HomeMy WebLinkAboutCouncil Resolutions 1692 RESOLUTION NO. ) Coq a
A RESOLUTION GRANTING AN ELECTRIC UTILITY FRANCHISE
AND GENERAL UTILITY EASEMENT
TO
PACIFICORP
WHEREAS, PacifiCorp d.b.a. Pacific Power, is a regulated public utility that provides electric
power and energy to the citizens of the City of Central Point, Oregon, (the "City") and other
surrounding areas.
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;
WHEREAS, the City desires to set forth the terms and conditions by which PacifiCorp shall use
the public ways of the City;
The City of Central Point resolves as follows:
SECTION 1. Grant of Franchise and General Utility Easement. The City hereby grants to
PacifiCorp, subject to the terms and conditions of this Ordinance,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, 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 the
inhabitants of the City and persons and corporations beyond the limits thereof.
SECTION 2. Term. The term of this Franchise and General Utility Easement is for ten years
(10)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 service to City residents or properties; provided, however, that such use
shall not unreasonably interfere with PacifiCorp's Electric Facilities or PacifiCorp's rights granted
herein.
Resolution No. I 6 Lj (Council Meeting 12/16/2021) 1
SECTION 5. City Re2ulatory 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 Oregon, the laws of Oregon or City Ordinances.
SECTION 6. 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, its elected officials, employees, and agents 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.
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 (l0) 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
P.O. Box 400
Portland, Oregon 97202-0400
With a copy to:
PacifiCorp
Resolution No. `Gj (Council Meeting 12/16/2021) 2
Attn: Office of the General Counsel
825 N.E. Multnomah. Suite 2000
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 provided notice is given to PacifiCorp in accordance with ORS 222.005, as amended
from time to time.
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.
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
Resolution No. 16 F dt (Council Meeting 12/16/2021) 3
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. In addition to the requirements of Section 8.2, PacifiCorp
shall exercise its best effort in providing advance notice to other persons or utilities using such
public right-of-way, property or place in the City before commencing such excavation, and
PacifiCorp shall take reasonable precautions in the performance of such work to minimize
interruption of traffic flow, damage to property or creation of a hazardous condition.
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.
Upon request, within two full business days (as defined in the Oregon Administrative Rules
(OARs)), or such other period as provided under OAR 952-001-0070, after the City notices the
Oregon Utility Notification Center of a proposed excavation, PacifiCorp shall furnish field
marking to the City or its contractor which will indicate the reasonably accurate location of all its
facilities in the area involved in the proposed excavation or other work consistent with its
obligations under the OARs.
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.
8.10 PacifiCorp shall provide the City with a report of all new services created within
City boundaries on an annual basis during the term of this Franchise. The City shall provide written
confirmation of the accuracy of the report and/or any corrections thereto to PacifiCorp within a
reasonable time following receipt of the report.
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
Resolution No. /6401 (Council Meeting 12/16/2021) 4
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 PacifiCorp all right it may have to recover the
cost for the relocation work and shall support the efforts of PacifiCorp to obtain reimbursement.
In cases of capital improvement projects undertaken by the City, PacifiCorp shall convert existing
overhead distribution facilities to underground,so long as PacifiCorp is allowed to collect the costs
associated with conversion from overhead to underground distribution facilities consistent with
OAR 860-022-0046, the Oregon Public Utility Commission rule on forced conversions.
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. A relocation shall not be deemed a condition of
private development or for the convenience of a customer where the work is controlled by the City
(e.g.,performed by City or under a contract with the City)and at least 80%of the cost of the work
is paid for using City funds. 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 costs in connection with
a road widening or realignment where the road project is made a condition of development 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:
Pacific Power
Attn: Estimating Department
Local Address 925 S Grape Street
Local Address Medford, Oregon 97501
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. Comnensation.
Resolution No. ` (Council Meeting 12/16/2021) 5
12.1 In consideration of the rights, privileges, and franchise hereby granted, PacifiCorp
shall pay to the City from and after the effective date of the acceptance of this franchise, seven
percent(7%) of its gross revenues derived from within the corporate limits of City, including any
new territory annexed into the City in accordance with ORS 222.005. The term "gross revenue"
as used herein shall be construed to mean any revenue of PacifiCorp derived from the retail sale
and use of electric power and energy within the municipal boundaries of the City after adjustment
for the net write-off of uncollectible accounts and corrections of bills theretofore rendered. With
each remittance of the franchise fee, the Company shall furnish a report to the City showing the
amount of the gross revenues within the City during that period. All amounts paid under this
Section 12 shall be subject to review by the City; provided that only payments which occurred
during a period of thirty-six (36) months prior to the date the City notifies PacifiCorp of its intent
to conduct a review shall be subject to such review. Notwithstanding any provision to the contrary,
at any time during the term of this Franchise, the City may elect to increase the franchise fee
amount as may then be allowed by state law. The City shall provide PacifiCorp with prior written
notice of such increase following adoption of the change in percentage by the City. The increase
shall be effective sixty (60) days after City has provided such written notice to PacifiCorp.
12.2 The franchise fee shall not be in addition to any other license,occupation,franchise
or excise taxes or charges which might otherwise be levied or collected by the City from PacifiCorp
with respect to PacifiCorp's electric business or the exercise of this franchise within the corporate
limits of the City and the amount due to the City under any such other license, occupation,
franchise or excise taxes or other charges for corresponding periods shall be reduced by deducting
there from the amount of said franchise fee paid hereunder. This provision does not exempt the
property of PacifiCorp from lawful ad valorem taxes, local improvement district assessments, or
conditions, exactions, fees and charges that are generally applicable during PacifiCorp's real
property development or use as required by City ordinances. Any pavement moratorium fees shall
be paid separately and not offset or otherwise be credited to franchise fees.
12.3 PacifiCorp shall pay the franchise fees required by this Section 12 monthly. The
franchise fees shall be computed based upon the gross revenue from PacifiCorp's operations within
the corporate limits of the City accruing during the previous calendar month for which the payment
is provided.
12.4 Acceptance by the City of any payment due under this Section shall not be a waiver
by the City of any breach of this franchise occurring prior to the acceptance, nor shall it preclude
the City from later establishing that a larger amount was actually due, or from collecting the
balance due to the City. If controversy arises as to the calculation of the amount of payment, an
independent auditor will be chosen who is mutually acceptable to both the City and Pacificorp to
determine the correct amount. The expense of the auditor will be borne by the City; provided that
if the independent auditor finds that an underpayment of more than 5%occurred, PacifiCorp shall
reimburse the City for the reasonable costs of work performed by the auditor.
Resolution No. /6 Q PL (Council Meeting 12/16/2021) 6
12.5 Subject to confidentiality requirements and other reasonable access conditions,
PacifiCorp shall make account information and records of electric service sold within the corporate
limits of the City or other records necessary to conduct a thorough audit available to the City and/or
its independent auditor, if any, engaged by the City to determine the accuracy of franchise fee
payments upon written request by City.
SECTION 13. Renewal. At least 120 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. 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 into upon expiration of this Franchise.
SECTION 14. 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 15. 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 16. 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.
SECTION 17. Non-Contestabilitv--Breach of Contract.
17.1 Neither the City nor PacifiCorp will take any action for the purpose of securing
modification of this Franchise before either the Oregon Public Utility 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 Oregon Public Utility
Commission orders, rules or regulations conflict with or make performance under the Franchise
illegal.
17.2 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
Resolution No. d44, 1 (Council Meeting 12/16/2021) 7
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 18. Notices. Unless otherwise specified herein,all notices from PacifiCorp to the City
pursuant to or concerning this Franchise shall be delivered to the City Recorder's Office. 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 19. 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 20. 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 21. Effective Immediately. This Resolution is effective immediately upon its
passage.
PASSED by the City Council and signed by me in authentication of its passage this
(IQ day of 0,0 ce.,r�Jp r—,2021.
MAYOR
67/c/A ,
Hank Williams
ATTE
a' i , .e.e.. r.0_ '-/ _. P
CITY RECORDER U
Resolution No. Ql�(Council Meeting 12/16/2021) 8
NIE PACIFIC POWER 825 NE Multnomah,Suite 2000
r Portland.Oregon 97232
A DIVISION OF PACIFICORP
January 20, 2022
To the Honorable Mayor and
City Council
Central Point, Oregon
Gentlemen/Ladies:
This is to advise the City of Central Point, Oregon. effective on January 28, 2022, that PACIFIC
POWER hereby accepts the terms and provisions of Franchise Ordinance No. 1692 passed by
your Honorable Body on December 16, 2021, granting a franchise agreement to PACIFIC
POWER for a period of ten (MI) years entitled:
" A RESOLUTION GRANTING AN ELECTRIC UTILITY FRANCHISE AND GENERAL
UTILITY EASEMENT TO PACIFICORP."
And files this, its signed acceptance in accordance with all requirements of said ordinance.
Very truly yours,
Pacific Power
By
Cory S t
Vice President, Customer and Community Solutions