HomeMy WebLinkAbout1994-045 Name Change “PacifiCorp” (franchise) S s
ORDINANCE NO. 94- 45
AN ORDINANCE. granting to PacifiCorp, an Oregon Corporation, doing business as
Pacific Power & light Company, a non - exclusive franchise to
locate, construct, maintain, and operate electric transmission and
distribution lines within the City of Yakima, Washington, and
prescribing the terms of such grant.
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1 Grant It is hereby granted by the City of Yakima, hereinafter
referred to as "the City," to PacifiCorp, an Oregon Corporation, doing business as
Pacific Power & Light Company, it's successors and assigns, hereinafter collectively
referred to as the "Grantee," the right, privilege, and franchise to locate, construct,
maintain, and operate electric transmission, and distribution lines, communications
lines, and all the necessary or desirable appurtenances thereto, for the purpose of
supplying electricity and electric service and communications services to the City
and the inhabitants thereof, and to persons and corporations beyond the limits of the
Cit), to construct, maintain, and operate in, on and under the present or future
streets, alleys, bridges, highways, and other public places of the City, all hereinafter
referred to as "streets," subject to the terms and conditions hereinafter specified.
Section 2 Term The rights, privileges, and franchises hereby granted to
and conferred upon the Grantee shall, unless this franchise be sooner terminated as
herein provided, extend for the full term of twenty five (25) years from the effective
date of this ordinance.
Section 3 Ordinance and Acceptance Constitute Contract This ordinance
and the written acceptance hereof by the Grantee shall constitute the contract
between the City and the Grantee, and the same shall be binding upon and inure to
the benefit of the successors and assigns of the Grantee under the limitations herein
imposed.
Section 4. Non- exclusive Franchise. The right and franchise hereby
granted shall not be exclusive; and the City expressly reserves the right, at any time
during the term of the right or franchise hereby granted, to grant licenses or
franchises for such purpose to other persons or corporations, as well as the right in
its own name as a municipality to use said streets for the purpose, in the event that
the City shall hereafter decide to engage in the business of supplying electricity and
electric service or communications services for municipal or other uses.
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Section 5 Continuation of Service The service to be furnished hereunder
by Grantee shall be continuous and shall be adequate for the requirements of the City
and its inhabitants, subject to accidents, interferences or interruptions beyond the
reasonable control of Grantee. The Grantee shall at all times during the term of this
franchise, install and maintain, at no expense to the City, such services and
regulating devices and meters, as may be necessary for supplying service to its
customers. The Grantee shall make all extensions for supplying services to customers
who are inhabitants of the City All services provided under this franchise shall be
furnished under such reasonable rules and regulations as Grantee may make from
time to time for the proper conduct of its business. Such service, and all rates and
charges therefore, and all rules and regulations pertaining thereto or to the making
of necessary and proper extensions of service shall be subject at all times to any
rules, regulations, and orders lawfully prescribed by the Washington Utilities and
Transportation Commission, or by any other authority having jurisdiction in the
premises.
Section 6 Standard of Work. Grantee's electrical transmission and
distribution lines, communications lines and appurtenances thereto shall be
constructed and thereafter maintained in accordance with all applicable rules, codes,
and regulations governing such construction and maintenance in the State of
Washington and the City of Yakima. All ne%. electrical transmission and distribution
lines and appurtenances constructed by the grantee on or under any street shall be
constructed in accordance to the National Electrical Safety Code.
Section 7 Installation and Maintenance. The locations and methods of
installation and maintenance of all poles, wires, fixtures, underground facilities, and
appurtenances thereto (all hereinafter referred to as "facilities ") shall be subject at
all times to regulation by the Council of the City of Yakima, or by such committee of
the Council or such official of the City as may be designated by the Council. All of
such facilities shall be installed and at all times maintained by Grantee in safe order
and condition and in accordance with good electrical practice. Grantee shall comply
with all lawful present and future ordinances, rules or regulations of the City
relating to the use or improvement of said streets.
Section 8 Non- Interference The location, construction, installation,
maintenance, repair, removal, or relocation of Grantee's facilities performed along,
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over or under any streets shall not interfere with the maintenance, operation or
improvement of such streets.
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Section 9 Construction and Excavations Any construction or excavations
by the Grantee in any of the streets, alleys or public grounds within the limits of the
City shall be done in accordance with all rules, regulations , resolutions , and
ordinances now enacted or to be enacted by the government of the City relating to
construction or excavations in streets, alleys, and public grounds of the City
Section 10 . - • • , s o • ' • • - . The City reserves the right to
require the Grantee to make within a reasonable time period, at the Grantee's A ,
expense, changes in the location of any electric transmission or distribution line,
communications line or appurtenance thereto as may be necessary for the safety of
the public along said rights -of -way or property, or when necessary in the public
interest for the constrt ction, repair, maintenance, improvement, alteration, or
relocation of all or an. portion of any City facility The City and Grantee shall
attempt to agree to a time by which each such relocation project shall be completed.
Each such agreement shall be reduced to writing and shall constitute a "reasonable
• time period" and "reasonable notice" as those terms are used in this section.
Grantee shall be responsible for all additional costs incurred by the City due to
Grantee's failure to relocate facilities in a manner not to delay road construction or
maintenance activities when the Grantee has been given reasonable notice that its
facilities must be relocated and preliminary plans have been provided.
When rights of way held by the City are insufficient for Grantees purposes, or
when construction, repair, maintenance, improvement, alteration, or relocation of
all or any portion of a city facility require such portion of the rights of way held by
the City that insufficient rights of way remain for Grantee's purposes, the City shall
be under no obligation to acquire or provide additional rights -of -way or easements to
specifically accommodate the relocation or installation of electric transmission and
distribution lines, communications lines, or appurtenances.
When such construction, repair, improvement, alteration or relocation
involves an intersection, any leg of which is classified as an arterial or collector, or
any future equivalent designation, the City may request that the Grantee perform a
design and cost estimate for underground installation of electrical facilities. The cost
estimate of the underground installation shall be compared to a cost estimate for an
• overhead system using Grantee's standard estimating procedures. Both cost estimates
may be audited by an independent third party at the City's expense. The City will
make the decision as to the final overhead or underground installation placement. If
the City chooses the underground installation, the City and Grantee will share
equally in the additional costs between the actual construction costs of the
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underground facility installation and the estimated cost of the equivalent overhead
facility
Any relocation of the installations of Grantee which may be made or required
for the sole convenience of a developer or other private property owner, however,
shall be at the expense of the developer or other private property owner and not at
the expense either of the City or of Grantee.
Section 11 Repairs and Replacements All earth, materials, sidewalks,
paving, crossings, or improvements of any kind disturbed, injured or removed by the
Grantee shall be fully repaired or replaced immediately by the Grantee. If the
repairs or replacement are not proceeding at a pace satisfactory to the City Engineer,
the City Engineer may issue a notice to grantee to complete repairs within thirty (30)
days. If all repairs are not completed within thirty days of the mailing of the notice
by the City Engineer, the City may complete the repairs or replacements and the
grantee shall pay the City twice the City's actual cost of repair or replacement. All
such repair and replacement work shall be subject to the approval of and shall pass
the inspection of the City Engineer •
Section 12 Replacement of Monuments and Markers, Before any work is
performed under this franchise which may affect any existing monuments or
markers of any nature relating to subdivisions, plats, roads, and all other surveys,
the Grantee shall reference all such monuments and markers. The reference points
shall be so located they will not be disturbed during the Grantee's operations under
this franchise The method of referencing these monuments or other points to be
referenced shall be approved by the City Engineer. Replacement of all such
monuments or markers disturbed during construction shall be made as expeditiously
as conditions permit, and as directed by the City Engineer. The cost of monuments or
other markers lost, destroyed or disturbed, and the expense of replacement by
approved monuments shall be borne by the Grantee. A complete set of reference
notes for monuments and other ties shall be filed with the Yakima City Engineer's
office.
Section 13 Vacation of City Streets. If at any time the City shall vacate any
City street, right -of -way or other City property which is subject to rights granted by
this franchise and said vacation shall be for the purpose of acquiring the fee or
other interest in said street, right -of -way or other property for the use of the City, in
either its proprietary or governmental capacity, then the Yakima City Council may at
their option, by giving thirty (30) days written notice to the Grantee and after
granting any alternate route, terminate this franchise with reference to such City
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street, right -of -way or other City property so vacated, and the City shall not be liable
for any damages or loss to the Grantee by reason of such termination.
Section 14 Abandoned Equipment. In the Event the Grantee or its assignee
shall cease to use any pole, fixture, appurtenance, or other structure, the Grantee or
its assignee shall remove said structure within thirty (30) days and at its own
expense.
Section 15 Raising of Wires to Allow Movemen of Bu ildings. When
necessary, in order to permit any duly authorized person to move any building or +h
other structure across or along any of said streets, Grantee shall temporarily raise.. -
remove, or disable its wires, fixtures and appurtenances upon such street upon
reasonable notice in advance from the City at such time and in such manner as may
be necessary to accommodate such moving, consistent with the maintenance of
proper service to the Grantee's customers: provided, however, that the cost to Grantee
of such temporary raising or removal, or any interruption of Grantee's service to its
customers caused thereby, shall first be paid or satisfactorily secured to Grantee by
® the owner or mover of such building or other structure.
ection 16 City Use of Grantee's Poles. The City shall be permitted, upon
thirty (30) days notice to Grantee and without charge therefore, to attach its street
lights, traffic control, fire alarm, and police signal wires and the supporting span
guys to the poles of Grantee in the City, but at the City's own risk and only in
accordance with standard safety practices. If there is not sufficient space available
thereon for said purpose, Grantee's structure may be so changed, altered or
rearranged at the expense of the City as to provide proper clearance for such wires.
Such facilities shall be subject to interference by Grantee only when and to the
extent necessary for proper construction, maintenance, operation or repair of
Grantee's electric utility property and facilities. Should it be necessary for grantee
to disconnect any such facility, Grantee shall, absent an emergency, give the City
prior notice of its intent to disconnect the facility and the time of disconnection, and
then City shall be responsible for the proper reconnection of said facilities at its'
own cost and expense.
Section 17. Forfeiture of Franchil, In a case of failure on the part of the
Grantee, its successors or assigns to comply with any of the provisions of this
ordinance, or if the Grantee, its successors or assigns do or cause to be done any act
or thing prohibited by or in violation of the terms of this ordinance, the Grantee, its
I successors or assigns shall forfeit all rights and privileges granted by this ordinance
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and all rights thereunder shall cease; provided that such forfeiture shall not occur or
take effect until the City shall carry out the following proceedings and procedures:
Before the City may proceed to forfeit this franchise pursuant to this
section, the City shall first give notice of its intention to forfeit. The
notice shall be given to the Yakima Valley Area Manager, or other
authorized representative, of Grantee (or its successor or assignee), and
notice also shall be given to the mortgagee of any recorded mortgage,
the trustee of any recorded trust instrument, and to any other
representative of investors of which there is a filing on record in the
office of the Yakima County Auditor. The notice may be given by either
personal service in the manner provided by law for the service of a
summons, or by certified or registered mail with a return receipt
requested, with full postage prepaid The notice shall be in writing and
set forth clearly and in detail the failure or violation of Grantee
constituting grounds for the forfeiture The Grantee, its successors or
assignee, shall have ninety (90) days after the receipt of notice by it
within which to comply with the provisions of this franchise; and in
the event such failure or violation continues beyond the ninety (90)
day period, the City may bring an action in the Yakima County Superior
Court, or any other court of competent jurisdiction, to forfeit the
franchise If it is determined by that action that the Grantee, its
successor or assignee shall have failed to comply with this ordinance or
that Grantee, its successor or assignee, shall have done or caused to be •
done any act or thing prohibited by or in violation of the terms of this
ordinance, and that the ground or grounds of forfeiture set forth in the
notice had not been cured at the time of commencement of the legal
action, then the City shall have the right to the entry by the Court of its
judgment declaring this franchise forfeited and assessing the costs of
the action, including reasonable attorneys fees, against the Grantee, its
successor or assignee; provided, however, that any such failure, default
or violation shall not constitute grounds for forfeiture if due materially,
substantially, and reasonably to acts of God, fire, flood, storm or other
element of casualty, theft, war, disaster, strike, blocked out, boycott,
labor disturbance or disruption, governmental authority, allocations,
rules or regulations, shortages of materials or labor, shipping or
transportation shortages, prevailing war or war preparation induced
conditions or bonafide legal proceedings, beyond the control of Grantee,
its successors or assigns.
Section 18. Remedies to Enforce Compliance. The City, in addition to its rights
to forfeit this ordinance and franchise, as provided in Section 16, reserves and has
the right to pursue any remedy to compel the Grantee, it successors or assigns to
comply with the terms thereof and furnish the service herein called for and the
pursuit of any right or remedy by the City shall not prevent the City from thereafter
declaring a forfeiture for any reason herein stated, nor shall the delay of the City in
declaring a forfeiture stop it from thereafter doing so, unless the action of the City
shall have prevented, caused or contributed materially to the failure to perform or to
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do the act or thing complained of If any action is commenced to enforce the
remedies provided for herein, the City shall be entitled to recover from Grantee its
reasonable attorney's fees and costs incurred therein.
Section 19 Indemnity The Grantee shall protect, defend, indemnify, and
hold the City, its officers and employees harmless against any and all claims,
liabilities, judgments, costs, damages, and expenses of any kind or nature whatsoever 3
arising by reason of any act, omission or admission of Grantee its agents or servants
in any manner arising out of the construction, maintenance or operation of any
property of grantee in or on any of said streets or from this franchise agreement. In
case that suit or legal action is brought against the City of Yakima for damages
arising out of or by reason of any act, omission or admission of Grantee its agents or
servants in any manner arising out of the construction, maintenance or operation of
any property of grantee in or on any of said streets or from this franchise
agreement, the Grantee shall, upon notice to it of the commencement of saidaction,
defend the City of Yakima at Grantee's sole cost and expense. In case a final judgment
• shall be rendered against the City of Yakima in any such suit or action, the Gran tee
shall full) satisfy any portion of said judgment which is not attributable to damages
suffered as the result of any act omission or admission of the City, it's officers,
employees, agents or assigns. Said final judgment or portion thereof shall be fully
satisfied within ninety (90) days after said suit or action shall have been finally
determined by a trial court, or courts of appeals if applicable. Upon Grantee's failure
to satisfy said final judgment within the ninety (90) day period, the Yakima City
Council may upon due notice terminate this franchise and the City of Yakima shall
have a lien upon the distribution system which may be enforced against the
property for the full amount of any such final judgment so taken against the City of
Yakima, together with any attorney's fees and costs incurred in connection
therewith.
To further protect, defend, indemnify, and save harmless the City from all
claims, actions or damages, the Grantee shall furnish, and during the life of this
franchise, keep in effect, insurance covering any and all liability of the Grantee to
the City, including any liability assumed by contract between the Grantee and any
other party, in which the limits of liability for personal injury and property damage
111 shall be not less than Five Million Dollars (S5,000,000.00) aggregate, and a certificate
establishing said insurance shall be filed with the Yakima City Engineer. In lieu of a
certificate of insurance, the Grantee may file a letter, in a form acceptable to the
City, that indicates that the Grantee is self insured in amounts sufficient to cover any
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loss which would be covered by the above described insurance. Acceptance by the
City of any work performed by the Grantee at the time of completion shall not be
grounds for avoidance of this covenant.
Section 20. Compliance with Ordinances. During the term of this franchise,
Grantee shall fully comply with all applicable federal and state statutes and
regulations, together with all ordinances of the City pertaining to the electric
distribution business and the operation and maintenance of electric distribution
facilities.
Section 21 Assignment of Franchise. This franchise shall not be leased,
assigned or otherwise alienated without the express consent of the City Council by
ordinance passed for that purpose, and no rule of estoppel shall ever be invoked
against the City in case it shall assert the invalidity of any attempted transfer in
violation of this section.
Section 22 Acquisition by City The City may acquire the public utility, for
the exercise of which this franchise is granted, either by agreement or by
condemnation, and upon such purchase by the City, either by agreement or by •
condemnation, no value of this franchise itself shall be taken into account in fixing
the price to be paid b) the City for such utility
Section 23 Non - Waiver The City in granting this franchise does not waive
and rights which it now has or may hereafter acquire with respect to City streets,
rights -of -way or other City property and this franchise shall not be construed to
deprive the City of any powers, rights or privileges which it now has or may
hereafter acquire to regulate the use of and to control the City streets, rights -of -way,
and other City property covered by this franchise.
Section 24. Expenses of Publication All expenses in connection with the
posting and publishing of the notice of this franchise as required by statute and the
City Charter and the costs of the election to approve the franchise as required by the
City Charter shall be paid by grantee.
Section 25 Saving Clause If any clause, sentence or section of this
ordinance is held void by any court, it shall not affect the balance thereof
Section 26 Effective Date This ordinance shall be published once in the
official newspaper of the City and shall thereafter shall be submitted to a vote of the
electors of the City at a special election to be held therein on the eighth day of
November, 1994, and this ordinance shall become effective on the first day of •
October, 1994 if approved by majority of such electors voting on the question at said
special election, provided that this ordinance shall be void and have no effect unless
the Grantee shall within thirty (30) days after said election file with the City,Clerk a
written acceptance thereof
PASSED BY THE CITY COUNCIL, signed and approved this23rd day of A„g„Gr ,
1994
ATTEST Mayor
City Clerk
Publication Date: 8 -26 -94
Effective Date: 04.01794
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ACCEPTANCE OF ORDNANCE NO 94-45
IP BY
PACIFICORP, an Oregon corporation,
doing business as
PACIFIC POWER & LIGHT COMPANY
PACIFICORP, an Oregon corporation, doing business as PACIFIC POWER & LIGHT
COMPANY, hereby unconditionally accepts Ordinance No 94 -45 of the CITY OF YAKIMA, Yakima
County, Washington, and all the terms, provisions and conditions thereof, said ordinance being entitled
AN ORDINANCE GRANTING TO PACIFICORP, AN OREGON
CORPORATION, DOING BUSINESS AS PACIFIC POWER & LIGHT
COMPANY, A NONEXCLUSIVE FRANCHISE TO LOCATE, CONSTRUCT,
MAINTAIN AND OPERATE ELECTRIC TRANSMISSION AND
DISTRIBUTION LINES WITHIN CITY OF YAKIMA, WASHINGTON AND
PRESCRIBING TERMS OF SUCH GRANT
was duly passed by the Council of the City of Yakima at a regular meeting held August 23, 1994, and
on said date was duly attested to by the City Clerk and thereafter was duly published in the Yakima
Herald - Republic, the official newspaper of the City At the State's General Election held on November
IP 8, 1994, said ordinance was submitted to the electors for their approval or rejection and said ordinance
was duly approved by the majority
AIM/1W, of the electors voting upon said proposition
(�(
DATED this J _ day of IM/1 W, 1994
PACIFICORP, an Oregon corporation,
doing business as
J PACIFIC POWER & LIGHT COMPANY
By h~ 8 Via ter
V,cle President
Attest: /AO �'
Assistant Secretary
I, , r e K. 5 , •)ae r4s , Clerk of the City of Yakima, do hereby certify that the foregoing is
a full, true and orrect copy of Acceptance of h Ordinance No 94 -45, and that the original of said
acceptance was filed in my office as Clerk on De c . etwbc - 1 , 1994
WITNESS my hand and Seal of the City of Yakima this 1 day of D e v-ewvbr , 1994
K ck „A ra --G-e
Recorder of the City of Yakima
• PD- 16 -WA -5 - 1 -