HomeMy WebLinkAbout3882 Ordinance ORDINANCE NO. g �
AN ORDINANCE OF THE CITY OF PASCO, WASHINGTON, GRANTING TO
PACIFICORP, AN OREGON CORPORATION DOING BUSINESS AS PACIFIC POWER&
LIGHT COMPANY, A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, INSTALL,
OPERATE, AND MAINTAIN AN ELECTRICAL POWER TRANSMISSION AND
DISTRIBUTION SYSTEM IN, ON, OVER, UPON, ALONG, AND ACROSS CERTAIN
DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF PASCO, WASHINGTON,
PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH
RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE
WHEREAS, PacifiCorp, an Oregon Corporation, d.b.a. Pacific Power ("PacifiCorp"), is
a regulated public utility that provides electric power and energy to the citizens of the City of
Pasco (the "City") and other surrounding areas shown in Exhibit A; and
WHEREAS, providing electrical power and energy requires the installation, operation
and maintenance of power poles and other related facilities to be located within the public ways
of the City shown in Exhibit A; and
WHEREAS, the City desires to set forth the terms and conditions by which PacifiCorp
shall use the public ways of the City; and
WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant
franchises for the use of its streets and other public properties.
NOW, THEREFORE, be it ordained by the City:
SECTION 1. Grant of Franchise and General Utility Easement. The City hereby grants to
PacifiCorp the right, privilege and authority to construct, maintain, operate, upgrade, and relocate
its electrical distribution and transmission lines and related appurtenances, including
underground conduits and structures, poles, towers, wires, guy anchors, vaults, transformers,
transmission lines, and communication lines (collectively referred to herein as "Electric
Facilities") in, under, along, over and across the present and future streets, alleys, and public
ways (collectively referred to herein as "Public Ways") within the City, for the purpose of
supplying and transmitting electric power and energy to the inhabitants of the City and persons
and corporations beyond the limits thereof. PacifiCorp shall apply for and obtain a Construction
Permit pursuant to PMC Chapter 12.2 prior to site-specific location and installation of any and all
such electrical power facilities.
All other Franchises heretofore granted by the City to PacifiCorp or its predecessors in
interest of which it has acquired for utilization of streets, avenues, right-of-way, roads, alleys,
lands or other public places within the City for electrical power, are cancelled and superseded in
their entirety by this Franchise
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SECTION 2. Term. The term of this Franchise and General Utility Easement is for 10 (ten)
years commencing on the date of acceptance by the Company as set forth in Section 3 below.
SECTION 3. Acceptance by PacifiCorp. Within sixty (60) days after the passage of this
ordinance by the City, PacifiCorp shall file an unqualified written acceptance thereof, with the
City Recorder, otherwise the ordinance and the rights granted herein shall be null and void.
SECTION 4. Non-Exclusive Franchise. The right to use and occupy the Public Ways of the
City shall be nonexclusive and the City reserves the right to use the Public Ways for itself or any
other entity that provides water or sewerage service to City residences; provided, however, that
such use shall not unreasonably interfere with PacifiCorp's Electric Facilities or PacifiCorp's
rights granted herein.
SECTION 5. City Rezulatory Authority. In addition to the provision herein contained, the
City reserves the right to adopt such additional ordinances and regulations as may be deemed
necessary in the exercise of its police power for the protection of the health, safety and welfare of
its citizens and their properties or exercise any other rights, powers, or duties required or
authorized, under the Constitution of the State of Washington, the laws of Washington or City
Ordinances.
SECTION 6. Indemnification/Insurance.
6.1 Indemnification. The City shall in no way be liable or responsible for any loss or
damage to property or any injury to, or death, of any person that may occur in the construction,
operation or maintenance by PacifiCorp of its Electric Facilities. PacifiCorp shall indemnify,
defend and hold the City harmless from and against claims, demands, liens and all liability or
damage of whatsoever kind on account of PacifiCorp's use of the Public Ways within the City,
and shall pay the costs of defense plus reasonable attorneys' fees for any claim, demand or lien
brought thereunder. The City shall: (a) give prompt written notice to PacifiCorp of any claim,
demand or lien with respect to which the City seeks indemnification hereunder; and (b) unless in
the City's judgment a conflict of interest exists between the City and PacifiCorp with respect to
such claim, demand or lien, permit PacifiCorp to assume the defense of such claim, demand, or
lien with counsel satisfactory to City. If such defense is not assumed by PacifiCorp, PacifiCorp
shall not be subject to liability for any settlement made without its consent. Notwithstanding any
provision hereof to the contrary, PacifiCorp shall not be obligated to indemnify, defend or hold
the City harmless to the extent any claim, demand or lien arises out of or in connection with any
negligent or willful act or failure to act of the City or any of its officers or employees.
6.2 Insurance. During the term of this Franchise, PacifiCorp shall maintain in full
force and effect, at its own cost and expense, insurance against claims for injuries to persons or
damage to property which may arise from or in connection with the performance of the work
hereunder by PacifiCorp, its agents, representatives, employees, or subcontractors.
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PacifiCorp shall provide a certificate of insurance naming the City, its officials, boards,
commissions, agents, and/or employees as additional insureds evidencing: (1) automobile
liability insurance with limits no less than $2,000,000.00 combined single limit per accident for
bodily injury and property damage; and (2) commercial general liability insurance written on a
claims first-made basis with limits no less than $2,000,000.00 per claim and $4,000,000.00
general aggregate for personal injury, bodily injury, and property damage. Coverage shall
include, but not be limited to blanket contractual, products/completed operation, broad form
property damage, explosion, collapse and underground (XCU) if applicable, and employer's
liability.
PacifiCorp's insurance shall contain a clause stating that coverage shall apply separately
to each insured against whom claim is made or suit is brought, except with respect to the limits
of the insurer's liability. PacifiCorp's insurance shall be primary insurance with respect to the
City, and any insurance maintained by the City shall not contribute with it. PacifiCorp shall file
a certificate of insurance required by this Section with the City upon acceptance of this
Franchise.
The insurance policy and certificate shall contain a provision stating that it may not be
canceled, suspended, or reduced in coverage without thirty (30) days advance written notice to
the City. In the event that the policy is canceled, suspended, or reduced in coverage, PacifiCorp
shall provide a replacement certificate evidencing the insurance coverage required by this Section
at least fifteen (15) days prior to the cancellation, suspension, or reduction in coverage of the
existing policy.
PacifiCorp shall have the right to satisfy the insurance obligations set forth above through
a program of self-insurance.
SECTION 7. Annexation.
7.1 Extension of City Limits. Upon the annexation of any territory to the City, the
rights granted herein shall extend to the annexed territory to the extent the City has such
authority. All Electrical Facilities owned, maintained, or operated by PacifiCorp located within
any public ways of the annexed territory shall thereafter be subject to all of the terms hereof.
7.2 Annexation. When any territory is approved for annexation to the City, the City
shall, not later than ten (10) working days after passage of an ordinance approving the proposed
annexation, provide by certified mail to PacifiCorp: (a) each site address to be annexed as
recorded on county assessment and tax rolls; (b) a legal description of the proposed boundary
change; and (c) a copy of the City's ordinance approving the proposed annexation. The notice
shall be mailed to:
PacifiCorp Customer Contact Center
Attn: Annexations
P.O. Box 400
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Portland, Oregon 97202-0400With a copy to:
PacifiCorp
Attn: Office of the General Counsel
Suite 2000
825 N E Multnomah
Portland, Oregon 97232
Additional or increased fees or taxes, other than ad valorem taxes, imposed on PacifiCorp as a
result of an annexation of territory to the City shall become effective on the effective date of the
annexation if notice is given to PacifiCorp by certified mail not later than ten (10) working days
after the effective date of the annexation. However, if notification of the effective date of the
annexation is provided to PacifiCorp later than the tenth (10`h) working day after the effective
date of the annexation, the additional or increased fees or taxes will become effective on the date
of the notification.
SECTION 8. Planning, Design, Construction and Installation of Company Facilities.
8.1 All Electric Facilities installed or used under authority of this Franchise shall be
used, constructed and maintained in accordance with applicable federal, state and city laws,
codes and regulations.
8.2 Except in the case of an emergency, PacifiCorp shall, prior to commencing new
construction or major reconstruction work in the public way or street or other public places,
apply for a permit from the City which permit shall not be unreasonably withheld, conditioned,
or delayed. PacifiCorp will abide by all applicable ordinances and all reasonable rules,
regulations and requirements of the City, and the City may inspect the manner of such work and
require remedies as may be necessary to assure compliance. Notwithstanding the foregoing,
PacifiCorp shall not be obligated to obtain a permit to perform emergency repairs.
8.3 All Electric Facilities shall be located so as to cause minimum interference with
the Public Ways of the City and shall be constructed, installed, maintained, cleared of vegetation,
renovated or replaced in accordance with applicable rules, ordinances and regulations of the City.
8.4 If, during the course of work on its Electrical Facilities, PacifiCorp causes damage
to or alters the Public Way or public property, PacifiCorp shall (at its own cost and expense and
in a manner approved by the City) replace and restore it to a condition comparable to that which
existed before the work commenced.
8.5 In addition to the installation of underground electric distribution lines as
provided by applicable state law and regulations, PacifiCorp shall, upon payment of all charges
provided in its tariffs or their equivalent, place newly constructed electric distribution lines
underground as may be required by City ordinance.
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8.6 The City shall have the right without cost to use all poles and suitable overhead
structures owned by PacifiCorp within Public Ways for City wires used in connection with its
fire alarms, police signal systems, or other communication lines used for governmental purposes;
provided, however, any such uses shall be for activities owned, operated or used by the City for a
public purpose and shall not include the provision of CATV, internet, or similar services to the
public. Provided further, that PacifiCorp shall assume no liability nor shall it incur, directly or
indirectly, any additional expense in connection therewith, and the use of said poles and
structures by the City shall be in such a manner as to prevent safety hazards or interferences with
PacifiCorp's use of same. Nothing herein shall be construed to require PacifiCorp to increase
pole size, or alter the manner in which PacifiCorp attaches its equipment to poles, or alter the
manner in which it operates and maintains its Electric Facilities. City attachments shall be
installed and maintained in accordance with the reasonable requirements of PacifiCorp and the
current edition of the National Electrical Safety Code pertaining to such construction. Further,
City attachments shall be attached or installed only after written approval by PacifiCorp.
8.7 PacifiCorp shall have the right to excavate the Public Ways subject to reasonable
conditions and requirements of the City. Before installing new underground conduits or
replacing existing underground conduits, PacifiCorp shall first notify the City of such work and
shall allow the City, at its own expense, to share the trench of PacifiCorp to lay its own conduit
therein, provided that such action by the City will not unreasonably interfere with PacifiCorp's
Electric Facilities or delay project completion.
8.8 Before commencing any street improvements or other work within a Public Way
that may affect PacifiCorp's Electric Facilities, the City shall give written notice to PacifiCorp.
8.9 No structures, buildings or signs shall be erected below PacifiCorp's facilities or
in a location that prevents PacifiCorp from accessing or maintaining its facilities.
SECTION 9. Relocation of Electric Facilities.
9.1 The City reserves the right to require PacifiCorp to relocate overhead Electric
Facilities within the Public Ways in the interest of public convenience, necessity,health, safety or
welfare at no cost to the City. Within a reasonable period of time after written notice, PacifiCorp
shall promptly commence the overhead relocation of its Electrical Facilities. Before requiring a
relocation of Electric Facilities, the City shall, with the assistance and consent of PacifiCorp,
identify a reasonable alignment for the relocated Electric Facilities within the Public Ways of the
City. The City shall assign or otherwise transfer to Company all right it may have to recover the
cost for the relocation work and shall support the efforts of PacifiCorp to obtain reimbursement.
9.2 PacifiCorp shall not be obligated to pay the cost of any relocation that is required
or made a condition of a private development. If the removal or relocation of facilities is caused
directly or otherwise by an identifiable development of property in the area, or is made for the
convenience of a customer, PacifiCorp may charge the expense of removal or relocation to the
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developer or customer. For example, PacifiCorp shall not be required to pay relocation costs in
connection with a road widening or realignment where the road project is made a condition or
caused by a private development. In such event, the City shall require the developer to pay
PacifiCorp for such relocation costs as part of its approval procedures.
SECTION 10. Subdivision Plat Notification.
Before the City approves any new subdivision and before recordation of the plat, the City shall
mail notification of such approval and a copy of the plat to PacifiCorp:
PacifiCorp
Attn: Property Management/ Right-of-Way Department
825 NE Multnomah, Suite 1700
Portland, Oregon 97232
SECTION 11. Vegetation Management. PacifiCorp or its contractor may prune all trees and
vegetation which overhang the Public Ways, whether such trees or vegetation originate within or
outside the Public Ways, to prevent the branches or limbs or other part of such trees or vegetation
from interfering with PacifiCorp's Electrical Facilities. Such pruning shall comply with the
American National Standard for Tree Care Operation (ANSI A300) and be conducted under the
direction of an arborist certified with the International Society of Arboriculture. A growth
inhibitor treatment may be used for trees and vegetation species that are fast-growing and
problematic. Nothing contained in this Section shall prevent PacifiCorp, when necessary and
with the approval of the owner of the property on which they may be located, from cutting down
and removing any trees which overhang streets.
SECTION 12. Renewal. At least 180 days prior to the expiration of this Franchise, PacifiCorp
and the City shall agree to either extend the term of this Franchise for a mutually acceptable
period of time or the parties shall use best faith efforts to renegotiate a replacement Franchise,
SECTION 13. No Waiver. Neither the City nor PacifiCorp shall be excused from complying
with any of the terms and conditions of this Franchise by any failure of the other, or any of its
officers, employees, or agents, upon any one or more occasions to insist upon or to seek
compliance with any such terms and conditions.
SECTION 14. Transfer of Franchise. PacifiCorp shall not transfer or assign any rights under
this Franchise to another entity, except transfers and assignments by operation of law, unless the
City shall first give its approval in writing, which approval shall not be unreasonably withheld;
provided, however, inclusion of this Franchise as property subject to the lien of PacifiCorp's
mortgage(s) shall not constitute a transfer or assignment.
SECTION 15. Amendment. At any time during the term of this Franchise, the City, through its
City Council, or PacifiCorp may propose amendments to this Franchise by giving thirty(30) days
written notice to the other of the proposed amendment(s) desired, and both parties thereafter,
through their designated representatives, will, within a reasonable time, negotiate in good faith in
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an effort to agree upon mutually satisfactory amendment(s). No amendment or amendments to
this Franchise shall be effective until mutually agreed upon by the City and PacifiCorp and
formally adopted as an ordinance amendment.
SECTION 16. Non-Contestability--Breach of Contract.
16.1 Neither the City nor PacifiCorp will take any action for the purpose of securing
modification of this Franchise before either the Washington Utility and Transportation
Commission or any Court of competent jurisdiction; provided, however, that neither shall be
precluded from taking any action it deems necessary to resolve difference in interpretation of the
Franchise nor shall PacifiCorp be precluded from seeking relief from the Courts in the event
Washington Utility and Transportation Commission orders, rules or regulations conflict with or
make performance under the Franchise illegal.
16.2 In the event PacifiCorp or the City fails to fulfill any of their respective obligations
under this Franchise, the City, or PacifiCorp, whichever the case may be, will have a breach of
contract claim and remedy against the other in addition to any other remedy provided by law,
provided that no remedy which would have the effect of amending the specific provisions of this
Franchise shall become effective without such action which would be necessary to formally
amend the Franchise.
SECTION 17. Recovery of Costs. PacifiCorp shall be subject to all applicable permit fees
associated with activities undertaken through the authority granted in this Franchise or under the
laws of the City as set forth in the Pasco Municipal Code and/or City ordinance.
The City reserves the right to impose and collect from PacifiCorp all taxes, fees and charges
permitted by RC W 3 5.21.860 as currently or hereafter amended or otherwise provided by state
law.
SECTION 18. Abandonment and Removal of PacifiCorA's Electrical Power Distribution
Facilities. Upon the expiration or termination of this Franchise and consistent with the
provisions of PMC Section 15.70.260, PacifiCorp shall remove all of its electrical power
distribution facilities from the public ways of the City within one hundred eighty (180) days of
receiving written notice from the Public Works Director.
Except as specifically provided by PMC Title 15, PacifiCorp shall not be allowed to abandon any
of its electrical power distribution facilities within the public ways of the City or upon public
property subject to this Franchise.
SECTION 19. Forfeiture and Revocation. The rights granted under this Franchise may be
revoked or forfeited as provided in Chapter 15.90 of the Pasco Municipal Code; provided, that
the City may elect, in lieu of the above and without any prejudice to any of its other legal rights
and remedies, to obtain an order from the superior court having jurisdiction compelling
PacifiCorp to comply with the provisions of this Franchise and to recover damages and costs
incurred by the City by reason of PacifiCorp's failure to comply.
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SECTION 20. Dispute Resolution. Should any dispute arise concerning the enforcement,
breach or interpretation of this Agreement, the parties shall first meet in good faith effort to
resolve the dispute, however, if unresolved, the dispute shall be resolved by binding arbitration
pursuant to RCW 7.04A, the Mandatory Rules of Arbitration. Venue shall be placed in Franklin
County, Washington, and the prevailing party shall be awarded attorney fees and costs.
SECTION 21. Repealer. Upon the effective date of this Ordinance and acceptance of such
Ordinance and Franchise by PacifiCorp, Ordinance No 3318 shall be repealed in its entirety.
SECTION 22. Notices. Unless otherwise specified herein, any notices or information required
or permitted to be given to the parties under this Franchise shall be sent to the following
addresses:
city PacifiCorp
Director of Public Works Customer and Community Affairs
CITY OF PASCO Vice President
PO Box 293 PACIFIC POWER
Pasco WA 99320 825 NE Multnomah
Lloyd Center Tower
Suite 2000
Portland OR 97232
and such other office as PacifiCorp
may advise the City of by written notice.
SECTION 23. Severability. If any section, sentence, paragraph, term or provision hereof is for
any reason determined to be illegal, invalid, or superseded by other lawful authority including
any state or federal regulatory authority having jurisdiction thereof or unconstitutional, illegal or
invalid by any court of common jurisdiction, such portion shall be deemed a separate, distinct,
and independent provision and such determination shall have no effect on the validity of any
other section, sentence, paragraph, term or provision hereof, all of which will remain in full force
and effect for the term of the Franchise or any renewal}�orr renewals thereof.
IIPIIASSED by the City Council of the City of PC.l5eD , Washington this M day of
OC�4�X.r , 200
Joyc is Mayor
ATTEST: APPR AS TO FORM:
Lat-
Debra. L. Clark, City C Leland B. Kerr, City Attorney
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