HomeMy WebLinkAbout4430 Ordinance - Franchise Agr - Pacific Power & Light CompanyORDINANCE NO. Li 9 W
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 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 HERETO, AND ESTABLISHING
AN EFFECTIVE DATE
WHEREAS, PacifiCorp d.b.a. Pacific Power (the "Company") is a regulated public
utility that provides electric power and energy to the neighboring City of Burbank and other
surrounding areas of the City of Pasco (the "City");
WHEREAS, providing electrical power and energy to these areas requires the
installation, operation and maintenance of power poles and other related facilities to be located
within certain public ways of the City;
WHEREAS, the City desires to set forth the terms and conditions by which PacifiCorp
shall use these public ways of the City;
NOW, THEREFORE, be it ordained by the City:
SECTION 1. Grant of Franchise and General Utility Easement. The City hereby
grants to PacifiCorp the non-exclusive right, privilege and authority to construct, maintain,
operate and upgrade its 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 streets, alleys, public ways and public places (collectively referred to
herein as "Public Ways") within the City, for the purpose of supplying and transmitting electric
power and energy to residents of the City of Burbank and surrounding areas.
The Grantee shall not acquire any rights hereunder to furnish electric power or energy to City or
its inhabitants.
SECTION 2. Term. The term of this Franchise and General Utility Easement is for ten
(10) years commencing on the date of acceptance by the Company as set forth in Section 18
below.
SECTION 3. 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, provided, however, that such use shall not unreasonably interfere with
PacifiCorp's Electric Facilities or PacifiCorp's rights granted herein.
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SECTION 4. City Regulatory 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 5. 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 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 reasonably satisfactory to City. 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 to the proportionate extent it is caused by any negligent or willful act or
failure to act of the City or any of its officers, employees or contractors (of any tier).
SECTION 6. Plannin Design, Construction and Installation of Com an
Facilities.
6.1 All Electrical 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.
6.2 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.
6.3 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.
6.4 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
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in a manner approved by the City) replace and restore it to a condition comparable to that which
existed before the work commenced.
6.5 Subject to approval by PacifiCorp in each case and entry by the City into a
standard pole attachment agreement, 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 by qualified workers and maintained in accordance with
PacifiCorp's standard requirements and the current edition of the National Electrical Safety Code
pertaining to such construction. Further, City attachments shall be attached or installed only after
entering into a standard pole attachment agreement with PacifiCorp and receiving written
approval by PacifiCorp, which approval shall not be withheld, conditioned or delayed in a
manner than is inconsistent with PacifiCorp's standard pole attachment approval protocols and
procedures.
6.6 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.
6.7 No structures, buildings or signs shall be erected in a location that prevents
PacifiCorp from accessing or maintaining its facilities.
SECTION 7. Relocation of Electric Facilities.
7.1 The City reserves the right to require PacifiCorp to relocate overhead Electric
Facilities located within the Public Ways by virtue of the rights set forth herein when it is 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.
7.2 PacifiCorp shall not be obligated to pay the cost of any relocation that is either
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 developer or customer. For example, PacifiCorp shall not be required to pay relocation
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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, PacifiCorp shall not be obliged to
perform any relocation until the costs of such relocation have been paid to PacifiCorp by such
developer. In addition, in such case, as applicable, the City shall assign or otherwise transfer to
Company all rights it may have to recover the cost for the relocation work and shall support the
efforts of PacifiCorp to obtain reimbursement.
SECTION 8. Ve-aetation 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 written approval of the owner of the property on which they may be located, from
cutting down and removing any trees which overhang streets.
SECTION 9. Renewal. At least 120 days prior to the expiration of this Franchise,
PacifiCorp and the City shall meet in attempt to either agree to extend the term of this Franchise
for a mutually acceptable period of time or to use best faith efforts to renegotiate a replacement
franchise. So long as the parties are negotiating in good faith for such extension or replacement
franchise, PacifiCorp shall have the continued right to use the Public Ways of the City as set
forth herein in the event an extension or replacement Franchise is not entered before the date of
expiration of this Franchise, otherwise the franchise will expire at the end of the term.
SECTION 10. 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 11. 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;
SECTION 12. 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 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.
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SECTION 13. Notices. Unless otherwise specified herein, all notices from PacifiCorp
to the City pursuant to or concerning this Franchise shall be delivered to the City Clerk's Office,
City of Pasco, 525 N. 3'd Avenue, Pasco, Washington 99301. Unless otherwise specified herein,
all notices from the City to PacifiCorp pursuant to or concerning this Franchise shall be delivered
to the Customer and Community Affairs Vice President, Pacific Power, 825 NE Multnomah,
Lloyd Center Tower Suite 2000, Portland, Oregon 97232, and such other office as PacifiCorp
may advise the City of by written notice.
SECTION 14. Insurance. PacifiCorp shall maintain in full force and effect, at their
own cost and expense, during the term of this franchise, comprehensive general liability
insurance in the amount of $5,000,000 combined single limit for bodily injury and property
damage. PacifiCorp shall provide a certificate of insurance designating the City as an additional
insured. The foregoing requirements may be met by PacifiCorp's self-insurance program.
SECTION 15. 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 or renewals thereof.
SECTION 16. Waiver of Jury Trial. To the fullest extent permitted by law, each of
the parties hereto waives any right it may have to a trial by jury in respect of litigation directly or
indirectly arising out of, under or in connection with this agreement. Each party further waives
any right to consolidate any action in which a jury trial has been waived with any other action in
which a jury trial cannot be or has not been waived.
SECTION 17. Dispute Resolution. In the event of a dispute regarding the enforcement,
breach, default, or interpretation of this Agreement, the City Manager and PacifiCorp
Community Affairs Vice President, or their designees, shall first meet in a good faith effort to
resolve such dispute. In the event the dispute cannot be resolved by agreement of the parties,
said dispute shall be resolved by arbitration pursuant to RCW 7.04A, as amended, with both
parties waiving the right of a jury trial upon trial de novo, with venue placed in Pasco, Franklin
County, Washington. The substantially prevailing party shall be entitled to its reasonable
attorney fees and costs as additional award and judgment against the other.
SECTION 18. General Provisions.
18.1 The Grantee shall file its written acceptance of this franchise with the City Clerk
within sixty (60) days after its passage.
18.2 This ordinance shall take effect as soon as it shall be published as required by law,
deposited and recorded in the office of its City Clerk and accepted as required herein.
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18.3 The provisions of Chapter 15.70 of the Pasco Municipal Code shall be considered
incorporated herein by reference and franchisee agrees to abide by all said requirements, with the
exception of all undergrounding requirements, which shall hereby be waived with respect to this
transmission line franchise.
PASSED by the City Council of the City of {�a'JC� Washington this 5 day of
Y 1 k .2019.
MAYOR
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U PT I' KIATT I I1
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY
An ela P hon CA }-y C jt t -K— Kerr w Group
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