HomeMy WebLinkAboutBig Bend Electric Cooperative Inc Ordinance 3013 ORDINANCE NO. 0l3
AN ORDINANCE granting a franchise to Big Bend Electric Cooperative,
Inc., for the construction, operation and maintenance of electric facilities
within the City of Pasco.
WHEREAS, Big Bend Electric Cooperative, Inc. has applied for a franchise
to locate, construct, operate and maintain poles, wires, underground cables
and appurtenances over, under, along and across road rights of way and
public properties herein mentioned for the purpose of transmitting and
distributing electricity; now, therefore,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DOES
ORDAIN AS FOLLOWS:
An ordinance granting a non-exclusive franchise to Big Bend Electric
Cooperative Inc. (hereinafter referred to as "Grantee"), a corporation
organized under the laws of the State of Washington, to occupy and use the
public rights of way, and upon approval, other public places in the City of
Pasco (hereinafter referred to as "Grantor"), for the purpose of providing
electrical utility service to the public for a term of twenty-five (25) years,
subject to prior termination or amendment under certain conditions
subjecting such franchise privilege at all times to regulation by state and local
public authority and specifying other limitations, terms, and conditions
governing the exercise of said franchise.
§1. Grant of Franchise.
A. The purpose of this ordinance is to grant a franchise for the
construction, operation, and maintenance of electric transmission and
distribution facilities for the distribution of electrical power by Grantee within
the City of Pasco, Washington. The franchise shall not be construed to extend
privileges beyond this grant. It is an additional purpose of this franchise to set
forth Grantee's responsibilities and obligations, accepted and agreed upon by
Grantee, as reasonably related to the enjoyment of franchise privileges.
B. The Grantee is hereby granted for a term of twenty-five (25) years from
the date this ordinance becomes effective unless sooner abandoned, revoked,
terminated, or amended under the provisions of §1.C., a franchise to
establish, construct and maintain, extend and operate, over, along, across, and
under the streets, avenues, alleys, bridges, and, upon specific approval, other
public places and ways, hereinafter referred to as "franchised areas," within
the corporate limits of the City of Pasco, facilities and equipment used or to be
used for the purpose of an electric transmission and distribution system in
/766C
said areas of the City of Pasco, including all poles, towers, underground
conduits and lines, wires and cables, vaults and manholes for the installation,
storage, operation, and maintenance of electrical equipment so used or to be
used; also to erect, construct, maintain, operate,and use poles and wires for
telecommunication purposes in the conduct of its electrical business. This
provision shall not be construed to waive any requirement of Grantee to
obtain public or private easements or comply with other requirements of state
or federal law.
C. The grant of the franchise under this ordinance is non-exclusive. The
City expressly reserves the right to grant similar permission to others and the
right of the City itself to engage in such business at any time.
D. The City hereby reserves the right to amend this franchise ordinance to
adjust to conditions created by significant technological innovations or
advancements in the electrical transmission and distribution industry,
following a determination by the City Council at a public hearing that such
innovations or advancements are feasible and cost effective and affect, or may
affect Grantee's exercise of the franchise rights granted by this ordinance. Prior
to any amendment of the franchise ordinance by the City under the authority
of this section, Grantee and the City shall conduct negotiations and
discussions on the best manner of making the necessary adjustments to the
Grantee's franchise obligations.
§2. Grantee's Compliance with Laws: City's Reservation of Powers and
Authority.
A. A condition of this franchise is Grantee's acceptance of the obligation
to comply with all federal, state, or local laws or regulations applicable to the
exercise of franchised functions or franchise obligations.
B. By way of limitation of the foregoing and in addition, the City reserves
all lawful powers and franchise authority. This franchise is subject to exercise
of such power and authority as the City may now or hereafter determine
proper, whether by ordinance, resolution, or administrative orders.
C. The authority reserved by the City shall relate, not by way of limitation,
to the location of Grantee's facilities or other matters to the extent the same
may affect municipal interests. It shall include the right to curtail or exclude
on a temporary or permanent basis a specific route or installation of Grantee's
facilities because of inadequate space or other reasonable cause.
Ordinance No. -�-3 Page 2 of 12
D. Whenever any City requirement or proposal shall be asserted to be
prohibited or limited by any regulatory authority, whether because of pre-
emption, conflict, inconsistency, or for any other reason, Grantee agrees, in
good faith, to seek a modification thereof to accommodate the City or, where
this is not possible, to cooperate with the City to make such adjustments in
the relationship of the parties as may be possible. The City, likewise, agrees to
cooperate with Grantee in good faith so as not to unreasonably intrude into
Grantee's business operations. Grantee shall not rely upon this franchise or
any prior City action or inaction as an estoppel or bar to invoke this
provision.
§3. High Voltage Lines.
The Grantee is hereby granted the right to place, maintain, and operate
electric power lines in excess of fifty-five thousand (55,000) volts in the
franchised areas, if any, when the Grantee shall file with the City a statement
identifying the specific locations, with maps, and the City shall, by appropriate
action, authorize the placing, maintenance and operation of said electric
power lines. Grantee shall provide the Public Works Director with any
updated maps, plans or other information upon request. For newly annexed
areas, Grantee shall also advise the Public Works Director of any pre-existing
installations, together with all appropriate information.
§4. Grantee's General Obligations.
A. The Grantee acknowledges that its franchise privileges involve
utilization of a scarce public resource: the area above, over, along, and below
the public rights or way of the City. This scarcity arises from current or
projected space and use Iimitations on public rights of way and public
property in franchised areas and the public and municipal accommodations
to Grantee's enjoyment of this franchise. The Public Works Director may
determine, in the exercise of reasonable discretion, when and where
reasonable accommodation shall be made by Grantee to the City for public
needs or, where requested, other third party needs. For items involving
substantial cost or other burdens on the Grantee, the Grantee may request City
Council review of the Public Works Director's decision.
B. All of Grantee's property and facilities shall be constructed, operated,
and maintained in good order and condition and in accordance with standard
engineering practice. The electrical portions.of Grantee's systems, including
standards and/or poles, will be in accordance with applicable portions of the
National Electric Safety Code and the State of Washington Electrical
Construction Code and other applicable industry standards, the latter as
determined by the Grantee.
Ordinance No..3_ Page 3 of 12
C. The Grantee shall reserve for the City or its agent, without charge to the
City, suitable space on the Grantee's poles to attach the City's communication
cables or other attachments required for the City's purposes. The City shall
also be allowed to attach its vertical circuits on the Grantee's poles without
charge, which circuits shall be suitably enclosed in a protective conduit.
D. The Grantee shall allow the minimum separation required by the State
of Washington Electrical Construction Code and the National Electric Safety
Code and the Grantee's construction standards, if applicable, between the
City's communication cables or other attachments and the Grantee's power
conductors on the poles. The City shall attach its communication cables so as
to comply with the requirements of the State of Washington Electrical
Construction Code.
E. The minimum height of lines above the ground shall be in compliance
with applicable provisions of the National Electrical Safety Code or
Washington State Electrical Construction Code.
F. The City shall string, maintain, and operate its communications cable at
its own expense, risk, and responsibility and in accordance with all applicable
laws and regulations and standard engineering practice in such manner as
not to impose any needless additional expense upon the Grantee. Any such
communications cable of the City shall be subject to interference by the
Grantee only upon advance written notice and permission by the Public
Works Director and only when necessary for the maintenance, operation, or
repair of the Grantee's own facilities, wires, and appurtenances.
§5. Grantee's Obligations Re: Relocation of Facilities,
The City reserves the right, at Grantee's sole expense and liability, at all times
to require the relocation (including relocation of overhead distribution power
lines to below the surface), modification, or reconstruction of any vault, poles,
power lines, and/or other physical facilities installed by the Grantee, its
successors, assigns, or permittees, whether under or above the surface of any
public right of way, public property, or other franchised area, whenever, in
the judgment of the City, such facilities interfere with the City's use of its
property or the public right-of-way for public roadway or other municipal
purpose or poses a danger to the City property or to the public. Any such
direction for the relocation, modification, or reconstruction of such facilities
from the City to the Grantee shall be reviewed at the Grantee's request by the
Pasco City Council in public hearing.
The City and the Grantee may establish a mutually agreed upon schedule to
relocate facilities on an annual basis to allow for adequate planning and
scheduling of projects.
Ordinance No..30 23 Page 4 of 12
In either event the relocation of facilities shall be reviewed at the Grantee's
request by the City Council in a public meeting.
§6. Undergrounding and Electric Power Lines - General Requirements.
A. Grantee is required to place electric power lines carrying less than fifty-
five thousand (55,000) volts underground, except when demand requires
extension of electric distribution lines a distance greater than one-eighth (1/8)
mile from existing lines. Said demand may be served using overhead
distribution equipment and lines; provided: The ending one-eighth mile
portion of an overhead distribution line must be relocated when:
a. Demand for a new service line requires connection to the ending
portion of said overhead distribution line, or,
b. 50% of the acreage and/or development which can reasonably be
serviced by said overhead distribution line is receiving underground electric
service, or,
c. The City and Grantee may prepare a mutually agreed upon plan and/or
schedule for the relocation of facilities underground not specifically defined
in a. and b. of this section or when grantor exercises its right under §5. of this
agreement. No overhead secondary service line shall deliver power to a
permanent electric power customer meter, subject to the requirements of this
franchise. For the purpose of carrying into effect the requirements granted
hereunder, Grantee is authorized at any time to make all necessary
excavations in the streets, alleys, roads, rights of way and public grounds
within the franchised area, provided Grantee follows "call before you dig"
procedures. Such excavation shall be carried out with reasonable dispatch and
with as little interference with or inconvenience to the rights of the public as
may be feasible. Grantee shall restore all streets, alleys, roads, rights of way
and public grounds in as good and safe condition in all respects as before the
commencement of such work. Once a paved surface in any franchised area
has been cut by the Grantee, it shall be properly maintained in good condition
and repair by Grantee for a period of five (5) years or until such time as the
area is resurfaced or reconstructed by the City.
B. In case any obstruction caused by Grantee shall remain longer than
seven (7) days after notice to remove it, or in case of neglect by Grantee to
safeguard any dangerous places, Grantor may remove such obstruction or
safeguard such dangerous places at the expense of Grantee.
F. Grantee's Obligations: Grantee's Obligations of Non-Obstruction
A. The Grantee, in the exercise of the rights herein granted, shall erect
poles string wires, and build conduits in such a manner as to not
unreasonably interfere with other uses of franchised areas. This obligation
Ordinance No.30-43 Page 5 of 12
shall not permit unreasonable interference with Grantee's installations by
Other City permittees or franchisees.
B. It remains the responsibility of the Grantee to anticipate and avoid
duplicating service, facilities, installation, or conflicts with other electric
power franchises or other utilities, franchisees, or permittees. The City
assumes no responsibility for such conflicts or errors.
C. All construction, installation, repair or relocation of lines and
appurtenances performed by Grantee along or under the roads, rights of way
or properties subject to this franchise shall be done in such a manner as not to
interfere with the construction and maintenance of other utilities, public or
private, drains, drainage ditches and structures, irrigation ditches and
structures located therein, nor with the upgrading or improvement of such
roads, rights of way or other public property subject to this franchise.
§8. Necessary Construction Maintenance by Grantor.
The laying, construction, operation and maintenance of Grantee's lines and
appurtenances authorized by this franchise shall not preclude the Grantor its
agents or its contractors, from blasting, grading, excavating, or doing other
necessary road work contiguous to the said lines and facilities of Grantee,
provided that Grantor shall inform Grantee of such activity using "call before
you dig" procedures.
§9. Emergency Removal by Grantor.
The Grantor reserves the right to remove any such wires, poles, or apparatus
("Grantee's facilities") herein provided for in case of general conflagration or
in other cases of extreme emergency where there is neither the time nor the
opportunity for Grantee to perform such work. Grantor shall use reasonable
care in the exercise of such emergency powers. Grantor shall indemnify and
hold harmless the Grantee, its successors and assigns, against any and all
property damage, personal injury, death, or other liability to third parties
sustained as a result of the negligent exercise of such reserved emergency
powers, and shall, at its expense, restore Grantee's facilities removed as a
result of such exercise.
§14. Additional Specific Grants of Authority.
A. The grant of this franchise specifically includes the permission by the
City and acceptance of a reciprocal obligation by the Grantee to trim or
otherwise remove any overhanging or interfering tree, shrub, bush, or other
obstruction interfering with the Grantee's facilities. Grantee shall obtain
necessary City permits for activities subject to its authority and conduct such
Ordinance No. �o l3 Page 6 of 12
tree trimming activities in coordination with the Public Works Department.
Grantee shall be fully responsible for any property damage or bodily injury
claims arising from this section as provided in §24.
B. Grantee further agrees to temporarily raise or lower its wiring for
purposes of building moving or other temporary purposes approved by the
City. Where this request is made by an entity other than the City, Grantee may
assess a reasonable charge therefore, including demand for payment or
deposit in advance.
§11. Grantee's Obligations Re: Reasonable Service and Rates.
A. The electric service to be furnished by Grantee to the public and the
City hereunder and all rates and charges therefore and all regulations,
policies, and conduct of the Grantee applicable thereto shall at all times be fair
and reasonable and be subject to all rules, regulations, and orders that may be
lawfully prescribed by the regulatory body of the State of Washington having
Jurisdiction thereof.
B. Whenever Grantee shall seek any rate adjustment or otherwise apply to
the state regulatory body for any change or modification in its rates or services
to the City, it shall transmit to the Mayor any documents to be filed with said
agency in support thereof and any other reasonable information requested by
the City Manager.
§12. Grantee's Obligations Re:Taxation,Fees, and Financial Reporting,
A. The parties understand that the restrictions of RCW 35.21.860 forbid
the imposition of a franchise fee. If, at some time, the restrictions of this
statute should be removed, the Grantee and City may negotiate a fair and
reasonable franchise fee.
B. This section and any franchise fee or tax, which might now or
thereafter be assessed, shall not be deemed to be assessed or charged in lieu of
any other lawful charge or actual administrative expense or any other source
of municipal authority to receive payments in contract or law. No definition,
policy, or practice of the Grantee, the WUTC, or any other third party or
agency shall bind the City in computation or assessment of any fee, tax, cost,
or interpretation of this franchise.
C. The City reserves the right to impose financial reporting and public
information requirements and designate the time and manner of payment of
all fees or taxes owed by the Grantee.
Ordinance No.-3 Page 7 of 12
§13. Rights of Ingress/Egress.
The grantee, its agents and employees shall have the right and power of
ingress and egress upon its customers' properties for the purpose of installing,
servicing and maintaining its facilities, including the testing and reading of
service meters.
§14. Vacation of Properties by Grantor.
If, at any time the Grantor shall vacate any road, right of way or other public
property which is subject to rights granted by this franchise, such vacation
shall be subject to the granting of a perpetual easement in favor of Grantee, its
successors and assigns, for overhead and underground transmission and
distribution lines and installations in place at the time of vacation and for the
purpose of operating and maintaining such facilities, except that all rights and
privileges of the Grantor as defined in this agreement, shall remain in force.
Such vacation shall, by its terms, expressly prohibit any use of the vacated
properties which will interfere with Grantee's full enjoyment of rights under
said easement.
§15. Preservation of Grantor's Rights to Control.
The Grantor, in granting this franchise, does not waive any rights which it
may now have or may hereafter acquire with respect to road rights of way or
other property of Grantor under this franchise, and this franchise shall not be
construed to deprive the Grantor of any such powers, rights or privileges
which it now has or may hereafter acquire to regulate the use of and to
control the Grantor's roads, rights of way and other public property covered
by this franchise.
§16. Franchise Administration.
A. Except where otherwise specified, the general administration of this
franchise for the City is under the authority of the Public Works Director. He
may promulgate reasonable administrative rules consistent herewith,
interpret provisions, resolve conflicts, and develop procedures needed to
implement and enforce the franchise provisions. He may grant exceptions or
impose additional requirements in particular circumstances in the exercise of
reasonable discretion. He may issue compliance orders with a compliance
schedule and terms thereof, with or without notice, and failure to adhere to
the terms thereof shall be a violation of this franchise. He must give
reasonable notice to Grantee and provide an opportunity for the Grantee to
respond to any order or requirements, except in case of emergency or danger
to the public health and safety. Grantee reserves the right to request the City
Council to review or clarify any action taken by the Public Works Director in
Ordinance No.,3013 Page 8 of 12
the administration of this franchise. For the performance of all franchise
obligation, time is of the essence.
B. All City acts undertaken pursuant to this franchise shall be deemed
discretionary, guided by the purpose and considerations of the public health,
safety, aesthetics, and convenience.
C. Any waiver by the City of any specific provision of this franchise in any
Particular circumstances must be in writing and signed by the Public Works
Director. Such waiver shall not comprise a franchise amendment and shall be
effective only for such time or circumstances specified and until rescinded or
modified. No action, inaction, or interpretation of the requirements of the
franchise by the City shall otherwise waive or estop municipal power or
authority, whether or not specifically reserved herein.
§17. City's Authority Re: Revocation or Forfeiture of Franchise.
A. The franchise hereby granted may be revoked by the City Council by
duly enacted ordinance in the event the Grantee or any lessee or other user
shall fail after reasonable notice of demand to comply with any of the terms,
conditions or obligations imposed upon the Grantee hereunder, but the City
shall have no obligation to do so. No forbearance by the City shall comprise a
waiver of the City's right to enforce any provision of this franchise.
B. Upon lawful revocation or expiration of the terms of this franchise and
if no renewal or extension thereof is granted, Grantee may, at the discretion of
the City Council, be required, in part or entirely, to remove all its wires, poles,
fixtures, conduits, and other facilities or equipment installed or used in the
enjoyment of the franchise or the removal, sale, or use of such facilities and
equipment may be directed, limited, or conditioned by the City by agreement
or through means of any other lawful municipal power or right. The City
may continue to invoke any or all provisions of this franchise against
Grantee or any successor entity enjoying de facto franchise privileges after
revocation or expiration. The City may take all other actions deemed
necessary and proper by the City to accommodate the transition and to any
successor as may be in the best interest of the City and its residents.
§18. Expansion of Grantee's Facilities.
Any facilities and appurtenances in streets, alleys, public rights of way and
public places, incidental to the franchise system, that have been, or are at any
future time acquired, leased, or utilized in any manner by Grantee are
thereupon to be deemed authorized by and shall be subject to all provisions of
this franchise.
Ordinance No.JpZ. Page 9 of 12
J
§19. Change of Boundaries of Grantor,
Any subsequent additions or modifications of the boundaries of the Grantor,
whether by annexation, consolidation or otherwise, shall be subject to the
provisions of this franchise as to all such areas, provided said area is not
already serviced by another franchisee. Grantor shall notify Grantee of the
precise scope of any change of boundaries not less than sixty (60) days prior to
such change becoming effective.
§20. Prior Franchise Superseded.
This franchise shall update and supersede all prior franchises heretofore
granted to Big Bend Electric Cooperative, Inc. or its predecessors, by Grantor or
its predecessors, and shall affirm, authorize and ratify all prior installations
authorized by permits or other action not previously covered by this
franchise.
§21. Prohibition on Transfer of Franchise Rights.
The franchise hereby granted shall not be sold, leased, assigned, or otherwise
alienated without the express consent of the City, expressed by ordinance of
the City Council passed for that purpose, and no rule of estoppel shall be
invoked against the City in case it shall assert the invalidity of any attempted
transfer in violation of this section. Such consent shall not be unreasonably
withheld. The consent of the City is hereby expressly given to the mortgaging
of the electric utility property and facilities of the Grantee within the City,
under any presently outstanding or future mortgage or mortgages given to
secure any bonds or other bona fide indebtedness of the Grantee, and the
purchase at any foreclosure sale, may operate the properties under this
franchise upon complying with the applicable provisions of the City charter,
ordinances, regulations and this franchise. The City reserves the right to
invoke any or all provisions of this franchise upon the Grantee's successors,
assigns, judgment creditors, or distributees of facilities or property used in
enjoyment of privileges conferred herein, whether or not stated elsewhere,
all without waiver of the right to withhold consent not expressly given of any
such transfer and/or require a new franchise.
§22. Effect of Invalidity.
The franchise is granted pursuant to the laws of the State of Washington
relating to the granting of such rights and privileges by Grantor. If any article,
section, sentence, clause, or phrase of this ordinance is for any reason held
illegal, invalid, or unconstitutional, such invalidity shall not affect the
validity of the ordinance or any of the remaining portions. The invalidity of
Ordinance No. Page 10 of 12
any Portion of this ordinance shall not abate, reduce, or otherwise affect any
obligation required of Grantee.
§23. Franchise Ordinance as Contract.
This ordinance shall have the effect of and shall be a contract between
Grantor and Grantee and shall be the measure of the rights and liabilities of
the Grantor as well as of Grantee.
§24. Hold Harmless.
A. The Grantee shall at all times fully defend, indemnify, and hold the
City, its agencies, boards, officers, agents, and employees harmless from any
and all claims, accidents, losses, or liabilities (including those relating to the
placement of Grantee's facilities insofar as the same may affect the
surrounding environment), arising from or by reason of any intentional or
negligent act, occurrence, or omission of the Grantee, singularly or jointly
with others, its representatives, permittees, or employees in the construction,
operation, use, or maintenance of any of the Grantee's electric utility property
or facilities and/or enjoyment of any privileges granted by this franchise or
because of Grantee's performance of franchise obligations. Such indemnity
shall include costs of negotiation or defense, any other costs incurred, and
reasonable attorney's fees.
B. Grantee shall not be responsible for damages determined to arise out
the City's sole negligence or, in the case where damages are determined to
arise out of the concurrent negligence of the parties, Grantee's liability shall
extend to damages determined to arise beyond the extend of Grantee's
concurrent negligence only so far as permitted by law.
C. it is not the intent of this franchise to acknowledge, create, imply, or
expand any duty or liability of the City with respect to its role as franchising
authority in the exercise of its police power or for any other purpose. Any City
duty, nonetheless deemed created, shall be a duty to the general public and
not to any specific party, group, or entity.
§25. Abandonment of Franchise.
Grantee may at any time abandon the rights and authorities granted
hereunder, provided that twelve (12) months written notice of intention to
abandon is given to Grantor.
Ordinance No.301 Page 11 of 12
§26. Acceptance of Franchise.
Grantee shall notify Grantor in writing of its acceptance of this franchise
within thirty (30) days of the approval of this franchise by Grantor.
§27. Except as hereby modified, this ordinance shall remain in full force
and effect as enacted.
§28. All ordinances and parts of ordinances in conflict herewith are
repealed.
§29. This ordinance shall be in full force effect five (5) days after passage
and publication.
Apsed by the City Council of the City of Pasco, at its regular meeting this
_2hef day of May, 1994.
City of Pasco:
JJE*j 'a sz� ,
�LUCE
ATTEST:
. APP VED 'I'
?AT E D. SE AN G G U TELLQ u City Clerk Cx y At orney
'�9
BIG BEND ELECTRIC COOPERATIVE,INC.:
NNETH STORY
Board President
Ordinance No.-3o1-L Page 12 of 12