Ordinance No. 371

AN ORDINANCE OF THE TOWN OF NEWPORT, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO PUBLIC UTILITY DISTRICT NO. 1 OF PEND OREILLE COUNTY, WASHINGTON, A MUNICIPAL CORPORATION OF THE STATE OF WASHINGTON, TO CONSTRUCT, MAINTAIN AND OPERATE IN THE PRESENT AND FUTURE OVER, ALONG, ACROSS AND UNDER THE STREETS, ALLEYS AND OTHER PUBLIC PLACES OF THE TOWN OF NEWPORT WITH FACILITIES FOR SUPPLYING ELECTRIC SERVICE TO THE TOWN AND THE INHABITANTS THEREOF AND OTHERS FOR A TERM OF TWENTY-FIVE (25) YEARS, SUBJECT TO PRIOR TERMINATION UNDER CERTAIN CONDITIONS, SUBJECTING SUCH ELECTRIC SERVICE AT ALL TIMES TO REGULATION BY PUBLIC AUTHORITY; PROVIDING FOR PAYMENT TO THE TOWN OF COMPENSATION FOR THE EXERCISE OF SAID FRANCHISE AND SPECIFYING OTHER LIMITATIONS, TERMS AND CONDITIONS GOVERNING THE EXERCISE OF SAID FRANCHISE.

BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF NEWPORT, WASHINGTON, as follows:

Section 1. 

There is hereby granted to Public Utility District No. 1 of Pend Oreille County, Washington, a municipal corporation of the State of Washington, herein referred to as the grantee, right, privilege and franchise for a period of twenty-five (25) years from the effective date of this ordinance, unless sooner terminated as herein provided, to construct, maintain and operate over, along, across and under the streets, alleys and other public places of the Town of Newport, appurtenances and equipment used or to be used for the purpose of an electric transmission and distribution system in said Town, including all poles, towers, wires, underground conduits and lines, wires and cables, vaults and manholes, for the installation, storage, operation and maintenance of electrical equipment so used or to be used; and there is hereby granted the use of said streets, alleys and other public places for supplying electrical service to the Town and the inhabitants thereof, and others. Said right, privilege and franchise shall be non-exclusive and the Town expressly reserves the right of the Town itself to engage in such business at any time, and the right to grant similar rights, privileges and franchises to others.

Section 2. 

All of the Grantee’s electric property and facilities shall be constructed and at all times maintained in good order and condition and in accordance with standard electrical engineering practice and with all lawful governmental regulations. The Town Council shall have authority of all times in the furtherance of the safety, convenience and welfare of the public, to control by appropriate regulations the location, elevation, and manner of construction and maintenance of the grantee’s electric property and facilities in the Town streets, alleys and other public places, subject to the provisions of any State law applicable thereto, and the Grantee shall promptly conform with all such regulations.

Section 3. 

Where necessary for the protection of its services to the public, the Grantee shall remove any branches of trees which would impair the safe operation and maintenance of said lines, subject to the supervision of the proper officials of the Town. All poles, towers, lines and appurtenances shall be so erected as to not cause interference with traffic, and the placing of all poles, transformers, wires, or other appurtenances shall be referred to the street superintendent of the Town for his approval and shall be under and subject to reasonable control by the Town Council.

Section 4. 

The services furnished hereunder to said Town and its inhabitants shall be 24-hour service and shall be subject to such reasonable rules and regulations as the Grantee may make from time to time. The Grantee may require reasonable security for the payment of its charges.

Section 5. 

When necessary in order to permit any duly authorized person to move any building or other structure across or along any street or alley of the Town, the Grantee shall raise or temporarily remove its wires maintained hereunder upon the request of the street superintendent, and any costs caused to the Grantee in so doing shall be paid by the owner or mover of such building or other structure. The Grantee and the Town Council shall determine by regulation what is a necessary notice to be given to the Grantee for such work.

Section 6. 

The Town may without charge therefor attach its fire alarm and police signal wires to the poles of the Grantee in said Town, but at its own risk and only in accordance with good electrical practice. Said wires shall be subject to interference by the Grantee only when necessary in the maintenance, operation and repair of its lines, upon notice thereof first being given to a proper official of said Town.

Section 7. 

The Grantee further agrees to enter into joint pole agreements for the use of its poles with other utilities, private and public, who have been granted franchises by the Town, wherever it is possible to do so and will submit to the Town Council any agreement for arbitration where the Grantee and the other utilities referred to cannot agree to the terms of such a joint pole agreement, the Grantee being given the right of appeal the decision of the Town Council to such higher authority as provided by the laws of the State of Washington, and said right shall also be granted to the other utilities.

Section 8. 

The service to be furnished hereunder by the Grantee and all rates and charges therefor, shall be subject at all times to any rules and regulations and orders that may be lawfully prescribed by any authority or body having lawful jurisdiction over such matters under the laws of the State of Washington.

Section 9.

 The Grantee shall at all times indemnify and hold the Town harmless from any and all accidents or liabilities arising from or by reason of any negligent act or omission of the Grantee, its representatives or employees, in the construction, operation or maintenance of any of the Grantee’s electric utility property or facilities. In the event any judgment is recovered against the Town for any such liability, such judgment shall be conclusive against the Grantee, not only as to the amount of such damage, but as to its liability, provided reasonable notice in writing of the pendency of such suit shall be given to the Grantee.

Section 10. 

Whenever it is necessary in the interest of public safety or convenience, the town may require wires to be placed underground and poles not needed for service to the public shall be removed, and that whenever the said Grantee may elect during the life of this franchise to place said wires underground in any portion of the Town, permission is hereby granted so to do, provided the Grantee shall file with the Town Council a complete set of plans and specifications for such work, and shall lay the necessary pipes or conduits for the same in such manner as not to interfere with any existing pipes in such streets and alleys. All such work shall be done subject to the Supervision of the proper authorities of said Town.

Section 11. 

The said Grantee in the exercise of the rights and privileges herein granted, shall erect poles and string wires and build conduits in such manner as not to interfere with the free and unobstructed use of the streets, alleys and other public places of said Town.

Section 12. 

It shall be lawful for said Grantee to make all necessary excavations in any of the streets, alleys or other public places in the Town for the purpose of erecting and maintaining poles to support said wires or for the purpose of laying down, maintaining and operating any pipes or conduits underground for the purposes aforesaid, but whenever the said Grantee shall disturb any of the streets, alleys or other public places for the purposes aforesaid, it shall restore the same to as good order and condition as existed prior to such disturbance as soon as practicable and without any unnecessary delay, and failing to do so, the Town shall have the right to fix by resolution a reasonable time in which said repairs and restorations of streets, alleys and other public places shall be completed, and upon failure of such repairs and restorations being made, the Town shall cause the same to be made at the expense of the Grantee.

Section 13. 

As compensation to the Town for the right, privilege and franchise hereby granted, the Grantee shall pay to the Town in each year an amount equivalent to three per cent (3%) of the Grantee’s gross revenue from sales of electric power and energy and electric service within the corporate limits of the Town during the preceding calendar year, or fractional portion thereof from the effective date of this ordinance, and payment of such compensation shall be made in one payment annually on or before the first day of July of each year during said term.

The Grantee shall submit to the Town Council at the time designated for notifying other governmental agencies entitled to the same report, a report certified by a responsible officer of the Grantee of the amount of Grantee’s gross revenue from sales as herein provided to enable the Town to determine the amount of compensation to be paid for the exercise of this franchise based on such income during the preceding calendar year, or fractional portion thereof. The books of the Grantee shall always be open to inspection by the Town for the purpose of verifying said report.

The Grantee shall be entitled to a credit against the amount of compensation determined to be due the Town for the exercise of this franchise during each year of said term, or fractional portion thereof, equal to the amount paid to the Town by Pend Oreille County, Washington, on the distribution to the Town of the privilege tax paid by the Grantee pursuant to Chapter 54, Revised Code of Washington, as amended or as the same may hereafter be amended, provided that any amount received from Pend Oreille County, Washington, in excess of the compensation determined to be due under the provisions of this section, shall not be applied as a credit against any subsequent year’s compensation determined to be due the Town.

Section 14.

 The franchise hereby granted may be revoked and forfeited by the Town by duly enacted ordinance thereof in the event the Grantee shall fail, after reasonable notice or demand, to comply with any of the terms, conditions or obligations imposed upon the Grantee hereunder.

Section 15. 

The franchise hereby granted shall not be sold, leased, assigned, or otherwise alienated without the express consent of the Town by ordinance passed for that purpose, and no rule of estoppel shall ever be invoked against the Town, in case it shall assert the invalidity of any attempted transfer in violation of this section.

Section 16.

 This ordinance shall become effective upon the filing with the Town Clerk a written acceptance by the Grantee through the enactment and passage of a proper resolution by the Grantee accepting said franchise, and by the signing hereof by the Mayor, attestation by the Town Clerk, and publication as required by law. All costs of publication of this ordinance shall be at the expense of the Grantee.

PASSED by the Town Council of the Town of Newport, Washington, this ____ day of May, 1959.