Chapter 5.12
FRANCHISE TERMS AND CONDITIONS
Sections:
5.12.010 Terms and conditions—Applicable to whom.
5.12.020 Effect of eliminated streets or public places.
5.12.030 Acquisition of franchise improvements—Legal means.
5.12.040 Right to enter public places for construction.
5.12.050 Franchisee to install authorized improvements.
5.12.060 Commencing work within time stated.
5.12.070 Submittal of plans and specifications to city—Expenses.
5.12.080 Damage to public areas—Restoration responsibility.
5.12.090 Franchisee liable for claims against city—When.
5.12.100 City right to do contiguous work.
5.12.110 New grades or specifications—Franchisee to conform.
5.12.120 Grant or privilege not deemed exclusive franchise.
5.12.130 Provisions binding upon successors.
5.12.140 Violations of provisions—Forfeiture of rights.
5.12.150 City reserves right to alter conditions—Notice.
5.12.160 Franchisee assumes use of right-of-way at own risk.
5.12.170 City to install pipes—Removal of equipment by franchisee.
5.12.180 Franchisee to sign written acceptance.
5.12.200 Obligations to include employee or contractor.
5.12.210 Subject to police power.
5.12.220 Utility facilities subject to application for franchise.
5.12.010 Terms and conditions—Applicable to whom.
The following terms and conditions shall apply and shall be deemed to be terms and conditions of any franchise to use the streets or other public property of the city hereafter granted by the city to any municipal or private corporation engaged in the public service or utility business, unless and except to the extent that such ordinance or resolution granting such franchise expressly provides terms or conditions contrary to those contained in this chapter. (Ord. 38 § 1, 1971)
5.12.020 Effect of eliminated streets or public places.
Whenever any of the streets, avenues, alleys, roads or public places designated in such franchise shall be eliminated from the city limits, then all the rights, privileges and franchises so granted shall terminate in respect to said streets, alleys, avenues, roads and public places so eliminated, but otherwise the franchises shall continue in full force and effect in respect to all streets, avenues, alleys, roads and public places not so eliminated by such reduction or disincorporation. (Ord. 38 § 2, 1971)
5.12.030 Acquisition of franchise improvements—Legal means.
The granting of such franchise shall not preclude the city or any other city or municipality to which Ocean Shores becomes annexed or consolidated from acquiring by purchase or condemnation any or all of the mains, laterals, pipes, poles, cables or other improvements installed by the franchisee within the city streets or public places within the city or in the municipality resulting from such consolidation by such legal means as would have been available to such municipality if no such franchise has been granted. (Ord. 38 § 3, 1971)
5.12.040 Right to enter public places for construction.
The franchisee shall have the right and authority, to the extent expressed in the resolution of the council granting such franchise, to enter upon the streets, avenues, alleys and public places designated by the franchise for the purpose of construction work, extension of existing systems, connection of the system with consumers’ pipelines or equipment, repairing of equipment, and in all fashions maintaining and operating the improvements installed within such city property, and to make rules and regulations governing the same in conformity with state statutes and regulations now in force or hereinafter enacted and adopted by state or municipal agencies governing such utilities. (Ord. 38 § 4, 1971)
5.12.050 Franchisee to install authorized improvements.
The franchisee shall install the pipes, poles, lines or other authorized improvements in the designated streets, avenues, alleys or other places pursuant to plans and specifications approved by the city manager and under the supervision and inspection of a supervisor or inspector provided by the city at the expense of such franchisee. (Ord. 38 § 5, 1971)
5.12.060 Commencing work within time stated.
The franchisee, its successors or assigns, shall commence construction work under such franchise within the time stated within such franchise, and shall have completed and have in operation such portion of the system of improvements as may be specified in such franchise, or the rights therein conferred upon the grantee shall cease and terminate so far as unoccupied streets, roads, etc., are concerned. (Ord. 38 § 6, 1971)
5.12.070 Submittal of plans and specifications to city—Expenses.
A. The location of all mains, laterals, service pipes, poles, lines, cables and appurtenances, their depth below or their height above the surface of the ground, or the grade of any road, street, avenue, alley or public place, shall be determined and fixed by the manager, and before any work is done by the franchisee under such franchise, it shall first file with the city an application for permit to do such work, accompanied by blueprints, in triplicate, showing the position and location of all mains, laterals, pipes, cables, poles, lines, extensions, meter boxes, plugs, standpipes, and other appurtenances sought to be constructed, laid, installed or erected at that time, showing their relative position to existing roads, streets, avenues, etc., upon prints drawn to scale designating said roads and streets by their names and numbers, showing width of the same, giving outline of local improvements such as sidewalks, curbs, gutters, shoulders of roadways, ditches, paved or otherwise surfaced roadways, parking strips, utility poles, conduits, sewer, water and gas pipelines, etc., as may exist on the ground sought to be occupied.
B. The franchisee shall specify the class and type of material to be used in detailed plans, equipment to be employed, and the mode of safeguarding and facilitating public traffic during construction. All material and equipment shall be of a class, type and kind approved by the city, and the manner of excavation, construction, installation, backfill, and the type and size of temporary structures, including traffic turnouts, road obstructions, etc., shall be submitted for the approval of, pass all requirements of, and be constructed under the supervision of the city.
C. The franchisee shall pay to the city all costs of and expenses incurred in the examination, inspection and supervision of such work granted by the permit and done by the franchisee or by an independent contractor under the franchise of the franchisee.
(Ord. 38 § 7, 1971)
5.12.080 Damage to public areas—Restoration responsibility.
A. The franchisee shall leave all streets, avenues, alleys, roads or public places, after laying and installing mains and doing construction work, making repairs to equipment, etc., in as good and safe condition in all respects as they were before the commencement of such work by the franchisee, its agents or contractors, and all recorded monuments which have been disturbed or displaced by the work shall be reset to the specifications and approval of the city.
B. In case of any damage to the streets, avenues, alleys, roads or public places, or to paved or planked roadways, turnouts, gutters, ditches, wood or concrete walks, drain pipes, hand or embankment rails, bridges, trestles, wharves, landings or monuments, by the franchisee, the franchisee agrees to immediately repair the damage at its own sole cost and expense.
C. The city may at any time do, order and have done any and all work considered necessary to restore to a safe condition any such street, avenue, alley, road, or public place left by the franchisee, or agents, in a condition dangerous to life or property, or may replace or reset monuments, and the franchisee upon demand shall pay to the city all costs of such construction or repair and of doing such work.
(Ord. 38 § 8, 1971)
5.12.090 Franchisee liable for claims against city—When.
The franchisee, its successors or assigns, shall protect and save harmless the city from all claims, actions or damages of every kind and description which may accrue to or be suffered by any person or persons, corporation or property by reason of any faulty construction, defective material, or equipment, or maintenance, or by the improper occupation of said right-of-way by the franchisee or by reason of the negligent, improper or faulty manner of safeguarding any excavation, temporary turnouts, or inefficient operation by the franchisee of its pipelines over said streets, avenues, alleys, roads and public places as hereinbefore designated, and in case that suit or action is brought against the city for damages arising out of or by reason of any of the above-mentioned causes, the franchisee, its successors or assigns will, upon notice to it or them of the commencement of said action, defend the same at its or their sole cost and expense and in case judgment shall be rendered against the city in suit or action, will fully satisfy said judgment within ninety days after the suit or action has been finally determined, if determined adversely to the city; provided, that the franchisee therein, its successors or assigns shall have the right to employ its own counsel in any such cause of action as may be tendered to it for defense by the city. (Ord. 38 § 9, 1971)
5.12.100 City right to do contiguous work.
The laying, construction, maintenance and operation of the system of improvements granted under the franchise shall not preclude the city, its accredited agents or its contractors, from blasting, grading or doing other necessary road work contiguous to the franchisee’s improvements, provided that the franchisee shall have twenty-four hours’ notice of said blasting or excavating in order that the franchisee may protect its lines and property. (Ord. 38 § 10, 1971)
5.12.110 New grades or specifications—Franchisee to conform.
If, at any time, the city, deeming it advisable to improve any of its streets, avenues, alleys, county roads or public places, as hereinbefore designated, by grading or regrading, planking or paving same, or altering, changing, repairing or reimproving same, the franchisee, upon written notice by the city, shall, at its or their own expense, immediately so raise, lower, or move its line of pipes or improvements to conform to such new grades as may be established, or place the property in such location or positions as shall cause the least interference with any such improvements or work thereon as contemplated by the city, and the city shall in no wise be held liable for any damages to the franchisee that may occur by reason of the city’s improvements, repairs or maintenance or by the exercise of any rights so reserved in this section or franchise. If the city shall improve such streets, avenues, alleys, county roads or public places, the franchisee shall on written notice by city officials, at its own expense, replace such pipe or system as may be in or through the improved subgrade of such improvement, with pipe of such material as shall conform to the specifications for the improvement of such streets, avenues, alleys, county roads or public places. (Ord. 38 § 11, 1971)
5.12.120 Grant or privilege not deemed exclusive franchise.
Such grant or privilege shall not be deemed or held to be an exclusive franchise. It shall in no manner prohibit the city from granting other franchises of a like nature or franchises for other public or private utilities over, along, across, under and upon any of the streets, avenues, alleys, roads or public places as herein enumerated, and shall in no wise prevent or prohibit the city using any of the streets, roads, etc., or affect its jurisdiction over them or any part of them, with full power to make all necessary changes, relocations, repairs, maintenance, etc., of same as they deem fit. (Ord. 38 § 12, 1971)
5.12.130 Provisions binding upon successors.
All the provisions, conditions, regulations and requirements herein contained shall be binding upon the successors, assigns and independent contractors of the franchisee, and all privileges of the franchisee shall inure to successors, assigns and such contractors equally as if they were specifically mentioned wherever the franchisee is mentioned. (Ord. 38 § 13, 1971)
5.12.140 Violations of provisions—Forfeiture of rights.
If the franchisee, its successors or assigns shall wilfully violate or fail to comply with any of the provisions of such franchise, or through wilful or unreasonable neglect fail to heed or comply with any notice given the franchisee under the provisions of such franchise, then the franchisee, its successors or assigns shall forfeit all rights conferred thereunder and such franchise may be revoked or annulled by the city council. (Ord. 38 § 14, 1971)
5.12.150 City reserves right to alter conditions—Notice.
The city reserves for itself the right at any time upon a forty-eight-hour written notice to the franchisee to so change, amend, modify or amplify any of the provisions or conditions herein enumerated to conform to any state statute or city regulation, relating to the public welfare, health, safety or highway regulation as may hereinafter be enacted, amended, adopted, changed, etc., and such franchise may be terminated at any time if same is not operated or maintained in accordance with its provisions, or at all. (Ord. 38 § 15, 1971)
5.12.160 Franchisee assumes use of right-of-way at own risk.
In consideration of the granting of such franchise by the city manager to the franchisee, the franchisee, for itself and its assigns, shall contract and agree to save the city harmless from any liability of whatsoever nature arising out of any damage and/or destruction done or suffered to be done to franchisee’s mains, valves, pipes, poles or other fittings of whatsoever nature placed upon, along, or under the city road right-of-way or to any other person or property injured or damaged as the result of the use or occupation of any part of the city road right-of-way by franchisee under the terms of such franchise. This paragraph shall be construed to mean that the franchisee accepts such franchise and any rights conferred thereunder for the use and occupation of any portion of the right-of-way, at its own risk, and agrees to assume responsibility for any damage occasioned to franchisee, or to any other person by city, in the maintenance and/or construction work performed by city upon the roadways described above and which would not have occurred but for the presence on said roadways of the franchisee’s pipes, poles, etc., or other property mentioned above. (Ord. 38 § 16, 1971)
5.12.170 City to install pipes—Removal of equipment by franchisee.
If at any time the city installs a line of pipes for sewage and drainage, upon any of the streets, avenues, alleys, county road or public places herein described, the franchisee upon written notice by the city shall temporary remove its line of pipes or improvements at its own expense during the installation and replace same at its own sole cost and expense under the supervision of the city. (Ord. 38 § 17, 1971)
5.12.180 Franchisee to sign written acceptance.
If within thirty days after the granting of such franchise, the franchisee shall have failed to sign its written acceptance of same, then the therein granted rights and privileges shall be deemed forfeited and be declared null and void. (Ord. 38 § 18, 1971)
5.12.190 Surety bond.
Before undertaking any of the work or improvements authorized by the franchise, the franchisee shall furnish to the city a bond, executed by franchisee and a corporate surety authorized to do a surety business in the state, in a sum to be set and approved by the city council as sufficient to insure performance of the franchisee’s obligations under such franchise, conditioned that the franchisee shall well and truly keep and observe all of the covenants, terms and conditions and faithfully perform all of franchisee’s obligations under the franchise, and to erect or replace any defective work or materials discovered in the replacement of the city’s streets or property within a period of two years from the date of the replacement and acceptance of such repaired streets by the city. (Ord. 38 § 19, 1971)
5.12.200 Obligations to include employee or contractor.
The obligations imposed upon the franchisee by the express terms of the resolution granting such franchise, or implied by the terms of this or any other ordinance affecting the same, shall be deemed to include every employee, nominee or independent contractor of the franchisee performing work in the city streets, or other city property, under contract, direction, request or authority of the franchisee under this franchise, and the franchisee, its agent, employee or independent contractor, severally, shall be responsible to the city for any injury or damage to city property or the expense incurred or suffered by the city in correcting defects in work replacing city streets or other improvements damaged by the acts or neglect of such servants, agents or independent contractors of franchisee. (Ord. 38 § 20, 1971)
5.12.210 Subject to police power.
The franchisee, notwithstanding any other terms of such franchise appearing to the contrary, shall be subject to the police power of the city to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in such franchise. (Ord. 38 § 21, 1971)
5.12.220 Utility facilities subject to application for franchise.
All existing utility facilities presently constructed, operated and maintained within the city limits shall be the subject of an application for franchise within sixty days hereof. The application shall be in writing, submitted to the city manager, and accompanied with a map, print or prints as the case may be, wherein the location of all existing facilities maintained by franchisee is accurately illustrated. Following approval of such application as to form, the manager shall place the application before the council for approval by resolution and the council resolution shall establish the particular terms and conditions of the franchise. (Ord. 38 § 22, 1971)