Ord 93-189
ORDINANCE NO.
93-189
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF FEDERAL WAY, WASHINGTON, GRANTING
WASHINGTON NATURAL GAS COMPANY, A WASHINGTON
CORPORATION, A NONEXCLUSIVE FRANCHISE TO HAVE
AND USE ITS FACILITIES IN, UPON, OVER, UNDER,
ALONG, ACROSS, AND THROUGH THE FRANCHISE AREA
WITHIN THE CITY FOR PURPOSES OF CONSTRUCTING,
MAINTAINING, REPAIRING, RENEWING AND OPERATING
A GAS DISTRIBUTION SYSTEM.
THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON,
DOES HEREBY ORDAIN AS FOLLOWS:
The city of Federal Way has determined that the general public
health, safety, welfare, necessity and convenience require that gas
distribution
facilities be constructed,
installed,
maintained,
operated and repaired in an orderly manner when such facilities are
located in, under, on or along City roads, streets, alleys, and
rights of way.
Section 1.
Definitions
Where used in this Franchise the following terms shall be
defined as follows:
1.1
"City" means
the City of
Federal Way,
a Washington
municipal corporation, and its respective successors and assigns.
1.2
"Construction" or "Construct" means Climstructing, laying,
maintaining, testing,
operating,
extending,
Jfenewing,
removing,
replacing, repairing, and using the Facilities,
1.3
"Customer II means any person that uses gas,
including
residential, commercial and industrial users.
ORD. #
93-189
, Page 1
COP"
1.4
IICouncil" means the City of Federal Way Council acting in
its official capacity.
1.5
"Director" means the Public Works Director of the City of
Federal Way Public Works Department.
1.6
"Facilities"
means
gas
pipes,
pipe
lines,
mains,
laterals,
conduits,
feeders,
regulators,
meters,
fixtures,
connections, and all attachments, appurtenances, and appliances
necessary and incidental thereto or in any way appertaining to the
distribution and use of gas,
and which are located wi thin the
Franchise Area.
1.7
"Franchise Area" means all rights of way for public
roads, streets, avenues, alleys, and highways of the City as now
existing,
or
as
hereafter
laid
out,
platted,
dedicated,
or
improved, within the present and any future corporate limits of the
city.
In the event of any incorporation or annexation of any town
or city which incorporates any portion of the Franchise Area, those
portions shall automatically be removed from the description of the
Franchise Area upon completion of such incorporation or annexation.
1.8
"Franchisee" means Washington Natural Gas Company,
a
Washington corporation, and its respective successors and assigns.
1.9
"Gas" means natural,
artificial and/or mixed methane-
based gas.
1.10 "Maintenance", "Maintaining", or "Maintain" shall mean
and include relaying, repairing, replacing, examining, testing,
inspecting,
removing,
digging
and
excavating,
and
restoring
operations incidental thereto.
ORD. #
93-189
, Page 2
1.11 "Person" means a person, firm, association, partnership,
corporation or individual.
Section 2.
Grant/AcceDtance
2.1
Grant of Franchise.
The City does hereby grant to
Franchisee
the
right,
privilege,
authority
and
franchise
to
construct,
install,
support, attach, connect, maintain,
repair,
replace, enlarge, operate and use the Facilities in, upon, over,
along, across and through the Franchise Area for the purposes of
the purchase, transmission, distribution and sale of for heating,
lighting,
power
and
any
and
all
domestic,
commercial,
and
industrial
purposes
and
subject
to
the
provisions
of
this
Franchise; and
2.2
Acceptance bv Franchisee.
The full acceptance of this
Franchise and all of its terms and conditions shall be filed by the
Franchisee with the Federal Way city Clerk within thirty (30) days
from the effective date of this Ordinance.
Acceptance of this
Franchise is a condition precedent to its taking effect, and unless
such acceptance is filed within the time period specified, this
Franchise shall be null and void.
section 3.
Term
In the event Franchisee files the acceptance pursuant to
Subsection 2.2 herein, the term of this Franchise shall be for a
period of twenty-five (25) years commencing on the effective date
of
this
Ordinance
and
terminating
twenty-five
(25)
years
thereafter, unless terminated earlier pursuant to the terms of this
Franchise or other applicable law ("Term").
ORD. # 93-189
, Page 3
section 4.
Reservation of Police Power
All the rights granted under this Franchise shall be subject
to and governed by this Ordinance.
The City council expressly
reserves unto itself all its police powers to adopt ordinances
necessary to protect the health, safety and welfare of the general
public in relation to the rights granted under this Franchise.
The
city reserves the right to use, occupy and enjoy the Franchise Area
for any purpose, including without limitation, the construction of
any water, sewer or storm drainage system, installation of traffic
signals,
street
lights,
trees,
landscaping,
bicycle paths and
lanes, equestrian trails, sidewalks, other pedestrian amenities,
other city services and other public street improvement projects.
The City reserves the right, as the interest of the public may
require,
to
require
the
installation
or
construction
of
new
facilities proposed by Franchisee to be constructed in arterial
thoroughfares, to be installed in alternate public rights of way
which are substantially comparable in terms of the expense to
Franchisee for installation or construction,
and which provide
distribution to all affected parcels of property that is equal or
better to the requested installation route.
The Director shall
give particular preference to the alternate installation location
in cases in which the existing improvements to the public right-of-
way would be affected by the proposed installation, or where the
structural
integrity
of
the
surface
of
the
right-of-way,
or
inconvenience to the public caused by the proposed installation
cannot be mitigated through alternative means.
ORD. # 93-189
, Page 4
section 5.
Location of Facilities
Franchisee agrees to provide the City with a map or maps which
shall show the vertical and horizontal location of its Facilities
within the Franchise Area using a minimum scale of one inch equals
one hundred feet (1" = 100'), measured from the centerline of the
right-of-way, which maps shall be in hard copy and/or digital plan
form, which form shall be consistent and compatible with the City's
information system and which form shall be acceptable to the city.
This information shall be provided within sixty (60) days of the
effective date of this Franchise and shall be updated at least
every six (6) months thereafter.
In connection with the original
installations
of
Facilities,
the
Franchisee
shall
locate
the
Facility in relationship to all other utilities and within the
right-of-way pursuant to the Director's instructions.
Franchisee
shall install a means of detection device with all new or relocated
underground Facilities, which will allow subsequent location.
In
all cases where practicable, the mains and pipes of the Franchisee
shall
be
laid
in
those
sections
of
streets
so
as
not
to
unnecessarily or unreasonably tear up the streets except where
necessary and required to cross streets as determined by the
Franchisee and approved by the Director, and shall be so laid as to
make the gas supply of the Franchisee available to all of the
customers along the affected street.
The location of all mains,
laterals, and appurtenances, and their depth below the surface of
the
ground
or
grade
of
any
public
rights
of
way,
shall
be
determined and fixed by the Director, so long as the location or
ORD. # 93-189
, Page 5
depth is not inconsistent with applicable regulations of federal or
state agencies having jurisdiction over the
Franchisee.
The
Franchisee shall at all times keep full and complete plans, plat or
plats,
specifications,
profiles and records showing the exact
location, and size of all gas mains and lines heretofore laid in
the City, and showing the location of all gates, gauges, and other
service
construction;
and
such
plans,
plat
or
plats,
specifications, profiles, and records shall be kept current semi-
annually by the Franchisee to show thereon the exact location of
all
additional
mains
and
lines
hereinafter
installed
by
the
Franchisee.
These records shall be subject to inspection at all
reasonable times by the proper officials and agents of the City,
and a copy of these plans, plat or plats, specifications, profiles
and records, shall be furnished to the city upon request.
Upon
completion
of
installation
of
the
Facilities,
the
"as-built"
location of the Facilities shall be no greater than two (2) feet
from the location of the Facilities shown in the plans on file with
the Public Works Department.
section 6.
Veqetation
Franchisee agrees to periodically inspect its above ground
Facilities to ensure that they are free and unobstructed from tree
limbs and other encroaching vegetation and Franchisee will trim
vegetation in the vicinity of
its above ground Facilities
in
compliance with the Federal Way city Code, and all other applicable
codes, rules and regulations, and pursuant to the City of Federal
ORD. #
93-189
, Page 6
Way
Vegetation
Plan,
unless
the
Director
determines
it
is
unnecessary.
Section 7.
Noninterference of Facilities
Franchisee agrees to maintain the Facilities and perform all
work within the Franchise Area so as to not unreasonably interfere
with the free passage of traffic, including without limitation,
motor vehicles, bicycles and pedestrians.
section 8.
Requirement of Permits
Franchisee must file all permit applications deemed necessary
by the Director and, when applicable, by the Community Development
Department including filing detailed plans,
specifications and
profiles of the intended work (which may be in GIS format pursuant
to the requirements of section 5 of this Franchise), pay all permit
fees, and receive such appropriate permits from the city prior to
commencing any work in the Franchise Area; provided, however, that
in
the
event
of
an
emergency,
Franchisee
may
do
the
work
immediately so long as a permit is obtained by Franchisee as soon
as practicable thereafter.
Applications for right-of-way permits
shall
be
presented
to
the
Public
Works
Department,
which
applications will require plans, blueprints, cross-sections, or
further detailing of any work to be performed, at the Director's
discretion.
All materials and equipment shall be approved by the
city.
Franchisee agrees to pay the City all costs and expenses
associated with the examination,
inspection, and supervision of
such work covered in such permit application.
ORD. #
93-189
, Page 7
section 9.
standard of Performance
All work
shall
be completed to the
satisfaction
of
the
Director.
Franchisee
shall
be
responsible
for
constructing,
operating and maintaining the Facilities in compliance with all
applicable laws, ordinances, codes, regulations and standards as
now existing or hereafter adopted or amended,
pursuant to all
completion
dates,
and
in
compliance
with
the
terms
of
this
Franchise, whether or not the work is performed by the Franchisee,
or its agents, employees, subcontractors, or other third parties,
at Franchisee's direction.
section 10.
Construction standards
All pipelines and appurtenant facilities shall be laid and
installed in conformity with the maps and specifications filed with
the city, except in instances in which deviation may be allowed in
writing
by
the
Director
pursuant
to
a
right-of-way
permit
application made by Franchisee.
All plans and specifications shall
specify the class and type of material and equipment to be used,
manner of excavation,
construction and installation,
backfill,
erection of temporary structures, erection of permanent structures,
and the traffic control mitigation measures as provided by the
Manual
on
Uniform Traffic
Control
traffic
control
mitigation
measures as provided by the Manual on Uniform Traffic Control
Devices, or similar standards as may be applicable from time to
time.
No
such
construction
shall
be
commenced
without
the
Franchisee first securing a permit in writing from the Director.
All such work shall be subject to the approval of and shall pass
ORD. #
93-189
, Page 8
the inspection of the City by and through its Director or other
designated
official.
All
such
construction
shall
meet
the
standards set forth in the Control Zone Guidelines promulgated by
the
state
of
Washington,
Department
of
Transportation
for
protection of utility objects in traffic hazard areas.
If any
right of way within the city form a part of a state highway route,
the Franchisee shall determine the requirements of the state of
Washington, and comply fully with such requirements.
section 11.
Survev Markers and Monuments
Prior to the commencement of any work, the Franchisee shall
establish two (2)
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 from such work.
The method of
referencing monuments or other markers shall be approved by the
Director.
Franchisee shall immediately replace all markers or
monuments, using a licensed surveyor, disturbed during any work.
Franchisee shall pay all costs associated with lost, destroyed or
disturbed monuments or markers.
Section 12.
Surface Markinqs/Stakes
Prior to commencing any work, or if requested by the City in
connection with any design or construction of a project, Franchisee
shall locate the Facilities by placing temporary identification
surface markings on the pavement or hard ground, made with spray
paint, spray caulk or temporary wood stakes of the specific color
to identify the type of underground utility Facility, which are
ORD. # 93-189
, Page 9
color
coded
and
marked
to
indicate
the
type
of
underground
Facility, all pursuant to the American Public Works Association
Uniform Color Code Marking standards, as now existing or hereafter
adopted or amended, unless the Director instructs Franchisee to
mark the Facilities pursuant to some other color coding or marking
system.
Section 13.
Restoration/Repair
Whenever it shall be necessary for Franchisee, in the exercise
of its rights under this Franchise,
to make any excavation or
perform any work in the Franchise Area, Franchisee agrees upon
completion of such excavation or work to restore and repair the
surface of the Franchise Area, at its sole cost and expense, to the
same and safe condition or to a better condition than it was in
prior to such excavation or work, in compliance with all applicable
federal, state, or local safety standards or other applicable laws,
rules or regulations,
to the City I S satisfaction and wi thin a
reasonable time period prescribed by the city.
In the event of any
excavation
through
a
paved
public property,
Franchisee
shall
restore the paved area to a standard and condition acceptable to
the Director as specified in the permit to be used for the work.
Patching methods shall repair the excavation and the surface of the
paving to the same or as near the standard of the original pavement
as is possible and such completed work shall be acceptable to the
Director.
ORD. #
93-189
, Page 10
Section 14.
Riqht to Comolete Work
In the event Franchisee fails to comply with any applicable
federal,
state or City laws,
ordinances,
rules, regulations or
standards or with any of the terms of this Franchise, the City may,
but in no event is the City obligated to, order any work completed,
including without limitation Franchisee's obligation to repair
pursuant to Section 13 herein and Franchisee's obligation to remove
and/or relocate Facilities pursuant to section 15 herein.
If the
City causes such work to be done by its own employees or by any
person or entity other than Franchisee, Franchisee shall, upon the
city's written request,
immediately reimburse the City for all
reasonable costs and expenses incurred by the City in having such
work performed,
which costs may include the City's reasonable
overhead and administrative expenses.
section 15.
Relocation of Facilities
15.l city's
Duties.
In
the
event
any
municipal
public
improvement project in or use of the Franchise Area necessitates
the relocation or removal of Franchisee's then existing Facilities
within the Franchise Area, the city shall:
(a)
Provide written notice to Franchisee requesting such
relocation within a reasonable time prior to the commencement
of such project; and
(b)
Provide Franchisee with copies of pertinent portions
of the city's plans and specifications for such project so
that Franchisee may relocate its Facilities to accommodate
such project or other City use.
ORD. # 93-189
, Page 11
15.2 Franchisee's Duties.
After receipt of the City notice
requesting the removal of the Facilities, Franchisee shall, at its
sole cost and expense, relocate such Facilities within the time
period prescribed by the City.
Section 16.
Preference in Installations
The City shall have prior and superior right to the use of the
Franchise Area for installation and maintenance of its utilities
and other governmental purposes, and should a conflict arise with
the Franchisee's lines, the Franchisee shall, at its own expense
and cost, conform to the utilities and other government purposes of
the City in the event that a reasonably feasible alternative is
available.
The
owners
of
all utilities,
public
or private,
installed in such Franchise Area prior to the installation of the
lines and facilities of the Franchisee, shall have preference as to
the positioning and location of such utilities so installed with
respect to the Franchisee.
Such preference shall continue in the
event of the necessity of relocating or changing the grade of any
such public properties.
Franchisee shall pay all reasonable costs
of and expense necessarily incurred by City in the examination,
inspection and approval of all plans and specifications for, and
all details of construction of, all facilities involved herein.
section 17.
Temporary Removal of Facilities
When necessary, in order to permit any duly authorized person
to move any building or other structure across, upon, or along any
public properties within the City, the Franchisee shall temporarily
raise
or remove
its pipes,
fixtures,
and appurtenances,
upon
ORD. #
93-189
, Page 12
reasonable notice in advance from such person, such notice to bear
the approval of the Director, and at such time and in such manner
as
may
be
reasonably
necessary
to
accommodate
such
moving,
consistent
with
the
maintenance
of
proper
service
to
the
Franchisee's
customers.
The
cost to
the
Franchisee -of
such
temporary raising or removal
and of
any
interruption
of
the
Franchisee's service to its customers caused thereby, shall be paid
or provided for by the owner or mover of such building or facility,
unless the owner or mover of such building is the city.
Section 18.
Excavation in Re-Paved Streets
Prior to re-pavement or new construction of City street, roads
and alleys,
the Franchisee
shall
extend the Franchisee I s gas
distribution facilities through the area of pavement construction
or
re-paving,
so
long
as
such
extension
complies
with
all
Washington utilities & Transportation Commission regulations.
Section 19.
Emerqencv ResÞonse Plan
Franchisee shall prepare and file with the City an emergency
management plan for responding to any spill or other emergency
condition.
The plan shall designate responsible officials and
emergency
24-hour on-call personnel and the procedures to be
followed when responding to an emergency.
After being notified of
an emergency, Franchisee shall cooperate with the City and make
every effort to respond as
fast as practical with action to
minimize damage and to protect the health and safety of the public.
ORD. # 93-189
, Page 13
Section 20.
Road Side Hazard Inventorv and Control
All gas distribution system utility objects located in hazard
areas,
as
defined by the
state
of Washington,
Department
of
Transportation,
Control
Zone
Guidelines,
shall
be
relocated,
protected or removed within thirty-six
(36)
months after the
acceptance of this Franchise by the Franchisee.
Section 21.
Default
21.1 Notice of Default.
If Franchisee shall fail to comply
with any of the provisions of this Franchise, the City may serve a
written
notice
to
Franchisee
ordering
such
compliance
and
Franchisee shall have thirty (30) days from the date of such notice
in which to comply (IINotice of Default"); provided, however, that
this section shall not interfere with the City's right to complete
any work or repair the Franchise Area pursuant to this Franchise.
21.2 Revocation
of
Franchise.
If
Franchisee
is
not
in
compliance with this Franchise after the expiration of the thirty
(30) day period, the city may revoke and terminate this Franchise,
at its sole discretion; provided, however, if any failure to comply
with this Franchise by Franchisee cannot reasonably be corrected
with due diligence within such thirty (30) day period, then the
time within which Franchisee may so comply may be extended, with
the Director I s
approval,
for
such time
as may be reasonably
necessary
and
so
long
as
Franchisee
commences
promptly
and
diligently to effect such compliance.
section 21. 3
Liquidated Damaqes.
If Franchisee shall fail
or refuse to comply with any requirement of this Franchise within
ORD. # 93-189
, Page 14
the time specified in the Notice of Default, then the Franchisee
agrees to pay to the City the amount of One Hundred Dollars and
no/lOa ($100.00), not as a penalty, but as liquidated damages for
such
breach
of
the
Franchise,
for
each
and
every
day
that
Franchisee shall be in violation of the terms hereof.
section 22.
Nonexclusive Franchise
This Franchise shall not be deemed an exclusive Franchise.
This Franchise shall not in any manner prohibit the City from
granting
other
and
further
franchises
of
a
like
nature
or
franchises for other public or private utilities in, under, over,
upon,
and along the Franchise Area.
This Franchise shall not
prohibit or prevent the city from using the Franchise Area for any
reason or affect the jurisdiction of the City over the Franchise
Area or any part thereof.
section 23.
Limited Riahts
This Franchise is intended to convey only a limited right and
interest to Franchisee in the Franchise Area.
This Franchise is
not a warranty of title or conveyance of any interest in or to the
Franchise Area to Franchisee.
section 24.
Eminent Domain
This Franchise is 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 rights and interests granted under
this Franchise shall not exceed the actual amount Franchisee paid
to the city in obtaining this Franchise; provided, however, that
this will not apply to Franchisee's Facilities.
ORD. #
93-189
, Page 15
Section 25.
Vacation
If at any time the City vacates all or any portion of the
Franchise Area, the city will not be liable for any damage or loss
to the Franchisee by reason of such vacation.
The City agrees that
it will not require the removal of Franchisee's Facilities unless
such removal is necessary, in the City's judgment, for its planned
use of such vacated Franchise Area.
The City may, after thirty
(30) days written notice to Franchisee and if the City determines
that the removal of the Facilities is necessary, terminate this
Franchise with respect to any such vacated area.
section 26.
UTC Tariff
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 provision of this Franchise
and such tariff, the provisions of such tariff shall control.
If
Franchisee shall file, pursuant to Chapter 80.26 RCW, with the
Washington
utilities
and
Transportation
Commission,
or
its
successor, any tariff regarding the use of the Franchise Area,
Franchisee shall provide written notice to the City within at least
ten (10) days prior to filing.
section 27.
Compliance with Laws
Franchisee shall comply with all applicable federal, state and
city
laws,
ordinances,
resolutions,
standards
and procedures,
including without limitation the state Environmental Policy Act, as
now existing or hereafter amended or adopted.
Franchisee shall use
ORD. #
93-189
, Page 16
no pesticides or herbicides within the Franchise Area without
obtaining prior written City approval
and complying with all
applicable laws, rules, and regulations governing the application
and use of such pesticides and herbicides.
section 28.
Cbarae for Administrative Costs
Franchisee agrees to pay a fee or charge to recover the actual
administrative expenses incurred by the City which are directly
related to receiving and approving this Franchise.
In addition,
Franchisee shall pay the city all administrative costs incurred by
the
city
in
the
approval
of
permits
or
in
the
supervision,
inspection
or
examination
of
all
work
by
Franchisee
in
the
Franchise Area.
section 29.
CUstomer Service
Franchisee shall respond to non-emergency inquiries from the
City or from any of Franchisee's customers as soon as reasonably
possible after the inquiry or request is made.
In the event of an
emergency which constitutes an imminent threat to life, safety,
health or welfare,
Franchisee shall dispatch its personnel to
respond within ten (10) minutes of such an emergency inquiry if
reasonably practicable.
Franchisee shall maintain and staff a
twenty-four (24) hour phone line and maintain an office within 15
miles of the City limits.
section 30.
Indemnification
30.1 Franchisee agrees to indemnify and hold the City, its
elected officials,
officers,
employees,
agents,
and volunteers
harmless from any and all claims, demands,
losses,
actions and
ORD. #
93-189
, Page 17
liabilities (including costs and all attorney fees) to or by any
and all persons or entities, including, without limitation, their
respective agents,
licensees, or representatives,
arising from,
resulting from, or connected with this Franchise to the extent
caused
by
the
negligent
acts,
errors
or
omissions
of
the
Franchisee, its partners, shareholders, agents, employees, or by
the Franchisee's breach of this Franchise.
In the event it is
determined that RCW 4.24.115 applies to this Franchise, Franchisee
agrees to defend, hold harmless and indemnify the City to the
maximum
extent
permitted
thereunder,
to
the
full
extent
of
Franchisee's negligence.
Franchisee
understands
that
these
indemnity
provisions
shall
apply
to
claims
from
which
the
Franchisee would otherwise be able to claim immunity under Title
51, RCW, and that this understanding has been mutually negotiated
by the parties.
30.2 Survival.
The provisions of this Section shall survive
the expiration or termination of this Franchise with respect to any
event occurring prior to such expiration or termination.
section 31.
EQUal Opportunity Employer
In all Franchisee's services, programs or activities, and all
Franchisee's hiring and employment made possible by or resulting
from this Franchise, there shall be no discrimination by Franchisee
or
by
Franchisee's
employees,
agents,
subcontractors
or
representatives against any person because of sex,
age
(except
minimum
age
and
retirement
provisions),
race,
color,
creed,
national origin, marital status or the presence of any disability,
ORD. #
93-189
, Page 18
including sensory, mental or physical handicaps, unless based upon
a bona fide occupational qualification in relationship to hiring
and employment.
This requirement shall apply, but not be limited
to the following:
employment, advertising, layoff or termination,
rates of payor other forms of compensation, and selection for
training, including apprenticeship.
Franchisee shall not violate
any of the terms of Chapter 49.60 RCW, Title VII of the civil
Rights Act of 1964, the Americans with Disabilities Act, section
504 of the Rehabilitation Act of 1973 or any other applicable
federal,
state
or
local
law
or
regulation
regarding
non-
discrimination.
Any material violation of this provision shall be
grounds for termination of this Franchise by the City and, in the
case of the Franchisee's breach, may result in ineligibility for
further city agreements.
section 32.
Insurance
32.1 Minimum Limits.
The Franchisee agrees to maintain in
full
force
and
effect
as
a minimum,
the
following
insurance
coverage which is at least as broad as insurance service office
("ISO")
Form Number
CG
OOOOl
(commercial
general
liability) ,
including "X", "C", "U" and ISO Form Number CA 00001 (commercial
auto):
(a)
Workers
compensation
and
employer's
liability
insurance in amounts sufficient pursuant to the laws of the
state of Washington;
(b)
commercial general
liability
insurance or self-
insurance with combined single
limits
not
less than Two
ORD. # 93-189
, Page 19
Million Dollars ($2,000,000.00) for bodily injury, including
personal injury or death,
products liability,
contractual
coverage,
operations,
explosion,
collapse, underground and
property damage coverage; and
(c)
Automobile
liability
insurance
with
limits
of
liability not less than $1,000,000 each occurrence for bodily
injury, including death and property damage.
32.2 Mandatory Insurance Provisions.
The commercial general
liability insurance and automobile liability insurance policies
shall be endorsed to contain the following provisions:
(a)
The
City,
its
officers,
elected
officials,
employees,
and volunteers are to be named as
additional
insured;
(b)
Coverage shall apply separately to each insured
against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability;
(c)
Coverage shall not be suspended, canceled, modified
or reduced except after thirty (30) days prior written notice
to the City delivered by certified mail,
return receipt
requested; and
(d)
Coverage
shall
be primary as to the City,
its
officers, officials, employees and volunteers.
Any insurance
or
self-insurance
by
the
city,
its
officers,
officials,
employees or volunteers shall be in excess of Franchisee's
required insurance.
ORD. #
93-189
, Page 20
32.3 Verification of Coveraqe.
Franchisee shall furnish the
City with certificates of
insurance and original endorsements
evidencing
the
coverages
requires
by
this
Section.
The
certificates
and
endorsements
shall
be
signed
by
a
person
authorized by the insurer to bind coverage on its behalf and must
be received and approved by the City prior to the commencement of
any
work.
At
the
city's
request,
Franchisee
shall
deliver
certified copies of all required insurance policies.
In satisfying
the foregoing insurance requirements, Franchisee may self-insure
against risks in such amounts and upon such verification as is
acceptable to the city.
Franchisee's failure to maintain such
insurance policies
shall be grounds
for the City's
immediate
termination of this Franchisee.
section 33.
Records
The
Franchisee
agrees
to
maintain
books,
records,
and
documents which sufficiently and properly reflect all direct and
indirect
costs
related
to
this
Franchise
and
maintain
such
accounting procedures and practices as may be deemed necessary by
the City to assure proper accounting.
These records shall be
subject, at all reasonable times, to inspection, review or audit by
the City,
its authorized representative, the State Auditor,
or
other governmental officials authorized by law to monitor this
Franchise.
Franchisee shall provide the City with a copy of its
annual audit.
ORD. #
93-189
, Page 21
section 34.
Bond/Assiqnment of Funds
Prior to the commencement of any work in the Franchise Area,
Franchisee shall either furnish a bond executed by Franchisee and
a surety authorized to do business in the state of Washington or
assign funds in favor of the city,
which performance bond or
assignment of funds shall be in a form acceptable to the city
Attorney and in an amount set and approved by the Director, in
order to guarantee Franchisee's performance of its obligations
under this Franchise, conditioned that the Franchisee observe all
of the covenants, terms and conditions and faithfully perform all
of the Franchisee's obligations under this Franchise; shall correct
or replace forthwith, on receipt of notice thereof, any defective
work or materials used in the replacement of the City rights of way
or other public property discovered within a two-year period from
the date of the replacement and acceptance by the City; and shall
restore the rights of way within the period of time specified by
the Director in the permit issued for such work.
section 35.
ScoDe of services
In the event during the Term of this Franchise, Franchisee
offers
additional
services
or
new
technology
to
any
other
Franchisee within the state of Washington,
the same additional
services
or new technology shall be provided to Franchisee's
customers within the city limits; provided,
however,
that this
provision shall not apply to services or technology that are being
offered by Franchisee for a limited time period to non-Federal Way
ORD. # 93-189
, Page 22
customers for the purpose of testing such additional services or
new technology.
section 36.
Franchise Fees.
In the event RCW 35.21. 860,
as now existing or hereafter
adopted or amended, is revoked, or other laws, statutes, rules or
regulations are adopted which authorize the city to impose a
franchise fee or other charge upon the gas distribution business,
then Franchisee agrees to enter into good faith negotiations with
the City regarding amending this Franchise to provide for the
inclusion of a franchise fee; provided, however, that if the City
and the Franchisee are unable to reach an agreement within ninety
(90) days, this Franchise shall terminate.
section 37.
General provisions
37.1 Entire Aqreement.
This Franchise contains all of the
agreements of the Parties with respect to any matter covered or
mentioned
in
this
Franchise
and
no
prior
agreements
or
understandings pertaining to any such matters shall be effective
for any purpose.
37.2 Modification.
No provision of this Franchise may be
amended or added to except by agreement in writing signed by both
of the Parties.
Any provision of this Franchise
37.3 Full Force and Effect.
which is declared invalid, void or illegal shall in no way affect,
impair, or invalidate any other provision hereof and such other
provisions shall remain in full force and effect.
ORD. #
93-189
, Page 23
37.4 Assiqnment.
Franchisee shall not have the right to
transfer or assign,
in whole or in part,
any or all
of
its
obligations and rights hereunder without the prior written consent
of the city.
Any assignee shall, within thirty (30) days of the
date
of
any approved assignment,
file written
notice
of
the
assignment with the city together with its written acceptance of
all terms and conditions of this Franchise.
37.5 Attorney Fees.
In the event the City or the Franchisee
defaults on the performance of any terms in this Franchise, and the
Franchisee or the City places the enforcement of the Franchise or
any part thereof, or the collection of any monies due, or to become
due hereunder, in the hands of an attorney, or file suit upon the
same, each party shall pay its own costs,
including reasonable
attorneys' fees, costs and expenses.
The venue for any dispute
related to this Franchise shall be King County, Washington.
37.6 No Waiver.
Failure of the City to declare any breach or
default immediately upon the occurrence thereof, or delay in taking
any action in connection with,
shall not waive such breach or
default, but the city shall have the right to declare any such
breach or default at any time.
Failure of the city to declare one
breach or default does not act as a waiver of the city's right to
declare another breach or default.
37.7 Governinq Law.
This Franchise shall be made in and shall
be governed by and interpreted in accordance with the laws of the
state of Washington.
ORD. #
93-189
, Page 24
37.8 Authoritv.
Each individual executing this Franchise on
behalf of the City and Franchisee represents and warrants that such
individuals
are
duly
authorized
to
execute
and
deliver
this
Franchise on behalf of the Franchisee or the city.
37.9 Notices.
Any notices required to be given by the City to
Franchisee or by Franchisee to the City shall be delivered to the
parties at the following addresses:
Franchisee:
City:
Washington Natural Gas Company
Local Government Relations Director
P. o. Box 1869
Seattle, WA 98111
City Manager
city of Federal Way
33530 1st Way South
Federal Way, WA 98003
Any notices may be delivered personally to the addressee of the
notice or may be deposited in the united States mail,
postage
prepaid, to the address set forth herein.
Any notice so posted in
the united states mail shall be deemed received three (3) days
after the date of mailing.
37.10 captions.
The respective captions of the sections of
this Franchise are inserted for convenience of reference only and
shall not be deemed to modify or otherwise affect in any respect
any of the provisions of this Franchise.
37.11 Time
of
Essence.
Time
is
of
the
essence
of
this
Franchise and each and all of its provisions in which performance
is a factor.
37.12 Remedies Cumulative.
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.
ORD. #
93-189
, Page 25
Section 38.
Severability
If any section, sentence, clause, or phrase of this ordinance
should be held to be invalid or unconstitutional by a court of
competent jurisdiction,
such
invalidity or unconstitutionality
shall not affect the validity or constitutionality of any other
section, sentence, clause or phrase of this ordinance.
section 39.
Effective Date
This Ordinance shall take effect and be in full force thirty
(30) days after its passage, according to law.
PASSED by the city council of the city of Federal Way this
9th
day of
November
, 19.J!.L .
CITY OF FEDERAL WAY
')~1~~
A. LAKE
FILED WITH THE CITY CLERK: October 13, 1993
PASSED BY THE CITY COUNCIL: November 9, 1993
PUBLISHED: November 13, 1993
EFFECTIVE DATE December 9. 1993
ORD. #
93-189
, Page 26
ACCEPTANCE:
The undersigned hereby accepts all the rights, privileges and
obligations of the above granted Franchise and acknowledges that
such rights and privileges are subject to and limited by all of the
terms, conditions and obligations contained therein.
DATED this f8 day of NaM4be-( , 19
WASHINGTON NATURAL GAS COMPANY
MIRI'Me
KAORDINTRANCHIS.WNO
Rev. 11- 02 -93'
ORD. # 93 -189 , page 27 ORIGINAL