HomeMy WebLinkAbout06-02-2003 Item II-A-1Ik
�7,
AGENDA BILL APPROVAL FORM
Ab
"40WASHINGTON
Agenda Subject Date:
Public Hearing on PSE Electrical Franchise Agreement May 28, 2003
Department: Attachments: Budget Impact:
Public Works Electrical Franchise Aareement
Administrative Recommendation:
City Council to conduct a public hearing on an Electrical Franchise Agreement with Puget Sound Energy.
Background Summary:
04.2.1
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission
COUNCIL COMMITTEES:
❑ Building
❑
M&O
❑ Airport
❑ Finance
❑ Cemetery
❑
Mayor
❑ Hearing Examiner
❑ Municipal Serv.
❑ Finance
❑
Parks
❑ Human Services
❑ Planning & CD
❑ Fire
❑
Planning
❑ Park Board
®Public Works
® Legal
❑
Police
❑ Planning Comm.
❑ Other
® Public Works
❑
Human Resources
Action:
Committee Approval
Council Approval:
Referred to
Tabled
❑Yes ❑No
❑Yes ❑No Call for Public Hearing
Until —/—/
Until —/—/
Councilmember: Wagner I Staff: Dowdy
Meetina Date: June 2. 2003 1 Item Number: II.A.1
AUBURN *MORE THAN YOU IMAGINED
Draft No. 9
May 28, 2003
ORDINANCE NO.
AN ORDINANCE granting Puget Sound Energy, Inc., a Washington
corporation, its successors and assigns, the right, privilege, authority and
franchise to set, erect, lay, construct, extend, support, attach, connect,
maintain, repair, replace, enlarge, operate and use Facilities in, upon, over,
under, along, across and through the Franchise Area to provide for the
transmission, distribution and sale of electric energy for power, heat and
light, and any other purposes for which electric energy may be used.
WHEREAS, the City Council of the City of Auburn finds that the general public
health, safety, welfare, necessity and convenience require that Facilities to provide for
transmission, distribution and sale of energy for power, heat and light, and other purposes
for which energy may be used, be constructed, maintained and repaired in an orderly
manner when such Facilities are located in, under, on or along City rights-of-way.
THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section 1. Definitions.
1.1 Where used in this franchise (the "Franchise") the following terms shall
mean:
1.1.1 "PSE" means Puget Sound Energy, Inc., a Washington corporation,
and its successors and assigns.
1. 1.2 "City" means the City of Auburn, a code city of the State of
Washington, and its successors and assigns.
1. 1.3 "Franchise Area" means any, every and all of the roads, streets,
avenues, alleys, highways and public rights-of-way of the City as now laid out, platted,
dedicated or improved; and any; every and all roads, streets, avenues, alleys, highways
and public rights-of-way that may hereafter be laid out, platted, dedicated or improved
within the present limits of the City and as such limits may be hereafter extended.
1. 1.4 "Facilities" means, collectively, any and all electric transmission and
distribution systems, including but not limited to, poles (with or without crossarms),
wires, lines, conduits, cables, braces, guys, anchors and vaults, meter -reading devices,
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 1 Printed 5/29/2003
Draft No. 9
May 28, 2003
fixtures, and communication systems; and any and all other equipment, appliances,
attachments, appurtenances and other items necessary, convenient, or in any way
pertaining to any and all of the foregoing, whether the same be located overhead or
underground.
1. 1.5 "Ordinance" means Ordinance No. , which sets forth the terms
and conditions of this Franchise.
1. 1.6 "Public Improvement" means any capital improvement or repair
within the Franchise Area that is undertaken by or on behalf of the City and is funded by
the City (either directly with its own funds or with other public monies obtained by the
City). For the avoidance of doubt, the term "Public Improvement" shall include any such
capital improvement or repair undertaken by the City which requires the relocation of
PSE's Facilities within the Franchise Area, even if the capital improvement or repair
entails, in part, related work performed for a third party county or municipality under a
valid interlocal agreement between the City and such county or municipality (except to
the extent the relocation of PSE's Facilities is caused by the work done for such third
party), but shall not include, without limitation, any other improvements or repairs
undertaken by or for the benefit of third party private entities.
Section 2. Facilities Within Franchise Area.
2.1 The City does hereby grant to PSE the right, privilege, authority and
franchise to set, erect, lay, construct, extend, support, attach, connect, maintain, repair,
replace, enlarge, operate and use Facilities in, upon, over, under, along, across and
through the Franchise Area to provide for the transmission, distribution and sale of
energy for power, heat, light and such other purposes for which energy may be used.
2.2 This Franchise shall not convey any right to PSE to install its Facilities on
or to otherwise use City -owned or City -leased properties outside the Franchise Area;
provided, however, that PSE shall retain the right to maintain, repair and operate
Facilities installed pursuant to prior franchise agreements with the City regardless of
whether said Facilities are outside the Franchise Area, but such right shall be subject to
the provisions of Section 2.3.
2.3 Existing Facilities installed or maintained by PSE on public grounds and
places within the City in accordance with prior franchise agreements (but which such
Facilities are not within the Franchise Area as defined in this Franchise) may continue to
be maintained, repaired and operated by PSE at the location such Facilities exist as of the
effective date of this Franchise for the term of this Franchise; provided, however, that no
such Facilities may be enlarged, improved or expanded without the prior review and
approval of the City pursuant to applicable ordinances, codes, resolutions, standards and
procedures.
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 2 Printed 5/29/2003
Draft No. 9
May 28, 2003
Section 3. Noninterference and Maintenance of Facilities.
3.1 PSE's Facilities shall be constructed, installed, maintained and repaired
within the Franchise Area so as not to unreasonably interfere with the free passage of
traffic and in accordance with the laws of the State of Washington, and the ordinances,
rules and regulations of the City which are not inconsistent with the terms of this
Franchise. PSE shall exercise its rights within the Franchise Area in accordance with
applicable City codes and ordinances governing use and occupancy of the Franchise
Area; provided, however, that in the event of any conflict or inconsistency of such codes
and ordinances with the terms of this Franchise, the terms of this Franchise shall govern
and control; provided further that nothing herein shall be deemed to waive, prejudice or
otherwise limit any right of appeal afforded PSE by such City codes and ordinances. If,
during the term of this Franchise, the City is specifically required by state law to pass any
code or ordinance which conflicts or is inconsistent with any provision of this Franchise,
the provisions of Section 22 will thereafter apply.
3.2 Any repair of PSE's Facilities within the Franchise Area shall be made
within the time and in a manner which conforms with generally accepted customs,
practices and standards in the industry. In the event of any emergency in which PSE's
Facilities located in or under the Franchise Area break or are damaged, or if PSE's
Facilities within the Franchise Area are otherwise in a condition as to immediately
endanger the property, life, health or safety of any individual, PSE shall, upon receipt of
notification from the City of the existence of such condition, take all reasonable actions
to correct the dangerous condition.
3.3 Whenever PSE permanently discontinues use of any above ground or at
grade Facilities within the Franchise Area, such as poles (with or without crossarms),
braces, guys, anchors and vaults, due to modifications or upgrades to PSE's Facilities
within the Franchise Area, the discontinued Facilities shall be removed promptly after all
utility attachments have been disconnected and removed from such Facilities and in a
manner consistent with any contractual obligations to third party users of such Facilities.
At any rate, once all utility attachments have been disconnected and removed from such
Facilities, the removal shall occur within thirty (30) days after PSE's receipt of notice
from the City demanding removal.
Section 4. Permits; Restoration.
4.1 Whenever it shall be necessary for PSE to engage in any work within the
Franchise Area, PSE shall apply for all necessary City permits to do such work, and shall,
except to the extent inconsistent with the terms and conditions of this Franchise or where
expressly provided otherwise herein, comply with all requirements and conditions of such
permits, including but not limited to location restrictions, traffic control, and restoration,
repair or other work to restore the surface of the Franchise Area, as nearly as practicable,
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 3 Printed 5/29/2003
Draft No. 9
May 28, 2003
to its condition immediately prior to the work, or as otherwise specified in the permit
issued by the City in connection with the work. Such restoration responsibility shall
continue for a period of time to correspond to the remaining life of the existing structure,
pavement and/or surface in which the work was accomplished, but shall not apply to any
subsequent repair or restoration made necessary by the acts or omissions of the City or
any third party. It is further provided that in the event that PSE has any work in the
Franchise Area completed by any of its authorized agents or subcontractors, PSE shall
remain fully responsible for the permit, permitted work and any other permit
requirements, notwithstanding any provisions of this Franchise to the contrary.
4.2 In the event of an emergency situation in which PSE's Facilities within the
Franchise Area are in such a condition so as to immediately endanger the property, life,
health or safety of any individual, PSE may take immediate action to correct the
dangerous condition without first obtaining any required permit, provided that PSE shall
notify the City telephonically or in person within twenty-four (24) hours of the event, and
provided that PSE applies for any necessary permit(s) from the City for such work as
soon as reasonably practicable thereafter. For the purposes hereof, "as soon as
reasonably practicable" means that the permit application shall be submitted to the City
not later than ten (10) business days after the date of the commencement of the action that
requires such permit.
4.3 Nothing in this Franchise is intended, nor shall it be construed, as a
hindrance to PSE's ability to take such actions as it deems necessary to discharge its
public service obligations in accordance with the laws of the State of Washington.
Section 5. Maps and Drawings.
5.1 PSE shall provide the City, upon the City's reasonable request, copies of
available drawings in use by PSE showing the location of its Facilities within the
Franchise Area, provided the request is limited to Facilities at specific locations in the
Franchise Area and is made in connection with the City's planning of capital
improvement projects. Further, PSE shall, upon the City's reasonable request, discuss
and explore ways in which PSE and the City may cooperate and coordinate activities with
respect to the development of drawing file layers compatible with the City's Geographic
Information System ("GIS") which show PSE's Facilities at specific locations in the
Franchise Area.
5.2 As to any such drawings and drawing file layers so provided, PSE does not
warrant the accuracy thereof and, to the extent the location of Facilities are shown, such
Facilities are shown in their approximate location. With respect to any excavations
within the Franchise Area undertaken by or on behalf of PSE or the City, nothing herein
is intended (nor shall be construed) to relieve either party of their respective obligations
arising under applicable law with respect to determining the location of utility facilities.
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 4 Printed 5/29/2003
Draft No. 9
May 28, 2003
5.3 Upon the City's reasonable request in connection with the City's design of
new streets and intersections and major renovations of existing streets and intersections,
and any other Public Improvement, undertaken by the City, PSE shall further provide to
the City (a) the location of PSE's underground Facilities at those specific locations within
the Franchise Area affected by the project by either field markings or by locating the
Facilities in the City's design drawings, and (b) other reasonable cooperation and
assistance; provided, however, that nothing in this Section 5.3 or any other provision of
this Franchise is intended to (or shall) relieve any person or entity of its obligations under
applicable law with respect to determining the location of underground facilities.
Section 6. Right to Complete Work.
6.1 In the event that PSE fails to perform any work to restore the surface of
the Franchise Area to enable the free passage of traffic by the traveling public as required
by this Franchise or any permit issued by the City relating to such work, and such failure
continues for a period of ten (10) days after PSE receives written notice from the City
regarding such failure (or, in the event of an emergency situation, such shorter period of
time after receipt of notice from the City as is reasonably required in the circumstances),
the City may, but in no event is obligated to, perform or contract for such work and,
thereafter, PSE shall, upon the City's written request, reimburse the City for the
reasonable costs incurred by the City in having such work performed.
Section 7. Relocation of Facilities.
7.1 Whenever the City causes a Public Improvement to be constructed within
the Franchise Area, and such Public Improvement requires the relocation of PSE's then
existing Facilities within the Franchise Area (for purposes other than those described in
Section 7.2 below):
7.1.1 the City shall provide PSE written notice requesting such relocation,
along with review plans for the Public Improvement that are sufficiently complete
to allow for the initial evaluation and coordination of the relocation, not less than
four (4) weeks prior to the date of a meeting to be held between the City and PSE;
and
7.1.2 the City and PSE shall, at the meeting described in Section 7.1.1,
above, jointly identify and define the project requirements, schedule, construction
standards and tasks that both parties agree shall govern the relocation, after which
the parties shall jointly prepare and execute a letter of understanding documenting
their agreement.
After the parties' execution of the above -referenced letter of understanding, PSE shall
relocate such Facilities within the Franchise Area, in accordance with the letter of
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 5 Printed 5/29/2003
Draft No. 9
May 28, 2003
understanding, at no charge to the City, subject to any applicable tariffs on file with the
Washington Utilities and Transportation Commission and any different arrangement
expressly set forth in a separate agreement signed by PSE and the City. The City shall
use its best efforts to avoid the subsequent relocation of any Facilities for a period of five
(5) years from the date of relocation of such Facilities, but does not guarantee that a
subsequent relocation will not be required. Further, and without limiting the foregoing
obligation of the City, if the City requires the subsequent relocation of any Facilities
during the construction of the City project, and such relocation results from any error or
omission of the City or any of its employees, agents, consultants, contractors, or vendors,
the City shall bear the entire cost of such subsequent relocation.
7.2 Whenever (i) any public or private development within the Franchises Area,
other than a Public Improvement, requires the relocation of PSE's Facilities within the
Franchise Area to accommodate such development; or (ii) the City requires the relocation
of PSE's Facilities within the Franchise Area for the benefit of any person or entity other
than the City (including, without limitation, any condition or requirement imposed by the
City pursuant to any contract or in conjunction with approvals or permits for zoning, land
use, construction or development), then in such event, PSE shall have the right as a
condition of such relocation, to require such developer, person or entity to make payment
to PSE, at a time and upon terms acceptable to PSE, for any and all costs and expenses
incurred by PSE in the relocation of PSE's Facilities.
7.3 Nothing in this Section 7 "Relocation of Facilities" shall require PSE to
bear any cost or expense in connection with the location or relocation of any Facilities
then existing pursuant to easement or such other rights not derived from this Franchise.
Section 8. Undergrounding of Facilities.
8.1 PSE acknowledges the City desires to encourage the undergrounding of
overhead electrical Facilities within the Franchise Area. The City acknowledges that PSE
utilizes such overhead Facilities to provide electrical service on a non -preferential basis
subject to and in accordance with tariffs on file with the Washington Utilities and
Transportation Commission. Subject to and in accordance with such tariffs, PSE will
cooperate with the City in the formulation of policy and regulations concerning the
undergrounding of PSE's overhead electrical Facilities within the Franchise Area. If,
during the term of this Franchise, the City shall direct PSE to underground overhead
electrical Facilities within the Franchise Area, such undergrounding shall be arranged and
accomplished subject to and in accordance with tariffs on file with the Washington
Utilities and Transportation Commission. This Section 8 shall govern all matters related
to the undergrounding of PSE's overhead electrical Facilities within the Franchise Area.
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 6 Printed 5/29/2003
Draft No. 9
May 28, 2003
Section 9. Indemnification.
9.1 PSE shall indemnify, defend and hold harmless the City, its elected and
appointed officials, officers, employees, agents, representatives, engineers, and
consultants from any and all claims, costs, judgments, awards, or liability to any person
arising from injury or death of any person or damage to property to the extent the same is
caused by the negligent acts or omissions of PSE, its agents, servants, officers, or
employees in performing under this Franchise. This covenant of indemnification shall
include, but not be limited by this reference, to claims against the City arising as a result
of the negligent acts or omissions of PSE, its agents, servants, officers, or employees in
barricading, instituting trench safety systems or providing other adequate warnings of any
excavation, construction, or work in the Franchise Area or in any other public place in
performance of work or services permitted under this Franchise.
9.2 Inspection or acceptance by the City of any work performed by PSE at the
time of completion of construction shall not be grounds for avoidance of any of these
covenants of indemnification. 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.
9.3 In the event any claim or demand for which indemnification is provided
under Section 9.1 is presented to, or suit or action is commenced against, the City based
upon any such claim or demand, the City shall promptly notify PSE thereof, and PSE
may elect, at its sole cost and expense, to settle and compromise such suit or action, or
defend the same with attorneys of its choice. In the event that PSE refuses the tender of
defense in any suit or any claim for which indemnification is provided under Section 9. 1,
said tender having been made pursuant to this indemnification clause, and said refusal is
subsequently determined by a court having jurisdiction (or such other tribunal that the
parties shall agree to decide the matter) to have been a wrongful refusal on the part of
PSE, then PSE shall pay all of the City's costs for defense of the action, including all
reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of
the City, including reasonable attorneys' fees of recovering under this indemnification
clause.
9.4 In the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of PSE and
the City, its officers, employees and agents, PSE's liability hereunder shall be only to the
extent of PSE's negligence. It is further specifically and expressly understood that, solely
to the extent required to enforce the indemnification provided herein, PSE waives its
immunity under RCW Title 51; provided, however, the foregoing waiver shall not in any
way preclude PSE from raising such immunity as a defense against any claim brought
against PSE by any of its employees. This waiver has been mutually negotiated by the
parties.
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 7 Printed 5/29/2003
Draft No. 9
May 28, 2003
9.5 Notwithstanding any other provisions of this Franchise, PSE assumes the
risk of damage to its Facilities located in the Franchise Area from activities conducted by
the City, its officers, agents, employees, and contractors, except as set forth below. PSE
releases and waives any and all claims against the City, its officers, agents, employees, or
contractors for damage to or destruction of PSE's Facilities within the Franchise Area
caused by or arising out of activities conducted by the City, its officers, agents,
employees, and contractors, in the Franchise Area, except to the extent any such damage
or destruction is caused by or arises from the negligence or any willful or malicious
action on the part of the City, its officers, agents, employees, or contractors.
9.6 In the event it is determined that RCW 4.24.115 applies to this Franchise,
PSE's indemnification obligations under Section 9.1 shall apply to the maximum extent
permitted thereunder, to the full extent of PSE's negligence. Further, in any such action,
the City shall have the right to participate, at its sole cost and expense, through its own
attorney in any suit or action which arises pursuant to this Franchise when the City
determines that such participation is in the City's best interest.
9.7 The provisions in this Section 9 shall survive the expiration or termination
of this Franchise with respect to any claim, demand, suit or action for which
indemnification is provided under Section 9.1 and which is based on an act or omission
that occurred during the term of this Franchise.
Section 10. Reservation of Rights.
10.1 In the event the City vacates any portion of the Franchise Area during the
term of this Franchise, the City shall, in its vacation procedure, reserve and grant an
easement to PSE for PSE's existing Facilities unless the City reasonably determines that
to do so would be impracticable in light of the nature of the vacation.
10.2 The existence of this Franchise shall not preclude the City from acquiring
by condemnation, in accordance with applicable law, all or any portions of PSE's
Facilities within the Franchise Area.
Section 11. Moving Buildings within the Franchise Area.
11.1 If any person or entity obtains permission from the City to use the
Franchise Area for the movement or removal of any building or other object, the City
shall, prior to granting such permission, require such person or entity to arrange with PSE
for the temporary adjustment of PSE's overhead wires necessary to accommodate the
movement or removal of such building or other object, where the movement or removal
of such building or other object will pass under PSE's overhead wires or where the
movement or removal of such building or other object will otherwise require the
temporary adjustment of PSE's overhead wires. The City shall require such person or
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 8 Printed 5/29/2003
Draft No. 9
May 28, 2003
entity to complete such arrangements, upon terms and conditions acceptable to PSE, not
less than thirty (30) calendar days prior to the movement or removal of such building or
other object. In such event, PSE shall, at the sole cost and expense of the person or entity
desiring to move or remove such building or other object, adjust any of its overhead wires
which may obstruct the movement or removal of such building or object.
Section 12. Use of Facilities by City.
12.1 During the term of this Franchise, the City may, subject to PSE's prior
written consent which shall not be unreasonably withheld, install and maintain City -
owned overhead wires for traffic signalization and police and fire communications upon
PSE's poles which are Facilities located within the Franchise Area. The foregoing rights
of the City to install and maintain such wires are further subject to the following:
12.1.1 The City shall perform such installation and maintenance at its sole
risk and expense in accordance with all applicable laws and in accordance with
such reasonable terms and conditions as PSE may specify from time to time
(including, without limitation, requirements accommodating Facilities or the
facilities of other parties having the right to use the Facilities); and
12.1.2 PSE shall have no obligation under Section 9 in connection with any
City -owned wires installed or maintained on PSE's poles.
Section 13. Vegetation Management.
13.1 PSE shall not apply any pesticide or herbicide within the Franchise Area
without prior approval of the City, which approval shall not be unreasonably withheld. If
PSE first obtains such approval from the City to apply a specific product in accordance
with the defined procedure on an ongoing basis throughout the Franchise Area, PSE shall
not thereafter be required to obtain the City's approval on each occasion such product is
so applied. Trees which may interfere with ungrounded supply conductors should be
trimmed or removed. PSE shall coordinate its routine vegetation management activities
with the City and shall trim vegetation in close proximity to its Facilities within the
Franchise Area in compliance with all City ordinances, regulations, resolutions and rules.
However, such obligation to coordinate and comply shall not limit PSE's right under this
Franchise to cut, trim or otherwise remove vegetation at any time within the Franchise
Area which, due to proximity to PSE's Facilities, poses an imminent threat to property,
public safety or continuity of electrical service.
Section 14. Street Lighting.
14.1 PSE shall install, operate and maintain street lighting as requested by the
City in accordance with applicable schedules and tariffs on file with the Washington
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 9 Printed 5/29/2003
Draft No. 9
May 28, 2003
Utilities and Transportation Commission (or such other regulatory agency having
jurisdiction). Subject to the terms and conditions of the aforementioned schedules or
tariffs, PSE shall apply its best efforts to replace individual street lamps (which PSE is
otherwise required to replace in accordance with such schedules and tariffs) promptly
after receipt of notice from the City.
Section 15. Recovery of Costs; Permit Fees.
15.1 As specifically provided by RCW 35.21.860, the City may not impose a
franchise fee or any other fee or charge of whatever nature or description upon PSE as a
result of this Franchise. However, as provided in RCW 35.21.860, the City may recover
from PSE the actual administrative expenses incurred by the City that are directly related
to: (i) receiving and approving a permit, license or this Franchise, (n) inspecting plans
and construction, or (iii) preparing a detailed statement pursuant to Chapter 43.21C
RCW. With respect to its payment of such administrative expenses, the City shall submit
to PSE statements/billings which specify the amounts due. PSE shall make payment to
the City in reimbursement of such expenses within thirty (30) days of the receipt of such
statements/billings. Failure by PSE to pay such amount within such thirty (30) day time
period shall constitute a failure to comply with the Franchise for the purposes of
Section 16, Default, hereof. Additionally, the failure by PSE to timely pay said amounts
shall be grounds for the City to preclude the processing of any applications and/or issuing
permits until payment has been fully made. Furthermore, any late payment shall also
accrue interest computed at the rate of twelve percent (12%) per annum from the thirtieth
day.
15.2 With respect to the payment of permit fees, PSE shall comply with all
applicable payment terms set forth in applicable codes, ordinances or permits of the City,
including, without limitation, any such terms relating to the schedule for payment and the
City's right to withhold permits or charge interest in connection with any payment default
by PSE; provided, however, the City shall accept payment of such permit fees directly
from contractors of PSE that perform work in the Franchise Area on behalf of PSE so
long as PSE has notified the City in writing that the contractor is authorized to do so on
PSE's behalf and PSE remains responsible for compliance with the terms of the permit.
Section 16. Default.
16.1 If PSE shall fail to comply with the provisions of this Franchise, the City
may serve upon PSE a written order to so comply within thirty (30) days from the date
such order is received by PSE. If PSE is not in compliance with this Franchise after the
expiration of said thirty (30) day period, the City may, by ordinance, declare an
immediate forfeiture of this Franchise. The parties expressly acknowledge and agree,
however, that the forgoing rights and obligations of the parties are subject in all respects
to excused performance based on a Force Majeure Event (as defined in Section 21.14).
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 10 Printed 5/29/2003
Draft No. 9
May 28, 2003
16.2 No provision of this Franchise shall be deemed to bar the right of either
party to seek or obtain judicial relief from a violation by the other party of any provision
of this Franchise or any rule, regulation, requirement or directive promulgated thereunder.
Neither the existence of other remedies identified in this Franchise nor the exercise
thereof shall be deemed to bar or otherwise limit the right of either party to recover
monetary damages for such violations by the other party, or to seek and obtain judicial
enforcement of the other party's obligations by means of specific performance, injunctive
relief or mandate, or any other remedy at law or in equity.
Section 17. Nonexclusive Franchise.
17.1 This Franchise is not, and shall not be deemed to be, an exclusive
Franchise. This Franchise shall not in any manner prohibit the City from granting other
and further franchises over, upon, and along the Franchise Area that do not interfere with
PSE's rights under this Franchise. This Franchise shall not prohibit or prevent the City
from using the Franchise Area or affect the jurisdiction of the City over the same or any
part thereof.
Section 18. Franchise Term.
18.1 This Franchise is and shall remain in full force and effect for a period of
fifteen (15) years from and after the effective date of the Ordinance; provided, however,
PSE shall have no rights under this Franchise nor shall PSE be bound by the terms and
conditions of this Franchise unless PSE shall, within sixty (60) days after the effective
date of the Ordinance, file with the City its written acceptance of the Ordinance. It is
further provided that upon PSE's request for an extension, this Franchise may be
extended by the City, for one five (5) year extension, provided that PSE is in full
compliance with the terms and conditions of the Franchise. In any such extension, the
terms and conditions of this Franchise shall remain in full force and effect, except as may
be otherwise mutually agreed by the parties hereto.
Section 19. Insurance; Bond.
19.1 PSE shall maintain the following liability insurance coverages, insuring
both PSE and the City, and its elected and appointed officers, officials, agents,
employees, representatives, engineers, consultants, and volunteers as additional insured's
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 to PSE:
19.1.1 General liability insurance with limits not less than:
(a) Five million dollars for bodily injury or death to each person;
[AURPSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 11 Printed 5/29/2003
Draft No. 9
May 28, 2003
(b) Five million dollars for property damage resulting from any one
accident; and
(c) Five million dollars for all other types of liability.
19.1.2 Automobile liability for owned, non -owned and hired vehicles with
a limit of $3,000,000 for each person and $3,000,000 for each accident.
19.1.3 Worker's compensation with statutory limits and employer's
liability insurance with limits of not less than $1,000,000.
19.1.4 Comprehensive form premises -operations, explosions and collapse
hazard, underground hazard and products completed hazard with limits of not less
than $3,000,000.
19.2 The liability insurance described herein shall be maintained by PSE
throughout the term of this Franchise, and such other period of time during which PSE is
operating its Facilities within the Franchise Area without a franchise, or is engaged in the
removal of its Facilities from the Franchise Area. Payment of deductibles and self-
insured retentions shall be the sole responsibility of PSE. Coverage under this policy
shall apply separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability. The City shall be named as an
insured under PSE's Commercial General Liability insurance policy. PSE shall be the
primary insured as respects the City, its officers, officials, employees, agents, consultants,
and volunteers. Any insurance maintained by the City, its officers, officials, employees,
consultants, agents, and volunteers shall be in excess of PSE's insurance and shall not
contribute with it.
19.3 The liability insurance described herein, and any subsequent replacement
policies, shall provide that insurance shall not be cancelled or materially changed so as to
be out of compliance with these requirements without first providing thirty (30) days
written notice to the City. If the insurance is cancelled or materially altered so as to be
out of compliance with the requirements of this subsection within the term of this
Franchise, PSE shall provide a replacement policy. PSE agrees to maintain continuous
uninterrupted insurance coverage, in at least the amounts required for the duration of this
Franchise and, in the case of the Commercial General Liability, for at least three (3) years
after expiration of the term of this Franchise. Any lapse in the required insurance
coverage shall be cause for termination of this Franchise.
19.4 In lieu of the insurance requirements set forth in this Section 19, PSE may
self -insure against such risks in such amounts as are consistent with good utility practice.
Upon the City's request, PSE shall provide the City with reasonable written evidence that
PSE is maintaining such self-insurance.
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 12 Printed 5/29/2003
Draft No. 9
May 28, 2003
19.5 Before undertaking any of the work authorized by this Franchise, PSE shall
furnish a bond executed by PSE and a corporate surety authorized to do surety business
in the State of Washington in a sum to be mutually agreed upon by the parties. The bond
shall be conditioned so that PSE shall restore or replace any defective work or materials
discovered in the restoration of the Franchise Area discovered within a period of two (2)
years from the inspection date of any such restoration. PSE may meet the obligations of
this Section 19.5 with one or more bonds acceptable to the City. In the event that a bond
issued pursuant to this Section is canceled by the surety, after proper notice and pursuant
to the terms of said bond, PSE shall, prior to the expiration of said bond, procure a
replacement bond which complies with the terms of this Section.
Section 20. Assignment.
20.1 PSE shall not assign or transfer its rights, benefits and privileges in and
under this Franchise without the prior written consent of the City, which consent shall not
be unreasonably withheld or delayed. Prior to any assignment, the intended assignee
shall, within thirty (30) days of the proposed date of any assignment, file written notice of
the intended assignment with the City together with its written acceptance of all terms
and conditions of this Franchise. Notwithstanding the foregoing, PSE shall have the
right, without such notice or such written acceptance, to mortgage its rights, benefits and
privileges in and under this Franchise for the benefit of bondholders.
Section 21. Miscellaneous.
21.1 If any term, provision, condition or portion of this Franchise shall be held to
be invalid, or is held to be inapplicable to any person or circumstance, such invalidity
shall not affect the validity of the remaining portions of this Franchise which shall
continue in full force and effect, and its application to other persons and circumstances
shall not be affected. The headings of sections and paragraphs of this Franchise are for
convenience of reference only and are not intended to restrict, affect or be of any weight
in the interpretation or construction of the provisions of such sections or paragraphs.
21.2 This Franchise may be amended only by written instrument, signed by both
parties, which specifically states that it is an amendment to this Franchise and is approved
and executed in accordance with the laws of the State of Washington. Without limiting
the generality of the foregoing, this Franchise (including, without limitation, Section 9
above) shall govern and supersede and shall not be changed, modified, deleted, added to,
supplemented or otherwise amended by any permit, approval, license, agreement or other
document required by or obtained from the City in conjunction with the exercise (or
failure to exercise) by PSE of any and all rights, benefits, privileges, obligations or duties
in and under this Franchise, unless such permit, approval, license, agreement or other
document specifically:
[AURPSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 13 Printed 5/29/2003
Draft No. 9
May 28, 2003
21.2.1 references this Franchise; and
21.2.2 states that it supersedes this Franchise to the extent it contains terms
and conditions that change, modify, delete, add to, supplement or otherwise amend
the terms and conditions of this Franchise.
In the event of any conflict or inconsistency between the provisions of this Franchise and
the provisions of any such permit, approval, license, agreement or other document, the
provisions of this Franchise shall control.
21.3 This Franchise is subject to the provisions of any applicable tariff on file
with the Washington Utilities and Transportation Commission or its successor. In the
event of any conflict or inconsistency between the provisions of this Franchise and such
tariff, the provisions of such tariff shall control, subject only to Section 22 with respect to
any such tariff which is adopted after the date of this Franchise.
21.4 In connection with its performance of work under this Franchise, PSE shall,
during the term of this Franchise, fully comply with all applicable equal employment or
non-discrimination provisions and requirements of federal, state and local laws.
21.5 During the term of this Franchise, each party shall notify and keep the other
party apprised of its local address for the service of notices by mail. All notices and other
communications given or required to be given under this Franchise shall be sent postage
prepaid to such respective address and such notices shall be effective upon receipt. The
City and PSE may change their respective addresses by written notice to the other party at
any time. As of the effective date of this Franchise:
PSE's notice address shall be:
Attention:
The City's notice address shall be:
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Attention:
21.6
During the term of this Franchise, PSE shall also provide the City (and maintain current)
a written list showing the names and telephone numbers of the specific departments and
(if applicable) individuals within PSE that may be contacted by the City to identify and
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 14 Printed 5/29/2003
Draft No. 9
May 28, 2003
address problems and issues that arise under this Franchise. PSE shall ensure that the list
includes contact information for addressing emergency support and technical support
issues (with emergency support being available 24 hours per day), and shall ensure that
the names and telephone numbers appearing on the list in those areas have the expertise
and authority (or access to the same) needed to address the problem or issue promptly and
effectively. PSE shall use all reasonable efforts to respond to requests from the City
promptly, to work diligently with the City in resolving any problems or issues identified
by the City, and to actively communicate with the City regarding each problem or issue
from the time it is first identified by the City until the time it is resolved. PSE shall
update the list to ensure that it remains current and shall give written notice of the change
to the City.
21.7 PSE and the City shall, as reasonably requested by the other party from
time to time, discuss and coordinate their activities with respect to construction which
may affect the public ways in any manner in an effort to minimize public inconvenience,
disruption or damages.
21.8 This Franchise shall be binding upon the parties hereto and their permitted
successors and assigns.
21.9 Nothing herein shall be deemed to create a joint venture or principal -agent
relationship between the parties, and neither party is authorized to, nor shall either party,
act toward third persons or the public in any manner that would indicate any such
relationship with the other.
2 1. 10 The failure of either party at any time to require performance by the other
party of any provision hereof shall in no way affect the right of such party thereafter to
enforce the same. Nor shall the waiver by a party of any breach of any provision hereof
by the other party be taken or held to be a waiver of any succeeding breach of such
provision, or as a waiver of the provision itself or any other provision.
2 1. 11 This Franchise shall be governed by and construed in accordance with the
laws of the State of Washington. The venue and jurisdiction over any dispute related to
this Franchise shall be with the King County Superior Court, Regional Justice Center,
Kent, Washington (or, if the Regional Justice Center is no longer in operation, such other
local facility as is then operated by the King County Superior Court).
21.12 If either party shall be required to bring any action to enforce any provision
of this Franchise, or shall be required to defend any action brought by the other party
with respect to this Franchise, and in the further event that one party shall prevail in such
action, the other party shall, in addition to all other payments required therein, pay all of
the prevailing party's reasonable costs in connection with such action, including such
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 15 Printed 5/29/2003
Draft No. 9
May 28, 2003
sums as the court or courts may adjudge reasonable as attorney's fees in the trial court
and in any appellate courts.
21.13 This Franchise represents the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof and supersedes all prior oral
negotiations between the parties; provided, however, that nothing herein is intended to, or
shall, alter, amend or supersede in any way City of Auburn Ordinance Number 3581,
adopted January 2, 1991, under which the City Council granted a franchise to PSE's
predecessor -in -interest, Washington Natural Gas Company, to construct, maintain, repair,
renew and operate a gas distribution system (the "WNG Franchise"), and the WNG
Franchise shall remain in full force and effect in accordance with its terms.
21.14 In the event that either party is prevented or delayed in the performance of
any of its obligations under this Franchise by any event or circumstance beyond its
reasonable control (a "Force Majeure Event"), then that party's performance shall be
excused during the Force Majeure Event. Force Majeure Events shall include, without
limitation, war; civil disturbance; flood, earthquake or other Act of God; storm or other
condition which necessitates the mobilization of the personnel of a party or its contractors
to restore utility service; laws, regulations, rules or orders of any governmental agency;
sabotage; strikes or similar labor disputes involving personnel of a party, its contractors
or a third party; or any failure or delay in the performance by the other party, or a third
party who is not an employee, agent or contractor of the party claiming a Force Majeure
Event, in connection with this Franchise. Upon removal or termination of the Force
Majeure Event, the party claiming a Force Majeure Event shall promptly perform the
affected obligations in an orderly and expedited manner under this Franchise or procure a
substitute for such obligation. The parties shall use all commercially reasonable efforts to
eliminate or minimize any delay caused by a Force Majeure Event.
Section 22. Changes in Laws.
22.1 If, during the term of this Franchise, there becomes effective any change in
federal or state law (including, but not limited to, a change in any tariff filed by PSE with
the Washington Utilities & Transportation Commission) and such change:
22.1.1 specifically requires the City to enact a code or ordinance which
conflicts or is inconsistent with any provision of this Franchise; or
22.1.2 results in a PSE tariff which conflicts or is inconsistent with any
provision of this Franchise;
then, in such event, either party may, within ninety (90) days of the effective date of such
change, notify the other party in writing that such party desires to commence negotiations
to amend this Franchise. Such negotiations shall only encompass the specific term or
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 16 Printed 5/29/2003
Draft No. 9
May 28, 2003
condition affected by such change in federal or state law and neither party shall be
obligated to reopen negotiations on any other term or condition of this Franchise. Within
thirty (30) days from and after the other party's receipt of written notice to so commence
such negotiations, the parties shall, at a mutually agreeable time and place, commence
such negotiations. The parties shall thereafter conduct such negotiations at reasonable
times, in a reasonable manner, in good faith and with due regard to all pertinent facts and
circumstances; provided, however, that (a) in the event the parties are unable, through
negotiation, to reach mutual agreement upon terms and conditions of such amendment,
then either party may, by written notice to the other, demand that the parties seek to
arrive at such agreement through mediation or, if no such demand has previously been
submitted, terminate this Franchise upon not less than ninety (90) days prior written
notice to the other party; and (b) pending such negotiations, mediation and/or termination,
and except as to any portion thereof which is in conflict or inconsistent with such change
in federal or state law, the Franchise shall remain in full force and effect. For purposes of
this Section 22. 1, the term "mediation" shall mean mediation at the local offices of
Judicial Arbitration and Mediation Services, Inc. ("JAMS"), or, if JAMS shall cease to
exist or cease to have a local office, mediation at the local offices of a similar
organization. The parties may agree on a jurist from the JAMS panel. If they are unable
to agree, JAMS will provide a list of the three available panel members and each party
may strike one. The remaining panel member will serve as the mediator.
Section 23. Severability.
23.1 If any section, sentence, clause or phrase of this Ordinance shall 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.
Section 24. Ratification.
24.1 Any act of the City consistent with the authority granted by the City prior to
the effective date of this Ordinance is hereby ratified and affirmed by the City.
Section 25. Effective Date.
25.1 This Ordinance shall be effective on , 2003, having
been: (i) introduced to the City Council not less than five days before its passage; (ii) first
submitted to the City Attorney on , 2003; (iii) published at least five
days prior to the above -referenced effective date and as otherwise required by law; and
(iv) passed at a regular meeting of the legislative body of the City of Auburn by a vote of
at least five members of the City Council on , 2003.
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 17 Printed 5/29/2003
Draft No. 9
May 28, 2003
INTRODUCED: PASSED:
PETER B. LEWIS, Mayor
ATTEST:
Danielle E. Daskam, City Clerk
Date:
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Date:
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 18 Printed 5/29/2003
Draft No. 9
May 28, 2003
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
1, , the duly qualified City Clerk of the City of Auburn, a Non -
charter Code City, situated in the Counties of King and Pierce, State of Washington, do
hereby certify that the foregoing is a full, true and correct copy of Ordinance No. , an
ordinance of the City of Auburn, entitled:
ORDINANCE NO.
AN ORDINANCE granting Puget Sound Energy, Inc., a Washington corporation,
its successors and assigns, the right, privilege, authority and franchise to set, erect,
construct, support, attach, connect and stretch Facilities between, maintain, repair, replace,
enlarge, operate and use Facilities in, upon, over, under, along, across and through the
Franchise Area for purposes of transmission, distribution and sale of electric energy for
power, heat, light and any other purpose for which electric energy can be used.
I further certify that said Ordinance No. was: (i) introduced on the
day of , 2003; (ii) submitted to the City Attorney on the day of
2003; (iii) published on the day of 2003,
according to law; (iv) approved by a majority of the entire legislative body of the City of
Auburn, at a regular meeting thereof on the day of , 2003; and
(v) approved and signed by the Mayor of the City of Auburn on the day of
.2003.
WITNESS my hand and official seal of the City of Auburn, this day of
.2003.
City Clerk
City of Auburn, State of Washington
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 19 Printed 5/29/2003
HONORABLE MAYOR AND CITY COUNCIL
CITY OF AUBURN, WASHINGTON
In the matter of the application
of Puget Sound Energy, Inc., a
Washington corporation, for a
franchise to construct, operate
and maintain facilities in, upon,
over under, along, across and
through the franchise area of the
City of Auburn,
Washington
Draft No. 9
May 28, 2003
Franchise Ordinance No.
ACCEPTANCE
WHEREAS, the City Council of the City of Auburn, Washington, has granted a
franchise to Puget Sound Energy, Inc., a Washington corporation, its successors and assigns,
by enacting Ordinance No. , bearing the date of , 2003; and
WHEREAS, a copy of said Ordinance granting said franchise was received by the
Puget Sound Energy, Inc. on , 2003, from said City of Auburn, King
and Pierce Counties, Washington.
NOW, THEREFORE, Puget Sound Energy, Inc., a Washington corporation, for itself,
its successors and assigns, hereby accepts said Ordinance and all the terms and conditions
thereof, and files this, its written acceptance, with the City of Auburn, King and Pierce
Counties, Washington.
IN TESTIMONY WHEREOF said Puget Sound Energy, Inc.
Acceptance to be executed in its name by its undersigned
thereunto duly authorized on this day of , 2003.
ATTEST:
Copy received for City of Auburn
on
City Clerk
2003
has caused this written
PUGET SOUND ENERGY, INC.
I:
[AUB.PSE.ELEC.FRANCHISE.DRAFT FINAL.DOC] Page 20 Printed 5/29/2003