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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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