1357 - Ordinance - Repealing Ordinance No. 798 Puget Sound PowerORDINANCE NO. 1357 t/
AN ORDINANCE OF THE CITY OF PORT ORCHARD
REPEALING ORDINANCE NO. 798 (CHAPTER 5.64
OF THE PORT ORCHARD MUNICIPAL CODE) AND
ADOPTING THE FOLLOWING ORDINANCE WHICH
GRANTS PUGET SOUND POWER & LIGHT COMPANY,
A WASHINGTON CORPORATION, ITS SUCCESSORS
AND ASSIGNS, THE RIGHT, PRIVILEGE,
AUTHORITY AND FRANCHISE TO SET, ERECT,
CONSTRUCT, SUPPORT, ATTACH, CONNECT AND
STRETCH FACILITIES BETWEEN, MAINTAIN,
REPAIR, REPLACE, 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 COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, DO ORDAIN AS FOLLOWS:
SECTION 1. REPEALER. Chapter 5.64 of the Port
Orchard Municipal Code, as adopted in Ordinance No. 798, is
hereby repealed upon Puget Sound Power & Light Company's
acceptance of this Franchise in accordance with Section 10 as
provided herein.
SECTION 2. DEFINITIONS.
2.1 Where used in this franchise (the "Franchise")
the following terms shall mean:
2.1.1 "Puget" means Puget Sound Power & Light
Company, a Washington corporation, and
its respective successors and assigns.
2.1.2 "City" means the City of Port Orchard,
a municipal corporation of the State of
Washington, and its respective
successors and assigns.
2.1.3 "Franchise Area" means: any, every and
all of the roads, streets, avenues,
alleys, highways, grounds and public
places of the City as now laid out,
platted, dedicated or improved; and any
every and all roads, streets, avenues,
alleys, highways, 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 b,e hereafter extended.
2.1.4 "Facilities" means poles (with or
without cross arms), wires, lines,
conduits, cables, 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.
Ordinance No. 1357
Page Two
2.1.5 "Ordinance" means Ordinance No.1357,
which sets forth the terms and
conditions of this Franchise.
SECTION 3. FACILITIES WITHIN FRANCHISE AREA.
3.1 The City does hereby grant to Puget the
right, privilege, authority and franchise to:
3.1.1 Set, erect, construct, support,
attach, connect and stretch Facilities
between, maintain, repair, replace,
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
3.1.2 To charge and collect tolls, rates and
compensation for such energy and such
uses.
SECTION 4. NONINTERFERENCE OF FACILITIES.
4.1 Puget's Facilities shall be maintained within
the Franchise Area so as not to unreasonably
interfere with the free passage of traffic
and in accordance with the laws of the State
of Washington. Whenever it shall be
necessary for Puget, in the exercise of its
rights under this Franchise, to make any
excavation in the Franchise Area, Puget
shall, upon completion of such excavation,
restore the surface of the Franchise Area, as
nearly as practicable, to the same condition
it was in prior to such excavation.
SECTION5. RELOCATION OF FACILITIES.
5.1 Whenever the City causes the grading or
widening of the Franchise Area (for purposes
other than those described in Section 5.2
below) and such grading or widening requires
the relocation of Puget's then existing
Facilities within the Franchise Area, the
City shall:
5.1.1 provide Puget, within a reasonable
time prior to the commencement of such
grading or widening, written notice
requesting such relocation; and
5.1.2 provide Puget with reasonable plans
and specifications for such grading or
widening.
Ordinance No. 1357
Page Three
After receipt of such notice and such plans
and specifications, Puget shall relocate such
Facilities within the Franchise Area at no
charge 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 5.1, the City shall bear the
entire cost of subsequent relocation.
5.2 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 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 to:
5.2.1 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; and
5.2.2 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 relocation of
Puget's Facilities, to the extent such
injury or damage is caused by the
negligence of the person or entity
requesting the relocation of Puget's
Facilities or the negligence of the
agents, servants or employees of the
person or entity requesting the
relocation of Puget's Facilities.
5.2.3 Any condition of requirement imposed
by the City upon any person or entity,
other than the City or Puget
(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 5.2.
Ordinance No. 1357
Page Four
5.4 Nothing in this Section 5 "Relocation of
Facilities" 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.
SECTION 6. INDEMNIFICATION.
6.1 Puget shall indemnify and save the City
harmless from any and all claims and demands
made 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 or employees in exercising the
rights granted Puget in this Franchise;
provided, however, that in the event any such
claim or demand be presented to or filed with
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, to settle and compromise such
claim or demand, provided further, that in
the event any suit or action be begun against
the City based upon any such claim or demand,
the City shall likewise promptly notify Puget
thereof, and Puget shall have the right, at
its election and its sole cost and expense,
to settle and compromise such suit or action,
or defend the same at its sole cost and
expense, by attorneys of its own election.
SECTION 7. MOVING BUILDINGS WITHIN THE FRANCHISE
AREA.
7.1 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 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:
Ordinance No. 1357
Page Five
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
manner so as not to unreasonably
interfere with Puget's business;
7.1.2 where 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
Puget's business; and
7.1.3 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.
SECTION 8. DEFAULT.
8.1 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
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, or 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.
Ordinance No. 1357
Page Six
SECTION 9. NONEXCLUSIVE FRANCHISE.
9.1 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 10. FRANCHISE TERM.
10.1 This Franchise is and shall remain in full
force and effect for a period of thirty (30)
years from and after the effective date of
the 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 the Ordinance.
SECTION 11. ASSIGNMENT.
11.1 Puget shall have the right to assign its
rights, benefits and privileges in and under
this Franchise. Any assignee shall, within
thirty (30) days of the date 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
written acceptance, to mortgage its rights,
benefits and privileges in and under this
Franchise to the Trustee for its bondholders.
SECTION 12. MISCELLANEOUS.
12.1 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 portion 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.
Ordinance No. 1357
Page Seven
12.2 This Franchise may be amended only by written
instrument, signed by both parties, 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. Without limiting the
generality of the foregoing, this Franchise
(including, without limitation, Section 6.1
above) 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:
12.2.1 references this Franchise; and
12.2.2 states that it supersedes 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.
12.3 This Franchise is subject to the provisions
of any applicable tariff now or hereafter on
file with the Washington Utilities and
Transportation Commission or its successor.
In the event of any conflict or inconsistency
between the provisions of this Franchise and
such tariff, the provisions of such tariff
shall control.
12.4 In the event any suit or action is commenced
by the City against Puget or by Puget against
the City in a court of competent
jurisdiction: (i) to enforce the terms and
conditions of this Franchise; or (ii) 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.
Ordinance No. 1357
Page Eight
SECTION 13. EFFECTIVE DATE.
13.1 This Ordinance shall take effect on September
3, 1986, having been: (i) introduced to the
City Council not less than five days before
its passage; (ii) first submitted to the City
Attorney on August 21, 1986; (iii) published
at least five days prior to the above
referenced effective date and as otherwise
required by law; and (iv) passed at a regular
meeting of the City Council by at least five
members on August 25, 1986.
PASSED by the City Council of the City of Port
Orchard and signed by the Mayor and attested by the Clerk in
authentication of such passage this 25th day of August, 1986.
LESLIE Y/ WEATHERILL, MAYOR
ATTEST:
atricia Hower, City Cler
APPROVED AS TO FORM:
City Attorney
STATE OF WASHINGTON)
) ss.
COUNTY OF KITSAP )
I, Patricia Hower, the duly qualified City Clerk
of the City of Port Orchard, a municipal corporation of the
third class, situate in the County of Kitsap, State of
Washington, do hereby certify that the foregoing is a full,
true and correct copy of Ordinance No. 1357, an ordinance of
the City of Port Orchard, entitled:
ORDINANCE NO. 1357
AN ORDINANCE of the City of Port Orchard
repealing Ordinance No. 798 (Chapter
5.64 of the Port Orchard Municipal Code)
and adopting the following Ordinance
which grants Puget Sound Power & Light
Company, a Washington Corporation, its
successors and assigns, the right,
privilege, authority and franchise to
set, erect, construct, support, attach,
connect and stretch Facilities between,
maintain, repair, replace, 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.
I further certify that said Ordinance No. 1357
was: (i) introduced to the City Council on the 14th day of
July, 1986; (ii) submitted to the City Attorney on the 14th
day of July, 1986; (iii) published on the 29th day of August,
1986, according to law; (iv)approved by at least five members
of the City Council at a regular meeting thereof on the 25th
day of August, 1986; and (v) approved and signed by the Mayor
of the City of Port Orchard on the 25th day of August, 1986.
WITNESS my hand and official seal of the City of
Port Orchard this 30th day of August, 1986.
i 4 2, c
Patricia Hower, City Clerk
City of Port Orchard, State
of Washington
HONORABLE MAYOR AND CITY COUNCIL
CITY OF PORT ORCHARD, WASHINGTON
In the matter of the application
of Puget Sound Power & Light
Company, a Washington corporation,
for a franchise to construct,
operate and maintain facilities
in, upon, over under, along, across
and through the franchise area of
the City of Port Orchard, Washington:
Franchise Ordinance No
ACCEPTANCE
WHEREAS, the City Council of the City of Port
Orchard, Washington, has granted a franchise to Puget Sound
Power & Light Company, a Washington corporation, its
successors and assigns, by enacting Ordinance No. 1357,
bearing the date of August 25, 1986; and
WHEREAS, a copy of said Ordinance granting said
franchise was received by the Puget Sound Power & Light
Company on August 28th , 1986, from said City of Port
Orchard, Kitsap County, Washington.
NOW, THEREFORE, Puget Sound Power & Light Company,
a Washington corporation, for itself, its successors and
assigns, hereby accepts said Ordinance and all the terms and
conditions thereof, and files this, its written acceptance,
with the City of Port Orchard, Kitsap County, Washington.
IN TESTIMONY WHEREOF said Puget Sound Power &
Light Company has caused this written Acceptance to be
executes; in its name by its undersigned WM. K. ARTHUR
thereunto duly authorized on this 27th day
of October , 1986.
ATTEST: PUGET SOUND POWER & LIGHT COMPANY
BY: �O ,
Director Real Estate
Copy received for City of Port Orchard
o n
By:rJaa/<�
City Clerk
1357