2150_00001ORDINANCE NO.2150
AN ORDINANCE GRANTING TO PUBLIC UTILITYDISTRICT NO.2 OF GRANT COUNTY AFRANCHISETOLOCATE,CONSTRUCT,OPERATE AND MAINTAINFACILITIESWITHINALLCITYRIGHTS-OF-WAY AND OTHERPUBLIC PROPERTY IN THE CITY OF MOSES LAKE,WASHINGTON
SECTION 1.FINDINGS:Public UtilityDistrictNo.2 of Grant County,Washington,a municipal corporationorganizedunderthelawsofthestateofWashington(hereinafterreferred toas "District"or "Grantee")hasrequestedfromtheCityofMosesLake,Washington,(hereinafterreferred toas "Grantor"or"City"),a franchisetolocate,construct,operate,andmaintainpoles,wires,undergroundcables,and appurtenances (hereinafter"facilities")over,under,across,alongand parallel to allcitynghtsof way and public property in the City ofMosesLake,Washington;and
SECTION 2.GRANT OF FRANCHISE
2.1 _Grant:
A.Grantor hereby grants toGrantee a nonexclusive authorization to construct,operate,maintain,reconstruct,replace,upgrade and repair electrical and telecommunicationsfacilities for thepurposeofcarryingouttheGrantee's functions authorized under Title 54 RCW.Said facilitiesmaybelocatedunder,over along,adjacent,or parallel to all present and future streets,alleys,rights of way and other public property belonging to the Grantor (hereinafterreferredto as the"Franchise Area").
B.The term"facilities"shall include,but not be limitedto:all such wires,cables,hubs (neighborhoodfiberdistributionpoints),poles,conductors,ducts,conduits,vaults,amplifiers,pedestals,attachments and other property and equipment as are reasonably necessary tothe operation ofanelectricalsystemand/ortelecommunicationsystem for theprovision of electrical power andwholesaletelecommunicationservicewithintheFranchiseArea,as determined by theGranteeinitssolediscretion.
C.This Franchise is intended toconvey limitedrights and interests onlyas tothoseStreets inwhichtheGrantormaylawfullyconveysuchrightsandinterests.Itis nota warrantyof titleor interestinanyright-of-way;itdoes not provide the Grantee any interest in any particular location withintheright-of-way;and itdoes not confer rights other than as expressly provided inthe grant hereof.This Franchise does not deprive theGrantor ofany powers,rightsorprivileges itnowhas,or maylateracquireinthefuture,to use,perform workon or to regulate theuse of and tocontrol theGrantor's streets,alleys,rights ofway and otherpublic property belonging tothe Grantor coveredbythisFranchise,including without limitation the righttoperform work on its roadways,right-of-wayorappurtenantdrainagefacilities,including constructing,altering,paving,widening,grading,or excavating thereof.
D.Grantor may at any timegrant authorization to use the public rights-of-way foranypurpose notOincompatiblewithGrantee's authority,rights,privileges and interests under thisFranchise.Thenon-exclusive provisions ofthisfranchise shall not authorize the Grantor tolocate other facilitiesonGrantee-owned poles orwireswithouttheGrantee's consent or affect the service orservicesprovidedunderthisfranchise,or permit facilities of thirdparties to create a hazard to Granteeownedfacilities.
E.To theextent permitted underapplicablefederal and state law,thisFranchise shallauthorizetheGranteetherightorprivilegetoinstallitsfacilitiesinanymanneronspecificutilitypolesorequipmentownedbyGranteeoranyotherPersonwiththeirpermission.
F.Grantee promises,as a condition of exercisingthe privileges granted by this Franchise,thatGranteewillcomplywiththetermsandconditionsofthisFranchise.
2.2 Master Permit:This Franchise shall constitute the Master Permit for all facilities.The Grantee shallcontinuetonotifytheGrantorofplanstoworkwithintheright-of-way and provide written plans forreviewandapproval,but no permitshall be required provided that such facilities are located pursuanttothetermsofthisFranchise.
2.3 Duration:The term of thisFranchise and all rights,privileges,obligationsand restrictions pertainingtheretoshallbefromtheeffectivedateofthisFranchisethroughJanuary31,2029.
2.4 Effect of Acceptance:Upon acceptance by the Grantee,this Franchise shall supersede all priorfranchisesandshallaffirm,authorizeand ratify all prior activityauthorized by permits orother action notpreviouslycoveredbythisFranchise.
2.5 Effective Date The effective date ofthisFranchise shallbe thedate upon which it is accepted bytheGrantee,provided that such acceptance shalloccur onorbefore January 31,2004.Ifnot accepted bythatdatethisFranchiseshallbenullandvoid.
2.6 Grant of Other Franchises :In the event the Grantor enters into a Franchise,permit,license,9 authorization,or otheragreementof any kind with any otherPerson orentityother thanthe Grantee to
,enter into the Grantor's streets for the purpose of constructingor operating electricalfacilities or'wholesale telecommunicationsfacilities,thematerial provisions thereofshall be reasonably comparabletothosecontainedherein,in order that one operator not be granted an unfair competitive advantageoveranother,and to provide all parties equal protection under the law.
2.7 Police Powers:Grantee's rights hereunder are subject totherights and powers ofGrantor toadoptandenforceordinancesnecessarytothesafety,health,and welfare of the public.IntheeventofconflictsbetweenprovisionsofthisFranchiseandotherordinancesoftheGrantor,the termsof thisFranchiseshallprevailexceptastohealthandsafetyissues.This Franchise is purposefully silent on the issueofwhetherornotconstructionoffacilitieswithintheright-of-way must be underground.AIIundergroundingissueswillbedealtwithoutsideofthisFranchise.
2.8 Relations to Other Provisions of Law:This Franchise does not confer rights or immunities upon theGranteeotherthanasexpresslyprovidedherein.Grantee does not waive its right to challenge thelawfulnessofaparticularenactment,including on the grounds that a particular action is anunconstitutionalimpairmentofcontractualrights.The Franchise issued is in lieu ofany otherrequiredpermit,or authorization.
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2.9 Costs of Publication:Grantee shall pay the reasonable cost ofnewspaper notices and publication
pertaining to thisFranchise and any amendments thereto,as such notice or publicationis reasonably
required by Grantor or applicable law.
SECTION3.AUTHORITY:Grantor and Grantee both represent thattheyhave theauthority to enter intoand
executethisdocument.
SECTION 4.GENERAL STREET USE AND CONSTRUCTION:
4.1 Tree Trimminq and Removal:Grantee's righttomaintain its facilities shallinclude theright totrimand
remove all trees orothervegetation thatoverhanga public right-of-way ofthe Grantor so as toprevent
the branches of such trees from coming in contact withits Electrical system or Telecommunications
system,or thatinterfere with ormayinterferewith Grantee'sfacilities located pursuant tothe terms of
thisfranchise.
4.2 Construction:
A.Subject toapplicable state and federal laws and regulations and ordinances ofGrantorand the
provisions of this Franchise,Grantee may perform all constructionnecessary forthe operation
of its electricalsystem ortelecommunicationssystem,Allconstructionand maintenance of any
and all facilities withinStreets incident to Grantee's electrical system or telecommunication
system shall,regardless of who performs the construction,be and remain Grantee's
responsibility.
B.Prior toMay of each year,Grantor and Grantee and other parties shall meet to discuss street
construction planned for the followingconstructionseason or such longer period as necessary
to fully plan for the development of City streets and other rights of way.Grantor and Grantee
shall disclose to each other,their plans and schedules for development,including other
construction currently in progress,planned or proposed,in order to investígate thoroughlyall
opportunitiesfor sharing costs and to minimize the interruptions in the use of City streets.
Whenever it is possible and reasonably practicable,Grantee and Grantar shall cooperate in
planning efforts so as to reduce the number of street cuts,minimizeinterference with existing
utilities and/orreduce the overall cost toeach party.
4,3 One Call Locator Service:The Grantor and theGranteeshall use the one calllocator serviceprior to
performingany excavationin the Grantor's Streets.
4.4 Relocation:Grantorshall have the rightto reasonably require,Grantee to change thelocation of any
part of Grantee's electrical system or telecommunicationsystem within the Streets when a street
improvement project requires suchchange,and the expense thereofshallbe paid by Grantee,Should
Grantee failto remove or relocate any such facilities by the date reasonably establíshed by Grantor,
Grantormay effect such removal or relocation,and the expense thereof shall be paid by Grantee,
including all reasonable costs and expenses incurred by Grantor due to Grantee's delay.IfGrantor
requires Grantee torelocate itsfacilities located withintheright ofway,Grantor shallmake a reasonable
effort to provide Grantee with an alternate location within the right of way.
4.5 Restoration of Streets:
A.Whenever Grantee disturbs thesurface of any Street for anypurpose,Grantee shall promptly
restore the Street to at least its prior condition.If public or private property is disturbed ordamagedbyGrantee,the Grantee shall reasonably restore theproperty to its former condition,
normal wear and tear excepted.Inthe case offireor disaster,theGrantormay remove,replace,
modify or disconnect Grantee's facilities and equipment located in the public right-of-way or on
any other property ofthe Grantor.Followingnotice bythe Grantor toGrantee ofsuchemergencymodification,Grantee may restore its facilities or equipmentto their pre-existing condition at
Grantor'sexpense.
B.If any removal,replacement,modificationor disconnection is required to accommodate the
construction,operation or repair of the facilitiesor equipment of another Franchise holder,
Grantee shall,after at least sixty(60)days'advance written notice,take action to effectthe
necessary changes requestedby the other Franchise holder attheother Franchise holder's sole
and pre-paid cost and expense.
C.At therequest of any Person holding a valid permit,issued by an agency havingappropriate
jurisdiction,and upon reasonable advance notice,Grantee shall temporarilyraise,Iower or
remove its wires as necessary to permit the movingofa building,vehicle,equipmentor other
item.The permit holder must pay theexpense of such temporarychanges,and Grantee may
requirefull payment in advance.
4.6 Maintenance and Workmanship:
A.Grantee's electrical system or telecommunicationsystem shall be constructed and maintained
in such manneras not to interfere withsewers,water pipes,or any other property ofGrantor,or
with any otherpipes,wires,conduits,pedestals,structures,equipment orother facilities thatmay w
have been laid in theStreets by,or under,Grantor's authority.
B.Grantee,at its ownexpense,shall install,operate,repair,change and improve itsfacilities tokeep
them in good repair,and safe and reasonably presentable condition.
4.7 Reservation ofGrantor Street Rights:Nothing inthisFranchiseshall prevent Grantororutilities owned,
maintainedor operated by publicentities other thanGrantor,from constructing sewers;grading,paving,
repairing or altering any street;repairing or removing water mains,orconstructingor establishing any
other public workor improvement.All such workshall be done,insofar as practicable,so as not to
obstruct,injure or prevent the use and operation of Grantee's electrical system or telecommunication
system.However,ifanyofGrantee's electrical system or telecommunicationsystem interferes withthe
constructionor repairofany street or public improvement,including construction,repair or removal of
a sewer or water main,Grantee's electrical system or telecommunicationsystem shallbe relocated in
accordance with4.4.
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4.8 Use ofConduits by Grantor:The Grantee and theCityshall grant toeach other,free ofexpense,jointuseofanyandallpoles,ducts,conduits or equipment in the streets or other public places ownedbyeitherpartyforanyproperpurpose,insofar as the same may be done without interfering withthe useandenjoymentofeitherparty's own wires andotherfacilities and further provided thatall such jointuseshallbeinfullcompliancewithallrules,regulations,requirements and conditions ofallapplicable safetycodesaffectingelectricalinstallationswhichmaybepresentlyineffectorfutureamendmentsthereto,as well as being subject totheCity's obligationstoany other franchise holder with which it mayhaveasimilarjointuseagreement.
4.9 StreetVacation:If,at any time,theGrantor shallsell,transferorvacate any road,right-of-wayor otherOpublicpropertywhichissubjecttorightsgrantedbythisfranchise,such sale,transferor vacation shallbesubjecttoaperpetualeasementinfavorofGrantee,its successors and assigns,for itsfacilities inplaceatthetimeofvacationandforthepurposeofcontinuedoperationandmaintenanceofsaidfacilities.The Grantor shall give theGrantee notice ofany vacation proceedings as ifitwere an abuttinglandowner.Suchvacation shall,by its terms,expressly prohibit any use ofthe vacated properties thatwillinterferewithGrantee's full enjoyment of rights under said easement.The Grantor agrees topromptlyexecuteanysuchdocumentsasmayberequiredtoimplementthissection.
4.10 Hazardous Substances:
A.Grantee shall comply with allapplicable local,state and federal laws,statutes,regulationsandordersconceminghazardoussubstancesrelatingtoGrantee's electrical system ortelecommunicationssystemintheFranchiseArea.
B.Grantee shall maintainand inspectits electrical system or telecommunicationssystem locatedintheStreets.Upon reasonable written notice to Grantee,Grantor and Grantee may jointlyinspectGrantee'sfacilities intheStreetsto determineifany release ofhazardous substances hasaccurred,or may occur,from or related to Grantee's electrical system or telecommunicationssystem.Inremoving or modifyingGrantee's facilities as provided inthisFranchise,Grantee shallalsoremoveallresiduesofhazardoussubstancesrelatedthereto.
4.11 No Interference:Grantee shallarrange its lines;cables and other appurtenances,on public property,insuch a manner as to not cause unreasonable interference withthe use ofsaid public property by anyperson.
SECTION 5.INSURANCE REQUIREMENTS:
5.1 Insurance Requirements:
A.General Requirement.Grantee must have adequate insurance during the entire term of thisFranchisetoprotectagainstclaimsforinjuriestoPersonsordamagestopropertywhichinanyOwayrelateto,arise from,or are connected with thisFranchise or involve Grantee,its agents,representatives,contractors,subcontractorsand theiremployees.
B.InitialInsurance Limits.Grantee must keep insurance ineffect inaccordance with the minimuminsurancelimitshereinsetforthbytheGrantorfromtimetotime.The Grantee shall obtainpoliciesforthefollowinginitialminimuminsurancelimits:
1.Commercial General Liability:Two-million dollars ($2,000,000)combined single limit peroccurrenceforbodilyinjury,personal injury,and property damage,and forthosepolicies withaggregatelimits,a two-and-one-halfmilliondollars ($2,500,000)aggregate limit,
2.Automobile Liability:Two-milliondollars ($2,000,000)combined singlelimitper accidentforbodilyinjuryandpropertydamage,
C.Self Insurance.The insurance limits may be satisfied throughself insurance up to the first$500,000with excess coverage thatsatisfies the requirements ofthissection.
D.All insurance limits set forth in this section shall be subject to reviewand adjustment by theGrantoreveryten(10)years.Grantorshall give Grantee sixty (60)days to provide proof thatincreasedlimitsareinplaceifsodirectedbytheGrantorafteritsreview.
5.2 Indemnification:
A.Scope of Indemnity.Granteeshall,at its sole cost and expense,indemnify,hold harmless,anddefendtheGrantoranditofficers,boards,commissions,agents,andemployees againstanyandallclaims,including,butnot limitedto,thirdparty claims,suits,causes ofaction,proceedings,andjudgmentsfordamagesorequitablereliefsolelytotheextenttheClaimsariseoutofGrantee'sorGrantee's agent's negligent acts ornegligentomissions:provided,however,theGrantee willnotbeobligatedtoindemnifyGrantororitsofficers,commissions,agents,oremployeesin anyproceedingregardingthegrantofthisFranchise.This indemnity provision shall include damagesOandliabilities,if and to the extent such damages and liabilities are a result of Grantee's orGrantee's agent's negligent acts or negligent omissions.This indemnity provision shall not applytotheextentoftheGrantor's negligent acts of omissions or those of its officers,agents,contractors,or employees thereof.
B.Dutyto Give Notice andTender Defense.The Grantor shallgivetheGrantee written noticewithinten(10)days of receiving any claim or of the commencement of any action,suit or otherproceedingcovemdbytheindernnityinthisSection,Failure of Grantor toprovide such noticeshallresultinwaiverofGrantee's indemnification obligationswith respect tosuch action,suitorotherproceedingotherwisecoveredbytheindemnityinthisSection.Inthe eventanysuch claimarises,the Grantor or any other indemnified party,as definedbythisFranchise,shall tenderthedefensethereoftotheGranteeandtheGranteeshallhavetheobligationanddutytodefend,settle orcompromiseany claims arisingthereunder,andtheGrantor shall cooperatefullytherein.Granteeshall accept ordecline the tenderwithin ten (10)days of its receipt of thewritten noticedescribedabove.In the event that the Grantee declines defense of theclaim in violationof thisSection5.2,theGrantor may defend such claim and seek recovery from Grantee its reasonableexpensesforattomeys'fees and other expenses,including expert witness fees,incurred byGrantorfordefenseandinseekingsuchrecovery.
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C.The provisions of Section 5.2 shall apply to claims by Grantee's own employees and the
employees of Grantee's agents,representatives,contractors,and subcontractors to which
Grantee might otherwisebe immune under Title 51 RCW.This waiver of immunity under Title
51 RCW has been mutually negotiated bythe parties hereto,andGrantee acknowledgesthatthe
City would not enter into this Franchise without Grantee's waiver thereof.
SECTION 6.NOTICE OF DEFAULT AND CURE:
6.1 Default:Ifthe Grantee falls tocomplywith any material provisions of thisordinance or causes to be
done,any act or thingprohibited byorin violation ofthe termsofthisordinance,theGrantorshallnotify
Grantee in writing,stating withreasonable specificity the nature ofthe allegedviolation.Grantee shall
have thirty(30)days from the date ofreceiptof such notice to:
A.Respond to Grantor,contestingGrantor's assertion thata violation has occurred,and request to
use the dispute resolutionprovisions of thisfranchise;or
B.Cure theviolation within90 days ofthe date of the Grantee's response tothe Grantor or within
such longer period ifnecessary to cure theallegedviolation;or
C.NotifyGrantor that Grantee cannot cure the allegedviolation withinninety (90)days,and notify
the Grantor in writing of what steps the Grantee shall take to cure theviolationincluding the
Grantee's projectedcompletiondate forsuchcure.Insuch case,Grantorand Grantee shallmeet
to discuss alternative methodstocure the violation.
D.Inthe event a defaultorviolationis not curedas provided herein,Grantor may remedythedefault
or violation as reasonably necessary intheinterests ofmanaging therightofway and theGrantee
shall reimburse Grantor for the reasonable costs incurred within thirty(30)days after receiptof
an itemized list of theexpenses incurred.
6.2 Revocation of Franchise:A default or violationmay constitute grounds for forfeiting or revokingthis
Franchise.Being mindfulthatGrantee is entitledtoa franchise to use the Grantor's Franchise Area
upon reasonable terms and conditions,violations of such terms and conditions may,after a hearing
before the CityCouncil,be the basis for revoking thisFranchiseor otherwise securíngcompliancewith
thereasonable termsand conditionsof thisFranchise.
6.3 Revocation Hearinq Process:Whenever a breach ofthisFranchise occurs as defined in section 6.1
(D),then the City Councilmaygiven written noticetotheGrantee of its intent toconducta hearing to
considersanctions againsttheGrantee forviolations ofthe termsofthisFranchise which violations are
identified insuch notice.Granteeshall have noless than(sixty)60 daysto answer the noticeand admit,
deny or conditionally admit or deny the claimedviolations of thisFranchise,If after receipt of the
Grantee's answer,the CityCouncilremains convinced that materialviolations ofthisFranchise remain
unresolved,itshall schedule a hearing before theCityCouncil tobe held no sooner than sixty (60)days
afterreceiptof the response oftheGrantee.Atsuch hearing,the burden ofgoing forward shall be upon
the Citystaff toestablishthematerialviolations ofthisFranchise.The Grantee may present evidence
in response to the evidence of the City.At the conclusion of that hearing,the City Council shall
determine ifa materialviolation ofthis Franchise remains to be resolved.Ifa material violationof this
Franchise remains,the City Council shall deliver written instructions to Grantee as towhat action is
necessary tocure such materialviolation orto insure suchmaterialviolation does notoccur again.Only
if the Grantee refuses or fails to effect a cure acceptable to theCityCouncil,may the City Council
conclude that revocation of this Franchise maybe a remedy,Revocation is a remedyoflast resort.
SECTION 7.ABANDONMENT ANDREMOVAL:In theevent thatthe facilities are nolonger usefulinthe
conveyance of poweror for communications,Grantee shall,at theGrantor'soption,removethefacilities at
theGrantees sole expense.The Grantee shallhave one (1)nine(9)monthperiod within which tosell,transfer
or convey its electricalsystem or telecommunicationssystemto a qualified purchaser,ortoremoveits plant,
structures and equipment from the Grantor'sStreets and otherpublic places as directed by the Grantor.
SECTION 8.MISCELLANEOUS PROVISIONS:
8.1 Severability:Ifany section,subsection,paragraph,termor provision ofthis Franchise is determined
to be illegal,invalid or unconstitutional by any courtofcompetentjurisdictionor byany state or federal
regulatory authority having jurisdictionthereof,such determination shall have no effect on the validity
ofany othersection,subsection,paragraph,termor provision ofthis Franchise,allofwhich willremain
infullforce and effectfor the term of the Franchise.
8.2 Transfer:Grantee shall give theGrantorsixty days notice ofthe Grantee's intention totransferanyfacilitiescoveredbythisfranchisetoathirdparty.Anysuccessor,whether by voluntary transfer orotherwiseshallbesubjecttothetermsofthisfranchiseagreementuntilanewfranchiseisreached
between the Grantor and such thirdparty.Allrights and privileges granted,and duties imposed by this
franchise upon the Grantee shall extend toand be binding upon its successors and assigns.
8.3 Nonenforcement bv Grantor:Grantee is not relieved of its obligationto comply with any of the
provisions ofthisFranchise by reason ofanyfailure of Grantor to enforce prompt compliance.Grantor's
forbearance or failure toenforce any provision of this Franchise shall not serve as a basis to stop any
subsequent enforcement.The failure oftheGrantoronone or more occasions toexercisea rightor to
requirecompliance orperformance underthisFranchise or any applicable law shall not be deemed to
constitutea waiverof such right or a waiverof compliance or performance,unless such right has been
specifically waivedinwriting.Any waiver of a violation is nota waiver ofany otherviolation;whether
similaror different from thatwaived.
8.4 Relationship of Remedies The remedies provided for in this Franchise are cumulative and not
exclusive;theexercise of one remedy shall not prevent the exercise of another,or any ríghts ofthe
Grantor at law orequity.
8.5 Notices:Throughout the term of the Franchise,Grantee shall maintain and file with Grantor a
designated legal or local address for the service of notices by mail.Acopy ofallnotices from Grantor
to Grantee shall be sent by U.S.mail,certified,retum receipt requested,postage prepaid,to such
address andsuchnotices shall be effective upon three(3)days after the date ofmailing.Attheeffective
date of this Franchise,such addresses shall be:
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Public UtilityDistrict No.2 ofGrant CountyPOBox878EphrataWA98823Attention:Manager
All notices to be sent by Grantee toGrantor under thisFranchise shall be sent,U.S.mail,certified,return receipt requested,postage prepaid,and such noticesshallbeeffectiveupon three(3)days afterthedateofmailing.At theeffective date of this Franchise,such address shall be:
Cityof Moses LakeOPODrawer1579MosesLakeWA98837Attention:City Manager
8.6 Authoritv to Amend :This Franchise may be amended at any timeonly by written agreement oftheparties,
8.7 NoThird Party Beneficiaries:This Franchise shall not be construed tocreate rights in,or to grantremediesto,any thirdpartyas a beneficiary ofthisFranchise or of any duty,obligationorundertakingestablishedherein.
8.8 ApplicableLaw:Thisagreement shall be governed by and construed in accordance withthelaws oftheStateofWashington.Venue forany actionarisingout of thisagreement,include theinterpretationofthisagreement,shall be inthe Superior Court of Grant County,Washington,
8.9 Captions:The captions and headings ofthis Franchise are for convenience and reference purposesonlyandshallnotaffectinanywaythemeaningorinterpretationofanyprovisionsofthisFranchise.
8.10 Construction of Franchise:The provisions ofthisFranchise shall be liberallyconstrued topromote thepublicinterest.
8.11 CompleteAgreement:This franchiseconstitutesthecomplete understanding between theparties.Allunderstandings,writtenor oral,previously made between the parties,are hereby merged into thisdocumentwhichisafullandcompleteexpressionofthepartiesintentions.This franchise is subjecttochangeonlybyanamendmentthatisdulyadoptedbytheCityCouncilandapprovedbytheGrantee.Anyrule of interpreting ambiguities against the interests ofthedrafting party shallnot be applicable inresolvingadisputeoverthemeaningofanyprovisionofthisfranchiseortheintentofthepartieswithrespecttosuchaprovision.
8.12 Force Majeure:Intheevent that either party is prevented or delayed inthe performance of any of its
O obligationsunderthisAgreement by a reason beyond itsreasonable control(a"Force Majeure Event"),then thatparty's performance shall be excused during the Force MajeureEvent.Force Majeure Eventsshallinclude,withoutlimitation,war;civildisturbance;flood,storm,earthquakeorotherAct ofGod;orotherconditionwhichnecessitatesthemobilizationofthepersonnelofapartyoritscontractorstorestoreutilityservicetocustomers;laws,regulations,rules or orders of any governmentalagency;sabotage;strikesor similar labor disputes involvingpersonnel ofa party,itscontractors ora thirdparty;orany failure or delay intheperformance by theother party,or a thirdparty who is not an employee,agent or contractorof the party claiminga Force Majeure Event,in connection with the Work or thisreement.Upon removal or terminationof the Force Majeure Event,theparty claiminga ForceeureEventshallpromptlyperformtheaffectedobligationsinanorderlyandexpeditedmannerunderthiAgreementorprocureasubstituteforsuchobligation.The parties shall use all commerciallyreasonableeffortstoeliminateorminimizeanydelaycausedbyaForceMajeureEvent.
8.13 Time is of the Essence:Time is ofthe essence of thisFranchise and each and all of its provisions inwhichperformanceisafactor.
Adopted by the City Council and signed by its Mayor on Janu 3,
Ronald C.Covey,Mayor
ATTEST:
Ronald C.Cone,Finance Director
APP OVED AS TO FOR
/JamesA.ker,City Attameý
O
O