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Newcastle, WA Ordinance No. 96-109
Not an official copy.
City of Newcastle, WA
Ordinance No. 96-109
AN ORDINANCE OF THE CITY OF NEWCASTLE, WASHINGTON GRANTING A FRANCHISE TO
WASHINGTON NATURAL GAS COMPANY TO CONNECT, INSTALL, OPERATE, MAINTAIN AND REPAIR
A NATURAL GAS DISTRIBUTION SYSTEM, FACILITIES, AND APPURTENANCES IN, OVER, ALONG,
ACROSS AND UNDER THE FRANCHISE AREA FOR THE PURPOSE OF PROVIDING NATURAL GAS
SERVICE; AND TO CHARGE AND COLLECT FEES, RATES, AND OTHER COMPENSATION FOR SUCH
SERVICE.
WHEREAS, in order to maintain control over the use of City of Newcastle right-of-ways
by utilities operating within the City, it is appropriate to enter into franchise
agreements with such utilities; and
WHEREAS, Washington Natural Gas Company is such a utility, and has negotiated
a franchise agreement with the City acceptable to both parties; and
WHEREAS, the City has determined that it is in the best interests of the public
to grant Washington Natural Gas Company a franchise on the terms and conditions
set forth in this Ordinance; now, therefore
THE CITY COUNCIL OF THE CITY OF NEWCASTLE, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Definitions. Where used in this franchise ("Franchise"),
the following definitions shall apply:
1. "Franchisee" means Washington Natural Gas Company, a Washington
corporation, and its respective successors and assigns.
2. "City" means the City of Newcastle, a Washington municipal corporation.
3. "Franchise Area" means all of the public roads, streets, avenues,
alleys, highways, grounds and rights-of-way of the City as now laid out, platted,
dedicated or improved; and any and all public roads, streets, avenues, alleys,
highways, grounds, and rights-of-way that may hereafter be laid out, platted,
dedicated or improved within the present limits of the City and as the limits
of the City may be extended through annexations or otherwise; provided, that
the Franchise Area shall not include or convey any right to Franchisee to install
facilities on or to otherwise use City owned or leased properties outside the
Franchise Area.
4. "Facilities" means the Franchisee’s natural gas distribution
system, lines, mains, appurtenances, and all other necessary or convenient facilities
for the purpose of providing natural gas service.
5. "Ordinance" means this ordinance setting forth the terms and
conditions of the franchise granted to the Franchisee.
Section 2. Franchise Grant. Subject to the terms and conditions
set forth in this ordinance, the City grants to the Franchisee the right, privilege,
authority and franchise to:
2.1 Construct, install, operate, maintain, replace, repair and use Facilities
in, over, along, across and under the Franchise Area for purposes of providing
natural gas service; and
2.2 Charge and collect fees, rates and other compensation for such natural
gas services.
Section 3. Franchise Term. This Franchise is and shall remain
in full force and effect for a period of twenty (20) years from the effective
date of this Ordinance; provided, that this Franchise shall not take effect
and the Franchisee shall have no rights under this Franchise unless the Franchisee
files a written acceptance of this Franchise with the City pursuant to Section
4 of this Ordinance.
Section 4. Acceptance by Grantee of Terms and Conditions. The
full acceptance of this Franchise and all of its terms and conditions shall
be filed with the City Clerk within thirty (30) days from the date of this Ordinance,
by the Grantee. Full acceptance of this Franchise is a condition precedent to
its taking effect, and unless this Franchise is accepted within the time specified,
this grant will be null and void and have no force or effect.
Section 5. Non-Exclusive Franchise. This Franchise is not exclusive.
It does not prohibit the City from granting franchises for other public or private
utilities in, over, along, across, and under any City property, including City
road rights-of-way. This Franchise does not prevent or prohibit the City from
constructing, altering, maintaining or using any City road rights-of-way covered
by this Franchise. The City retains full power to make all changes, relocations,
repair, maintenance or other work to or in the Franchise Area as the City deems
fit.
Section 6. Jurisdiction. This Franchise is intended to convey
limited rights and interest only as to those roads and rights-of-way in which
the City has an actual interest. It is not a warranty of title or of interest
in City road rights-of-way. None of the rights granted to the Franchisee shall
affect the jurisdiction of the City over City road rights-of-way or the City’s
power to perform work upon its roadways, rights-of-way or appurtenant drainage
facilities including by constructing, altering, renewing, paving, widening,
grading, blasting or excavating.
Section 7. Regulation of Use and Control. This Franchise does
not deprive the City of any powers, rights, or privileges it now has or may
later acquire in the future to regulate the use of and to control the City road
rights-of-way covered by this Franchise. The City reserves the right and power
at all times to exercise its police powers with respect to the time, manner
and location of the placement of the Franchisee’s Facilities.
Section 8. Eminent Domain. This Franchise and the limited rights
and interests granted by this Franchise are subject to the exercise of eminent
domain. In the event of an exercise of eminent domain by the City, the value
to be attributed to all the rights and interests granted under this Franchise
shall not exceed the actual amount the Franchisee paid to the City in obtaining
this Franchise.
Section 9. Vacation. If at any time the City vacates any City
rights-of-way covered by this Franchise, the City will not be held liable for
any damages or loss to the Franchisee by reason of such vacation. The City may,
after giving thirty (30) days written notice to the Franchisee terminate this
Franchise with respect to any City road or rights-of-way vacated.
Section 10. Enforcement. The City’s failure to enforce any
provision of this Franchise does not constitute a waiver of its right to enforce
that provision or any other provision of this Franchise.
Section 11. Indemnity and Hold Harmless.
11.1 The Franchisee shall defend, indemnify and hold harmless the City, its
appointed and elected officials, and its employees and agents from and against
liability for all claims, actions, injuries, demands, liabilities, losses, costs,
damages and judgments, including costs of defense thereof, (collectively referred
to as "damages") for injury to persons, death or property damage caused
by, arising out of, or incidental to the Franchisee’s exercise of the rights
and privileges granted by this Franchise, except for damages caused by or arising
out of the City’s sole negligence. In the event that any such claim or
demand for damages is presented to or filed with the City, or if any suit or
action is initiated against the City based on such claims or demands for damages,
the City shall promptly notify the Franchisee of the claim, demand, suit or
action and the Franchisee shall have the right, at its election and its sole
cost and expense, to settle and compromise such claim, demand, suit or action,
or defend the same at the Franchisee’s sole cost and expense.
11.2 If it is determined that RCW 4.24.115 applies to this Franchise, the
Franchisee agrees to defend, hold harmless and indemnify the City to the maximum
extent permitted under that statute, and specifically for the Grantee’s
negligence concurrent with that of the City to the full extent of the Franchisee’s
negligence.
Section 12. Insurance. The Franchisee shall obtain and keep in
force during the term of the Franchise commercial general liability insurance
policies with insurance companies which initially have an A. M. Best's rating
of "A-VI" or better, and who are approved by the insurance commissioner
of the State of Washington pursuant to Title 48 RCW.
12.1 Prior to the execution of the Franchise, the Franchisee shall purchase
a commercial general liability insurance policy meeting the requirements set
forth in this Franchise. The Franchisee shall file with the City a certified
copy of all policies and a certificate of insurance evidencing such policies
to be in force. The certificate shall be accompanied by such policy endorsements
as are necessary to comply with the requirements set forth herein. The Franchisee's
failure to fully comply with the requirements regarding insurance will be considered
a material breach of this Franchise and shall be cause for termination of the
Franchise pursuant to Section 22 of this Franchise.
12.2 Such insurance shall name the City as an additional insured and shall
provide coverage to the City and its elected and appointed officials, employees,
agents and professional consultants, including its consulting engineers and
attorney. The coverage so provided shall protect against claimsfrom bodily injuries,
including accidental death, as well as claims for property damages which may
arise from any act or omission of the Franchisee, its subcontractors, agents,
or employees.
12.3 The insurance shall be maintained in full force and effect at the Franchisee's
sole expense throughout the term of the Franchise.
12.4 The City shall be given at least forty-five (45) days written notice
of cancellation, non-renewal, material reduction or a material modification
of such insurance coverage. Such notice to the City shall be by certified mail.
12.5 The coverages provided by the Franchisee's insurance policies shall be
primary to any insurance maintained by City except as to losses or damages attributable
to the sole negligence of the City. Any insurance maintained by City that might
relate to this franchise shall be in excess to the Franchisee’s insurance
and shall not contribute with or to it.
12.6 The Franchisee's insurance policies shall protect each insured in the
same manner as though a separate policy has been issued to each. Inclusion of
more than one insured shall not affect the rights of any insured as respect
to any claim, suit or judgment made or brought by or for any other insured or
by or for any employee of any other insured.
12.7 The Franchisee's insurance policies shall not contain deductible or a
self-insured retentions in excess of $10,000 unless approved by City in writing.
12.8 The provision of the coverage in the stated amount shall not be construed
to relieve the Franchisee from liability in excess of such limits.
12.9 The Franchisee shall maintain Worker's Compensation Insurance and/or
Longshore and Harbor Workers insurance as required by state or federal statute.
The Franchisee's Labor and Industries account number shall be noted on the certificate
of insurance.
12.10 The Franchisee shall be solely and completely responsible for safety
and safety conditions on its job sites and for its work within the Franchise
Area, including the safety of all persons and property during performance of
any work therein. The services of the City's or City's consultant personnel
in conducting construction review of the Franchisee's work relating to the Franchise
is not intended to include review of the adequacy of the Franchisee's work methods,
equipment, scaffolding, or trenching, or safety measures in, on or near such
Franchise Area or job site. The Franchisee shall provide safe access for the
City and its inspectors to adequately inspect the work and its conformance with
applicable statutes, ordinances, rules, regulations, and the Franchise.
12.11 The Franchisee shall be solely and completely responsible to perform
all work related to this Franchise in compliance with all applicable federal,
state, county and city statutes, rules, regulations, ordinances, orders and
codes. The Franchisee's attention is directed to the requirements of the Washington
Industrial Safety and Health Act, Chapter 49.17 RCW.
12.12 The contractual coverage of the Franchisee's insurance policies shall
be sufficiently broad enough to insure the provisions of the hold harmless clause
of the Franchise subject to the terms and conditions of the insurance policies.
12.13 The following types and limits of insurance are required:
12.13.1 Commercial General Liability
$2,000,000 combined Single Limit Bodily Injury and Property Damage
Employees and Volunteers as Additional Insured
Premises and operations
Broad form property damage including underground, explosion and collapse hazard
(XCU)
Products completed operations (through guaranty period)
Blanket Contractual
Subcontractors
Personal Injury with EE exclusion deleted
Employers liability (Stop gap)
12.13.2 Automobile Liability
$1,000,000 per accident bodily injury and property damages liability, covering
any owned automobile, hired automobiles, non-owned automobile
12.13.3 Umbrella Liability
$2,000,000 per occurrence
$2,000,000 aggregate
Section 13. Installation, Repair, Removal or Relocation.
13.1 The Franchisee shall, at no expense to the City, repair all existing
facilities that it owns within the Franchise Area, including all appurtenant
facilities and service lines connecting its system to users, if such repair
is required by the City for any reasonable purpose.
13.2 The Franchisee shall, at no expense to the City, adjust, remove or relocate
existing facilities within the Franchise Area, including all appurtenant facilities
and service lines connecting its system to users, if the City determines such
adjustment, removal or relocation is reasonably necessary to allow for an improvement
or alteration planned by the City. The City shall give the Franchisee written
notice of such requirement as soon as practicable, at the beginning of the pre-design
stage for projects that are part of the City’s capital improvement program.
The written notice shall include all available information, such as plans and
specifications, as is reasonably necessary for the Franchisee to plan for such
adjustment, removal or relocation.
13.3 For projects that are a part of the City’s capital improvement program,
in addition to any other notice given to the Franchisee, the City shall provide
a vertical and horizontal profile of the roadway and drainage facilities within
it, both existing and as proposed by the City, and the proposed construction
schedule. Notwithstanding any permit conditions that may later be applied to
the Cityproject, this initial design information shall be given at least ninety
(90) days before construction is scheduled to begin, except in cases of urgent
construction or emergencies. The Franchisee shall respond to this notice, and
to any later notices of revised designs based on permit conditions, within no
more than thirty (30) days of the date of the notice, by providing to the City
the Franchisee’s best available information as to the location of all the
Franchisee’s Facilities, including all appurtenant facilities and service
lines connecting its system to users and all Facilities that it has abandoned,
within the area proposed for the project.
13.4 The City shall offer the Franchisee the opportunity to participate in
the preparation of bid documents for the selection of a contractor to perform
the public works project as well as all required adjustments, removals or relocations
of the Franchisee’s facilities. Such bid documents shall provide for an
appropriate cost allocation between the parties. The City shall have sole authority
to choose the contractor to perform such work. The Franchisee and the City may
negotiate an agreement for the Franchisee to pay the City for its allocation
of costs, but neither party shall be bound to enter into such an agreement.
Under such an agreement, in addition to the Franchisee’s allocation of
contractor costs, the Franchisee shall reimburse the City for costs, such as
for inspections or soils testing, related to the Franchisee’s work and
reasonably incurred by the City in the administration of such joint construction
contracts. Such costs shall include the direct salary cost of the time of City
professional and technical personnel spent productively engaged in such work,
plus overhead costs at the standard rate charged by the City on other similar
projects.
Section 14. Requirement of Construction Permits.
14.1 The Franchisee has the right, privilege and authority to enter the City
road rights-of-way for the purpose of constructing, installing, operating, maintaining,
replacing or repairing its facilities on the condition that it obtains permits
approved by the City. Any work performed, whether by Franchisee, its contractors,
or third parties, shall include necessary paving, patching, grading and any
other reasonably necessary repair or restoration to the City road rights-of-way.
All work shall be done to the satisfaction of the City.
14.2 All equipment, lines and appurtenances which are used in the construction,
installation, operation, maintenance or repair of the Franchisee’s Facilities
and which are located within the City road rights-of-way and owned by the Franchisee
shall be considered to be part of the Franchisee’s system and shall be
the responsibility of the Franchisee. All permits for the construction, installation,
operation, maintenance or repair of the Franchisee’s system shall be applied
for and given in the name of the Franchisee, who will be responsible for all
work done under the permit. The Franchisee remains responsible whether the work
is performed by the Franchisee, its contractors, or by third parties.
14.3 The Franchisee shall post a bond to the City in the amount sufficient
for any road repair or restoration. The amount of the bond shall be set by the
City and must be filed with the City before a permit will be issued.
Section 15. Restoration of City Rights-of-Way. After performing
work on, under or adjacent to City road rights-of-way, the Franchisee is responsible
for and shall leave all City road rights-of-way in as good a condition as they
were in before any work was done. If the Franchisee, its contractors, or third
parties working under permit should fail to restore City road rights-of-way
to the satisfaction ofthe City, the City may make such repairs or restorations
as are necessary to return the City road rights-of-way to pre-work condition.
Upon presentation of an itemized bill for repairs or restorations, including
the costs of labor and equipment, the Franchisee will pay the bill within thirty
(30) days.
Section 16. Performance of Work. The Franchisee covenants that
in consideration for the rights and privileges granted by this Franchise, all
work performed by the Franchisee on City road rights-of-way shall conform to
all City requirements including, but not limited to, the requirements of the
City’s Road Standards in force when the work is performed. All traffic
control shall conform to the current edition of the annual Uniform Traffic Control
Devices in force when the work is performed.
Section 17. Information on Location of Facilities. Prior to the
effective date of this ordinance, the Franchisee shall provide the City with
all information requested by the City regarding the location of the Franchisee’s
current Facilities, including but not limited to copies of all as-builts for
such Facilities. In addition, if the Franchisee performs any work to install,
repair, reconstruct, or replace Facilities in the Franchise Area after the effective
date of this ordinance, the Franchisee shall provide the City with all information
requested by the City regarding the location of those Facilities, including
but not limited to copies of all as-builts. The Franchisee represents and warrants
that all information provided to the City, including any as-builts, are and
will be true and accurate.
Section 18. Coordination of Work in City Rights-of-Way. To facilitate
the coordination of work in City rights-of-way, if either the Franchisee or
the City shall at any time plan to make excavations in the Franchise Area, the
party planning such excavation shall provide written notice to the other of
the planned excavation, affording the other party the opportunity to share in
the excavation; provided, that (1) such joint use shall not unreasonably delay
the work of the party causing the excavation to be made, (2) such joint use
shall be arranged and accomplished on terms and conditions satisfactory to both
parties, and (3) either party may deny such request for safety reasons.
Section 19. Reimbursement of Costs. Pursuant to RCW 35.21.860,
the Franchisee shall reimburse and pay to the City the amount of actual administrative
expenses incurred by the City which are directly related to the receipt and
approval of a lings. In the event of non-payment thereafter, the Franchisee
shall pay the City's reasonable attorneys' fees and other costs incurred in
collecting such amount.
Section 20. Blasting Requirements. The right to construct, install,
operate, maintain and repair Franchisee’s Facilities granted by this Franchise
does not preclude the City, its agents or contractors from blasting, grading,
or doing other road work contiguous to the Franchisee’s Facilities. When
practical, the Franchisee will be given forty-eight (48) hours notice of any
blasting or excavating.
Section 21. Survey Markers and Monuments. Before any work is
performed under this Franchise, the Franchisee shall establish two or more reference
marks to all monuments and markers of every nature relating to subdivisions,
plats, rights-of-way, and all other surveys. The reference points shall be located
so that they will not be disturbed during any of Franchisee’s operations
under this Franchise. The method of referencing monuments or other markers or
points shall be approved by the City before placement. The replacement of all
markers or monuments disturbed during any construction of the Franchisee shall
be made as promptly as conditions permit. The cost of monuments or markers lost,
destroyed, or disturbed and the expense or replacement with approved markers
or monuments shall be borne by the Franchisee.
Section 22. Reservation of Rights. The City reserves the right
to impose a utility tax on the Franchisee, and/or to charge the Franchisee a
reasonable fee for services provided or rights granted under this Franchise,
to the extent authorized by law.
Section 23. Assignment. The Franchisee shall not have the right
to assign this Franchise without the consent of the City. No assignment shall
be effective unless an acceptance by the assignee of all rights, conditions,
terms, provisions and responsibilities contained within the Franchise, as well
as surety bonds which the City deems necessary to be posted, are received. The
City’s approval of the assignment may be made subject to the assignee’s
acceptance of new or modified terms of the Franchise.
Section 24. Penalty for Violation of Conditions. If the Franchisee
fails to comply with any material term, condition or responsibility under this
Franchise, the City may provide the Franchisee with written notice of the City’s
intent to revoke the Franchise if the Franchisee’s failure is not cured
within thirty (30) days of the date of the notice. During the thirty (30) days
following the date of the notice, the Franchisee shall have the opportunity
to remedy the failure to comply. A public hearing shall be scheduled before
the Newcastle City Council at least thirty (30) days following the notification
on the issue of the revocation. If at the hearing, the City Council finds that
grounds exist to revoke the Franchise under this paragraph and that the revocation
is in the public interest, the City Council may by ordinance revoke the Franchise.
The revocation shall be effective ninety (90) days after the public hearing.
Section 25. Expiration and Renewal.
25.1 If the Franchisee requests a renewal of this Franchise prior to its expiration
date, the City may, at the City’s sole discretion, extend the term of this
Franchise for up to one year. If the City elects to extend the term of this
Franchise, written notice of the extension shall be provided to the Franchisee
prior to the Franchise expiration date.
25.2 If the Franchisee has not requested a renewal of this Franchise prior
to its expiration date, the City has the right, upon thirty (30) day’s
prior notice to the Franchisee, to remove or relocate any of the Franchisee’s
Facilities as is reasonably necessary for the public’s health, welfare
or safety, or for the construction, alteration, or improvement of the Franchise
Area, or for the construction or installation of lines or facilities of other
franchise holders. The Franchisee shall be liable for costs incurred in any
removal or relocation of the Franchisee’s Facilities under this section.
25.3 Upon the expiration of this Franchise, the Franchisee shall continue
to be responsible for the operation and maintenance of the Franchisee’s
existing facilities in the Franchise Area, but shall not have the right to provide
additional services. This Section and Sections 11, 13, 14, 16, 19, and 21 of
this Franchise shall continue in force until such time as the Franchisee’s
Facilities are removed from the Franchise Area or abandoned in place with approval
of the City.
Section 26. Security Device to Insure Performance. The Franchisee
shall, within ten (10) days after its acceptance of this Franchise, file with
the City Planning/Building/Public Works Department and at all times thereafter
maintain in full force and effect an acceptable security device or escrow account
effective for a one-year period, with automatic renewals unless otherwise canceled
upon thirty (30)days written notice to the City. In the event the Franchisee
shall fail to substantially comply with any one or more of the provisions of
this Franchise, then there shall be recovered jointly and severally from the
principal and surety of such security device or escrow account any damages suffered
by City as a result thereof, including the full amount of any compensation,
indemnification, or cost of removal or abandonment of facilities hereinabove
described, up to the full amount of the said bond, said condition to be a continuing
obligation for the duration of this Franchise and thereafter until the Franchisee
has discharged all of its obligations within the City which may have arisen
from the acceptance of such Franchise by the Franchisee or from its exercise
of any such privilege herein granted. The security device or escrow account
initially filed in accordance with the requirement of this section shall be
in the amount of Fifteen Thousand Dollars ($15,000.00). In the event of substantial
change in volume of street space occupied by the Franchisee's Facilities, the
City may permit or may require a corresponding change in the amount of such
security device or escrow account.
Section 27. Compliance with Laws. The Franchisee shall conform
to all applicable federal, state and local laws and regulations including, but
not limited to, the State Environmental Policy Act and the City’s Environmental
Standards and Ordinances.
Section 28. Non-Discrimination Clause. In all hiring or employment
made possible or resulting from this Franchise, there shall be no discrimination
against any employee or applicant for employment because of sex, sexual orientation,
age, race, color, national origin, marital status or the presence of any sensory,
mental, or physical handicap, unless based upon a bona fide occupation qualification.
No person shall be denied or subjected to discrimination in receipt of the
benefit of any services or activities made possible by or resulting from this
agreement on the grounds of sex, sexual orientation, race, color, national origin,
age, except minimum age and retirement provisions, marital status, or the presence
of any sensory, mental or physical handicap.
Section 29. Rates. The Franchisee agrees that it shall be subject
to all authority now or later possessed by the City or any other governing body
having competent jurisdiction to fix just, reasonable and compensatory rates
for services under this Franchise.
Section 30. Notice. Any notice or information required or permitted
to be given to the parties under this Franchise may be sent to the following
addresses unless otherwise specified:
City of Newcastle: 13020 S.E. 72nd Place
Newcastle, Washington 98059-3030
Washington Natural Gas: 815 Mercer St.
Seattle, WA 98111
Section 31. Arbitration. In the case of any dispute or question
arising between the parties that could result in the award of monetary damages
to either party, the parties shall submit the dispute or question to arbitration;
provided, that this arbitration provision shall not apply to any dispute or
question involving decisions by the City concerning public policy. Unless otherwise
provided by law, the parties may agree on one arbitrator. If the parties cannot
agree on one arbitrator, there shall be three arbitrators, one appointed in
writing by each party and the third chosen by the two named arbitrators. The
decision of the arbitrator under this paragraph shall be final and binding on
the parties.
Section 32. Attorneys’ Fees. In the event that either
party commences litigation or arbitration proceedings against the other party
relating to the performance or alleged breach of this Franchise, the prevailing
party shall be entitled to all costs, including reasonable attorneys’ fees
incurred, relating to such litigation, including those incurred in any appeal.
Section 33. Severance. If any term, provision, condition or portion
of this Franchise is 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, unless the dominant purpose of the Franchise would be
prevented or the public interest would no longer be served, as determined by
the City.
Section 34. Effective Date. This ordinance having been introduced
at least five days prior to its date of passage and submitted to the city attorney,
and being approved by at least a majority of the entire city council at a regular
city council meeting, shall take effect and be in force five days after its
passage, approval and publication as required by law.
PASSED BY THE CITY COUNCIL ON JULY 15, 1996.
_______________________
Ron Todd, Mayor
ATTEST:
____________________________
Candice Stephens, City Clerk
APPROVED AS TO FORM:
____________________________
Rod Kaseguma, City Attorney
Date of Publication: Sept. 29, 1996
Effective Date: Oct. 4, 1996
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