Chapter 13.140
WASTEWATER UTILITY SYSTEM FRANCHISES
Sections:
13.140.020 Franchise application and duration.
13.140.030 Franchise agreement and approval.
13.140.040 Termination and limitations of damages.
13.140.050 Standards of construction and operation of franchise.
13.140.010 Authority to grant franchises for construction, operation and maintenance of a wastewater utility system.
A. Franchise Requirement. Pursuant to RCW 35A.47.040, any construction, operation or maintenance of a wastewater utility collection or transmission system in the streets, alleys, public ways, or public utility easements of the city of Battle Ground (the “public rights-of-way”) must be pursuant to a franchise issued under this chapter. The city council may, by ordinance, award a nonexclusive franchise to construct, operate and maintain a wastewater utility collection or transmission system within all, or any portion of, the public rights-of-way to any person or entity, whether operating under an existing franchise or not, who makes application for authority to use and occupy the public rights-of-way with wastewater utility facilities which complies with the terms and conditions of this chapter; provided, that this section shall not be deemed to prohibit the city council from restricting a number of grantees should it determine a restriction to be in the public interest.
B. Authority of Grant of Franchise. Any franchise granted under this chapter by the city shall authorize the grantee, subject to provisions contained in this chapter:
1. To use and occupy the public rights-of-way for purposes of engaging in the business of operating a wastewater utility system and providing the collection of wastewater or the transmission of wastewater through the city of Battle Ground.
2. To erect, install, construct, repair, replace, reconstruct, upgrade, maintain or retain in, over, under, across, or along any of the public rights-of-way such structures, piping and appurtenances necessary to engage in the business of operating a wastewater utility collection or transmission system business.
3. To maintain and operate wastewater utility system facilities in the public rights-of-way for the collection or transmission of waste water.
4. No franchise granted under this chapter shall authorize the use of any public property of the city other than the public rights-of-way. The use or occupancy of the city’s public property outside of the public rights-of-way shall be governed by separate approval of the director of public works that expressly authorizes the use of such other public property.
C. City Exempt. The provisions of this chapter shall not apply to the city of Battle Ground or the city’s operation of a wastewater collection or transmission system. (Ord. 14-01 § 1, 2014)
13.140.020 Franchise application and duration.
A. Effective Date. The franchise shall be effective on the thirty-first day after approval of a franchise agreement required under BGMC 13.140.030; provided, that the grantee has filed a written instrument addressed to the council accepting a franchise, together with any required insurance policies or bond.
B. Expiration. Any franchise granted under this chapter shall state its term of years after acceptance thereof, as agreed to and stated in the franchise agreement.
C. Application Acceptance.
1. Franchise Application.
a. This chapter grants no authority to operate a wastewater utility collection or transmission system to any person. The grant of any franchise to use and occupy the public rights-of-way shall be made only by the adoption of an ordinance awarding a specific franchise to an applicant pursuant to this chapter, including approval of a franchise agreement.
b. Contents. Each application for a franchise to construct, operate, and maintain a wastewater utility collection or transmission system shall be filed with the city clerk and shall contain or be accompanied by the following:
i. Name, address and telephone number of the applicant;
ii. A detailed statement of the municipal, corporate or other business entity organization of the applicant; and
iii. A description of the proposed wastewater utility collection or transmission system of the applicant. Upon request of the city, the applicant shall provide the public works director a map indicating all areas currently proposed to be served. Unless expressly provided in a franchise agreement adopted pursuant to this chapter, a map submitted to the city under this subsection shall not limit the applicant’s right to use and occupy the entire public rights-of-way.
D. Franchise Transfer or Assignment.
1. Unless provided in the terms of the franchise agreement, any franchise granted, and the rights or privileges granted therein, shall not be sublet or assigned, either by force or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, nor shall title thereto, either legal or equitable, or right, interest or property therein, pass to or vest in any persons, except the grantee, either by act of the grantee or by operation of law, without the consent of the city expressed by ordinance.
2. The grantee shall promptly notify the city of any proposed change in, or transfer of, or acquisition by any other party of control of the grantee, with respect to which the consent of the grantor is required, pursuant to subsection (D)(1) of this section. Such change of control shall make this franchise subject to revocation, unless and until the council has consented thereto. (Ord. 14-01 § 2, 2014)
13.140.030 Franchise agreement and approval.
A. No franchise proposed under this chapter shall become effective for any purpose unless and until a written franchise agreement is entered into between the city of Battle Ground and the grantee and said franchise agreement is accepted by ordinance by the city council of the city of Battle Ground.
1. The franchise agreement shall include the following provisions:
a. Restrictions on the transfer or assignment or subletting of the franchise, if any;
b. The standards for the construction, installation, maintenance, repair and replacement of wastewater utility facilities when entering the public rights-of-way, which shall require the applicant to comply with all applicable state, city and national or federal codes, rules and regulations and specifications referenced or set forth in this chapter;
c. The terms of consideration, if any, to be paid by the grantee for the privilege of having the franchise;
d. Affirmation that the grantee will comply with all local, state and federal codes and regulations;
e. Performance of work standards for utility facility construction and installation;
f. Planning coordination by the city and grantee for planned street improvements and utility facility construction and installation;
g. Standards for relocation of the facilities, if necessary, together with the allocation of the cost of any relocation;
h. Confirmation that the grantee shall provide record drawings of the grantee’s wastewater utility facilities in the public rights-of-way to the city within ten working days of the city’s request;
i. Provisions for the excavation and trenching of the public rights-of-way, which shall comply with the standards of the wastewater collection industry;
j. The terms of default, opportunity to cure and remedies;
k. Indemnification of the city by the grantee;
l. Insurance requirements, if any;
m. Notices and to whom each notice should be sent;
n. Terms of dispute resolution, governing law, and prevailing party costs;
o. How an amendment may be made; and
p. The terms of termination of the franchise agreement.
B. The franchise agreement shall be approved by the city council by ordinance, and approval of the granting of a franchise shall be in the same ordinance. Said ordinance can be adopted by the city council only after a public hearing. (Ord. 14-01 § 3, 2014)
13.140.040 Termination and limitations of damages.
A. Termination of Franchise. The city may terminate any franchise granted pursuant to the provisions of this chapter in the event of the willful failure or refusal by the grantee to comply with any material requirement or limitation contained in this chapter. In order to terminate a franchise pursuant to this section, the city shall proceed as follows:
1. The city shall make written demand that the grantee comply with any requirement or limitation contained in this chapter. If the failure, refusal or neglect continues after notice for an unreasonable period of time, in no event to be less than sixty days following such written demand, the city finance director may place his/her request for termination of the franchise upon the next regular council meeting agenda. The city finance director shall cause to be served upon such grantee at least thirty days prior to the date of such council meeting, a written notice of his/her intent to request such a termination, and the time and place of the meeting.
2. The council shall consider the request and shall hear any persons interested therein, and shall determine, based on a preponderance of the evidence, whether the grantee has committed a material breach of this chapter. Upon a finding by a preponderance of the evidence that the grantee has committed a material breach of this chapter, the city council shall determine if the franchise should be terminated.
B. In the event of termination, the city may require the grantee to withdraw the assets from the franchise and/or the parties may enter into an agreement to allow the city to purchase some or all of the assets or the city may acquire some or all of the said assets through a condemnation procedure. In determining value, any contribution of assets by the city must be taken into consideration.
C. Grantee shall have no recourse whatsoever against the city for any loss, costs, expense or damage arising out of any provision or requirement of the franchise or the enforcement thereof, except to the extent such loss, costs, expense or damage result from the negligence or intentional misconduct of the city.
D. Unless provided in the franchise agreement, a franchise does not relieve the grantee of any requirement of the city or of any ordinance, rule, regulation, or specification of the city, including, but not limited to, any requirement relating to street work, street excavation permits, or the use, removal or relocation of property in the streets. (Ord. 14-01 § 4, 2014)
13.140.050 Standards of construction and operation of franchise.
A. Permits. The grantee shall obtain all necessary permits from city or county authority for the construction and maintenance of wastewater utility facilities in the public rights-of-way so as to not adversely affect the city’s rights-of-way or other ones within said rights-of-way.
B. Safety. Grantee shall, at all times, install or maintain its wastewater utility facilities in accordance with the requirements of the city’s building regulations and in such a manner that they will not interfere with any installations of the city. Grantee shall keep and maintain its wastewater utility facilities in a manner that does not unreasonably interfere with the public health or safety. (Ord. 14-01 § 5, 2014)