Chapter 5.24


5.24.010    Purpose.

5.24.020    Definitions.

5.24.030    Terms of franchise.

5.24.035    Hearing.

5.24.040    Acceptance.

5.24.050    Police powers.

5.24.060    Rules and regulations by the town.

5.24.070    Technical standards.

5.24.080    Service area.

5.24.090    Construction bond and notification.

5.24.100    Undergrounding and system improvements.

5.24.110    Safety requirements.

5.24.120    Newly developed areas.

5.24.130    Franchise fee.

5.24.140    Record inspection.

5.24.150    Reports.

5.24.160    Dispute resolution.

5.24.170    Customer service.

5.24.180    Nondiscrimination.

5.24.190    Continuity of service.

5.24.200    Transfer of ownership.

5.24.210    Right of town to purchase.

5.24.220    Removal and abandonment of property of franchisee.

5.24.230    Revocation for cause.

5.24.240    Effect of termination for noncompliance.

5.24.250    Indemnification.

5.24.260    Insurance.

5.24.270    Inconsistency.

5.24.280    Force majeure.

5.24.010 Purpose.

This chapter is provided to regulate the operation of electrical utility facilities, operated by other than the town government, in town rights-of-way or on other town property. This chapter is intended to permit the continued use and maintenance of only such facilities as exist in street rights-of-way, easements, or other lands at the time such rights-of-way, easements, or other lands are acquired by the town through annexation or otherwise. No franchise granted under the provisions of this chapter shall give the holder of such franchise the right to expand its electric utility service area to include any area not served by the franchise holder at the time of annexation. (Ord. 99-27 § 1, 1999).

5.24.020 Definitions.

For the purposes of this chapter:

A. “Applicant” means any person or entity that applies for a franchise.

B. “Council” means the present governing body of the town or any future board constituting the legislative body of the town.

C. “Customer” means a separately metered user of electricity. An individual with two meters is considered two customers, and shared use of a home or other facility with a single meter, by two or more individuals without submetering, is considered a single customer.

D. “Electric service” means the provision of electrical energy to customers inside town limits.

E. “Electric distribution system” is a system of overhead and/or underground electric conductors, pole or pad-mounted transformers, switchgear, meters, and related equipment for the provision of electric distribution service.

F. “Existing” means physically in place.

G. “Franchise” means the nonexclusive right to operate and maintain an electric distribution system by use of town owned rights-of-way, easements, or other publicly owned property.

H. “Franchisee” means the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in town ordinance.

I. “Franchisee’s electric utility service area” means that area in lots or parcels with existing electric service by franchisee or, for any area subject to subdivision application, those proposed lots or parcels with existing electric service by franchisee. (Ord. 99-27 § 1, 1999).

5.24.030 Terms of franchise.

A. Authority to Grant Franchises or Licenses for Electric Distribution Systems.

1. It is unlawful to engage in or commence construction, operation or maintenance of an electric distributions system without a franchise issued under this chapter. The council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain an electric distribution system that complies with the terms and conditions of this chapter.

2. Any franchise granted pursuant to this chapter shall be nonexclusive and shall not preclude the town from granting other or further franchises or permits or preclude the town from using any roads, rights-of-way, streets or other public properties or affect its jurisdiction over them or any part of them, or limit the full power of the town to make all necessary changes, as the town in its sole discretion shall decide, including the dedication, establishment, maintenance and improvements of all new rights-of-way and thoroughfares and other public properties of any type. In the event the town grants another electric distribution system franchise, the new franchise shall be granted on the same terms as the existing franchise.

B. Incorporation by Reference.

1. The provisions of this chapter shall be incorporated by reference in any franchise ordinances or licenses approved hereunder.

2. The provisions of any proposal submitted and accepted by the town shall be incorporated by reference in the applicable franchise or license. However, in case of any conflict between the proposal and this chapter, this chapter will be the prevailing document.

C. Nature and Extent of the Grant. Any franchise granted hereunder by the town shall authorize the franchisee, subject to the provisions herein contained:

1. To engage in the business of operating and providing electric distribution service to subscribers within the town;

2. Provide service to:

a. Any customers of the franchisee served by facilities existing at the time of annexation;

b. Any additional customers that cannot be efficiently served by the town’s distribution system, as determined by the public works director.

D. No privilege or exemption shall be granted or conferred upon franchisee by any franchise except those specifically prescribed therein, any use of any street shall be consistent with any prior lawful occupancy of the street or any subsequent improvement or installation therein.

E. Term of Franchise Rights.

1. General franchise rights and privileges granted shall remain in force and effect for a period of 15 years from the effective date of the acceptance of such franchise.

2. Franchise rights for any street or other defined area shall terminate upon any discontinuation of the operation of the electric distribution system in such street or area for 30 consecutive calendar days. (Ord. 99-27 § 1, 1999).

5.24.035 Hearing.*

Prior to the granting of a franchise, the town council shall conduct a public hearing to determine the following:

A. That the public will be benefited by the granting of a franchise to the applicant;

B. That the applicant has requisite financial and technical resources and capabilities to build, operate and maintain an electrical distribution system in the area;

C. That the applicant has no conflicting interests, either financial or commercial, which will be contrary to the interests of the town;

D. That the applicant will comply with all terms and conditions placed upon the franchisee by this chapter; and

E. That the applicant is capable of complying with all relevant federal, state, and local regulations pertaining to the construction, operation and maintenance of the facilities and systems incorporated in its application for a franchise. (Ord. 99-27 § 1, 1999).

*Code reviser’s note: Ord. 99-27 added two sections numbered 5.24.030. This section has been editorially renumbered to avoid duplication.

5.24.040 Acceptance.

A. No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting same has become effective.

B. Within 30 days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the franchisee shall file with the town clerk its written acceptance, in a form satisfactory to the town attorney, of the franchise, together with bond and insurance policies required by any ordinance. (Ord. 99-27 § 1, 1999).

5.24.050 Police powers.

In accepting any franchise, the franchisee acknowledges that its rights hereunder are subject to the police power of the town to adopt and enforce general ordinances necessary to the safety and welfare of the public, and it agrees to comply with all applicable general laws enacted by the town pursuant to such power provided such laws do not change the material terms of the ordinances. (Ord. 99-27 § 1, 1999).

5.24.060 Rules and regulations by the town.

A. In addition to the inherent powers of the town to regulate and control any franchise it issues, the authority granted to it by the state, and those powers expressly reserved by the town, or agreed to and provided for in a franchise, the right and power is reserved by the town to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers; provided, they are consistent with the terms and conditions of this chapter; and provided further, they do not increase the material burdens nor diminish the rights of the franchisee.

B. The town council reserves the right to delegate its authority for franchise administration to a designated agent. (Ord. 99-27 § 1, 1999).

5.24.070 Technical standards.

Franchisee shall comply with, at the minimum, the Eatonville development and construction standards. (Ord. 99-27 § 1, 1999).

5.24.080 Service area.

A. Franchisee’s electric utility service area shall be that area in lots or parcels with existing electric service by franchisee or, for any area subject to subdivision application, those proposed lots or parcels with existing electric service by franchisee.

B. Franchisee’s electric utility service area shall not be expanded except in, accordance with the procedure described herein. (Ord. 99-27 § 1, 1999).

5.24.090 Construction bond and notification.

A. The franchisee shall deliver to the town within 30 days of the effective date of the franchise a maintenance bond of $5,000. The town shall have the right to collect against the bond for cost of restoration of street or other town-owned facilities damaged by franchisee and not corrected by franchisee within 30 days of issue of written notice by town to franchisee. Such costs may include town administration and collection costs.

B. Franchise holder shall provide a minimum of 48 hours’ notice to residents affected by proposed construction areas subject to service outages, disruptions to site access, or other substantial impacts. Additional notification may be required as a condition of permit issuance for projects with large impacts.

C. Written notification shall be submitted to the town for any activity that disturbs the ground surface, including but not limited to pole, guy, pad, or underground construction or replacement. Notice shall also be given for any above-ground work that will entail a service interruption to six or more customers, and for any limbing, brushing, or tree removal. Notice need not be given for other exclusively above-ground work, such as pole-mounted transformer, fuse, insulator, or conductor replacement, to be completed without a service interruption to six or more customers.

D. Notice of scheduled repairs or maintenance shall be submitted no less than 72 hours before scheduling the proposed work. The town may require up to 30 days for review of complex projects. Work shall not proceed until approved in writing by the town. Submittals shall include:

1. Plan showing the location of existing and proposed electric distribution system; other existing utilities in the area; pavement, drainage, and other surface features; right-of-way lines; and other information as may be requested by the town.

2. Schedule showing the anticipated duration of any outages, traffic disruptions, and disturbance of existing pavements or other surface features, from initial disturbance to final restoration.

3. Name and contact number for the project foreman or other responsible person.

4. Any other information as may be requested by the town.

E. For emergency repairs necessary to restore service or to prevent an imminent outage:

1. Initial notification of emergency repairs may be given verbally.

2. Such verbal notice may be given to the town’s answering service or system.

3. Emergency repairs to restore service, or to prevent an outage that would otherwise likely occur within 24 hours, may proceed without acknowledgment by the town.

4. Emergency repairs to prevent an outage likely to occur before completion of the notice and approval process for scheduled maintenance may proceed upon verbal approval of the town’s mayor, public works director, or power and light superintendent.

F. Construction Records.

1. Record drawings shall be submitted for both scheduled and emergency repairs and maintenance.

2. Construction records shall be submitted within 30 days of construction completion.

3. Records shall include plans of the same form as that for scheduled repairs and maintenance and a record schedule describing the time and duration of any outages, access limitations, or other major impacts. (Ord. 2000-08 § 1, 2000; Ord. 99-27 § 1, 1999).

5.24.100 Undergrounding and system improvements.

A. Franchise rights for existing overhead lines shall not be construed to provide any franchise rights for underground lines.

B. Franchise rights for existing direct-buried cable shall not be construed to provide any franchise rights for installation of conduit or new cable.

C. Franchisee shall remove any overhead lines within 60 days of written notice of completion of construction of an extension of the town’s underground electric system adequate to provide alternative service.

D. Franchisee shall remove any transformers, vaults, junction boxes, or other surface features that go out of service as the result of any failure or abandonment of franchisee’s underground electrical distribution system. (Ord. 99-27 § 1, 1999).

5.24.110 Safety requirements.

A. The franchisee shall, at all times, employ professional care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.

B. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys and public ways or places of the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.

C. The town reserves the general right to see that the system of the franchisee is constructed and maintained in a safe condition. If an unsafe condition is found to exist by the town, it may order the franchisee to make necessary repairs within 30 days from the receipt of the town’s notification thereof. If franchisee fails to correct the unsafe condition by making necessary repairs, the town may make the repairs itself or have them made, and collect all reasonable costs thereof from the franchisee. (Ord. 99-27 § 1, 1999).

5.24.120 Newly developed areas.

A. The franchisee explicitly acknowledges that the town service area includes all lands in its adopted urban growth area, and that the town may offer to provide service to any development in said urban growth area, whether inside or outside the town’s corporate boundary, and the town may expand or revise its urban growth area without consultation with franchisee.

B. The franchisee shall have the continued right to provide service in the town’s urban growth area, outside its corporate boundaries.

C. The franchisee’s continued operation and maintenance of existing facilities to serve existing customers inside the town’s corporate limits shall not be construed to provide any right to serve new development. (Ord. 99-27 § 1, 1999).

5.24.130 Franchise fee.

Franchisee shall pay to the town a sum equal to two percent of gross receipts for electric service to customers in the franchise area. Such payment shall be made on a quarterly basis. (Ord. 99-27 § 1, 1999).

5.24.140 Record inspection.

Subject to statutory and constitutional limits and reasonable advance notice, the town reserves the right to inspect the following records of the franchisee at any time during normal business hours provided the town shall maintain the confidentiality of any trade secrets or other proprietary information in the possession of the franchisee: (1) service complaint logs; (2) performance test results; (3) records required to be kept by franchisee related to electrical distribution service pursuant to other regulatory agencies; and (4) such financial records of the franchisee as are necessary to verify the accuracy of franchise fees paid to the town. Such data, however, is understood to be limited to such information that pertains solely to the operation and maintenance of the electrical distribution system within the town. (Ord. 99-27 § 1, 1999).

5.24.150 Reports.

A. Quarterly Reports. Beginning with the first quarter of 2000 within 25 calendar days after the end of the quarter, franchisee shall submit to the town a completed form reporting revenues from electrical distribution services and customer charges by categories for the previous quarter. These reports shall be in a form agreed to by the town and franchisee. The town and franchisee may from time to time agree to make such reasonable amendments to the forms as are required to ensure that all gross revenues are reported clearly and accurately. To the extent included as gross revenues, at a minimum the quarterly reports shall break out gross revenues into the following categories:

1. Basic residential services;

2. Basic commercial services;

3. Electrical energy;

4. Electrical demand;

5. Service call payments;

6. Equipment rental fees; and

7. Other fees.

B. Annual Report. No later than 60 days following the end of franchisee’s fiscal year each year, franchisee shall present a written report to the town which shall include:

1. A summary of the previous year’s activities for the franchise area, including, but not limited to, the total number of subscribers for each category of service, the number of homes passed, miles of overhead and underground plant, other system facilities and equipment constructed, any services added or dropped, and any technological changes occurring in the electrical distribution system;

2. A summary showing by month the number of service calls received by type and month, the percentage of service calls compared to the subscriber base by type of complaint, the number of outages by month, the number of planned outages by month, and the approximate total duration of these outages;

3. A copy of the most recent annual report, if any;

4. Maps showing the location of underground facilities. In addition, franchisee and town shall consult from time to time to discuss franchisee’s construction plans. (Ord. 99-27 § 1, 1999).

5.24.160 Dispute resolution.

Should any dispute arise between the franchisee and the town concerning the operation of franchisee’s electric distribution system or the franchisee’s performance under this chapter and the specific franchise ordinance, the franchisee and representatives from the town shall meet within 10 days of receiving a request from the other to review the performance of the franchisee and/or attempt to resolve the dispute. If the dispute is unable to be resolved, the town and the franchisee shall submit the matter to binding arbitration conducted according to the rules of the American Arbitration Association for commercial arbitration or such other rules as the town and franchisee may agree. All parties shall use their best efforts to conduct the arbitration as quickly as possible. (Ord. 99-27 § 1, 1999).

5.24.170 Customer service.

A. Franchisee shall maintain an office which shall be open during normal business hours, shall have a publicly listed telephone number listed in the town telephone directory that is toll free to in-town customers of the franchisee’s electrical distribution system, and shall be operated to receive customer inquiries on a 24-hour-a-day, seven-day-a-week basis. A record of all complaints requiring service calls shall be maintained for a one-year period. Franchisee’s office shall be staffed a minimum of regular business office hours from Monday through Friday, except holidays for a prompt response to any complaint concerning billing, employee courtesy, programming, safety or company policy.

B. Franchisee shall render repair service to restore service after any accidental interruption and shall intentionally interrupt service only for good cause and for the shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum use of the system. A written or computerized log shall be maintained for a period of one year for all service interruptions that can be inspected upon notice.

C. Franchisee will maintain a sufficient repair force to respond to individual customer complaints or request for repair service within 48 hours after receipt of the complaint or request except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven days, to the extent reasonable.

D. Franchisee shall, upon request, provide to customers the title, address and telephone number of the town official or his/her designee, to whom franchisee’s in-town customers may direct their concerns.

E. Franchisee shall at all times meet or exceed industry standards for maintenance of franchisee’s in-town electrical distribution system. Should a power outage occur affecting more than five customers, a restoration procedure shall be followed which shall be handled in conjunction with restoration of other utility services. The priority for restoration of services is power, telephone and then cable services. (Ord. 99-27 § 1, 1999).

5.24.180 Nondiscrimination.

A. The franchisee shall not as to rates, charges, service facilities, rules, regulations, or in any other respect make or grant any preferences or advantage to any person nor subject any person to any prejudice or disadvantage; provided, that nothing in this chapter shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled; and provided further, that connection and/or service charges may be waived or modified during promotional campaigns of franchisee.

B. The franchisee will not deny access to electrical distribution service to any group of potential subscribers because of the income of the residents of the local area in which the group resides. (Ord. 99-27 § 1, 1999).

5.24.190 Continuity of service.

A. It shall be the right of all of franchisee’s existing customers to continue receiving electrical distribution service so long as their financial and other obligations to the franchisee are fulfilled, and so long as franchisee’s existing facilities remain in service.

B. In this regard the franchisee shall act as far as it is within the control of the franchisee to ensure that all in-town electrical distribution customers receive continuous uninterrupted service during the term of this franchise.

C. In the event the franchisee fails to operate a portion of its in-town electrical distribution system for 12 continuous and consecutive hours without prior notification to and approval of the town or without just cause such as an impossibility to operate the system because of the occurrence of an act of God or other circumstances reasonably beyond franchisee’s control, the town or its designee may, after notice and an opportunity for franchisee to commence operations at its option, operate the system until such time as the franchisee restores service to conditions acceptable to the town, or the franchisee transfers ownership of the affected facilities to the towns. If the town is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the town for all reasonable costs or damages in excess of revenues from the system received by the town that are the result of the franchisee’s failure to perform. (Ord. 99-27 § 1, 1999).

5.24.200 Transfer of ownership.

A. Any franchise awarded by the town shall be based upon an evaluation by the town of each application, the qualifications, and other criteria as such pertain to each particular applicant. No franchise can be sold, transferred, leased, assigned, or disposed of in whole or in part either by sale, voluntary or involuntary, merger, consolidation or otherwise, unless approval is granted by the town council under the same terms and conditions as the original franchise or as it may be subsequently amended by mutual agreement to insure a review of unforeseen circumstances not present at the time of the original franchise. The town’s approval shall not be unreasonably withheld. Such costs associated with this process shall be reimbursed to the town by the new prospective franchisee.

B. An assignment of a franchise shall be deemed to occur if there is an actual change in control or where ownership of 50 percent or more of the beneficial interests, singly or collectively, are obtained by other parties. The word “control” as used herein is not limited to majority stock ownership only, but includes actual working control in whatever manner exercised.

C. The franchisee shall promptly notify the town prior to any proposed change in, or transfer of, or acquisition by any other party of control of the franchisee’s company. Every change, transfer or acquisition of control of the franchisee’s company shall make the franchise subject to cancellation unless and until the town shall have consented thereto. In the event that the town adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the town may cancel the franchise unless control by the franchisee is restored to a status acceptable to the town council.

D. Such approval of transfer, subject to conditions enumerated above, shall not be unreasonably withheld. Approval of the town shall not be required if said transfer is from franchisee to another person or entity, controlling, controlled by or under common control with the franchisee. Approval shall not be required for mortgaging purposes provided that less than 50 percent of the beneficial interests, as described above, are affected by such mortgage.

E. Upon the commencement of a foreclosure action or other action which could possibly result in a judicial sale of all or a substantial part of the franchisee’s in-town electrical distribution system, the franchisee shall notify the town of such fact in writing, and such notification shall be treated as a notification that a change in control of the company has taken place, and the provisions of this chapter governing the consent of the town council to such change in control of the franchisee shall apply.

F. Any transfer or assignment approved by the town shall be evidenced by a written instrument, a duly executed copy of which shall be filed in the office within 60 days after the approval of the transfer or assignment by the town. By said instrument, the assignee shall agree to comply with all terms of this chapter, the franchise ordinance, and the assignor’s application. The town shall have the right, at its sole discretion, to require that any conditions in the original franchise be fulfilled prior to such transfer. Such costs associated with this process shall be reimbursed to the town by the new prospective franchisee. (Ord. 99-27 § 1, 1999).

5.24.210 Right of town to purchase.

The town reserves the right to purchase the franchisee’s in-town electrical distribution system, and franchisee shall sell it to no other party without first offering the town the opportunity to exercise that right by matching the highest third-party offer. (Ord. 99-27 § 1, 1999).

5.24.220 Removal and abandonment of property of franchisee.

A. The town may direct the franchisee to temporarily disconnect or bypass any equipment of the franchisee in order to complete street construction or modification, install and remove underground utilities, or for other reasons of public safety and efficient operation of the town. Such removal, relocation or other requirement shall be at the sole expense of the franchisee.

B. In the event that the use of any part of the franchisee’s electrical distribution system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of this chapter or other town ordinances, or this chapter has been terminated, cancelled, or has expired, the franchisee shall promptly, upon being given 10 days’ notice, remove within six months from the streets or public places all such property of such system other than any which the town may permit to be abandoned in place. In the event of such removal, the franchisee shall promptly restore the street or other areas from which such property has been removed to a condition similar to that condition existing before such removal.

C. Any property of the franchisee remaining in place six months after the termination or expiration of the franchise shall be considered permanently abandoned.

D. Any property of the franchisee to be abandoned in place shall be abandoned in such manner as the town shall prescribe. Upon permanent abandonment of the property of the franchisee in place, the property shall become that of the town, and the franchisee shall submit to the town clerk an instrument in writing, to be approved by the town attorney, transferring to the town the ownership of such property. None of the foregoing affects or limits franchisee’s rights to compensation for an involuntary abandonment of its property under state or federal law or the Constitution. In the event the town and the franchisee are unable to agree as to whether an abandonment is voluntary for the purposes of this section, either party may invoke arbitration to resolve such question. (Ord. 99-27 § 1, 1999).

5.24.230 Revocation for cause.

A. Any franchise granted by the town may be terminated during the period of such franchise for the following reasons:

1. Failure by the franchisee to substantially comply with material provisions of this chapter;

2. Failure of the franchisee to comply with state or federal regulations resulting in any fine, judgment, or other disciplinary action.

B. The procedure to be followed resulting in termination for any of the above reasons, save franchisee’s request, will be:

1. The town will direct in writing franchisee to correct such deficiencies or comply with such regulation within 30 days or a reasonable period of time if the deficiency or other item is not subject to correction within 30 days.

2. Failure to do so will cause the matter of termination to be brought before the town council.

3. At such hearing the franchisee and other interested parties may offer evidence explaining or mitigating such noncompliance. The town council, in its sole discretion, will make the determination as to whether such noncompliance was without just cause. In the event the town council finds that such noncompliance was without just cause, the town council may, at its sole discretion, fix an additional time period to cure such deficiency(ies). If the deficiency has not been cured at the expiration of any additional time period or if the town council does not grant any additional period, the town council may by ordinance declare the franchise to be terminated and forfeited.

4. If the franchisee appeals the revocation and termination of the franchise through legal remedies, the revocation of such franchise shall be held in abeyance pending such de novo judicial review by a court of competent jurisdiction or, at the option of the franchisee, by an arbitrator using the rules of the American Arbitration Association for commercial arbitration or such other rules as the franchisee and town may agree.

5. Provided, nothing contained in the above subsections of this section shall prevent the issuance of a new franchise containing terms substantially the same or identical to a franchise which previously was revoked, on satisfactory assurance made to the town council that the terms and conditions of this chapter can be met by the franchisee. (Ord. 99-27 § 1, 1999).

5.24.240 Effect of termination for noncompliance.

If any franchise is terminated by the town by reason of the franchisee’s noncompliance, that part of the system under such franchise located in the streets and public property shall, at the election of the town, become the property of the town at a cost calculated on the basis of depreciated initial construction cost. By acceptance of a franchise under this chapter, franchisee expressly waives any restriction to this right of acquisition. (Ord. 99-27 § 1, 1999).

5.24.250 Indemnification.

The franchisee will indemnify and hold harmless the town from any and all liabilities, fees, costs and damages except in the case of negligence or willful misconduct on the part of the town, whether to person or property, or expense of any type or nature which may occur to the town by reason of the construction, operation, maintenance, repair and alterations of franchisee’s facilities or any other actions of franchisee in the town. In any case in which suit or action is instituted against the town by reason of damages or injury caused by franchisee, the town shall cause written notice thereof to be given to the franchisee and franchisee thereupon shall have the duty to appear and defend in any such suit or action, without cost or expense to the town. (Ord. 99-27 § 1, 1999).

5.24.260 Insurance.

A. The franchisee shall concurrently with the filing of an acceptance of award of any franchise granted hereunder, furnish to the town and file with the town clerk and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the town, its officers, boards, commissions, agents and employees, protecting the town and all persons against liability for loss or damage for personal injury, death and property damage, and errors or omissions occasioned by the operations of the franchisee under such franchise, with minimum limits of $5,000,000 for both personal injury and/or property damage.

B. The policies mentioned in the subsection A of this section shall name the town, its officers, boards, commissions, agents and employees, as additional insured and shall contain a provision that a written notice of cancellation or reduction in coverage of said policy shall be delivered to the town 30 days in advance of the effective date thereof, if such insurance is provided by a policy which also covers franchisee or any other entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. (Ord. 99-27 § 1, 1999).

5.24.270 Inconsistency.

If any portion of this chapter should be inconsistent with any applicable rule or regulation now or hereinafter adopted by the Federal Energy Regulatory Commission, other federal legislation, any provisions of the Revised Code of Washington or the Washington Administrative Code then to the extent of the inconsistency, the FERC, other federal legislation, RCW, or WAC shall control for so long, but only for so long as such rule or regulation shall remain in effect, but the remaining provisions of this chapter shall not hereby be affected. (Ord. 99-27 § 1, 1999).

5.24.280 Force majeure.

In the event that the franchisee’s performance of any of the terms, conditions, obligations or requirements of this chapter is prevented or impaired due to any cause(s) beyond its reasonable control or not reasonably foreseeable, such inability to perform shall be deemed to be excused and no penalties or sanctions shall be imposed as a result thereof. (Ord. 99-27 § 1, 1999).