Ordinance 16-013 Franchise Inland CITY OF SPOKANE VALLEY
SPOKANE COUNTY,WASHINGTON
ORDINANCE NO. 16-013
AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE COUNTY,
WASHINGTON, GRANTING TO INLAND POWER&LIGHT A NON-EXCLUSIVE
FRANCHISE TO CONSTRUCT AND MAINTAIN POLES,ELEVATED AND UNDERGROUND
WIRES, CABLES AND APPURTENANCES FOR THE TRANSMISSION, CONTROL AND
DISTRIBUTION OF ELECTRICITY WITHIN THE PUBLIC RIGHTS-OF-WAY OF THE CITY
OF SPOKANE VALLEY,AND OTHER MATTERS RELATING THERETO.
WHEREAS, RCW 35A.47.040 authorizes the City to grant, permit, and regulate "nonexclusive
franchises for the use of public streets, bridges or other public ways, structures or places above or below
the surface of the ground for railroads and other routes and facilities for public conveyances, for poles,
conduits, tunnels, towers and structures, pipes and wires and appurtenances thereof for transmission and
distribution of electrical energy, signals and other methods of communication, for gas, steam and liquid
fuels, for water, sewer and other private and publicly owned and operated facilities for public service"; and
WHEREAS, RCW 35A.47.040 further requires that "no ordinance or resolution granting any
franchise in a code city for any purpose shall be adopted or passed by the city's legislative body on the day
of its introduction nor for five days thereafter,nor at any other than a regular meeting nor without first being
submitted to the city attorney,nor without having been granted by the approving vote of at least a majority
of the entire legislative body,nor without being published at least once in a newspaper of general circulation
in the city before becoming effective"; and
WHEREAS, this Ordinance has been submitted to the City Attorney prior to its passage; and
WHEREAS, the Council finds that the grant of the Franchise contained in this Ordinance, subject
to its terms and conditions, is in the best interests of the public, and protects the health, safety, and welfare
of the citizens of this City.
NOW, THEREFORE, the City Council of the City of Spokane Valley, Spokane County,
Washington, ordains as follows:
Section 1. Definitions. For the purpose of this Ordinance, the following words and terms
shall have the meaning set forth below:
"Inland Power& Light" means Inland Power& Light, a Washington cooperative, and its
respective successors and assigns, agents and contractors.
"City Manager"means the City Manager or designee.
"construction"or"construct"shall mean constructing,digging,excavating,laying,testing,
operating, extending, upgrading, renewing, removing, replacing, and repairing a facility.
"day" shall mean a 24-hour period beginning at 12:01 Am. If a thing or act is to be done
in less than seven days, intermediate Saturdays, Sundays and legal holidays shall be
excluded in the computation of time.
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"facilities"means,collectively, any and all electric transmission, and distribution systems
and appurtenances owned by Inland Power&Light,now and in the future in the franchise
area, including but not limited to, poles, towers, overhead and underground wires and
cables, conduits, vaults, transformers, meters, meter-reading devices, communication and
control systems and other equipment, appliances, fixtures,attachments,appurtenances and
other items necessary, convenient, or in any way appertaining to any and all of the
foregoing for the purposes of transmission, distribution,and control of electricity,whether
the same be located above or below ground..
"franchise area" shall mean the entire geographic area within the City as it is now
constituted or may in the future be constituted.
"hazardous substances"shall have the same meaning as RCW 70.105D.020(10).
"maintenance,maintaining or maintain"shall mean the work involved in the replacement
and/or repair of facilities,including constructing,relaying,repairing,replacing,examining,
testing, inspecting, removing, digging and excavating, and restoring operations incidental
thereto.
"public property" shall mean any real estate or any facility owned by the City.
"Public Works Director" shall mean the Spokane Valley Public Works Director or his/her
designee.
"right-of-way"shall refer to the surface of and the space along,above,and below any street,
road, highway, freeway, lane, sidewalk, alley, court,boulevard, parkway,drive,trail,bike
path, Grantee easement, and/or public way now or hereafter held or administered by the
City,to the extent the City has the right to allow the Grantee to use them.
"streets" or "highways" shall mean the surface of, and the space above and below, any
public street, road, alley or highway, within the City used or intended to be used by the
general public,to the extent the City has the right to allow the Grantee to use them.
Section 2. Grant of Franchise. The City of Spokane Valley, a Washington municipal
corporation (hereinafter the "City"), hereby grants unto Inland Power & Light (hereinafter "Grantee"), a
franchise for a period of 25 years, beginning on the effective date of this Ordinance, to install, construct,
operate,maintain,replace,upgrade and use all necessary equipment and facilities to place electric facilities
in, under, on, across, over,through,along or below the public rights-of-way located in the City of Spokane
Valley,and other public places as agreed to by the parties in writing(which may be accomplished by written
agreement of the City Manager and Grantee's Chief Operations Officer as approved under City permits
issued pursuant to this franchise(hereinafter the"franchise"). The parties may renew this franchise for an
additional 25 years by mutual written agreement,which may be exercised at any time within the final year
of the initial franchise term.
Section 3. Fee. No right-of-way use fee is imposed for the terns of this franchise. Any such
right-of-way use or franchise fee that may be imposed by subsequent ordinance would apply to any
subsequent franchise, if any, between the parties; provided, however, that this provision shall not preclude
the City from later adopting a subsequent ordinance imposing a utility tax in conformance with applicable
state and local laws.
Section 4. Recovery of Costs. Grantee shall reimburse the City for all costs of one publication
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of this franchise in a local newspaper, and required legal notices prior to any public hearing regarding this
franchise, contemporaneous with its acceptance of this franchise. Grantee shall be subject to all permit and
inspection fees associated with activities undertaken through the authority granted in this franchise or under
City Code.
Section 5. Non-Exclusivity. This franchise is granted upon the express condition that it shall
not in any manner prevent the City from granting other or further franchises or permits in any rights-of-
way that do not materially interfere with Grantee's rights under this franchise. This and other franchises
shall, in no way, prevent or prohibit the City from using any of its rights-of-way or affect its jurisdiction
over them or any part of them. City may not, however, award an electric franchise to another party under
more favorable or less onerous terms than those of this franchise without this franchise being amended to
reflect such more favorable or less onerous terms.
Section 6. Non-Interference with Existing Facilities. Grantee shall have the discretion to
determine the placement of its Facilities as may be necessary to provide safe and reliable electric service
within the Franchise Area, subject to the following non-interference requirements. The City shall have
prior and superior right to the use of its rights-of-way and public properties for installation and maintenance
of its facilities and other governmental purposes. In the event the City,its agents or its contractors,perform
grading, excavating, or other necessary road work contiguous to Grantee's facilities, the City shall give
Grantee not less than 10 business days' notice of said work. The City hereby retains full power to make all
changes,relocations,repairs,maintenance,establishments, improvements, dedications or vacation of same
as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all
new rights-of-way,streets,avenues,thoroughfares and other public properties of every type and description.
Any and all such removal or replacement shall be at the sole expense of the City.
The owners of all utilities, public or private, installed in or on such public properties prior to the
installation of the facilities of the Grantee, shall have preference as to the positioning and location of such
utilities so installed with respect to the Grantee. Such preference shall continue in the event of the necessity
of relocating or changing the grade of any such public properties.
Grantee's facilities shall be constructed and maintained in such manner as not to interfere with any
public use,or with any other wires,conduits or other facilities that may have been laid in the rights-of-way
by or under the City's authority. If the work done under this franchise damages or interferes in any way
with the public use or other facilities,the Grantee shall wholly and at its own expense make such provisions
necessary to eliminate the interference or damage to the satisfaction of the Public Works Director.
Section 7. Construction Standards. All work authorized and required hereunder shall comply
with all generally applicable City Codes and regulations. Grantee shall also comply with all applicable federal
and state regulations, laws and practices. Grantee is responsible for the supervision, condition, and quality
of the work done, whether it is by itself or by contractors, assigns or agencies. Application of said federal,
state, and City Codes and regulations shall be for the purposes of fulfilling the City's public trustee role in
administering the primary use and purpose of public properties, and not for relieving the Grantee of any
duty, obligation, or responsibility for the competent design,construction,maintenance, and operation of its
facilities.
If Grantee shall at any time be required, or plan, to excavate trenches in any area covered by this
franchise, the Grantee shall afford the City an opportunity to permit other franchisees and utilities to share
such excavated trenches, provided that: (1) such joint use shall not unreasonably delay the work of the
Grantee; and (2) such joint use shall not adversely affect Grantee's facilities or safety thereof. Joint users
will be required to contribute to the costs of excavation and filling on a pro-rata basis.
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Section S. Protection of Monuments. Grantee shall comply with applicable state laws relating
to protection of monuments.
Section 9. Tree Trimming. All such pruning,trimming and removal shall be done by Grantee
or its authorized contractors at the Grantee's sole cost and expense. State law requires electric utilities to
comply with the National Electric Safety Code, including the guidance for the trimming or removal of
vegetation interfering or potentially interfering with energized power lines. The right of Grantee to
maintain its facilities and appurtenances under this franchise shall accordingly inchrde the right, as
exercised in Grantee's professional discretion, to utilize an integrated vegetation management program to
minimize the likelihood that vegetation encroaching (either above or below the ground) on Grantee's
facilities can lead to power outages and other threats to public safety and welfare. Grantee or its agents
may inhibit the growth of, prune,or remove any trees and vegetation which overhangs or encroaches upon
its electric transmission and distribution corridors within the franchise area,whether such trees or vegetation
originate within or outside of the rights-of-way. Grantee shall consult with the City Parks Department prior
to removing any tree in excess of six inch diameter at breast height. The parties agree to develop a pilot
program under separate agreement that promotes the replacement of inappropriate vegetation that interferes
with Grantee's facilities.
Section 10. Emergency Response. The Grantee shall, within 30 days of the execution of this
franchise, designate one or more responsible people and an emergency contact, along with the procedures
to be followed when responding to an emergency. After being notified of an emergency, Grantee shall
cooperate with the City to respond in a timely manner with action to aid in the protection the health and
safety of the public.
In the event the Grantee refuses to promptly take the directed action or fails to fully comply with
such direction,or if emergency conditions exist which require immediate action to prevent imminent injury
or damages to persons or property, the City may take such actions as it believes are necessary to protect
persons or property and the Grantee shall be responsible to reimburse the City for its costs and any expenses.
Section 11. One-Call System. Pursuant to RCW 19.122, Grantee is responsible for becoming
familiar with, and understanding,the provisions of Washington's One-Call statutes. Grantee shall comply
with the terms and conditions set forth in the One-Call statutes.
Section 12. Safety. All of Grantee's facilities in the rights-of-way shall be constructed and
maintained in a safe and operational condition. Grantee shall follow all safety codes and other applicable
regulations in the installation,operation, and maintenance of the facilities.
Section 13. Temporary Movement of Grantee's Facilities for Others. Whenever any third party
shall have obtained permission from the City to use any right-of-way for the purpose of moving any
building or other oversized structure, Grantee, upon at least 14 days' written notice from the City, shall
move,at the expense of the third party desiring to move the building or structure,any of Grantee's facilities
that may obstruct the movement thereof; provided, that the path for moving such building or structure is
the path of least interference to Grantee's facilities,as mutually agreed upon by Grantee and the City. Upon
good cause shown by Grantee, the City may provide more than 14 days' notice to Grantee to move its
facilities.
Section 14. Acquiring New Facilities. Upon Grantee's acquisition of any new facilities in the
rights-of-way, or upon Grantee's notice of any addition or annexation to the City of any area in which
Grantee retains any such facilities in the rights-of-way, the Grantee shall submit to the City a written
statement with an electronic GIS map describing all facilities involved,whether authorized by franchise or
any other form of prior right, and specifying the location of all such facilities. Such facilities shall
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immediately be subject to the terms of this franchise.
Section 15. Dangerous Conditions - Authority of City to Abate. Whenever Grantee's
excavation, installation, construction, repair, maintenance, or relocation of facilities authorized by this
franchise has caused or contributed to a condition that substantially impairs the lateral support of the
adjoining right-of-way, road, or other public place, or endangers the public, adjoining public or private
property or street utilities, the City may direct Grantee, at Grantee's sole expense, to take all necessary
actions to protect the public and property. The City may require that such action be completed within a
prescribed time.
In the event that Grantee fails or refuses to promptly take the actions directed by the City, or fails
to fully comply with such directions,or if emergency conditions exist which require immediate action, the
City may enter upon the property and take such actions as are necessary to protect the public, adjacent
public or private property, or street utilities, or to maintain the lateral support thereof, and all other actions
deemed by the City to be necessary to preserve the public safety and welfare; and Grantee shall be liable to
the City for all costs and expenses thereof to the extent caused by Grantee. In the event the City were to
undertake any actions contemplated by this Section 15,it would only hire third-party contractors previously
approved by Grantee as having the experience and technical knowledge to safely perform such repairs for
public safety purposes.
Section 16. Hazardous Substances. Grantee shall comply with all applicable federal, state and
local laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's facilities
in the rights—of-way. Grantee agrees to indemnify the City against any claims, costs,and expenses,of any
kind, whether direct or indirect, incurred by the City arising out of the release or threat of release of
hazardous substances caused by Grantee's ownership or operation of its facilities within the City's rights-
of-way.
Section 17. Environmental. Grantee shall comply with all environmental protection laws,
rules,recommendations,and regulations of the United States and the State of Washington,and their various
subdivisions and agencies as they presently exist or may hereafter be enacted, promulgated, or amended,
and shall indemnify and hold the City harmless from any and all damages arising, or which may arise, or
be caused by, or result from the failure of Grantee fully to comply with any such laws, rules,
recommendations, or regulations, whether or not Grantee's acts or activities were intentional or
unintentional. Grantee shall further indemnify the City against all losses, costs, and expenses(including
legal expenses)which the City may incur as a result of the requirement of any government or governmental
subdivision or agency to clean and/or remove any pollution caused or permitted by Grantee,whether said
requirement is during the term of the franchise or subsequent to its termination.
Section 18. Relocation of Facilities. Grantee agrees and covenants, at its sole cost and
expense, to protect, support, temporarily disconnect, relocate, remove, or convert from overhead to
underground any of its facilities when so required by the City, provided that Grantee shall in all such cases
have the privilege to temporarily bypass, in the authorized portion of the same street upon approval by the
City, any section of its facilities required to be temporarily disconnected or removed. The Parties agree
that it may be appropriate at a later date to re-open this Agreement for the purpose of addressing
undergrounding, including how it may be paid for. In order to invoke this provision,one party shall notify
the other party at least 30 days prior to requesting a meeting on this topic.
If the City determines that the project necessitates the relocation of Grantee's then-existing
facilities,the City shall:
a) At least 60 days prior to the commencement of such improvement project,provide Grantee
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with written notice requiring such relocation;and
b) Provide Grantee with copies of the plans and specifications for such improvement project.
c) After receipt of such notice and such plans and specifications, Grantee shall complete
relocation of its facilities at no charge or expense to the City so as to accommodate the improvement
project.
Grantee may, after receipt of written notice requesting a relocation of its facilities, submit to the
City written alternatives to such relocation. The City shall evaluate such alternatives and advise Grantee in
writing if one or more of the alternatives are suitable to accommodate the work which would otherwise
necessitate relocation of the facilities. If so requested by the City, Grantee shall submit additional
information to assist the City in making such evaluation. The City shall give each alternative proposed by
Grantee full and fair consideration. In the event the City ultimately determines that there is no other
reasonable alternative,Grantee shall relocate its facilities as otherwise provided in this section.In the event
the proposed relocation results in Inland Power & Light being required to relocate outside of the right of
way, City agrees to assist Inland Power & Light in attempting to procure an easement or other rights.
Additionally, if the City requires the subsequent relocation of any of Grantee's Facilities within five years
from the date of relocation of such Facilities or installation of new Facilities,the City shall share one-half
of the cost of such subsequent relocation.
The provisions of this section shall in no manner preclude or restrict Grantee from making any
arrangements it may deem appropriate when responding to a request for relocation of its facilities by any
person or entity other than the City,where the facilities to be constructed by said person or entity are not or
will not become City owned, operated or maintained facilities, provided that such arrangements do not
unduly delay a City construction project.
If the City or a contractor for the City is delayed at any time in the progress of the work by an act
or neglect of the Grantee or those acting for or on behalf of Grantee, then Grantee shall indemnify, defend
and hold the City, its officers, officials, employees and volunteers harmless from any and all claims,
injuries,damages, losses or suits including attorneys' fees to the extent arising out of or in connection with
such delays, except for delays and damages caused by the City, This provision may not be waived by the
parties except in writing.
Section 19. Abandonment of Grantee's Facilities. No facility constructed or owned by Grantee
may be abandoned without the express written consent of the City,which consent shall not be unreasonably
withheld.
The City has discretion and authority to direct Grantee to remove a facility abandoned by Grantee
(whether or not the entity had permission to abandon the facility)and restore the rights-of-way to their pre-
removal condition when:
(a) a City project involves digging that will encounter the abandoned facility and the location of
the abandoned facility will impedes the progress of such project;
(b)the abandoned facility poses a hazard to the health,safety, or welfare of the public; or
(c)the facilities are owned by Grantee and have not been in continuous use for a 24 month period.
Grantee may delay removal of the abandoned facility until such time as the City commences a
construction project in the rights-of-way unless(b)above applies. When(b)applies, Grantee shall remove
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the abandoned facility from the rights-of-way as soon as weather conditions allow,unless the City expressly
allows otherwise in writing.
The expense of the removal, and restoration of improvements in the rights-of-way that were
damaged by the facility or by the removal process,shall be the sole responsibility of the Grantee. If Grantee
fails to remove the abandoned facilities in accordance with the above, then the City may incur costs to
remove the abandoned facilities and restore the rights-of-way, and is entitled to reimbursement from
Grantee for such costs, including reasonable attorney's fees and costs.
Section 20. Maps and Records Required. Upon request, Grantee shall provide the City, at no
cost to the City:
I. An electronic GIS route map that depicts the general location of the Grantee's facilities placed in
the rights-of-way. The route map shall identify facilities as aerial or underground and is not required to depict
service lines to individual subscribers and is not survey grade. Inland Power & Light does not warrant the
accuracy of such facility location information provided and,to the extent the location of facilities are shown,
such facilities may be shown in their approximate location.
2. In connection with the construction of any City project, Grantee shall provide to the City, upon
the City's reasonable request,copies of available drawings in use by Grantee showing the location of such
facilities. Grantee shall field locate its facilities in order to facilitate design and planning of City
improvement projects.
3. Upon written request of the City, Grantee shall provide the City with the most recent update
available of any plan of potential improvements to its facilities within the franchise area;provided,however,
any such plan so submitted shall be deemed confidential and for informational purposes only, and shall not
obligate Grantee to undertake any specific improvements within the franchise area.
4. In addition to the requirements of subsection 1 of this section,the parties agree to periodically
share GIS files upon written request, provided Grantee's GIS files are to be used solely by the City for
governmental purposes. Any files provided to Grantee shall be restricted to information required for
Grantee's engineering needs for construction or maintenance of facilities that are the subject of this
franchise. Grantee and the City are prohibited from selling any GIS information obtained under this
franchise to any third parties.
5. Public Disclosure Act. Grantee acknowledges that information submitted to the City may be
subject to inspection and copying under the Washington Public Disclosure Act codified in RCW 42.56.
Grantee shall mark as "PROPRIETARY/CONFIDENTIAL" each page or portion thereof of any
documentation/information which it submits to the City and which it believes is exempt from public
inspection or copying. The City agrees to timely provide the Grantee with a copy of any public disclosure
request to inspect or copy documentation/information which the Grantee has provided to the City and
marked as "PROPRIETARY/CONFIDENTIAL" prior to allowing any inspection and/or copying as well
as provide the Grantee with a time frame, consistent with RCW 42.56.520, to provide the City with its
written basis for non-disclosure of the requested documentation/information. In the event the City disagrees
with the Grantee's basis for non-disclosure, the City agrees to withhold release of the requested
documentation/information in dispute for a reasonable amount of time to allow Grantee an opportunity to
file a legal action under RCW 42.56.540.
Section 21. Limitation on Future Work. In the event that the City constructs a new street or
reconstructs an existing street,the Grantee shall not be permitted to excavate such street except as set forth
in the City's then-adopted regulations relating to street cuts and excavations. The City is a party to the
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Inland Northwest Regional Pavement Cut Policy, and shall maintain a copy of the currently adopted Policy
on its website or similar broad means of dissemination.
Section 22. Reservation of Rights by City. The City reserves the right to refuse any request
for a permit to extend facilities. Any such refusal shall be supported by a written statement from the Public
Works Director that extending the facilities, as proposed,would materially interfere with the public health,
safety or welfare.
Section 23. Remedies to Enforce Compliance. In addition to any other remedy provided
herein, the City reserves the right to pursue any remedy to compel or force Grantee and/or its successors
and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not
prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein.
Section 24. City Ordinances and Regulations. Nothing herein shall be deemed to direct or
restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the
performance of the conditions of this franchise, including any reasonable ordinances made in the exercise
of its police powers in the interest of public safety and for the welfare of the public.The City shall have the
authority at all times to control by appropriate regulations the location, elevation, and manner of
construction and maintenance of any facilities by Grantee, and Grantee shall promptly conform with all
such regulations,unless compliance would cause Grantee to violate other requirements of law or the tariff.
In the event of a conflict between the Municipal Code and this franchise, the Municipal Code shall
control.
Section 25. Vacation. The City may vacate any City road, right-of-way or other City property
which is subject to rights granted by this franchise in accordance with state and local law. The City shall
timely notify Inland Power & Light of any proposed street vacations so that Inland Power & Light may
request the inclusion of an appropriate easement in the area to be vacated.
Section 26. Indemnification.
1. Grantee hereby covenants not to bring suit and agrees to indemnify, defend and hold
harmless the City, its officers, employees, agents and representatives from any and all claims, costs,
judgments,awards or liability to any person arising from injury,sickness or death of any person or damage
to property of any nature whatsoever relating to or arising out of this franchise agreement;except for injuries
and damages caused solely by the negligence of the City. This includes but is not limited to injury:
a) For which the negligent acts or omissions of Grantee, its agents, servants, officers
or employees in performing the activities authorized by a franchise are a proximate cause;
b) By virtue of the City permitting grantee's use of the City's rights-of-ways or other
public property;
c) Arising as a result of the negligent acts or omissions of Grantee, its agents,
servants, officers or employees in barricading, instituting trench safety systems or
providing other adequate warnings of any excavation, construction or work upon the
facility, in any right-of-way, or other public place in performance of work or services
permitted under a franchise.
2. Grantee's indemnification obligations pursuant to subsection 1 of this section shall include
assuming liability for actions brought by Grantee's own employees and the employees of Grantee's agents,
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representatives,contractors and subcontractors even though grantee might be immune under RCW Title 51
from direct suit brought by such an employee. It is expressly agreed and understood that this assumption
of potential liability for actions brought by the aforementioned employees is limited solely to claims against
the City arising by virtue of Grantee's exercise of the rights set forth in a franchise. The obligations of
Grantee under this subsection have been mutually negotiated by the parties,and Grantee acknowledges that
the City would not enter into a franchise without Grantee's waiver. To the extent required to provide this
indemnification and this indemnification only, Grantee waives its immunity under RCW Title 51.
3. The City shall indemnify and hold harmless Grantee and its officers,volunteers, agents,
and employees,from any and all claims, actions, suits, liability, loss, costs, expenses, and damages of any
nature whatsoever, by any reason of or arising out of any negligent act or omission of the City, its
officers, agents and employees,relating to or arising out of the performance of this franchise.
4. If the comparative negligence of the parties and their officers, volunteers, agents, and
employees is a cause of such damage or injury, the liability, loss, cost,or expense shall be shared between
the Parties in proportion to their relative degree of negligence and the right of indemnity shall apply to such
proportion.
5. Inspection or acceptance by the City of any work performed by Grantee at the time of
completion of construction shall not be grounds for avoidance of any of these covenants of
indemnification. Provided,that Grantee has been given prompt written notice by the City of any such claim,
said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which
may be compromised prior to the culmination of any litigation or the institution of any litigation. The City
has the right to defend or participate in the defense of any such claim.
6. Li the event any matter(for which the City intends to assert its rights under this Section)is
presented to or filed with the City, the City shall promptly notify Grantee thereof and Grantee shall have
the right, at its sole cost and expense, to settle and compromise such matter as it pertains to Grantee's
responsibility under this Section 26. In the event any suit or action is commenced against the City based
upon any such matter, the City shall likewise promptly notify Grantee thereof, and Grantee shall have the
right, at its sole cost and expense, to settle and compromise such suit or action, or defend the same at its
sole cost and expense, by attorneys of its own election, as it pertains to Grantee's responsibility under this
Section 26. Failure of the City to give notice as required herein shall not be a defense except and to the
extent that Grantee demonstrates actual prejudice therefrom.
7. In the event that Grantee refuses the tender of defense in any suit or any claim, said tender
having been made pursuant to this section, and said refusal is subsequently determined by a court having
jurisdiction(or such other tribunal that the patties shall agree to decide the matter),to have been a wrongful
refusal on the part of Grantee, then Grantee shall pay all of the City's costs for defense of the action,
including all reasonable expert witness fees, reasonable attorneys' fees, the reasonable costs of the City,
and reasonable attorneys' fees of recovering under this subsection.
8. Grantee's duty to defend, indemnify and hold harmless City against liability for damages
caused by the concurrent negligence of(a)City or City's agents,employees,or contractors,and(b)Grantee
or Grantee's agents, employees, or contractors, shall apply only to the extent of the negligence of Grantee
or Grantee's agents, employees, or contractors. In the event that a court of competent jurisdiction
determines that a franchise is subject to the provisions of RCW 4.24.115,the parties agree that the indemnity
provisions hereunder shall be deemed amended to conform to said statute and liability shall be allocated as
provided herein.
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9. Notwithstanding any other provisions of this section,Grantee assumes the risk of damage
to its facilities located in the rights-of-way and upon City-owned property from activities conducted by the
City, its officers,agents,employees and contractors,except to the extent any such damage or destruction is
caused by or arises from the negligence or any willful or malicious actions on the part of the City, its
officers,agents, employees or contractors. Grantee releases and waives any and all such claims against the
City,its officers,agents,employees or contractors. Grantee further agrees to indemnify,hold harmless and
defend the City against any claims for damages,including, but not limited to,business interruption damages
and lost profits,brought by or under users of Grantee's facilities as the result of any interruption of service
due to damage or destruction of Grantee's facilities caused-by or arising out of activities conducted by the
City, its officers, agents, employees or contractors, except to the extent any such damage or destruction is
caused by or arises from the negligence or any willful or malicious actions on the part of the City, its
officers, agents, employees or contractors.
10. The provisions of this section shall survive the expiration, revocation or termination of this
franchise.
Section 27. Insurance. Grantee shall procure and maintain for the duration of the franchise,
insurance, or provide self-insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder
to Grantee, its agents,representatives or employees.
Applicant's maintenance of insurance as required by this franchise shall not be construed to limit
the liability of the Grantee to the coverage provided by such insurance,or otherwise limit the City's recourse
to any remedy available at law or in equity.
1. Automobile Liability insurance with limits no less than$1,000,000 Combined Single Limit
per accident for bodily injury and property damage. This insurance shall cover all owned,
non-owned, hired or leased vehicles used in relation to this franchise. Coverage shall be
written on Insurance Services Office(ISO) form CA 00 01 or a substitute form providing
equivalent liability coverage. If necessary, the policy shall be endorsed to provide
contractual liability coverage; and
2. Commercial General Liability insurance shall be written on Insurance Services Office
(ISO) occurrence form CG 00 01, or a substitute form providing equivalent liability
coverage acceptable to the City, and shall cover products liability. The City shall be a
named as an insured under the Applicant's Commercial General Liability insurance policy
using ISO Additional Insured-State or Political Subdivisions-Permits CG 20 12 or a
substitute endorsement acceptable to the City providing equivalent coverage. Coverage
shall be written on an occurrence basis with limits no less than $1,000,000 Combined
Single Limit per occurrence and $2,000,000 general aggregate for personal injury, bodily
injury and property damage. Coverage shall include but not be limited to: blanket
contractual; products/completed operations; broad form property; explosion, collapse and
underground(XCU); and Employer's Liability.
The insurance policies are to contain, or be endorsed to contain, the following provisions for
Commercial General Liability insurance:
1. The Grantee's insurance coverage shall be primary insurance with respect to the City as
outlined in the Indemnification section of this franchise. Any insurance, self-insurance,or
insurance pool coverage maintained by the City shall be in excess of the Grantee's
insurance and shall not contribute with it.
Ordinance 16-013 Granting Electrical Franchise to Inland Power&Light Page 10 of 13
2. The Grantee's insurance shall be endorsed to state that coverage shall not be cancelled,
except after 30 days prior written notice has been given to the City.
Insurance is to be placed with insurers with a current A.M.Best rating of not less than A:VII.
Grantee shall furnish the City with original certificates and a copy of any amendatory
endorsements, including the additional insured endorsement, evidencing the insurance requirements of the
Grantee prior to the adoption of this Ordinance.
Any failure to comply with the reporting provisions of the policies required herein shall not affect
coverage provided to the City, its officers,officials,employees or volunteers.
Section 28. Performance Bond Relating to Construction Activity. Before undertaking any of
the work, installation, improvements, construction, repair, relocation or maintenance authorized by this
franchise, Grantee, or any parties Grantee contracts with to perform labor in the performance of this
franchise, shall, upon the request of the City, furnish a bond executed by Grantee or Grantee's contractors
and a corporate surety authorized to operate a surety business in the State of Washington, in such sum as
may be set and approved by the City, not to exceed twenty-five thousand dollars, as sufficient to ensure
performance of Grantee's obligations under this franchise. The bond shall be conditioned so that Grantee
shall observe all the covenants,terms and conditions and shall faithfully perform all of the obligations of
this franchise,and to repair or replace any defective work or materials discovered in the City's road,streets,
or property. Said bond shall remain in effect for the life of this franchise. In the event Grantee proposes to
construct a project for which the above-mentioned bond would not ensure performance of Grantee's
obligations under this franchise,the City is entitled to require such larger bond as may be appropriate under
the circumstances.
Section 29. Modification. The City and Grantee hereby reserve the right to alter, amend or
modify the terms and conditions of this franchise upon written agreement of both parties to such alteration,
amendment or modification.
Section 30. Forfeiture and Revocation. If Grantee willfully violates or fails to comply with
any of the provisions of this franchise,or through willful or unreasonable negligence fails to heed or comply
with any notice given Grantee by the City under the provisions of this franchise, and an adequate
opportunity to cure the violation or non-compliance has been given in writing to Grantee, then Grantee
shall, at the election of the City,forfeit all rights conferred hereunder and this franchise may be revoked or
annulled by the City after a hearing held upon reasonable notice to Grantee. The City may elect, in lieu of
the above and Without any prejudice to any of its other legal rights and remedies, to obtain an order from
the Spokane County Superior Court compelling Grantee to comply with the provisions of this franchise and
to recover damages and costs incurred by the City by reason of Grantee's failure to comply.
Section 31. Assignment. This franchise may not be assigned or transferred without the written
approval of the City, except that Grantee can assign this franchise without approval of, but upon notice to
the City to, any parent, affiliate or subsidiary of Grantee or to any entity that acquires all or substantially
all the assets or equity of Grantee, by merger, sale,consolidation or otherwise.
Section 32. Acceptance. Not later than 60 days after passage of this Ordinance, the Grantee
must accept the franchise herein by filing with the City CIerk an unconditional written acceptance thereof.
Failure of Grantee to so accept this franchise within said period of time shall be deemed a rejection thereof
by Grantee, and the rights and privileges herein granted shall, after the expiration of the 60-day period,
absolutely cease,unless the time period is extended by ordinance duly passed for that purpose.
Ordinance 16-013 Granting Electrical Franchise to Inland Power&Light Page 11 of 13
Section 33. Survival. All of the provisions, conditions and requirements of sections: 4, 5, 6,
12, 15, 16, 17, 18, 19, 26, 27, 28, 36, 37 and 38 of this franchise shall be in addition to any and all other
obligations and liabilities Grantee may have to the City at common law, by statute, by ordinance, or by
contract, and shall survive termination of this franchise, and any renewals or extensions hereof. All of the
provisions, conditions, regulations and requirements contained in this franchise shall further be binding
upon the heirs, successors,executors, administrators, legal representatives and assigns of Grantee and City
and all privileges, as well as all obligations and liabilities of Grantee shall inure to their respective heirs,
successors and assigns equally as if they were specifically mentioned herein.
Section 34. 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. In the event that any of the provisions of this Ordinance are held to be invalid by
a court of competent jurisdiction, the City reserves the right to reconsider the grant of the franchise and
may amend, repeal, add, replace or modify any other provision of the franchise, or may terminate the
franchise.
Section 35. Renewal. Application for extension or renewal of the term of this franchise shall
be made no later than 180 days of the expiration thereof. In the event the time period granted by this
franchise expires without being renewed by the City,the terms and conditions hereof shall continue in effect
until this franchise is either renewed or terminated by the City.
Section 36. Notice. Any notice or information required or permitted to be given by or to the
parties under this franchise may be sent to the following addresses unless otherwise specified, in writing:
The City: City of Spokane Valley
Attn: City Clerk
11707 East Sprague, Suite 106
Spokane Valley, WA 99206
(after September 1, 2017,please use:
10210 East Sprague, Spokane Valley, WA 99206)
Grantee: Inland Power&Light
Attn: Connie Nelson
PO Box A
Spokane, WA 99219-5000
Phone: (509) 789-4291
Section 37. Choice of Law. Any litigation between the City and Grantee arising under or
regarding this franchise shall occur, if in the state courts, in the Spokane County Superior Court, and if in
the federal courts, in the United States District Court for the Eastern District of Washington.
Section 38. Non-Waiver. The City shall be vested with the power and authority to reasonably
regulate the exercise of the privileges permitted by this franchise in the public interest. Grantee shall not
be relieved of its obligations to comply with any of the provisions of this franchise by reason of any failure
of the City to enforce prompt compliance, nor does the City waive or limit any of its rights under this
franchise by reason of such failure or neglect.
Section 39. Entire Agreement. This franchise constitutes the entire understanding aiid
agreement between the parties as to the subject matter herein and no other agreements or understandings,
Ordinance 16-013 Granting Electrical Franchise to Inland Power&Light Page 12 of 13
written or otherwise,shall be binding upon the parties upon execution and acceptance hereof. This franchise
shall also supersede and cancel any previous right or claim of Grantee to occupy the City roads as herein
described.
Section 40. Effective Date. This Ordinance shall be in full force and effect five days after
publication of the Ordinance or a summary thereof occurs in the official newspaper of the City of Spokane
Valley as provided by law.
PASSED by the City Council this 16`x'day of August, 201,x.
Nita c
R.L. Higgins, Mayor
ATTE :
(t4 ;, A, ' �i" 1tme Bainbridge, City Clerk 7``-
Approved as i Form: l
(..) P"
411
Office o ie Crtyne
Date of blication: 8 "'&& - 0/0
Effective Date: e9 -.3/- (1/ a
Acce r It •
,ower Light:
By. J di ` f.t,,•„
Chad Jensen, CEO
The Grante- Inland Power&Light,for itself,and for its successors and assigns, does accept all of
the terms and cons.tions of the foregoing franchise.
IN WIT ESS WHEREOF, G\-\c... e-n-se.-Cl has signed this c9 3(3 day of_
isK.Lnia.s k_ ,2016. Subscribed and sworn before me this 073 day of NA.q i 5't ,2016.
NE ,,�� Notary Public in and for the State of us e e+j-I-D�
sS ASO tt
residing in K an L—
= e`y�p�Ekp�gAtp r+ ea+j My commission e5pires !'A acr.In a/(0 i .?/)90
0e %.\a NIVi• � i
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Ordinance 16-013 Granting Electrical Franchise to Inland Power&Light Page 13 of 13