest rates
is made or, in the case of an option or a forward commitment, has
a term that exceeds the reasonably expected term of the related
borrowing for which the agreement is made; or
' (b) Is for a purpose other than to manage payment, interest
rate, spread or similar exposure in connection with the related
borrowing of the issuer.
' (8) The limitation on interest on an obligation in ORS
286.036, or any other similar limitation, does not apply to an
amount paid under an agreement for exchange of interest rates
entered into under this section.
' (9) Upon entering into an agreement for exchange of interest
rates under this section and continuing until the agreement is
satisfied, terminated or otherwise no longer in effect, as long
as no payment default has occurred, the issuer, or the State
Treasurer on behalf of a state issuer, shall treat the amount or
rate of interest on the related borrowing as the amount or rate
of interest payable after giving effect to the agreement for the
purpose of calculating:
' (a) Tax levies, if any, to pay bond debt service; or
' (b) Other amounts that are based upon the rate of interest of
the borrowing.
' (10) Subject to covenants applicable to a related borrowing
and the limitation described in subsection (12) of this section,
payments required under the agreement by the issuer, or the State
Treasurer on behalf of a state issuer, may:
' (a) Be treated as interest payments on the related borrowing;
' (b) Be made from revenues or other moneys committed to or
legally available to pay the related borrowing; and
' (c) Rank in an order of priority of payment relative to the
payment of the related borrowing as the issuer, or the State
Treasurer on behalf of a state issuer, determines. In connection
with entering into an agreement, the issuer, or the State
Treasurer on behalf of a state issuer, may enter into an
agreement that enhances or supports the credit of the issuer in
the agreement or enhances or supports the liquidity of the
agreement.
' (11) An agreement entered into under this section:
' (a) Is not a debt or other obligation of the issuer for
purposes of any limitation upon the indebtedness of the issuer.
' (b) Is subject only to the limitations of this section and is
not subject to other limitations applicable to the related
borrowing.
' (12) A termination payment required to be paid by an issuer
under an agreement for exchange of interest rates may not be paid
from taxes that the issuer may levy that are exempt from the
limitations of sections 11 and 11b, Article XI of the Oregon
Constitution.
' (13)(a) The Oregon Municipal Debt Advisory Commission shall
promulgate administrative rules establishing required terms,
conditions, annual or periodic reporting requirements and other
requirements for an agreement for exchange of interest rates
entered into by an issuer other than a state issuer and may
impose additional requirements for agreements for exchange of
interest rates that are executed by issuers other than a state
issuer, if the commission determines those requirements are
desirable to protect the interests of those issuers or citizens
of the State of Oregon.
' (b) The State Treasurer may promulgate administrative rules:
' (A) Establishing required terms, conditions, annual or
periodic reporting requirements and other requirements for an
agreement for exchange of interest rates entered into by a state
issuer acting with the approval of the State Treasurer under
subsection (2) of this section;
' (B) Requiring a party to an agreement, the party's guarantor
or the collateral securing the obligation of a party or the
party's guarantor to meet specific credit rating standards or
other conditions; or
' (C) If the State Treasurer determines that conditions and
restrictions are necessary or appropriate to protect the
interests of issuers, requiring the agreement to contain terms
and conditions that are more restrictive than the terms and
conditions established in subsection (5) of this section.
' (14)(a) Before an agreement for exchange of interest rates
may be entered into under this section, the issuer, or the State
Treasurer on behalf of a state issuer, shall determine whether:
' (A) The agreement for exchange of interest rates is being
executed for a permitted purpose and benefits the issuer; and
' (B) The requirements of this section have been met.
' (b) In addition to the determinations required under
paragraph (a) of this subsection, an issuer other than a state
issuer shall also determine whether the issuer has complied with
the requirements of the administrative rules promulgated by the
Oregon Municipal Debt Advisory Commission under subsection (13)
of this section.
' (15) An issuer other than a state issuer shall notify the
State Treasurer of the execution by the issuer of an agreement
for exchange of interest rates under this section.
'
{ + MISCELLANEOUS + }
' { + SECTION 45. + } { + The unit and section captions used
in this 2007 Act are provided only for the convenience of the
reader and do not become part of the statutory law of this state
or express any legislative intent in the enactment of this 2007
Act. + }
' { + SECTION 46. + } { + This 2007 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2007 Act
takes effect on its passage. + } ' .
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