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HomeMy WebLinkAboutOrdinance 1825ORDINANCE NO. ~ ~~ ~ AN ORDINANCE GRANTING TO PACIFICORP, AN OREGON CORPORATION, DOING BUSINESS AS PACIFIC POWER & LIGHT COMPANY, A NONEXCLUSIVE FRANCHISE FOR TEN (10) YEARS TO CONSTKUCT, MAINTAIN AND OPERATE WITHIN THE CITY OF CENTRAL POINT AN ELECTRIC LIGHT AND POWER SYSTEM, FIXING TIIE TERMS AND CONDITIONS, PROVIDING AN EFFECTIVE DATE, AND REPEALING ORDINANCE NO. 1412 THE PEOPLE OF THE CITY OF CENTRAL POINT DO ORDAIN AS FOLLOWS: Section 1. Grant of Franchise. A. The City of Central Point ("City") grants to PacifiCorp ("Company"), subject to the terms and conditions in this ordinance, a franchise right and privilege ("franchise") to construct, maintain and operate, within the corporate limits of the City as it now exists or may be extended in the future, an electric light and power system, including poles, wires, fixtures, equipment, underground circuits and other property ("facilities") necessary or convenient to supplying the City, its inhabitants, and other persons and territory with electric energy for light, power and other purposes, upon, over, along, under and across the streets, alleys, roads, bridges and other public ways, parks and places ("publicright-of--way, property or place"). B. This ordinance covers all facilities owned or in the possession of the Company located within the corporate limits of the City during the term of this ordinance. Section 2. Term of Franchise. This franchise is granted for a period of ten years from the effective date of this ordinance, January 1, 2002. Section 3. Excavations, Construction and Installations. A. Prior to underground excavation or construction and installation of facilities in a public right-of--way, property or place, the Company shall first notify the City and shall comply with any special conditions relating to scheduling, coordination and public safety as determined by the City Public Works Director. B. The Company shall provide preliminary maps or drawings of its proposed construction work within the City with the City Public Works Director showing the location of the construction, extension or relocation of its facilities in a public right-of--way, property or place. 1n emergency situations, the Company shall submit such maps or drawings within a reasonable time. C. The Company shall perform all work in a safe manner in accordance with good electrical practice and all applicable State laws and City and County ordinances. D. After obtaining any permits required by the City, the Company may make all necessary excavations in a public right-of--way, property or place for the purpose of erecting, constructing, repairing, maintaining, removing, relocating and operating its facilities. The Company shall exercise its best effort in providing advance notice so as not to disrupt services of tare City or other persons or utilities using such public right-of way, property or place in the City and allow the City to place any inspector it deems necessary at the project site. The Company shall take all reasonable precautions to minimize interruption of traffic flow, damage to property or creation of a hazardous condition. E. When an underground excavation or construction and installation of facilities has been completed, the Company shall remove all debris from the project site and restore the portion of the public right-of--way, property or place to the same condition or as near as practicable to its previous condition prior to such construction work. If the Company fails to do so, the City may restore the site at the Company's expense. Section 4. Location and Relocation of Facilities. A. All facilities of the Company shall be placed so that they do not interfere with the use by the city and the public of any public right-of--way, property or place and in accordance with the specifications adopted by the City governing the location of facilities. B. When it is in the public interest, the City may require the Company to remove or relocate its facilities in any public right-of--way, property or place of the City by giving reasonable notice to the Company. The City shall provide a reasonable alternative location and any required easements for any relocated facilities sufficient to maintain service. The cost of removal or relocation of such facilities in the public interest shall be paid by the Company. If the removal or relocation is caused by an identifiable development of property in the area, or is made for the convenience of a customer, the Company may charge the expense of removal or relocation to the developer or customer. Section 5. Public Works and Improvements. A. The City reserves the right to construct, install, maintain and operate any public improvement, work or facility; do any work that the City may find desirable on, over or under a public right-of--way, property or place; and vacate, alter or close any public right-of--way, property or place. All such work shall be done, if possible, in such a manner as not to obstruct, damage or prevent free use and operation of the Company's facilities. B. Whenever the City or its contractor excavates or performs work in a public right-of--way, property or place, the City shall notify the Company sufficiently in advance to enable the Company to take any measures necessary to protect its facilities from damage and possible injury or inconvenience to the public. Upon request, within 48 hours as per Oregon Administrative Rules Chapter 952, Division 1, the Company shall famish field marking to the City or its contractor which show the approximate location of all its facilities in the area involved in the proposed excavation or other work. C. When the City vacates a public right-oF way, property or place, the Company's rights shall be preserved as to its facilities existing in the public right-ot=way, property or place. Section 6. Overhead to Underground Conversion. A. Where the City proposes to improve a street, waterline, stone sewer or other City facility within a public right-of--way, property or place in the City, the City may request that the Company convert its overhead facilities in the area to an underground system. B. If the improvement is in the public interest, the Company shall pay the cost of the conversion, subject to all rules, regulations and orders lawfully prescribed by Oregon Administrative Rules 860-022-0046(2) & (3) and by tariffs filed with the Oregon Public Utility Commission. If the conversion is caused by an identifiable development of property in the area, or is made for the convenience of a customer, the Company may charge the expense of the conversion to the developer or customer. Section 7. Moving of Buildings. A. Whenever it becomes necessary to temporarily rearrange, remove, lower or raise the Company's facilities to permit a building or structure to be moved across or along a public right- of-way, property or place in the City, such temporary action shall not occur until the City Building Official has approved the relocation of the building or structure. B. It shall be the responsibility of the persons seeking to move the building or structure to schedule the temporary rearrangement of facilities with the Company and to pay all costs incurred by the Company in making the rearrangement, including those related to any interruption of Company's service to its customers caused thereby. Section 8. Continuous Service and Safety Standards. A. The Company shall furnish adequate and safe service for the distribution of electrical energy in the City. The Company shall use due diligence to maintain continuous 24-hour a day service which shall at all times conform at least to the standards common in the industry and to the standards adopted by the Oregon Public Utility Commission or any other governmental authority having jurisdiction. The Company shall not be liable for any interruption or failure of service caused by an act of god, unavoidable accident, or other circumstances beyond the control of the Company. B. The Company may make reasonable rules and regulations from tune to time for the proper conduct of its business, including the setting of rates and charges, subject at all times to the rules, regulations and orders lawfully prescribed by the Oregon Public Utility Commission or any other governmental authority having jurisdiction C. The Company's facilities shall be at all times constructed, operated and maintained so as to protect and safeguard the health and safety of the public. Section 9. Franchise Fee. A. The Company shall pay to the City a franchise fee in an amount equal to 3.5% of the gross revenue collected by the Company. "Gross revenue" is defined as any revenue earned within the City from the sale and use of electric energy within the City except as provided by Oregon Administrative Rules 860-022-0040(2). A "public utility" means an individual, partnership, cooperative, corporation or government agency that buys and distributes electric energy to other customers or users. B. The Company and the City are required to renegotiate, consistent with Oregon Administrative Rules and state law, the provisions of Section 9 regarding the calculation of franchise fees when the Company implements direct access. C. Notwithstanding, the City may at any time during the teen of this ordinance elect to increase the franchise fee to the maximum percentage perniitted under state law after providing ninety days written notice to the Company. D. Except as provided in (A) of this section, the City shall not impose other business license fees or taxes on the Company during the teen of this ordinance. This provision does not exempt the property of the Company from lawful ad valorem taxes, local improvement district assessments, or conditions exactions, fees and charges that are generally applicable during the Company's real property development or use as required by City ordinances. E. The Company shall pay the franchise fees required by Section 9 monthly on or before the 20"' of each month during the term of this ordinance. The franchise fees shall be computed based upon the gross revenue from the company's operations within the City accruing during the previous calendar month. F. The Company shall furnish to the City monthly a written statement showing the amount of the Company's gross revenue within the City during that period. Any underpayment to the City or overpayment by the Company through error or otherwise shall be paid to the City or Company within 60 days from discovery of the error and determination of the correct amount owed. G. 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. Neither the Company's payment nor the City's acceptance of any payment made under this franchise constitutes a waiver of any claim for overpayment or underpayment under this franchise. 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 the Company to determine the correct amount. The expense of the auditor will be shared equally by the City and the Company. Section 10. Use and Maintenance of Company Facilities. A. The Company grants the right and privilege at City's expense with prior notice and approval of the Company to suspend and maintain alarms, wires, control boxes and such other equipment as the City may require for fire, police, emergency or other municipal purposes on poles placed by the Company in a public right-of--way, property or place. All City installed overhead and/or underground equipment must be in compliance with Oregon State Electrical Codes. The City shall install such equipment so as not to interfere with the electric power and light service of the Company or pose a danger to the Company's facilities, employees, customers or customer property. The City shall not sell or lease space on the Company's poles, conduits, or other equipment to other entities. The City shall indemnify, defend and save the Company harmless from any and all loss sustained by the Company on account of any suit, judgment, execution, claim, or demand whatsoever arising out of the City's installation, operation and maintenance of such equipment. B. Company may prune all trees and vegetation which overhang a public right-of--way, property or place, whether such trees or vegetation originate within or outside said right-of--way, property or place, in such a manner and to such an extent as will prevent the branclres or limbs or other parts of such trees or vegetation from growing within limits specified in the Oregon Public Utility Commission Tree Trimming Policy. 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. Section il. Books of Account. The Company shall make reasonably available to the City Company account infonnation and records of electric service sold within the City on an annual basis upon written request by the City. Section 12. Rates. The rates to be charged by the Company for electric energy service and use shall be those approved or set by the Oregon Public Utility Commission or other government official, commission, or body having jurisdiction to set such rates. Section 13. Assignment of Franchise. During the term of this ordinance, the Company shall not sell, assign, transfer, or convey this franchise without the City Council giving its consent, who's consent shall not be withheld unreasonably, in a duly passed resolution or ordinance. Upon obtaining such consent, this franchise shall inure to and bind the successors, legal representatives and assigns of the Company and, whenever the Company is mentioned in this ordinance, it shall be understood to include the Company's successors in interest or assigns. Section 14. Indemnification. The Company shall indemnify, defend and save harmless the City and its officers, agents and employees from any and all loss, costs, and expense, including without limitation, attorney's fees, arising from damage to property and/or injury or death of persons or other damage to the extent it results in whole or in part from any wrongful or negligent act or omission of the Company, its agents, or employees, in exercising the rights, privileges and franchise granted herein. Section 15. Termination of Franchise; Non-Exclusivity; Remedies. A. If the Company fails, neglects, or refuses to perform any of its obligations or requirements under this ordinance for thirty days after the City has demanded performance in writing or within a reasonable time period agreed upon by the City and the Company, the City Council may terminate the Company's rights and privileges granted by this ordinance. This remedy shall not be exclusive and the City may pursue any other available remedy. B. The City reserves the right to cancel this franchise at auy time upon one year's written notice to the Company in the event that the City decides to engage in public ownership of electric light and power facilities and the public distribution of electric energy. C. This franchise is not exclusive and shall not be construed to limit the City from granting rights, privileges and authority to other persons or corporations similar to or different from those set forth in this franchise. D. All remedies and penalties under this ordinance, including the termination of the franchise, are cumulative and not exclusive, and the recovery or enforcement by one available remedy or imposition of any penalty is not a bar to recovery or enforcement by any other such remedy or imposition of any other penalty. The City reserves the right to enforce the provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon the Company under this ordinance. A specific waiver of a particular breach of any term, condition or obligation imposed upon the Company under this ordinance shall not be a waiver of any other subsequent or future breach of the same or any other term, condition or obligation, or a waiver of the term, condition or obligation itself. Section 16. Acceptance. Within thirty days after the adoption of this ordinance by the City Council, the Company shall file its written, unconditional acceptance of this franchise with the City Administrator and if the Company fails to do so, then this ordinance shall be null and void. Section 17. Effective Date; Repeal of Prior Ordinance. The effective date of this ordinance is January 1, 2002. City of Central Point Ordinance No. 1412 is herewith repealed in its entirety. Section 18. Severability. If any section, subsection, sentence, clause, phrase or portion of this ordinance is, for any reason, held invalid or unconstitutional by a court of competent jurisdiction, such portion shall be deemed a separated, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance. 1~ Passed by the Council and signed by me in authentication of its passage this r ~ day of ~~.,~il~~, 2002. J ~~G.UTl ~ r Bill Walton ,~It~ Approved by me this a~ day of ~~ a~n,x~rc ~ , 2002. !` _ __ ayor Bill Walton - ~ ~ ~ William D. Landels Executive Vice President One Utah Cenler 301 .Snndr Main Street. Suite 2300 Salt Lakc City, UT 84140 (ROIJ 330-4305 (80 /) 220-db'04 Fhr hilllundela(i)ataci~cnrp.cou+ ACCEPTANCE OF ORDINANCE NO. 1825 BY PACIFICORP, an Oregon corporation doing business as PACIFIC POWER & LIGHT COMPANY PACiFICORP, an Oregon corporation, doing business as Pacitic Power & Light Company, hereby unconditionally accepts Ordinance No. 1825 of the City of Central Point, Jackson County, Oregon, and all the terms, provisions and conditions thereof, said ordinance being entitled: AN ORDINANCE GRANTING TO PACIF[CORP, AN ORF,GON CORPORATION, DOING BUSINESS AS PACIFIC POWER & LIGHT COMPANY, A NONEXCLUSIVE FRANCHISE- FOR TEN (10) YEARS TO CONSTRUCT, MAINTAIN AND OPERATE WITHIN THE CITY OF CENTRAL POINT AN ELECTRIC LIGHT AND POWER SYSTEM, FIXING THE TERNS AND CONDI'CIONS, PROVIDING AN EFFECTIVE DATE, AND REPEALING ORDINANCE NO. 1412. which said ordinance was duly submitted at a regular meeting of the Council of the City of Central Point and read in full the first time on the 10'h day of January, 2002, was read in full the second time on the 24'h day of January, 2002, and on the 28`h day of January, 2002 was duly signed by the Mayor and attested by the Recorder. ~~ DATED this _~ day of February, 2002. PACIFICORP, an Oregon corporation, doing business as PACIFIC POWER & LIG/HT~CO/M~PANY By: ~~~Pw~ 1 Bill Landels Executive Vice President Witness: ~^~ :: SAtT LAKE 2001 v ~anw.,.~ .~. ,~.