074 of 2016 - Granting an Electrical Utility Franchise to PacifiCorp 0 16-1
C 16-865
SALT LAKE CITY ORDINANCE
No. 74 of 2016
(Granting an Electrical Utility Franchise to PacifiCorp)
WHEREAS, PacifiCorp, doing business as Rocky Mountain Power, (the
"Company") desires to provide certain electrical utility services within Salt Lake City,
Utah (the "City"), and in connection therewith to maintain and establish a network in,
under, along, over, and across present and future streets, alleys and rights-of-way of the
City, consisting of electrical wires and cables, together with all necessary and desirable
appurtenances; and
WHEREAS, the City, in the exercise of its police power, ownership, use or rights
over and in the public rights-of-way, and pursuant to its other regulatory authority,
believes it is in the best interest of the public to provide to the Company, and its
successors, a non-exclusive franchise to operate its business within the City; and
WHEREAS, the City and the Company propose to enter into a Franchise
Agreement, the substantially final form of which has been presented to the City Council
at the meeting at which this Ordinance is being considered for adoption; and
WHEREAS, the City desires to approve the execution and delivery of such
Franchise Agreement and to otherwise take all actions necessary to grant the referenced
Franchise to the Company; and
WHEREAS, the City believes this Ordinance to be in the best interest of the
citizens of the City,
NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah,
as follows:
SECTION 1. Purpose. The purpose of this Franchise Ordinance is to grant to
the Company, and its successors and assigns, a non-exclusive right to use the present and
future streets, alleys, viaducts, bridges, roads, lanes and public way within and under
control of the City for its business purposes, under the constraints and for the
compensation enumerated in the Franchise Agreement attached hereto as Exhibit A, and
by this reference incorporated herein, as if fully set forth herein (the "Franchise
Agreement").
SECTION 2. Short Title. This Ordinance shall constitute the Pacificorp
Franchise Ordinance.
SECTION 3. Grant of Franchise. There is hereby granted to the Company, and
its successors and assigns, in accordance with the terms and conditions of the Franchise
Agreement, the right, privilege, and franchise (collectively, the "Franchise"), to construct,
maintain and operate in, under, along, over and across the present and future streets,
alleys, and rights-of-way and other property of the City, all as more particularly described
in the Franchise Agreement.
SECTION 4. Term. The term of the Franchise is for a period of five years from
the execution date of the Franchise Agreement as authorized by this Ordinance. The
Company shall pay all costs of publishing this Ordinance.
SECTION 5. Acceptance by Company. Within sixty (60) days after the
effective date of this Ordinance,the Company shall file an acceptance of this Ordinance,
in a form approved by the City Attorney, with the City Recorder of Salt Lake City;
otherwise, this Ordinance and the rights granted hereunder shall be null and void.
SECTION 6.No Franchise revocation or termination may be effected until the
City Council shall first adopt an ordinance terminating the Franchise and setting forth the
reasons therefor, following not less than thirty (30) days prior written notice to the
Company of the proposed date of the ordinance adoption. The Company shall have an
opportunity on said ordinance adoption date to be heard upon the proposed termination.
SECTION 7. This Ordinance shall take effect immediately upon publication.
Passed by the City Council of Salt Lake City, Utah, this 1 day of Nov. ,
2016.
IRPERSON
ATTEST:
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CITY RECORDER
Transmitted to Mayor on November 2, 2016
Mayor's Action: 'L Approved. Vetoed.
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MAYOR
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Bill No. 74 of 2016.
Published: November 19, 2016
I-IB_ATTY-#55479-v I-Rocky_Mountain_Power_Franchise_Ordinance.DOC
EXHIBIT "A"
FRANCHISE AGREEMENT
RECORDED
MAR 2 2 2017
ELECTRIC UTILITY FRANCHISE AGREEMENT
AND GENERAL UTILITY EASEMENT CITY RECORDER
A. PacifiCorp, an Oregon corporation doing business in Utah as Rocky Mountain Power, is a
regulated public utility that provides electric power and energy to the citizens of Salt Lake City
Corporation, a Utah municipal corporation(the"City") and other surrounding areas.
B. 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.
C. The City,pursuant to the provisions of Utah Code Ann. § 10-8-21 has the authority to regulate
power line facilities within public ways and to grant to Rocky Mountain Power a general utility
easement for the use thereof.
D. The City desires to set forth the terms and conditions by which Rocky Mountain Power shall
use the public ways of the City.
E. The City Council has passed Ordinancei_q of 2016 granting the Franchise and
authorizing the Mayor to sign this Agreement.
NOW, THEREFORE,the City and Rocky Mountain Power agree as follows:
SECTION 1. Grant of Franchise and General Utility Easement and Compensation
(a) The City hereby grants to Rocky Mountain Power 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 rights-of-way, not including City parks, buildings or other
spaces not associated with City-owned rights-of-way (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
(b) Compensation for Rocky Mountain Power's use of the Public Ways will be
through the collection of the Municipal Energy Sales and Use Tax, provided for in Salt Lake
City Code 3.06 passed pursuant to Utah Code Ann. 10-1-305, et. seq., or any successor City
Ordinance establishing a municipal energy tax in compliance with state law. In the event of a
repeal of this statutory tax framework, City and Rocky Mountain Power will negotiate in good
faith to amend this Franchise to provide for an equivalent franchise fee for Rocky Mountain
Power to continue to occupy the City's Public Ways pursuant to this Franchise.
SECTION 2. Term. The term of this Franchise and General Utility Easement is for five (5)
years commencing on the date of acceptance by the Company as set forth in Section 3 below.
PROPERTY OF SALT LAKE
CITY RECORDER'S OFFICE
P.O. BOX 145515
SALT LAKE CITY, UTAH 84114-5515
SECTION 3. Acceptance by Company. Within sixty (60) days after the passage of this
ordinance by the City, Rocky Mountain Power 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 residences; provided, however, that such use shall not
unreasonably interfere with Rocky Mountain Power's Electric Facilities or Rocky Mountain
Power's rights as 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 Utah, the laws of Utah or City Ordinance.
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 Rocky Mountain Power of its Electric Facilities. Rocky Mountain
Power 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 Rocky Mountain Power'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 Rocky Mountain Power of any claim, demand or lien with respect to which the City
seeks indemnification hereunder; and (b) permit Rocky Mountain Power to assume the defense
of such claim, demand, or lien. If such defense is not assumed by Rocky Mountain Power,
Rocky Mountain Power shall not be subject to liability for any settlement made without its
consent. Notwithstanding any provision hereof to the contrary, Rocky Mountain Power 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 Rocky Mountain Power
located within any public ways of the annexed territory shall thereafter be subject to all of the
terms hereof.
7.2 Notice of 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 Rocky Mountain Power: (a) each site
address to be annexed as recorded on county assessment and tax rolls; (b) a legal description of
2
PROPERTY OF SALT LAKE
CITY RECORDER'S OFFICE
P.O. BOX 145515
SALT LAKE CITY, UTAH 841 1 4-551 5
the proposed boundary change; and (c) a copy of the City's ordinance approving the proposed
annexation. The notice shall be mailed to:
Rocky Mountain Power Customer Contact Center
Attn: Annexations
P.O. Box 400
Portland, Oregon 97207-0400
With a copy to:
Rocky Mountain Power
Attn: Office of the General Counsel
1407 West North Temple, Room 320
Salt Lake City, UT 84116
SECTION 8. Plan,Design, Construction and Installation of Company Facilities.
8.1 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.
8.2 Except in the case of an emergency, Rocky Mountain Power shall, prior to
commencing new construction or major reconstruction work in the Public Ways, apply for any
permit from the City as may be required by the City's ordinances, which permit shall not be
unreasonably withheld, conditioned, or delayed. Rocky Mountain Power 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 reasonably necessary
to assure compliance. Notwithstanding the foregoing, Rocky Mountain Power 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, Rocky Mountain Power
causes damage to or alters the Public Way or public property, Rocky Mountain Power shall (at
its own cost and expense and in a manner reasonably approved by the City) replace and restore it
in as good a condition as 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, Rocky Mountain Power 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.
3 PROPERTY OF SALT LAKE
CITY RECORDER'S OFFICE
P.O. BOX 145515
SALT LAKE CITY, UTAH 84114-5515
8.6 The City shall have the right without cost to use all poles and suitable overhead
structures owned by Rocky Mountain Power within Public Ways for City wires used in
connection with its fire alarms, police signal systems, or other public safety 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,
interne, or similar services to the public. Provided further, that Rocky Mountain Power 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 Rocky Mountain Power's use of same. Nothing
herein shall be construed to require Rocky Mountain Power to increase pole size, or alter the
manner in which Rocky Mountain Power 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 Rocky Mountain Power 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 Rocky Mountain
Power in conjunction with Rocky Mountain Power's standard pole attachment application
process. Rocky Mountain Power shall have the right to inspect, at the City's expense, such
attachments to ensure compliance with this Section 8.6 and to require the City to remedy any
defective attachments.
8.7 Rocky Mountain Power shall have the right to excavate the Public Rights of Ways
subject to reasonable conditions and requirements of the City. Before installing new
underground conduits or replacing existing underground conduits, Rocky Mountain Power shall
first notify the City of such work by written notice and shall allow the City, at its own expense,
(to include a pro rata share of the trenching costs), to share the trench of Rocky Mountain Power
to lay its own conduit therein, provided that such action by the City will not unreasonably
interfere with Rocky Mountain Power's Electrical Facilities or delay project completion.
8.8 Before commencing any street improvements or other work within a Public Way
that may affect Rocky Mountain Power's Electric Facilities, the City shall give written notice to
Rocky Mountain Power.
SECTION 9. Relocations of Electric Facilities.
9.1 The City reserves the right to require Rocky Mountain Power to relocate its
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,
but no longer than one-hundred and twenty (120) days unless greater time is authorized in
consultation with the City Engineer, Rocky Mountain Power shall promptly commence the
relocation of its Electrical Facilities. Before requiring a relocation of Electric Facilities, the City
shall, with the assistance and consent of Rocky Mountain Power, 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 Rocky Mountain Power to obtain reimbursement.
4 PROPERTY OF SALT LAKE
CITY RECORDER'S OFFICE
P.O. BOX 145515
SALT LAKE CITY, UTAH 84114-5515
9.2 Rocky Mountain Power 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, Rocky Mountain Power may charge the expense of
removal or relocation to the developer or customer. For example, Rocky Mountain Power 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 or caused by a private development.
SECTION 10. Insurance. Rocky Mountain Power shall responsibly self-insure or maintain
sufficient insurance to cover its obligations and liabilities as set forth in Section 6, in lieu of any
insurance as may be required in City ordinances, and will provide a letter of coverage upon
request.
SECTION 11. Vegetation Management. Rocky Mountain Power 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, if necessary to prevent the branches or limbs or
other part of such trees or vegetation from interfering with Rocky Mountain Power'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 Rocky Mountain Power, 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. Rocky Mountain Power agrees to consult and cooperate, from time to time,
with City's Forester on matters related to vegetation management.
SECTION 12. Renewal. At least 120 days prior to the expiration of this Franchise, Rocky
Mountain Power and the City either shall meet to discuss extending the term of this Franchise
for a mutually acceptable period of time or use best faith efforts to renegotiate a replacement
Franchise. Rocky Mountain Power shall have the right to continue using the Public Ways of the
City as set forth herein, under the same terms and conditions, so long as the parties are
negotiating towards an extension or replacement Franchise; provided that the City retains all
rights it may have to terminate Rocky Mountain Power's right to provide services within the City
or to occupy the Public Ways on a prospective basis, using any and all available legal means. If
the City and the Rocky Mountain Power are unable to agree on a replacement Franchise
Agreement, nothing herein shall limit the parties' respective legal rights.
SECTION 13. No Waiver. Neither the City nor Rocky Mountain Power 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 14. Transfer of Franchise. Rocky Mountain Power shall not transfer or assign any
rights under this Franchise to another entity, except transfers and assignments by operation of
law, or to affiliates, parents or subsidiaries of Rocky Mountain Power which assume all of Rocky
Mountain Power's obligations hereunder, unless the City shall first give its approval in writing,
5
P„OPLT 1.1.Y OF SALT LAKE
CITY RECORDER'S OFFICE
P.O. BOX 145515
SALT LAKE CITY, UTAH 84114-5515
which approval shall not be unreasonably withheld, conditioned or delayed; provided, however,
Rocky Mountain Power may assign, mortgage. pledge, hypothecate or otherwise transfer without
consent its interest in this Franchise to any financing entity, or agent on behalf of any financing
entity to whom Rocky Mountain Power (1) has obligations for borrowed money or in respect of
guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar
instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances
and similar facilities or in respect of guaranties thereof.
SECTION 15. Amendment. At any time during the term of this Franchise, the City through
its City Council, or Rocky Mountain Power may propose amendments to this Franchise by
giving thirty (30) days written notice to the other party 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 Rocky Mountain Power and formally adopted as an ordinance amendment, which is
accepted in writing by Rocky Mountain Power.
SECTION 16. Default; Right to Cure; Remedies; Notices.
16.1 Event of Default. An Event of Default shall occur upon Rocky Mountain
Power's material breach or violation of any of the terms, covenants, representations or warranties
contained herein or Rocky Mountain Power's material failure to perform any obligation
contained herein.
16.2 Notice & Right To Cure. City shall give Rocky Mountain Power written notice
of any Event of Default and Rocky Mountain Power shall have ninety (90) days from written
notice from City to Rocky Mountain Power to cure an Event of Default. If any Event of Default
is not cured within this time period, such Event of Default shall, without notice, become an
Uncured Event of Default, which shall entitle Municipality to exercise the Remedies provided
for herein.
16.3 Remedies. Upon an Uncured Event of Default, City shall have the right to
terminate the Franchise and upon the termination thereof the Franchise be automatically deemed
null and void and have no force or effect. In the event of such termination, or any other
termination or expiration of the Franchise as provided for herein, City may commence an action
against Rocky Mountain Power and seek any and all remedies available at law, including
monetary damages, injunctive relief or the specific performance of any of the provisions which,
as a matter of equity, are specifically enforceable. The rights and remedies of City set forth in
this Agreement shall be in addition to and not in limitation of, any other rights and remedies
provided by law or in equity.
16.4 Notices. Unless otherwise specified herein, all notices from Rocky Mountain
Power to the City pursuant to or concerning this Franchise shall be delivered to:
Property Manager
Salt Lake City Real Estate Services
6 PiOPERTY OF SALT LAKE
CITY RECORDER'S OFFICE
P.O. BOX 145515
SALT LAKE CITY, UTAH 84114-5515
P.O. Box 145460
Salt Lake City, UT 84114-5460
With a copy to
Salt Lake City Attorney
Attn: Franchising
P.O. Box 145478
Salt Lake City UT 84114-5478
Unless otherwise specified herein, all notices from the City to Rocky Mountain Power pursuant
to or concerning this Franchise shall be delivered to: ,
Rocky Mountain Power
Attn: Regional Business Manager
P.O. Box 39
Midvale,UT 84047
With a copy to:
Rocky Mountain Power
Attn: Office of the General Counsel
1407 West North Temple, Room 320
Salt Lake City, UT 84116
and such other office as Rocky Mountain Power may advise the City of by written notice.
SECTION 17. 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 18. 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 19. Representation Regarding Ethical Standards for City Officers and
Employees and Former City Officers and Employees: Rocky Mountain Power represents that
it has not: (1) provided an illegal gift or payoff to an officer or employee of the City or a former
officer or employee of the City, or his or her relative or business entity; (2) retained any person
7
PROPERTY OF SALT LAKE
CITY RECORDER'S OFFICE
PO. BOX 145515
SALT LAKE CITY, UTAH 84114-5515
to solicit or secure this franchise agreement upon an agreement or understanding for a
commission, percentage, or brokerage or contingent fee, other than bona fide employees or bona
fide commercial selling agencies for the purpose of securing business; (3) knowingly breached
any of the ethical standards set forth in the City's conflict of interest ordinance, Chapter 2.44,
Salt Lake City Code; or (4) knowingly influenced, and hereby promises that it will not
knowingly influence, an officer or employee of the City or a former officer or employee of the
City to breach any of the ethical standards set forth in the City's conflict of interest ordinance,
Chapter 2.44 Salt Lake City Code.
APPROVED and ADOPTED this a.2 day of 42/ted , 20 f 7
ATTEST: SALT LAKE CITY CORPORATION
eMj4/14r44
ity Recorder J qu ine M. Biskupski, Mayor
APPROVED AS TO FORM: RECORDED A
MAR 2 2 2012
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CITY RECORDER
Br an . bens th[R, _di -----
Senior City Attorney
ROCKY MOUNTAIN POWER
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8 RTY OF SALT LAKE
CITY RECORDER'S OFFICE
PO. BOX 145515
SALT LAKE CITY, UTAH 841 1 4-551 5