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HomeMy WebLinkAbout4253 ORDINANCE NO. ~53 AN ORDINANCE granting Puget Sound Power & Light Company, a Washington corporation, its successors and its assigns, the right, privilege, authority and franchise to set, erect, construct, support, attach, connect, and stretch Facilities between, maintain, repair, replace, enlarge, operate, and use Facilities in, upon, over, under, along, across and through the Franchise area for purposes of transmission, distribution and sale of energy for power, heat, light and any other purpose for which energy can be used; and to charge and collect tolls, rates and compensation for such energy and such uses. THE CITY OF BREMERTON DOES ORDAIN: SECTION 1: DEFINITIONS: Where used in this franchise (the "Franchise"), the following terms shall mean: (a). "Puget" means Puget Sound Power & Light Company, a Washington corporation, and its respective successors and assigns. (b). "city" means the City of Bremerton, a municipal corporation of the State of Washington, and its respective successors and assigns. (c). "Franchise area" means any, every and all of the roads, streets, avenues, alleys, highways and public rights-of-way of the City as now laid out, platted, dedicated or improved; and any, every and all roads, streets, avenues, alleys, highways and public rights-of-way of the city that may hereafter be laid out, platted, dedicated or improved within the present limits of the city and as such limits may be hereafter extended. "Franchise area" does not, however, include any other public property owned in whole or in part, leased or otherwise occupied by the city. (d). "Facilities" means poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, braces, guys, anchors, vaults and all necessary facilities and appurtenances thereto, whether the same be located over or under ground. (e). "Ordinance" means this ordinance, which sets forth the terms and conditions of this Franchise. SECTION 2: FRANCHISE AND ORDINANCE NOT TO CONFLICT WITH TARIFFS. (a). This Franchise is subject to the provisions of any applicable schedule or tariff now or hereafter on file with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction). In the event of any conflict or inconsistency between the provisions of this Franchise and such schedule or tariff, the provisions of such schedule or tariff shall control, and such conflict or inconsistency shall not affect the validity of the remaining portions of this Franchise, which shall continue in full force and effect. (b). If, during the term of this Franchise, Puget shall file a schedule or tariff with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction) which conflicts with or is inconsistent with any portion of this Franchise, then as to such portion of this Franchise as shall then be in conflict with or inconsistent with such schedule or tariff, the City may, within thirty (30) days of the effective date of such schedule or tariff, notify Puget in writing that the City desires to commence negotiations to amend such portion of this Franchise so as to address such conflict or inconsistency. Within thirty (30) days from and after Puget's receipt of written notice from the City to so commence such negotiations, Puget shall, at a mutually agreeable time and place, commence such negotiations. The City and Puget shall thereafter conduct such negotiations at reasonable times, in a reasonable manner, in good faith and with due regard to all pertinent facts and circumstances; provided, however, neither party shall have any obligation to amend this Franchise absent mutual agreement on the terms and conditions of such amendment. SECTION 3: FRANCHISE AND FACILITIES WITHIN FRANCHISE AREA. (a). The City does hereby grant to Puget the right, privilege, authority and franchise to: i. set, erect, construct, support, attach, connect, and stretch Facilities between, maintain, repair, replace, enlarge, operate and use Facilities in, upon, over, under, along, across and through the Franchise area for purposes of transmission, distribution and sale of energy for power, heat, light and any other purpose for which energy can be used; and ii. to charge and collect tolls, rates and compensation for such energy and such uses. (b). Puget shall obtain all necessary permits and approvals and shall comply with all applicable City ordinances, 2 codes, resolutions, standards and procedures, as now or hereafter amended, to the same extent as any other person or entity doing business within the City, except as otherwise provided by this Franchise. (c). This Franchise shall not grant to Puget any right, privilege, authority or franchise to install Facilities on or to otherwise use City-owned or leased properties other than such properties as may be included within the Franchise area; provided, however, existing Facilities installed or maintained by Puget on public grounds and places within the City in accordance with prior franchise agreements (but which such Facilities are not within the Franchise area as defined by this Franchise) may be maintained, repaired and operated by Puget at the location at which such Facilities exist as of the effective date of this Franchise for the term of this Franchise; provided further, that no such Facilities may be enlarged or expanded without the prior review and approval of the City Council. SECTION 4: NONINTERFERENCE OF FACILITIES. Puget shall maintain its Facilities within the Franchise area so as not to unreasonably interfere with the free passage of traffic, and Puget shall maintain its Facilities in accordance with the laws of the State of Washington. SECTION 5: RELOCATION OF FACILITIES. (a) Whenever it becomes necessary for the city to relocate right-of-way improvements within the Franchise area or change the grade of the Franchise area, and such work requires the relocation of Puget's then existing Facilities within the Franchise area, the City shall: i. provide Puget, within a reasonable time prior to the commencement of such work to be undertaken by the City, written notice requesting such relocation; and ii. provide Puget with copies of reasonable plans and specifications for such work to be undertaken by the City in a form 3 sufficient for Puget to determine the location within the Franchise area to which its Facilities are to be relocated. After receipt of such notice and such plans and specifications, Puget shall relocate such Facilities within the Franchise area at no cost to the City. If the City requires the subsequent relocation of any Facilities within five (5) years from the date of relocation of such Facilities pursuant to this Section 5(a), the City shall bear the entire cost of such subsequent relocation. (b) Whenever any person or entity other than the City requires the relocation of Puget's Facilities to accommodate the work of such person or entity within the Franchise area; or whenever the City requires the relocation of Puget's Facilities within the Franchise area for the benefit of any person or entity other than the City, then Puget shall have the right as a condition of such relocation to require such person or entity, other than the City, to make payment to Puget, at a time and upon terms acceptable to Puget, for any and all costs and expenses incurred by Puget in the relocation of Puget's Facilities. (c) Any condition or requirement imposed by the City upon any person or entity other than the City (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, construction or development) which requires the relocation of Puget's Facilities shall be a required relocation for purposes of Section 5(b) above. However, it shall be a "City caused" relocation, for purposes of Section 5(a) above, if the City reasonably determines and informs Puget in writing that the relocation of Puget's Facilities within the Franchise area is: (i) primarily for the City's benefit; and (ii) necessary to accommodate the work of the Port of Bremerton on the Bremerton waterfront bounded by First Street and Fourth Street or the Washington State Department of Transportation. (d). Nothing in this Section 5 shall require Puget to bear any cost or expense in connection with the location or relocation of any Facilities then existing under benefit of easement or such other prior rights not arising under this Franchise. SECTION 6: UNDERGROUND FACILITIES. (a). If, during the term of this Franchise, the City shall direct Puget to underground Facilities (of 15,000 volts or less) within the Franchise area, such undergrounding shall be arranged and accomplished subject to and in accordance with applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction). Subject to such schedules and tariffs, and subject to the terms and conditions of this Franchise, Puget shall abide by any subsequent ordinance enacted by the City concerning the undergrounding of Puget's Facilities within the Franchise area. (b) In the event the City undertakes any work within the Franchise area which would otherwise require the relocation of Puget's aboveground Facilities in accordance with Section 5(a) above, the City may, by written notice to Puget, direct that Puget convert such aboveground Facilities (of 15,000 volts or less) to underground Facilities. Any such conversion shall be done subject to and in accordance with applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction). If, in connection with the relocation of Puget's aboveground Facilities (of 15,000 volts or less) in accordance with Section 5(a) above, a portion of such Facilities, which are otherwise being so relocated, are converted at the City's direction to underground Facilities (of 15,000 volts or less), then any actual relocation costs avoided by Puget as a result of the City's direction shall be credited to costs (if any) to be borne by the City in connection with such conversion, to the extent consistent with the aforementioned schedules and tariffs. (c). This Section 6 shall govern all matters related to undergrounding of Puget's Facilities (i.e., conversion or 5 otherwise) in connection with this Franchise. Notwithstanding anything to the contrary in this Franchise, the undergrounding of any of Puget's Facilities within the Franchise area shall be arranged and accomplished subject to and in accordance with applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction). SECTION 7: INDEMNIFICATION. (a). Puget shall indemnify and save the City harmless from any and all claims, demands, suits or actions (and reasonable costs and attorneys' fees associated therewith) asserted against it on account of injury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence of Puget or its agents, servants, employees or contractors in exercising the rights granted Puget in this Franchise; provided, however, that in the event any such claim, demand, suit or action be presented to or filed against the City, the City shall promptly notify Puget thereof and Puget shall have the right, at its election and at its sole cost and expense by attorneys of its own election, to settle and compromise such claim, demand, suit or action. (b). The City shall have the right at all times to participate through its own attorney in any suit or action which arises out of any right, privilege or authority granted by or exercised pursuant to this Franchise when the City determines that such participation is required to protect the interests of the City or the public. Such additional participation by the City shall be at the City's sole cost and expense. SECTION 8: MOVING BUILDINGS WITHIN THE FRANCHISE AREA. If any person or entity obtains permission from the City to use the Franchise area for the moving or removal of any building or other object, the City shall, prior to granting such permission, require such person or entity to make any necessary arrangements with Puget for the temporary adjustment of Puget's wires to accommodate the moving or removal of such building or other object. Such necessary 6 arrangements with Puget shall be made, to Puget's satisfaction, not less than fourteen (14) days prior to the moving or removal of said building or other object. In such event Puget shall, at the expense of the person or entity desiring to move or remove such building or other object, adjust any of its wires which may obstruct the moving or removal of such building or other object, provided that: (a). The moving or removal of such building or other object which necessitates the adjustment of wires shall be done at a reasonable time and in a reasonable manner so as not to interfere unreasonably with Puget's business; (b). Where more than one route is reasonably available for the moving or removal of such building or other object, such building or other object shall be moved or removed along the route which causes the least interference with Puget's business. A route is not "reasonably available" if it imposes a grossly disproportionate burden on the City or the person or entity moving or removing the building or other object; and (c). The person or entity obtaining such permission from the City to move or remove such building or other object shall be required to indemnify and save Puget harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or in conjunction with the moving or removal of such building or other object, to the extent such injury or damage is caused by the negligence of the person or entity moving or removing such building or other object or the negligence of the agents, servants or employees of the person or entity moving or removing such building or other object. This subsection shall not be construed to require the City to ensure compliance or otherwise enforce any insurance requirement with regard to Puget or the person or entity seeking to move or remove a building or other object. SECTION 9: DEFAULT. If Puget shall fail to comply with the provisions of this Franchise, the City may serve upon Puget a written order to so comply within sixty (60) days from the date 7 such order is received by Puget. If Puget is not in compliance with this Franchise after expiration of said sixty (60) day period the city may, by ordinance, declare an immediate forfeiture of this Franchise; provided, however, if any failure to comply with this Franchise by Puget cannot be corrected with due diligence within said sixty (60) day period (Puget's obligation to comply and to proceed with due diligence being subject to unavoidable delays and events beyond its control), then the time within which Puget may so comply shall be extended for such time as may be reasonably necessary and so long as Puget commences promptly and diligently to effect such compliance. SECTION 10: NONEXCLUSIVE FRANCHISE. This Franchise is not and shall not be deemed to be an exclusive franchise. This Franchise shall not in any manner prohibit the City from granting other and further franchises over, upon and along the Franchise area which do not interfere with Puget's rights under this Franchise. This Franchise shall not prohibit or prevent the City from using the Franchise area or affect the jurisdiction of the City over the same or any part thereof. SECTION 11: FRANCHISE TERM. Article XIV, Section 53 of the "Charter of the City of Bremerton" provides that no franchise shall be granted for a term longer than ten (10) years. Inasmuch as the Charter so provides, this Franchise shall be and remain in full force and effect for a period of ten (10) years from and after the effective date of this ordinance; provided, however, Puget shall have no rights under this Franchise nor shall Puget be bound by the terms and conditions of this Franchise unless Puget shall, within sixty (60) days after the effective date of the Ordinance, file with the City its written acceptance of this Ordinance. SECTION 12: ASSIGNMENT. Puget shall, subject to permission of the City, have the right to assign its rights, benefits and privileges in and under this Franchise. Such permission shall not be unreasonably withheld, but may only be granted in a procedure consistent with the laws, rules, statutes and regulations governing the City. Any assignee shall, within thirty (30) days of the date 8 of any assignment, file written notice of the assignment with the City together with its written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, Puget shall have the right, without such notice or such permissions of the City, to mortgage its rights, benefits and privileges in and under this Franchise to the trustee for its bondholders. SECTION 13: USE OF FACILITIES BY CITY. (a). During the term of this Franchise and with respect to poles which are Facilities and which are wholly owned by Puget and which are within the Franchise area, the City may, subject to Puget's prior written consent which shall not be unreasonably withheld, install and maintain City-owned overhead wires upon such poles for traffic signalization and police and fire communications, and may install and maintain city-owned street lights and traffic signs upon such poles. The foregoing rights of the City to install and maintain such wires, street lights and signs are further subject to the following: i. Such installation and maintenance shall be done by the City at its sole risk and expense in accordance with all applicable laws (including, but not limited to, RCW 70.54.090), and subject to such reasonable requirements as Puget may specify from time to time (including, without limitation, requirements accommodating Facilities or the facilities of other parties having the right to use Facilities); and ii. Puget shall have no obligation under Section 7 (or arising under the purview of Section 7) in connection with any city-owned wires, street lights, or signs so installed or maintained. (b). Puget shall provide to the City, upon the City's reasonable request, copies of available drawings in Puget's possession showing the location of Facilities of Puget within the Franchise area. Any such request by the City shall be made on the 9 basis of reasonable need in connection with a City street improvement project, and such request shall relate to specific Facilities at specific locations. As to any such drawings so provided, Puget does not warrant the accuracy thereof and to the extent the location of Facilities are shown, such Facilities are shown in the approximate location. With respect to excavations by Puget and the City within the Franchise area, Puget and the City shall each comply with its respective obligations pursuant to applicable law. (c). Upon written request of the City, Puget shall provide the City with the most recent update available of any plan of potential improvements to its Facilities within the Franchise area; provided, however, any such plan so submitted shall be for informational purposes only and shall not obligate Puget to undertake any specific improvements within the Franchise area nor shall such plan be construed as a proposal to undertake any specific improvements within the Franchise area. (d). Puget shall have rights reciprocal to those of the City under this subsection and the City shall be subject to reciprocal obligations. SECTION 14: HERBICIDES. Puget shall provide reasonable advance notice to the City's Director of Utilities of any application by Puget of herbicides in the City's watershed. SECTION 15: TREE TRIMMING. Puget shall have the right to cut, trim and maintain, by prudent and reasonable means, all city- owned trees and City-owned vegetation within the Franchise area to the extent necessary to prevent such trees or such vegetation from becoming a hindrance to or coming into contact with Puget's Facilities. SECTION 16: STREET LIGHTING,. In accordance with applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction), Puget shall install, operate and maintain street lighting as requested by the City. City shall have the right to acquire from Puget, street lights owned by Puget now 10 located or hereafter located within the Franchise Area at a fair market price to be negotiated upon written notice from the City. Without limiting the generality of the foregoing, requests for installation, maintenance and repair of such street lighting shall receive Puget's prompt attention and shall be arranged and accomplished in accordance with the aforementioned schedules and tariffs. SECTION 17: SHARED USE OF EXCAVATIONS. If, at any time or from time to time, either Puget or the City shall cause excavations to be made within the Franchise area, the party causing such excavation to be made shall afford the other, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (1) such joint use shall not unreasonably delay the work of the party causing the excavation to be made; and (2) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties. SECTION 18: RESTORATION AFTER CONSTRUCTION. Puget shall, after construction, maintenance or repair of Facilities within the Franchise area, leave the Franchise area in as good or better condition in all respects as it was in before the commencement of such construction, maintenance or repairs. All concrete encased recorded monuments within the Franchise area which have been disturbed or displaced by such work shall be restored pursuant to city standards and specifications. Puget shall promptly complete restoration work and promptly repair any damage caused by such work to the Franchise area at its sole cost and expense. SECTION 19: CHARGE FOR ADMINISTRATIVE COSTS. Nothing herein shall preclude the city from recovering any administrative costs incurred by the City in the approval of permits or in the supervision, inspection or examination of all work by Puget in the Franchise area as prescribed in accordance with applicable ordinances or laws. SECTION 20: MISCELLANEOUS. (a). If any term, provision, condition or portion of this Franchise shall be held to be invalid, such invalidity shall not 11 affect the validity of the remaining portions of this Franchise which shall continue in full force and effect. The headings of sections and paragraphs of this Franchise are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. (b). This Franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this Franchise, is promulgated by the City as an amending ordinance, and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the city in conjunction with the exercise (or failure to exercise) by Puget of any and all rights, benefits, privileges, obligations or duties in and under this Franchise, unless such permit, approval, license, agreement or other document specifically: i. References this Franchise; and ii. States that it supercedes this Franchise to the extent it contains terms and conditions which change, modify, delete, add to, supplement or otherwise amend the terms and conditions of this Franchise. In the event of any conflict or inconsistency between the provisions of this Franchise and the provisions of any such permit, approval, license, agreement or other document, the provisions of this Franchise shall control. (c). This Ordinance and the franchise granted herein shall not be construed to limit the right of the City to subject Puget, its operations and facilities to the City's powers of taxation. (d). This Ordinance and the Franchise granted herein shall be construed in a fashion consistent with all other 12 applicable statutes, regulations, ordinances and laws of the City of Bremerton, Kitsap County, State of Washington and the United States of America. (e). In the event that any suit or action is commenced by the City against Puget or by Puget against the city in a court of competent jurisdiction (1) to enforce the terms and conditions of this Franchise; or (2) on account of any default under or breach of this Franchise, the prevailing party in such suit or action shall be entitled to recover, in addition to all other relief, from the other party all reasonable attorney's fees incurred by the prevailing party in connection with such suit or action. This subsection shall not apply, however, to actions solely for declaratory judgement. APPROVED by the City Council on the first reading this ~S~-~- day of %~Q3c~~%~ , 1989. PASSED by the City Council of the City of Bremerton this ~ %-~-- day ~~.~~ , 1989. dent APPROVED this [~ day of "~.~.~t.?~' ~ , 1989. LOBE, Mayor ATTEST: KATHLEEN L. McCLUSKEY, city Clerk