|
Printer
Friendly
Port Angeles, WA Ordinance No. 3090 - Granting authority to PUD No.
1 of Clallam County to operate facilities on any street for distribution of electric
energy
Not an official copy.
City of Port Angeles
ORDINANCE NO. 3090
AN ORDINANCE of the City of Port Angeles, Washington, granting the Public
Utility District No. 1 of Clallam County, Washington, the non-exclusive right,
privilege, authority, and franchise to own, operate and maintain facilities
on any street in the City for the sole purpose of transmission and distribution
of electric energy and repealing Ordinance No. 1200.
THE CITY COUNCIL OF THE CITY OF PORT ANGELES DOES HEREBY ORDAIN as follows:
Section 1 - Specific Grant.
There is hereby granted, subject to the District's acceptance of the terms
of this franchise as provided herein, for a term as described below, unless
otherwise terminated as provided for herein, to the District, its successors
and assigns, the non-exclusive right, privilege, and authority to own, operate
and maintain an overhead or underground electric transmission and distribution
system, along and across portions of the franchise area. This franchise is conditioned
upon the terms and conditions contained herein and the District's compliance
with any federal or state regulatory agencies with jurisdiction over the District.
By granting this franchise, the City is not assuming any risks or liabilities
by way of District activities therefrom, which shall be solely and separately
borne by the District.
The City is specifically granting the District authority to operate and maintain
its existing facilities. No retail customers within the City limits may be served
without obtaining the City's permission. No facilities within the City limits
may be enlarged, improved, or expanded without obtaining the City's permission,
which can not be unreasonably denied, pursuant to applicable ordinances, codes,
resolutions, agreements, standards, and procedures that may require an amendment
to this franchise. The District agrees to obtain all lawfully required City,
state or federal permits, consents, or franchises or other required authorizations
in the event the District seeks to provide or to allow others to use its electric
transmission and distribution facilities for purposes not authorized by this
grant.
Section 2 - Definitions. Where used in this franchise (the "franchise")
the following terms shall have the following meanings:
"District" means the Public Utility District No. 1 of Clallam County,
Washington, and its successors and assigns.
"City" means the City of Port Angeles, Washington, and its successors
and assigns.
"City Manager" means the City Manager of Port Angeles or his/her
designee.
"Electric transmission and distribution services" includes and is
limited to the transmission and distribution of electric power across the District's
electric facilities and use of wireless communications facilities to be utilized
solely by the District in the operation of its electrical system. The definition
of electric transmission and distribution services, by way of example, does
not include retail electric services, water or sewer services, placement of
telecommunications infrastructure or use of District structures to locate communications
facilities.
"Force majeure" shall mean delays due to acts of God, war, civil
disturbances, fire, unavoidable casualty, construction delays due to weather,
failure of supplier(s), labor dispute, or for other similar causes beyond the
control of the District.
"Franchise area" means all of the roads, streets, avenues, alleys,
highways, and public ways of the City as now, and as may hereafter be, laid
out, platted, dedicated, or improved within the present limits of the City and
as such limits may be hereafter extended.
"Facilities" means substations, poles (with or without cross arms),
electric transmission and distribution wires, lines, conduits, cables, braces,
guys, anchors, vaults, meters, and all necessary or convenient facilities and
appurtenances thereto, whether the same be located overhead or underground.
"Ordinance" means this Ordinance No., which sets forth the terms
and conditions of this franchise.
Section 3 - Franchise Term. The term of this franchise shall commence
on February 20, 2001 and shall extend for a period of five (5) years. The District
may obtain up to five (5) automatic extensions of the term of this franchise
for additional five (5) year periods, not to exceed a maximum term of twenty-five
(25) years, if the District is in substantial compliance with the material terms
and conditions of this franchise as affirmatively determined by the City Manager
and evidenced in the City Manager's written report to the City Council.
Section 4 - Right-of-Way Construction, Use, Maintenance and Operation.
In furtherance of the public interest in safety, health and public welfare
and to facilitate the safe management of public rights-of-way, the maintenance
and operation of the District's electric transmission and distribution facilities
and property shall be subject to all generally applicable City requirements
and ordinances as now or hereafter amended. Nothing in this franchise shall
be deemed to impose any duty or obligation upon the City to determine the adequacy
or sufficiency of the District's plans and designs or to ascertain whether the
District's proposed or actual construction, testing, maintenance, repairs, replacement,
or removal is in conformance with the plans and specifications reviewed by the
City. The District shall be solely and completely responsible for workplace
safety and safe working practices on its job sites within the franchise area,
including safety of all persons and property during the performance of any work
therein.
The District shall continuously be a member of the State of Washington "One
Call" system, or approved equivalent, and shall comply with applicable
notification and response requirements.
In consideration of existing agreements and the City allowing the District
to use the franchise area for its utility poles, the City shall have the right
to maintain existing facilities and attach new City facilities to the District's
utility poles as herein described. The City may, at no charge, upon obtaining
the District's permission, which cannot be unreasonably denied, attach to District
owned utility poles City aerial facilities (not including telecommunications).
The City reserves the right to lay and permit to be laid, sewer, gas, water,
telecommunications, electric, and other pipe lines or cables and conduits, and
do and permit to be done, any underground and overhead work, and any attachment,
restructuring, or changes in aerial facilities that may be deemed necessary
or proper by the City Manager in, across, along, over, or under any public street,
alley, or right-of-way occupied by the District, within the City limits.
The City may apply for a pole contact agreement with the District for attachment
of City telecommunications facilities on District utility poles.
The District may, at no charge, upon obtaining the City's permission, which
cannot be unreasonably denied, attach to City owned utility poles and lay and
permit to be laid, electric cables and conduits, and do and permit to be done,
any underground and overhead work, and any attachment, restructuring, or changes
in aerial facilities that may be deemed necessary or proper by the District
in, across, along, over, or under any public street, alley, or right-of-way
occupied by the City, within the City limits.
The City and the District recognize that joint use of utility poles currently
exists and that it is not the intent to require requesting permission of either
party for those joint use areas.
In the event that, during the term of this franchise, the City authorizes abutting
landowners to occupy space under the surface of any public street, alley, or
right-of-way, such grant to an abutting landowner shall be subject to the rights
herein granted to the District. In the event that the City shall close or abandon
any public street, alley, or right-of-way, which contains any portion of the
District's electric transmission and distribution facilities, any conveyance
of land contained in such closed or abandoned public street, alley, or right-of-way
shall be subject to the rights herein granted. The City is required to grant
an easement to the District prior to conveyance.
During the term of this franchise, the District shall be liable for the acts
or omissions of any entity used by the District (including an affiliate), when
such entity is involved directly or indirectly in the operation and maintenance
of the District's electric transmission and distribution facilities to the same
extent as if the acts or omissions of such entity were the acts or omissions
of the District.
Within ninety (90) days following written notice from the City, or within a
longer period if authorized by the City, the District shall, at its own expense,
except where District has an underlying easement, temporarily or permanently
remove, relocate, change, or alter the position of any of its electric transmission
and distribution facilities or other of its facilities that are within the franchise
areas, whenever the City shall have determined that such removal, relocation,
change, or alteration is reasonably necessary. In the event of removal of all
or a portion of its facilities, the District shall restore the franchised property
area as nearly as possible to the condition that existed prior to installation
of the District's facilities. Such property restoration work shall be done at
the District's sole cost and expense and to the City's satisfaction. If the
District is required to remove facilities and to restore the premises and fails
to do so, the City may, after reasonable notice to the District, remove the
facilities, restore the premises, or take such other action as is reasonably
necessary at the District's expense and the City shall not be liable therefore.
This remedy shall not be deemed to be exclusive and shall not prevent the City
from seeking a judicial order directing that the facilities be removed.
Nothing in this franchise shall authorize the District to attach any part of
its electric transmission and distribution facilities to any City property or
facilities or to use any City-owned conduits or facilities until the District
has obtained all required agreements, permits, and licenses from the City, for
such rights of attachment or use. None of the rights granted herein shall restrict
the City's ability or jurisdiction over its property, streets, or rights-of-way.
Section 5 - Underground Installation of Distribution Facilities.
In connection with City improvement of the franchise area, the City may by
written notice to the District, request District to underground its existing
distribution facilities (of 15,000 volts or less) within the franchise area
improved by the City.
If the District elects to install new overhead distribution facilities (of
15,000 volts or less) within the franchise area or a new extension of existing
overhead distribution facilities within the franchise area, the District shall
apply for a City right-of-way construction permit. The City may by written notice
to the District request the District to install such facilities underground
within the franchise area.
Section 6 - Safety Requirements.
The District, in accordance with applicable national, state and local safety
requirements, shall at all times employ ordinary care and shall install and
maintain and use commonly accepted methods and devices for preventing failures
and accidents which are likely to cause damage, injury, or nuisance to the public.
All structures and all lines, equipment and connections in, over, under and
upon the streets, sidewalks, alleys, and public ways or places of a license,
master permit, or lease area, wherever situated or located, shall at all times
be kept and maintained in a safe, suitable condition, and in good order and
repair. If a violation of the National Electrical Safety Code or other applicable
regulation is found to exist, the City may, after discussion with the District,
establish a reasonable time for the District to make necessary repairs. If the
repairs are not made within the established time frame, the City may make the
repairs itself or have them made and collect all reasonable costs thereof from
the District.
Section 7 - Annexation.
Annexation of unincorporated areas within the City's urban growth area, including
City consideration of acquisition of District electric transmission and distribution
facilities, shall comply with Chapter 35A.14 RCW, Annexation by Code Cities,
this franchise, and the Electrical Service Area Agreement between the City and
the District, which by this reference incorporated as part of this franchise.
Section 8 - Compensation to the City.
To the extent consistent with federal and state law, the compensation set forth
in this Section shall be limited to all special assessments and taxes of whatever
nature, including, but not limited to, ad valorem taxes, utility taxes, street
cut permits, and assessments for recovery of costs incurred by the City such
as those directly related to preparing, receiving, and approving this franchise,
reviewing and approving requests to assign or transfer this franchise, construction
permits, inspecting plans and construction, and environmental review documents
pursuant to Chapter 43.21C RCW.
District payment of compensation under this Section shall not in any way limit
or impair any of the privileges or regulatory, annexation, condemnation, police
powers, or taxing rights of the City, whether under this franchise or otherwise.
City acceptance of any compensation shall not be construed as an accord
that the amount paid is the correct amount, nor shall such acceptance be construed
as a release of any claim which the City may have for additional sums payable
under the provisions of this Section.
RCW 35.21.860 currently prohibits a municipal franchise fee for permission
to use the right of way from any person engaged in the " light and power
business," as defined in RCW 82.16.010. The City reserves the right to
amend this franchise to impose and receive a franchise fee of a percentage,
up to the maximum allowed by law, of the District's gross receipts from its
business activities in the City, if the statutory prohibition is repealed or
for other light and power activities not covered by the statutory prohibition.
It is acknowledged that the District has paid an occupation license tax and
will continue to do so as required.
Section 9 - Accounts, Records and Reports.
The City Manager or designee may, at any time, make written inquiries pertaining
to the District's performance of the terms and conditions of this franchise.
The District shall respond to such inquiries on a timely basis. Upon written
request by the City Manager, as soon as reasonably available but no later than
thirty (30) days from such request, the District shall provide, at City expense
and as allowed by law, the City access or copies of customer addresses within
the franchise area and records as to all matters in connection with or affecting
the expansion, reconstruction, removal, maintenance, operation, and repair of
the District's electric transmission and distribution facilities in the franchise
area. The City shall extend the time for provision of such information upon
a reasonable showing by the District that such extension is justified.
The District shall keep complete and accurate books of accounts and records
of its business and operations pursuant to this franchise in accordance with
generally accepted accounting principles.
Upon the City Manager's thirty (30) day written request, the District shall
make available to the City, at City expense and to the extent allowed by law,
its books and records to examine, audit, review, and/or obtain copies of the
papers, books, accounts, documents, maps, plans, and other records of the District
pertaining to all revenue derived by the District from the operation of the
electric transmission and distribution facilities to provide electric transmission
services in order to verify the accuracy of payments. The District shall fully
cooperate in making available its records and otherwise assisting in these activities.
The City shall extend the time for the provision of such information upon a
reasonable showing by the District that such extension is justified.
The City will maintain confidentiality of information provided by the District
to the extent permitted by law when the District has notified the City of the
confidential nature of the information.
Section 10 - Sanctions.
If the City has reason to believe that the District is in violation of this
franchise, after informal and cooperative efforts have failed, the City Manager
shall notify the District in writing of the violation, setting forth the nature
of such violation. Within thirty (30) days of receipt of such notice, or such
longer period specified by the City Manager, the District shall respond in writing
that the violation has been cured, provide a cure plan or schedule that satisfies
the City Manager, or provide an explanation in refutation or excuse with documentation
to support that an alleged violation did not occur or should be excused.
The District shall be allowed thirty (30) days to cure violations after written
notice is received from the City, by taking appropriate steps to comply with
the terms of this franchise ordinance and any lawful regulations. If the nature
of the violation is such that it cannot be fully cured within 30 days due to
circumstances not under the District's control, the period of time in which
the District must cure the violation shall be extended by the City Manager in
writing for such additional time reasonably necessary to complete the cure,
provided that (i) the District shall have promptly commenced to cure and (ii)
the District is diligently pursuing its efforts to cure in the City Manager's
reasonable judgment.
If the violation has not been cured within the time allowed above, the District
shall be liable for liquidated damages for the following violations and in the
following amounts:
1. Failure to promptly provide data, documents, reports, insurance, or information
to the City, in accordance with this franchise: two hundred ($200) dollars
per day for each day such failure continues.
2. Failure to comply with lawful City requirements, including but not limited
to: Revenue and Finance, Title 3 PAMC; Business Licensing and Regulation,
Title 5 PAMC; Streets and Sidewalks, Title 11 PAMC; and Public Utilities,
Title 13 PAMC, as now or hereafter amended, in accordance with this franchise:
two hundred ($200) dollars per day for each day such failure continues.
3. Failure to comply with lawful City requirements concerning payment of
compensation in accordance with this franchise: two hundred ($200) dollars
per day for each day such failure continues.
4. Failure to comply with agreements referenced and incorporated into this
franchise: two hundred ($200) dollars per day for each day such failure continues.
5. Failure to comply with all other lawful City requirements incorporated
into this franchise: two hundred ($200) dollars per day for each day such
failure continues.
The District agrees that each of the foregoing failures shall result in injuries
to the City and its citizens, the compensation for which would be difficult
to ascertain and to prove. Accordingly, the District agrees that the foregoing
amounts are liquidated damages, not a penalty or forfeiture. Notwithstanding
any other provision of this franchise, upon the District's request, the District
shall be afforded an opportunity to show that a violation has not occurred,
and the City Manager may not act until the administrative hearing, as provided
for herein, is concluded and a determination has been made on whether a violation
has occurred. This opportunity shall consist of an administrative hearing upon
thirty (30) days' notice before an impartial hearing examiner jointly designated
by the City and the District within thirty (30) days of the District's request.
If, as a result of the administrative hearing, the hearing examiner determines
that a violation has not occurred, the City shall pay all of the expenses related
to the administrative hearing. If a violation has occurred, the District shall
pay the expenses. After the conclusion of the administrative hearing, either
party may seek any remedies which it may have at law.
Upon evidence being received by the City that violations of this franchise
or any ordinances lawfully regulating the District in the operation and maintenance
of its electric transmission and distribution system have occurred, or continue
to occur after the thirty (30) day period and any additional time necessary
to cure, the City may cause an investigation to be made. If the City finds that
such a violation continues to exist or has occurred, then the City may take
any action authorized by law, including forfeiture of this franchise and a suit
in court to compel compliance. In any such proceeding, the non-prevailing party
shall be required to pay the prevailing party's damages and costs (including
attorney fees). The District may be allowed, either by the court in the judgment
of forfeiture or by order of the City Council, a reasonable time thereafter,
as fixed by such judgment or order, to correct the default and pay such expenses,
damages, and costs as it may be adjudged to pay, and if the District does so
correct and so pay within such time, forfeiture shall not become effective nor
be enforced.
Failure by the City or the District to enforce any rights under this franchise
does not constitute a waiver of such rights.
Section 11 - Insurance.
The District shall obtain and maintain in full force and effect throughout
the term of this franchise insurance with a self-insured risk pool as authorized
under Washington law or with an insurance company licensed to do business in
the State of Washington and acceptable to the City Manager. All companies will
be required to be rated A-VII or better by A.M. Best or A or better by Standard
and Poors or as approved by the City Manager. The District shall provide the
City with certificates of the insurance required herein at the time of filing
the acceptance of franchise. The City reserves the right to review these insurance
requirements during the effective period of the franchise and to reasonably
adjust insurance coverage and limits when deemed necessary and prudent by the
City Manager based upon the recommendation of the Washington Cities Insurance
Authority or changes in statutes, court decisions, or the claims history of
the industry or the District.
Subject to the District's right to maintain reasonable deductibles in such
amounts as are approved by the City Manager, the District shall obtain and maintain
in full force and effect for the duration of this franchise, at the District's
sole expense, insurance coverage in the following type and minimum amounts:
1. Comprehensive general liability insurance with limits not less than:
a. One million dollars ($1,000,000.00) for bodily injury or death to
each person;
b. One million dollars ($1,000,000.00) for property damage resulting
from any one (1) accident;
c. One million dollars ($1,000,000.00) for all other types of liability.
2. Automobile liability for owned, non-owned, and hired vehicles with
a limit of one million dollars ($1,000,000.00) for each person and one
million dollars ($1,000,000.00) for each accident.
The liability insurance policies required by this section shall be maintained
by the District throughout the term of the franchise and such other period of
time during which the District is operating without a franchise hereunder or
is engaged in the removal of its facilities.
The District agrees that with respect to the above-required insurance, all
insurance certificates will contain the following required provision:
Name the City of Port Angeles and its officers, employees, board members,
and elected representatives as additional insured parties as to all applicable
coverage (except worker's compensation).
The policy clause "other insurance" shall not apply to the City of
Port Angeles. It is the intention that insurance policies protecting the District
and the City shall be primary coverage for all losses covered by the policies.
Companies issuing the insurance policies shall have no recourse against the
City of Port Angeles for payment of any premiums or assessments which all are
set at the sole risk of the District. Insurance policies obtained by the District
shall provide that the issuing company waives all right of recovery by way of
subrogation against the City in connection with any damage covered by these
policies.
Section 12 - Indemnity.
The District shall defend, indemnify, and hold the City harmless from and against
all damages, costs, losses, or expenses for the repair, replacement, or restoration
of the City's property, equipment, materials, structures, and facilities, which
are damaged, destroyed, or found to be defective as a sole result of the District's
negligence, willful misconduct, or strict liability.
The District, for itself and its agents, employees, subcontractors, and the
agents and employees of said subcontractors, shall defend, indemnify, and hold
the City, its successors, assigns, officers, employees and elected officials
harmless from and against any and all claims, demands, suits, causes of action,
and judgments for: (i) damage to or loss of the property of any person (including,
but not limited to the District, its agents, officers, employees and subcontractors
and the City, its agents, officers and employees, and third parties); and/or
(ii) death, bodily injury, illness, disease, worker's compensation, loss of
services, or loss of income or wages to any person (including but not limited
to the agents, officers and employees of the District, the District's subcontractors,
the City, and third parties), arising out of, incident to, concerning, or resulting
solely from the negligence, willful misconduct or strict liability of the District,
its agents, employees, and/or subcontractors, in the performance of all activities
and services pursuant to this franchise, no matter how, or to whom, such loss
may occur.
The City shall defend, indemnify, and hold the District harmless from and against
all damages, costs, losses, or expenses for the repair, replacement, or restoration
of the District's property, equipment, materials, structures, and facilities,
which are damaged, destroyed, or found to be defective as a sole result of the
City's negligence, willful misconduct, or strict liability.
The City, for itself and its agents, employees, subcontractors, and the agents
and employees of said subcontractors, shall defend, indemnify, and hold
the District, its successors, assigns, officers, employees and elected officials
harmless from and against any and all claims, demands, suits, causes of action,
and judgments for: (i) damage to or loss of the property of any person (including,
but not limited to the City, its agents, officers, employees and subcontractors
and the District, its agents, officers and employees, and third parties); and/or
(ii) death, bodily injury, illness, disease, worker's compensation, loss of
services, or loss of income or wages to any person (including but not limited
to the agents, officers and employees of the City, the City's subcontractors,
the District, and third parties), arising out of, incident to, concerning, or
resulting solely from the negligence, willful misconduct or strict liability
of the City, its agents, employees, and/or subcontractors, in the performance
of all activities and services pursuant to this franchise, no matter
how, or to whom, such loss may occur.
In the event that any such damage, claim or loss is found by a court of competent
jurisdiction to be caused by the concurrent fault of both the District and the
City, then each party shall indemnify the other to the full proportionate extent
that each party is determined to be at fault. It is the intention of the parties,
and they expressly agrees, that the provisions of this section shall
not exclude claims, damages, and losses caused in part, but not wholly, by the
negligence of a party, even if said party is more negligent than the other.
Should a court of competent jurisdiction determine that this franchise is subject
to RCW 4.24.115, then, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from
the concurrent negligence of the District and the City, its officers, officials,
employees, and volunteers, the parties' liability hereunder shall only be to
the extent of each party's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes the parties'
waiver of immunity under Title 51 RCW, Industrial Insurance, solely for the
purposes of this indemnification. This waiver has been mutually negotiated by
the parties. The provisions of this waiver shall survive the expiration of this
franchise.
The parties shall give each other prompt written notice of any claims or suits.
Each party shall have the right to investigate, defend, and compromise such
claims or suits to the extent of its own interests. The City shall give the
District complete and total access to any and all records pertaining to said
claim or suit.
Section 13 - Notices.
All notices from the District to the City pursuant to this franchise shall
be directed to the City Manager at P.O. Box 1150, Port Angeles, Washington 98362-0217
or to such person as designated by the City Manager. All notices from the City
to the District pursuant to this franchise shall be directed to the General
Manager at P.O. Box 1090, Port Angeles, Washington 98362, or to such person
as designated by the General Manager. The District shall maintain within the
Clallam County area throughout the term of this franchise an address for service
of notices by mail. The District shall also maintain within the Clallam County
area a local telephone number operational during normal business hours for the
conduct of matters related to this franchise. Any change in address or telephone
number shall be furnished to the City ten (10) days prior to the change. Any
change to City ordinances that effect the District's compliance with this franchise
shall be furnished to the District upon request.
Section 14- Forfeiture and Termination.
In addition to all other rights and powers retained by the City under this
franchise or otherwise, the City reserves the right to forfeit and terminate
this franchise and all rights and privileges of the District hereunder in the
event of a material breach of its terms and conditions, subject to reasonable
notice and opportunity to cure. A material breach shall not be deemed to have
occurred if the violation occurs without the fault of the District or occurs
as a result of circumstances beyond its control; provided however, that the
District shall not be excused from performance of any of its obligations under
this franchise by economic hardship or misfeasance or malfeasance of its directors,
officers, employees, subcontractors, or agents.
A termination shall be declared only by a written decision of the City Council,
by ordinance, resolution or motion, after an appropriate public proceeding which
shall accord the District due process and full opportunity to be heard and to
respond to any notice of grounds to terminate. The City shall provide the District
at least fifteen (15) days prior written notice of any public proceeding concerning
the proposed termination of this franchise. Such notice shall state the grounds
for termination alleged by City.
The City Council, after the public proceeding, and upon finding the existence
of grounds to terminate, may either declare this franchise terminated or excuse
such grounds upon a showing by the District of mitigating circumstances or good
cause for the existence of such grounds.
Neither the District's acceptance of this franchise, the District's appearance
before the City Council at any public proceeding concerning the proposed termination
of this franchise, nor any action taken by the City Council as a result of any
such public proceeding, including a declaration of termination or a finding
of grounds to terminate, shall be construed to waive or otherwise affect the
District's right to seek dispute resolution of the rights and responsibilities
of the parties under this franchise.
Section 15 - Governing Law.
This franchise is subject to the provisions of the Constitutions and laws of
the United States of America and the State of Washington and the municipal code
and ordinances of the City of Port Angeles.
Section 16 - Force Majeure.
The time within which the District shall be required to perform any act under
the franchise shall be extended by a period of time equal to the number of days
performance is delayed due to a force majeure. The District shall not be subject
to any penalty hereunder because of acts or failure to act due to force majeure.
Section 17 - Severability.
Except as provided below, if any section, subsection, sentence, clause, phrase,
term, provision, condition, covenant or portion of this franchise is for any
reason held invalid or unenforceable by any court of competent jurisdiction,
or superseded by state or federal legislation, rules, regulations or decision,
the remainder of this franchise shall not be affected thereby but shall be deemed
as a separate, distinct and independent provision, and such holding shall not
affect the validity of the remaining portions hereof, and each remaining section,
subsection sentence, clause, phrase, provision, condition, covenant and portion
of this franchise shall be valid and enforceable to the fullest extent permitted
by law.
If any material provision of this franchise is for any reason held invalid
or unenforceable by any court of competent jurisdiction, or superseded by state
or federal law, rules, regulations or decision so that the intent of these provisions
is frustrated, the parties agree to immediately negotiate a replacement provision
to fulfill the purpose and intent of the superseded provisions consistent with
applicable law.
Section 18 - Acceptance of Franchise.
The District shall, on or before July 18th, 2001, file in the office of the
City Clerk a written instrument accepting this franchise and all terms and conditions
thereof, signed and acknowledged by its proper officers in a form acceptable
to the City, certificates of insurance, and a complete set of current drawings
or in a computer readable electronic format if available, of the District's
facilities within the City, including identification of transmission and distribution
facilities within the City. All of said documents shall be in compliance with
the requirements of this franchise ordinance.
Section 19 - General Provisions.
The 6/5/2000 Maintenance And Operating Agreement For Electric Transmission
Lines 1 & 2 agreement in effect prior to acceptance of this franchise is
attached hereto and is hereby incorporated into this franchise. Termination
of any agreements incorporated into this franchise by said reference may require
an amendment to this franchise, as determined by the City in its sole discretion.
The City and the District agree to negotiate in good faith any additional agreements
that may reasonably be required to implement the terms and conditions of this
Agreement. Each party shall use reasonable best efforts to take all actions
necessary or appropriate to enable it to carry out its obligations under this
franchise.
If any suit or other action is instituted in connection with any controversy
arising under this franchise, the prevailing party shall be entitled to recover
all of its costs and expenses including such sum as the court may judge reasonable
for attorney's fees, including fees upon appeal of any judgment or ruling.
Any remedies provided for under the terms of this franchise are not intended
to be exclusive but shall be cumulative with all other remedies available to
the City at law, in equity, or by statute.
Section 20 - Assignment of Franchise.
Neither this franchise, nor a substantial portion of the electric transmission
and distribution facilities held by the District for use under this franchise
which are in the franchise area, nor any rights or privileges of the District
under this franchise, either separately or collectively, shall be sold, resold,
assigned, transferred or conveyed by the District to any other person, firm,
affiliate or entity, without the prior written consent of the City. Such approval
shall not be unreasonably withheld. Should the District sell, assign, transfer,
convey, or otherwise dispose of any of its rights or interests under this franchise,
including the District's electric transmission and distribution facilities or
capacity on its electric transmission and distribution facilities, or attempt
to do so, without the City's prior consent, the City may revoke this franchise
for default, in which event all rights and interest of the District shall cease.
Any transfer in violation of this section shall be null and void and unenforceable.
The District agrees to promptly pay to the City a sum of money sufficient to
reimburse it for all reasonable expenses incurred by the City in review of such
an assignment or transfer as provided for in this section, unless said assignment
or transfer is to the City.
Section 21 - Repealer.
The electric transmission franchise Ordinance No. 1200, approved by City Council
on 11/28/1948, which expired on 11/28/1998, is hereby repealed.
Section 22 - Effective Date. This franchise shall take effect five days
after publication, subject to acceptance by the District in accordance with
the provisions of this franchise.
PASSED by the City Council of the City of Port Angeles at a regular meeting
of said Council held on the 18th day of June, 2001.
__________________________________
M A Y O R
|
ATTEST:
_______________________________
Becky J. Upton, City Clerk
PUBLISHED: ____________________
By Summary
|
APPROVED AS TO FORM:
_______________________________
Craig D. Knutson, City Attorney
2001_18.ord.rtf
|
|
