HomeMy WebLinkAboutCouncil Resolution 1319RESOLUTION NO. ~ ~
A Resolution Approving an Electric Utility Franchise Agreement
Between the City of Central Point and PacifiCorp
RECITALS:
A. The existing ten-year electric utility franchise granted by the City to
PacifiCorp expires January 1,.2012.
B. The City and PacifiCorp desire to extend the franchise for an
additional ten years on the terms and conditions set forth in the
attached franchise agreement
The City of Central Point resolves:
Section 1. The attached franchise agreement between the City of Central Point
and PacifiCorp dba Pacific Power is approved and the Mayor is authorized to
execute the agreement on behalf of the City.
,~.}4~Passed~by the Council and signed by me in authentication of its passage this
~S day of ~ ~~~e cam. ~~~ , 20~.
~~
Mayor Hank Williams
Electric Utility Franchise Agreement
Between the City of Central Point and PacifiCorp
This Utility Franchise Agreement (the "Franchise" or "Agreement") is entered into by City of
Central Point (the "City") and PacificCorp dba Pacific Power ("").
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.
SECTION 2. Term. The term of this Franchise and General Utility Easement is for ten; (1:0)
years commencing on the date of acceptance by the Company as set forth in Section 3 below.
SECTION 3. Intentionally Deleted..
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, sewerage, or City-owned telecommunications services 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 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 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 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 (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
P.O. Box 400
Portland, Oregon 97202-0400
With a copy to:
PacifiCorp
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. Plannins, 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 and pay associated fees, which permit shall not be unreasonably
withheld, conditioned, or delayed. PacifiCorp will abide by all applicable ordinances and all
reasonable Hales, 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, wireless facilities 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.
8.10 PacifiCorp shall provide the City with a report of all new services created within
City boundaries on a quarterly 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.
8.11 PacificCorp shall provide as-builts and electronicmaps of newly installed or
recently upgraded facilities. As-built information should be submitted in a format acceptable to
the City.
SECTION 9. Relocation of Electric Facilities.
9.l 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. 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. 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 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 N.E. 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 The City of
Central Point Street Tree Plan) 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. Compensation.
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, i:`~_
percent (~%) of its gross revenues derived from within the corporate limits of City. 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. All amounts paid under this Section 12 shall be subject to review by the
City; provided that only payments which occunred 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.
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-Contestability--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
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, teen 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.
Approved by the Council resolution number 3~ this ~_ day of~~ ~,~~~ r
20~.
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Mayor Hank Williams
Central Point City Manager Phil Messina
PacifiCorp Authorized Representative