HomeMy WebLinkAbout2013-319 License Agrmt - PacifiCorp
CONDITIONAL LICENSE AGREEMENT
This CONDITIONAL LICENSE AGREEMENT ("Agreement") is entered into by and
between PACIFICORP, an Oregon corporation ("PacifiCorp") and theCITY OF ASHLAND, a
political subdivision of the State of Oregon("Licensee") with reference to the following:
A. PacifiCorp owns certain real property, known as Jackson County tax lot
391 E13D1900, (the "Oak Knoll Substation Property"),and more particularly described in Exhibit
A attached hereto and incorporated herein by reference (the "Property").
B. Licensee receives firm power from the Bonneville Power Administration (`BPA")
over PacifiCorp's transmission system under the terms and conditions of a General Transfer
Agreement ("GTA").
C. Licensee, PacifiCorp and BPA entered into an Agreement for Distribution System
Transfer Services (the "Distribution Agreement"), which provides for the transfer of PacifiCorp
power and energy over Licensee's distribution system for delivery to PacifiCorp's retail
customers.
D. Licensee desires to use a portion of the Property, as more particularly shown on
Exhibit A (the "Premises"),for the construction, operation, maintenance and repair of three
distribution poles and necessary appurtenances thereto(the "Permitted Use") as depicted on
Exhibit B.
E. PacifiCorp desires to grant Licensee a non-exclusive, non-transferrable,
conditional license to use the Premisesfor the Permitted Use, subject to the terms and conditions
contained herein (the "License").
NOW THEREFORE, PacifiCorp and Licensee hereby agree as follows:
1) Grant of License.PacifiCorp hereby consents to Licensee's use of the Premisessolely for the
Permitted Use and subject to. the terms and conditions contained herein.
2) Conditions to License. PacifiCorp's grant of the License to Licensee isexpressly conditioned
upon the complete and continuing satisfaction of the following:
a) PacifiCorp Pronerty Ownership. Licensee agrees that nothing in this Agreement or
Licensee's use of the Premises shall give Licensee any right, title, or interest in the
Property other than the right to use the Property in accordance with this Agreement.
b) Permits.Licensee shall secure any and all necessary permits and other necessary land use
approvals in order to allow for the Permitted Use.
c) Associated Agreements. In the event that either the GTA or Distribution Agreement is
terminated,Licensee shall promptly notify PacifiCorp.
1
6
d) Compliance with Law. Licensee's use of the Premisesshall, at all times, comply with and
be subject to all applicable regulations, codes and laws, including, without limitation, the
National Electrical Safety Code as may be amended from time to time, and all safety
rules prescribed by PacifiCorp.
e) Responsibility for Contractors. Licensee shall provide a copy of this Agreement to and
shall be responsible for adherence to the terms and conditions contained herein by its
contractors, employees, agents and representatives who will access the Premisesin
accordance with this Agreement.
f) No Interference. Licensee's use of the Premisesshall not interfere with PacifiCorp's
present or future access to or use of the Premises,nor shall Licensee's use create a hazard
or clearance issue of any sort.Licensee shall not restrict PacifiCorp's access to the
Property or the substation main gate and the mobile access gate on the southwest corner
of the Property. Licensee shall be a minimum of five feet from PacifiCorp's substation
fence.In the event Licensee's use interferes with PacifiCorp's present or future use,
Licensee shall promptly discontinue the interfering use or relocate/remove Licensee's
interfering facilities at Licensee's sole cost and expense.
g) Indemnity. Licensee shall indemnify, protect, and hold harmless PacifiCorp and its
directors, officers, employees and agents (hereinafter collectively "PacifiCorp
Indemnified Parties") against and from any and all claims, demands, suits, losses, costs
and damages of every kind and description, including attorneys' fees and/or litigation
expenses, brought or made against or incurred by the PacifiCorp Indemnified Parties
resulting from, arising out of, or in any way connected with any act, omission, fault or
negligence of Licensee, its employees, agents, representatives or contractors, their
employees, agents or representatives related to this Agreement or Licensee's activities
hereunder, except to the extent that such claim, demand, loss, cause of action, or costs
arises from PacifiCorp's gross negligence or willful misconduct. The indemnity
provisions herein shall survive termination of this Agreement.
h) Insurance. Without limiting any liabilities or any other obligations of Licensee, Licensee
shall procure and continuously maintain for the duration of this Agreement, with insurers
having an A.M. Best's rating of A-VII or better or having an equivalent rating,insurance
against claims for injury to persons or damage to property which may arise from or in
connection with this Agreement or Licensee's use or occupancy of the Premises or
Property as follows:
i) Workers' Compensation. Coverage as required by law. Licensee shall furnish proof
thereof satisfactory to PacifiCorp within fourteen (14) days prior to commencing any
work on the Property. All Workers' Compensation policies shall contain provisions
that the insurance companies will have no right of recovery or subrogation against
PacifiCorp, its parent, divisions, affiliates, subsidiary companies, co-licensees, co-
venturers, agents, directors, officers, employees, servants, and insurers; it being the
intention of PacifiCorp and Licensee that the insurance as effected shall protect all
2
parties.
ii) Commercial General Liabilitv. The most recently approved Insurance Services Office
("ISO") policy, or its equivalent, written on an occurrence basis, with limits not less
than $1,000,000 per occurrence and $2,000,000 general aggregate (on a per location
basis) to protect against and from any and all loss by reason of bodily injury or
property damage on or about the Property, including the following coverages:
(1) Bodily injury, property damage, and personal injury coverage, including damage
to PacifiCorp's electric facilities or improvements as a result of Licensee's, its
contractors', subcontractors' or agents' negligence.
(2) Property and Products/Completed Operations
iii) Independent Contractors. Independent contractors of Licensee shall meet the
requirements set forth in Section 2.h.x, Insurance Requirements for Licensee's
Contractor of this Agreement, and such requirements shall be administered by
Licensee as stated under 2.e. Responsibility for Contractors of this Agreement.
iv) Automobile Liability. The most recently approved ISO policy, or its equivalent, with
a minimum single limit of $1,000,000 for bodily injury and property damage
including sudden and accidental pollution liability, With respect to Licensee's
vehicles whether owned, hired or non-owned, assigned to or used in any way on the
Property.
v) Umbrella Liability. Insurance with a minimum limit of $5,000,000 each
occurrence/aggregate, where applicable, to the excess of the coverages and limits
required in, Commercial General Liability, and Automobile Liability insurance
required above. Such insurance policies shall be maintained to cover any liability
arising from Licensee's use of the Property and indemnification identified in Section
2. g. of this Agreement.
vi) Certificate of Insurance. Licensee shall annually provide to PacifiCorp a certificate
of insurance evidencing its insurance coverage. The policies required herein, except
Workers' Compensation, shall include provisions or endorsements naming
PacifiCorp, its parent; affiliates, subsidiaries, its officers, directors, agents, employees
or servants as additional insured.
vii)Licensee's Insurance Primary. To the extent of Licensee's negligent acts or
omissions, all policies required under this Agreement shall include provisions that
such insurance is primary with respect to the interest of PacifiCorp and that any other
insurance maintained by PacifiCorp is excess and noncontributory insurance with the
insurance required hereunder, and provisions that the policy contain a cross liability
or severability of interest clause or endorsement.
e
3
viii) No Right of Recovery or Subrogation. Unless prohibited by applicable law, all
required insurance policies shall contain provisions that the insurer will have no right
of recovery or subrogation against the PacifiCorp, its parent, divisions, affiliates,
subsidiaries companies, co-Licensees, or co-venturers, agents, directors, officers,
employees, servants, and insurers, it being the intention of the PacifiCorp and
Licensee that the insurance as affected shall protect all parties.
ix) Notice Prior to Change or Cancellation. Licensee's insurance required under this
Section shall contain provisions that such policies cannot be cancelled or their limits
of liability reduced without;(i) ten (10) calendar days' prior written notice to
PacifiCorp if cancelled for nonpayment of premium, or (ii) thirty (30) calendar days'
prior written notice to PacifiCorp if cancelled for any other reason.
x) Insurance Requirements for Licensee's Contractor. The following insurance
coverage shall be required from all contractors and subcontractors as agreed in items
2.e. and 2.h.ii. of this Agreement. Prior to commencing using the Premises for the
Permitted Use, Licensee shall provide written confirmation from its contractors and
subcontractors of compliance with the following insurance requirements:
(1) Without limiting any liabilities or any other obligations of Contractor, Contractor
agrees to secure and continuously maintain for the term of the Work being
provided to Licensee at the [insert location of the Property/Premises] specified
herein, with insurers having an A.M. Best's rating of A-VII or better, such
insurance as will protect Licensee and PacifiCorp from liability and claims for
injury to persons or damage to property which may arise out of or result from
Contractor's use of the Premises for the Permitted Use as granted under this
Agreement and for which Licensee or PacifiCorp may be legally liable, whether
such operations are by Contractor or its subcontractor of any tier or other
independent contractor (its contractors) or by anyone directly or indirectly
employed by any of them, or by anyone for whose acts any of them may be liable.
Contractor shall insure the risks associated with its work with minimum
coverages and limits as follows:
(a) Workers' Compensation: Contractor shall comply will all applicable Workers'
Compensation Laws.
(b) Employers' Liability: Contractor shall carry Employers' Liability insurance
with a minimum limit of$1,000,000 each accident/$1,000,000 by disease-
each employee/$1,000,000 by disease-policy limit.
(c) Commercial General Liability: Contractors shall carry Commercial General
Liability insurance with limits of not less than $1,000,000 per occurrence and
$2,000,000 general aggregate covering bodily injury and property damage
including the following coverages:
4
(i) Premises and operations
(ii) Independent contractor's liability
(iii)Contractual liability
(iv)Coverage for explosion, collapse, and underground property damage
(v) Broad form property damage liability
(vi)Sudden and accidental pollution liability, hired, or non-owned.
(d) Business Automobile Liability: Contractor shall cant' Business Automobile
Liability insurance with a minimum combined single limit of $1,000,000 each
accident for bodily injury and property damage, including sudden and
accidental pollution liability, with respect to Contractor's vehicles whether
owned, hired, or non-owned.
(e) Umbrella Liability: Contractor shall carry Umbrella Liability with a
minimum limit of $5,000,000 each occurrence/aggregate in excess of
coverages and limits required in Employers' Liability, Commercial General
Liability, and Business Automobile Liability insurance stated under Sections
2.x. Lb., 2.x.I .e., and 2.x. Ld. above. Contractor shall provide notice to
Licensee if at any time its minimum umbrella limit is not available and will
purchase additional limits, if required by Grantor.
(f) In addition to the requirements stated above any and all parties providing
underground locate, engineering, design, or soil sample testing services to
Licensee or Contractor shall be required to provide the following insurance:
(i) Professional Liability: Licenseeor Contractor shall maintain Professional
Liability insurance covering damages arising out of negligent acts, errors
or omissions committed by Licenseeor Contractor prior to or whileusing
the Premises for the Permitted Useallowed under this Agreement, with a
liability limit of not less than $2,000,000 each claim. Licensee
orContractor shall maintain this policy for a minimum of two (2) years
after completion of the work or shall arrange for a two (2) year extended
discovery (tail) provision of the policy is not renewed.
(g) Additional provisions are required as follows:
(i) Commercial General Liability and Business Automobile Liability policies
shall include endorsements naming PacifiCorp, its parent, divisions,
affiliates, subsidiary companies, co-lessees, co-venturers, officers,
directors, agents, employees, servants and insurers as additional insureds.
5
(ii) Commercial General Liability shall include the following provisions or
endorsements:
1. shall be primary and not excess to, or contributing with any insurance
or self-insurance maintained by PacifiCorp, and
2. shall contain a cross liability or severability of interest clause or
endorsement.
(iii)Unless prohibited by applicable law the Commercial General Liability,
Business Automobile Liability, and Workers' Compensation insurance
policies shall contain provisions or endorsements that the insurer will have
no right of recovery or subrogation against PacifiCorp, its parent,
divisions, affiliates, subsidiary companies, co-lessees, co-venturers,
agents, directors, officers, employees, servants, and insurers, it being the
intention of PacifiCorp and Licensee that the insurance as effected shall
protect all parties.
(iv)Contractor shall notify Licensee immediately upon receipt of notices of
cancellation of any insurance policy(ies) required herein for nonpayment
Certificates of insurance shall be provided to PacifiCorp, prior to
commencement of use of the Premises for the Permitted Useby Licensee
and its contractors, confirming compliance with the insurance
requirements as stated and shall be replaced with certificates reflecting
renewal coverage prior to the expiration of each required policy or
premium or for any other reason, and shall provide PacifiCorp with
written proof of replacement insurance prior to the effective date of such
cancellation.
(h) Certificates of insurance shall be provided to PacifiCorp, prior to
commencement of use of the Premises for the Permitted Useby Licensee and
its contractors, confirming compliance with the insurance requirements as
stated and shall be replaced with certificates reflecting renewal coverage prior
to the expiration of each required policy.
(i) PacifiCorp does not represent that the insurance coverage specified herein
(whether in scope of coverage or amounts of coverage) are adequate to protect
the obligations of Licensee or its contractors, and Licenseeand its contractors
shall be solely responsible for any deductibles and deficiencies thereof.
i) Assumption of Risk. Licensee acknowledges and agrees that its use hereunder is at its
sole risk and that PacifiCorp shall not be liable for damage to Licensee's property or
facilities resulting from PacifiCorp's maintenance, construction, repairs or other
operating activities within the Property.
6
j) Minimum Distance. Licensee shall maintain a minimum distance of ten (10) feet
between equipment traveling through oC occupying the Premises and PacifiCorp's
transmission/distribution line conductors (wires).
k) Access to Premisesthrough Gate. Licensee may access the Premises through the gate on
Highway 66, or such other access as PacifiCorp may designate from time to time. All
gates on the Property shall be kept closed and locked during all hours. Licensee may
place a lock on the gate, but said lock shall not bar PacifiCorp employees from use of the
same gate.
1) Notifying Dispatch.Licensee shall call Southern Dispatch ("Dispatch") at (503) 251-5239
within sixty (60) seconds of entering Property and sixty (60) seconds prior to exiting
Property. Licensee must notify Dispatch of business need for entering Property.
m) Minimum Clearance. Licensee shall maintain a minimum clearance of at least five (5)
feet between approved facilities and the point where the transmission line steel structure
enters the earth.
n) Heavy Equipment. Licensee acknowledges and agrees that the Property may be crossed
by PacifiCorp's heavy equipment, including, without limitation, vehicles in excess
ofthirty-five (35) tons.
o) Identification of Facilities. Licensee shall mark the location of any of its underground
facilities allowed under this Agreement, if any, with permanent signs, and shall maintain
such markings throughout the tern of this Agreement.
p) Permitted Structures. Licensee shall not place or maintain any permanent structures,
including control houses or equipment shelters within the Property, without submitting
final design and plans to PacifiCorp for prior written approval. Conditions and
modifications must be acceptable to PacifiCorp including any subsequent changes.
q) Hazardous Materials. Licensee shall not use nor permit the use of any hazardous
materials within the Property, without prior written approval by PacifiCorp.
3) Default. In the event Licensee violates any of the terms or conditions of this Agreement and
fails to cure such default within thirty (30) days following written notice thereof, PacifiCorp
may elect to immediately terminate this Agreement and Licensee, at its own cost, shall
promptly restore the Property to the condition existing prior to Licensee's use.
4) Notices. Any notice required hereunder shall be sent via first class mail to the
followingaddresses:
PacifiCorp City of Ashland
Property Management Warren DiNapoli, Electric Distribution Manager
825 NE Multnomah Street # 1700 90 N.Mountain Ave.
Portland, OR 97232 Ashland, OR 97520
7
5) Termination. This Agreement shall terminate upon the earlier o£ (i) the date
oftermination of the GTA; (ii) the date of termination of the Distribution Agreement; (iii)
discontinuance of the Permitted Use for a consecutive period of thirty (30) days; or (iv) upon
PacifiCorp's election following Licensee's failure to cure a default hereunder within thirty
(30) days following written notice thereof.
6) Restoration. Upon termination, Licensee, at its own cost, shall promptly restore theProperty
to the condition existing prior to Licensee's use.
7) Jury Trial Waiver. To the fullest extent permitted by law, each of the parties heretowaives
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, or to request the consolidation of, 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.
8) Effective Date. This Agreement shall become effective upon full execution by the parties.
9) Assignment. This Agreement shall not be assigned without PacifiCorp's prior
writtenconsent.
10) As-Built Drawings. Within sixty (60) days of substantial completion of construction, or any
subsequent substantial modification thereto, Licensee shall provide PacifiCorp a set of As-
Built drawings showing the project as constructed.
11) Execution in Counterparts; Electronic Transmittal. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall constitute one
and the same instrument. Said counterparts may be transmitted by one party to the other by
facsimile or electronic mail.
IN WITNESS WHEREOF, the parties have executed this Agreement in counterpartsas of
the dates below.
PACIFICORP CITY OF ASHLAN
By: / 46 - By~ .
Name: ~ea~..a Adr.w s Name: OA46 Ka ~ <
kon a stR4: o(~
Its: Its: C-41,7-/
Date: 9 Date: - hK
APOVEp A T ORM
Ashland Ctfy
Date d - oZ - I
8
EXHIBIT A
The Property and Premises
Tax lot 391E13D1900
8 1.63 AC 0.32 AC o
33,75
1200
274 Ac o
N 4
S CS 21E
.1820 80.75• 281.1fi (1286
135 - 267D - 15" 150.0 185.83 522
NW COR Via
VE CO 1 DLC 57 I 11900 180
3LQ~C 54 an 8547746 I 3.42 Ac CS 20837 - 0'42
DM FK
M 65a l
11113i I PC
• CS 11114S 8,801 I LldD'
j ~ I I Pacific Power 39Ac 18(
?fifi+xs Oak Knoll Substation 128
VA73 PM
\ \ I I 4
• b 8
V ~ e
2000 r : , CGS cs sass a 1811
77.8c n,
Approx. location of City of
7
- Ashland distribution poles .
180
ALL
9
EXHIBIT B
Permitted Uses
~~~~~cn !
~ jig 11§g aE 3
m g $ g
0 8-
@Jg
N .5 Ago Kit Kit
0 AIo 910 goy 31 ~ IV
i
.
i
10