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HomeMy WebLinkAbout1995-05-01 - Public Utility District No. 1 of Douglas County, Washington, PUD - ElectricORDINANCE NO. 957 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE, WASHINGTON, AUTHORIZING THE MAYOR OF THE CITY OF EAST WENATCHEE TO ENTER INTO A FRANCHISE AGREEN[ENT ON BEHALF OF THE CITY WITH PUBLIC UTILITY DISTRICT NO, 1 OF DOUGLAS COUNTY, WASHINGTON, REGARDING THE USE OF THE CTTY'S RIGHT OF WAYS AND SETTING AN EFFECTIVE DATE. WI�REAS, the Public Utility District No. 1 of Douglas County, Washington ("PUD") has contacted the City of Fast Wenatchee ("City") regarding a franchise which will govern the installation of electrical transmission lines in the City's right of ways; and V'VHEREAS, a franchise agreement authorizing the use of the City's right of ways by the PUD was adopted by the City on June 6, 1983, and, by its terms, has expired; and V�VHF.REAS, the PUD desires to have the bonding and insurance requirements and permit fees imposed by Chapter 12.04 of the City Municipal Code waived as to all projects conducted by the PUD within the City limits; and WHEREAS, the City recognizes that the PUD is a provider of an essential service to the City, and desires to waive the bonding requirement imposed by Chapter 12.04 of the City Municipal Code; and WHEREAS, the City desires. to enter into a franchise agreement with the PUD so that all projects conducted by the PUD are treated similarly, therefore streamlining the process for the PUD and decreasing costs to the citizens of the City; and 1 WHEREAS, the City and the PUD have negotiated a franchise agreement to govern the course of conduct between the City and the PUD with regard to the PUD's use of the public Light of ways, and WHEREAS, the City Council has reviewed the proposed franchise agreement and finds the agreennt to be in the best interests of the City; NOW THEREFORE, THE CITY COUNCII, OF THE CITY OF EAST WENATCHEE, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The City Council .desires to enter into and hereby authorizes the Mayor of the City of East Wenatchee to execute a franchise agreement with the PUD in the form attached hereto as Exhibit "A", which is incorporated herein by this reference as if set forth in full. tion 2. This Ordinance shall take effect and be in full force five (5) days after this ordinance or a summary thereof consisting of the title is published. APPROVED: �� .: I o� _.! •' ATTEST/AUTHENTICATED : CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY BY: FII.ED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: �`/ �'/ �S EFFECTIVE DATE: �� Q / 9 � ORDINANCE NO. 9 � `fi ,,/� ��S �1, /� S 3 '�WIQMI 1 THIS FRANCHISE AGRRFMFNT is entered into this date by and between the City of East Wenatchee, a Washington municipal corporation (the "City"), and Public Utility District No. 1 of Douglas County, Washington (the "PUD"), a Washington municipal corporation. RECITALS A. The PUD desires to enter into a Franchise Agreement with the City for the purpose %P using the City's right of ways. B. The City desires to grant that franchise to the PUD. NOW, THE_RFFORE, THE PARTIES AGREE TO ENTER INTO THE FOLLOWING FRANCHISE AGRF IAENT; Section 1. Franchise Definitions. Where used in this franchise (the "Franchise") the following terms shall mean: 1.1 "PUD" means the Public Utility District No. 1 of Douglas County, Washington, a Washington municipal corporation and its respective successors and assigns. 1.2 "City" means the City of East Wenatchee, a municipal corporation of the State of Washington, and its respective successors and assigns. 1.3 "Franchise Area" means: all roads, streets, avenues, alleys, highways, easements, rights of way, grounds and public places of the City as now laid out, platted, dedicated or improved; and all roads, streets, avenues, alleys, highways, easements, rights of way, grounds and public places 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. 1.4 "Facilities" means poles (with or without crossarms), wires, lines, conduits, cables, switching gear and enclosures, communication and signal lines, braces, guys, anchors, vaults and all necessary or convenient facilities and appurtenances thereto, whether the same be located over or under ground. 1.5 "Ordinance" means the City of East Wenatchee Ordinance No. q�,Y which adopts by reference the terms and conditions of this Franchise. 1.6 "Distribution" refers to Facilities with voltages in the 25Kv class and below. 1.7 "Subtransmission" refers to Facilities with voltages in the 25Kv to the SOKv class. 1.8 "Transmission" refers to Facilities with voltages above the SOKv class. 2.1 The City does hereby grant to the PUD 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, subtransmission, distribution and sale of electrical services. 2.2 The PUD agrees to pay the City One Thousand Five Hundred Dollars ($1500) in advance, on an annual basis commencing with the date the Ordinance is adopted, for the cost of administering the Franchise, processing all excavation permits submitted by the PUD, and inspecting, reviewing, and approving all excavation work performed by the PUD. 2.3 As further consideration of the franchise granted herein, the PUD agrees to permit the free use of its metal and wooden poles by the City for the hanging of decorative lights and festoons, and for the placement of fire alarms or similar emergency. devices designed for or connected with the fire or police protection system or similar emergency service located within the City, provided there is adequate clearance with existing PUD facilities. The City agrees to consult with the PUD prior to placement of any object authorized by this section on any facility controlled by the PUD. 2.4 This Franchise is and. shall remain in full force and effect for a period of three (3) years from and after the effective date of the Ordinance, provided, however, the PUD shall have no rights under this Franchise unless the PUD shall, within thirty (30) days after the effective date of the Ordinance, file with the City its written acceptance of the Ordinance and timely pay the amount referenced in subsection 2.2. 2.5 The PUD and the City agree to exercise best efforts to coordinate such construction work as each may undertake within the Franchise Area so as to promote the orderly and expeditious performance and completion of such work as a whole. Such efforts shall include reasonable and diligent efforts to keep the other party informed of its intent to undertake construction work within the Franchise Area if such work may involve the coordination of work to be undertaken within the Franchise Area by the other. The PUD and the City shall further exercise best efforts to minimize any delay or hinderance to any construction work undertaken by the other within the Franchise Area. 3.1 The PUD's Facilities shall be maintained, located or relocated within the Franchise Area so as not to unreasonably interfere with the free and safe passage of pedestrian and vehicular traffic and in accordance with the laws of the State of Washington and of the City. 3.2 Except as otherwise provided below in sub -sections 3.2.1 and 3.2.2, the PUD shall fully comply with the terms and conditions of the City's Street Excavation Ordinance (see Chapter__ 12.04 of the East Wenatchee Municipal Code): 3.2.1 The City hereby waives the bonding requirement and proof of insurance requirements set forth in the City's Street Excavation Ordinance. 3.2.2 The City hereby waives the Excavation Permit Fee as set forth in the City's Street Excavation Ordinance. 4.1 Whenever the City causes the construction, reconstruction, grading or widening of the Franchise Area (for purposes other than those described in subsection 4.2 below) and such construction, reconstruction, grading or widening requires the relocation of the PUD's then existing Facilities within the Franchise Area, the City shall. 4.1.1 Provide the PUD, at least ninety (90) days prior to the commencement of such construction, reconstruction, grading or widening, written or oral notice requesting such relocation, when the project requires the submission of bids by the City, in all other circumstances the PUD shall receive thirty (30) days notice; and 4.1.2 Provide the PUD with the City's plans and specifications for such construction, reconstruction, gradirg or widening, upon request by the PUD. After receipt of such notice and such plans and specifications, if requested, .the. PUD shall relocate as reasonably requested by the City any of the PUD's Facilities at no charge to the City. In no event shall the relocation required pursuant to this section require the undergrounding of the PUD's transmission facilities. 4.2 Whenever a person or entity, other than the City, requires the relocation of the PUD's Facilities to accommodate the work of such person or entity within the Franchise Area, that person or entity shall be exclusively responsible for and make arrangements for the payment to the PUD for all costs and expenses incurred by the PUD in relocating the Facilities. 4.3 Any condition or requirement imposed by the City upon any person or entity, other than the PUD, (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals of permits for zoning, land use, construction or development (including a condition or requirement imposed by the City that all utilities are to be placed underground)) which requires the relocation of the PUD's Facilities shall be construed as a relocation made pursuant to subsection 4.2. 4.4 In those areas of the Franchise Area where all of the facilities of the respective public utilities providing cable and telephone services are proposed to be underground as part of a ki public improvement project, including the relocation of facilities pursuant to subsection 4.11 the PUD likewise shall, if requested by the City, construct, operate, and maintain all of its facilities underground; provided, the cost to replace the existing Facilities to be installed underground which have exceeded their "depreciated or useful life" (as defined by PUD policy to be 36 years) exceeds the cost to replace the existing facilities to be installed underground which have not exceeded their depreciated or useful life. If the foregoing proviso applies, then the PUD will underground the Facilities at no cost to the City. Section 5. Coordination. 5.1 If, at any time or from time to time, either the City or the PUD 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 6. Indemnification. 6.1 To the full extent permitted by applicable law, the PUD and the City specifically and expressly agree to defend, indemnify and hold harmless the other, the other's Commissioners, officers, employees and representatives from and against all suits, actions, proceedings, claims, demands, judgement, damages, penalties, fines and expenses arising out of or due to any act, omission, fault, strict liability or negligence of the other or the other's contractors, agents or employees in connection with or incidental to acts related to this Franchise Agreement. 6.2 Despite 6.1, the PUD's and the City's obligation to indemnify the other against suits, actions, proceedings, claims, demands, judgments, damages, penalties, fines and expenses arising from bodily injury to person(s) or damage to property caused by or resulting from the concurrent negligence of the PUD or the City or their agents or employees, where acts arise out of construction, alteration, repair, addition to, subtraction from, improvement to or maintenance of any building, road, excavation or other structure, project, development or improvement attached to real estate, including moving and demolition in connection therewith, shall be valid and enforceable only to the extent of the negligence of the other, its agents, contractors and employees. Furthermore, the situations described in this paragraph 6.2, neither the . PUD nor the City shall be obligated to indemnify the other for the sole negligence of the other, its agents, contractors or employees. 6.3 The PUD and the City acknowledge that by entering into this Franchise Agreement, they have mutually negotiated the above indemnity provision. 6.4 The PUD and the City specifically and expressly waive any immunity under industrial insurance, RCW 51, as to claims for indemnity or otherwise by the other, and acknowledge that this waiver was mutually negotiated. 0 7.1 If any person or entity, other than the City, obtains permission from the City w 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 the PUD for the temporary adjustment of the PUD's wires to accommodate the moving or removal of such building or other object. For the purpose of this Section 7.1, the PUD is not obliged to move any Facilities other than wires. Such necessary arrangements with the PUD shall be made, to the PUD's satisfaction, not less than fourteen (14) days prior to moving or removal of said building or other object. In such event, the PUD 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, Rrg3d ed at. 7.1.1 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 manners and 7.1.2 Where the City determines that more than one route is 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 utility services; and 7.1.3 The person or entity, other than the City, obtaining such permission from the City to move or remove such building or other object shall be required to defend, indemnify and save the PUD harmless from 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 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. Section 8. Default. If the PUD shall fail to comply with the provisions of this Franchise, the City shall notify the PUD, in writing, to comply within twenty-five (25) days. If the PUD is not in compliance with this Franchise after expiration of said twenty-five (25) day period, the City may, by ordinance or resolution, declare an immediate forfeiture of this Franchise; provided, however, if any failure to comply with this Franchise by the PUD cannot be corrected with due diligence within said twenty-five (25) day period (i.e. unavoidable delays and events beyond the PUD's control), then the time within which the PUD may so comply shall be extended for such time as may be reasonably necessary and so long as the PUD commences promptly and diligently to effect such compliance. In the event of default and forfeiture of this Franchise, all facilities in place at the time of the forfeiture shall remain the property of the PUD. Section 9. 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 5 ther franchises over, upon, and along the Franchise Area which do not i furnterfere with the PUD'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 10. Assi ng ment. The PUD shall have the right to assign its interest under this Franchise only upon written approval of the City Council of the City, which approval shall not be unreasonably withheld. Upon approval of such assignment by the City, the terms and conditions of this Franchise shall be binding upon the PUD's assigns. Section 11. Terms and Headings. If any term, provision, condition or portion of this Franchise shall be held to be invalid, such invalidity shall not 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. Section 12. Amendment. This Franchise may be amended only by written instrument, signed by both parties and adopted by an ordinance of the City, which specifically states that it is an amendment to this Franchise and is approved and executed in accordance with the laws of the State of Washington. Section 13. Notices. All notices, requests, demands, and other communications required or which may be given under this Franchise shall be in writing and shall be deemed to have been duly given at the time of delivery if personally delivered or at the time of mailing if mailed via certified mail, postage prepaid and addressed to the parties hereto at the addresses set forth below, City of East Wenatchee istrict Section 14. Attorne, sy 'Fees. In the event any party retains an attorney to enforce the terms of the Franchise, the substantially prevailing party shall be entitled to all costs and reasonable attorneys' fees, whether incurred at trial, on appeal, or without resort to suit. Section 15. Applicable Law; Venue. This Franchise shall be governed by the laws of the State of Washington in all respects. Venue for any action arising hereunder shall lie exclusively in the Superior Court of Douglas County, Washington. Section 16, Arbitration. Any dispute involving a disputed sum less than five thousand dollars ($5,000) between the parties hereto with respect to any of the matters set forth herein, shall be submitted to binding arbitration in East Wenatchee, Washington or such other place as the parties may agree to. Either party may commence the arbitration by delivery of a written notice to the other, ri describing the issue in dispute and its position with regard to the issue. The parties shall select a single neutral arbitrator. If the parties are unable to agree on an arbitrator within thirty (30) days following delivery of such notice, the arbitrator shall be selected by the Presiding Judge of the Superior Court of the State of. Washington for Douglas County upon not less than five (5) days' notice. Discovery shall be allowed in connection with any such arbitration to the same extent permitted by the Washington Rules of Civil Procedure, but either party may petition the arbitrator to limit the scope of such discovery. Except as otherwise provided herein, the arbitration shall be conducted in accordance with the rules of the Washington Arbitration Act then in effect. The award of the arbitrator shall be final and binding, and judgment upon an award may be entered in any court of competent jurisdiction. The arbitrator shall hold a hearing, at which the parties may present evidence and argument, within thirty (30) days of his or her appointment, and shall issue an award within fifteen (15) days of the close of the hearing. In any such arbitration, the substantially prevailing party shall be entitled to recover its costs, including without limitation reasonable attorneys' fees, and the non -prevailing party shall pay all costs of arbitration, but if neither party is determined to be the prevailing party, each party shall bear its own costs and attorneys' fees and one-half (112) of the costs of arbitration. Nothing contained in this section shall prevent either party from seeking a temporary restraining order, preliminary injunction or similar injunctive relief from a court of competent jurisdiction to enforce the provisions of this Agreement. In the event that either party' institutes an action in court for such relief or to compel arbitration to or enforce an award of arbitration, the substantially prevailing party shall be entitled to recover its costs, including without limitation reasonable attorneys' fees. DATED this f s-�L CITY OF EAST WENATCHEE PUBLIC UTILITY DISTRICT Ni W Attest: City Clerk Vice -President 7