HomeMy WebLinkAbout6775 (2) ORDINANCE NO. 6775
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 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 those 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. Defmitions.
1.1 Where used in this franchise (the "Franchise")the following terms shall mean:
1.1.1 "P SE" 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, 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 for the purpose of transmission,distribution and sale of energy,whether
the same be located overhead or underground.
1.1.5 "Ordinance" means Ordinance No. 6775, which sets forth the terms
and conditions of this Franchise.
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1.1.6 "Public Improvement"means any capital improvement,maintenance
or repair within the Franchise Area that is undertaken by or on behalf of the City and is
funded by the City (either directly or indirectly with its own funds or with other public
monies obtained by the City), including any capital improvement within the City's adopted
Transportation Improvement Plan or Capital Facilities Plan.
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.
Section 3. Noninterference and Maintenance of Facilities.
3.1 P SE's Facilities shall be constructed, installed, maintained, replaced, upgraded,
relocated, 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, the City of Auburn
Design and Construction Standards, and the ordinances, rules and regulations of the City;
provided, however, that in the event of any conflict or inconsistency of such codes, ordinances,
rules,and regulations 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, ordinances,rules, and regulations. 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
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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 after all PSE and third party 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. Once all PSE and third-party attachments have
been disconnected and removed from such Facilities, the removal shall occur within
ninety(90) calendar days unless otherwise agreed to. If such discontinuation is caused by a Public
Improvement,the removal shall occur as described in the schedule established pursuant to Section
7. In the event that any PSE Facility creates an unreasonable interference with normal right-of-
way operations, the City may request that PSE remove or relocate such Facilities on an expedited
basis.
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, to its condition immediately prior to the work, or as
otherwise specified in the permit issued by the City in connection with the work in conformance
with the City's current design and construction standards and the applicable provisions of the
Auburn City Code that are not inconsistent with the requirements set forth in this Section 4.1 or
elsewhere in this Franchise. 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.
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May 27,2020
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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,Drawings and Records.
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.
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.
5.4 The parties understand that Washington law limits the ability of the City to shield
from public disclosure any information given to the City. PSE shall clearly mark any information
that it provides to the City as "Proprietary" information if PSE believes that disclosure of that
information would be exempt under an applicable exemption in RCW 42.56.270. The City agrees
that if it receives a request for information marked by PSE as proprietary, it will promptly, notify
PSE of the request. If PSE does not obtain an order enjoining release of the documents in 10
working days,the City will release the documents.
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 and pedestrians 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) calendar 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
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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 PSE's evaluation and coordination of the relocation,not less than four(4)weeks prior to
the date of a coordination meeting to be held between the City and PSE to discuss said
Facilities to be relocated; and
7.1.2 The City and PSE shall, at the coordination meeting described in
Section 7.1.1 above, jointly identify and define the project requirements, schedule and
timeframe of relocation, construction standards, and tasks that both parties agree shall
govern the relocation.
PSE shall relocate such Facilities within the Franchise Area, at no charge to the City and in
accordance with the relocation schedule mutually agreed upon by the parties, 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
three(3) years from the date of such relocation,provided that if the City requires such subsequent
relocation, the City shall bear the cost thereof, excepting in circumstances which the City could
not reasonably have foreseen as of the date of such 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 Subject to compliance by the City with the terms of this Section 7 and consistent
with Section 9, and to the maximum extent provided by law, PSE shall reimburse the City for any
costs, expenses, and/or damages required to be paid to the City's third party contractor(s) as a
direct result of PSE's delay in meeting the mutually-established schedule for the relocation work
required to accommodate a Public Improvement to the extent the delay is directly caused by PSE's
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breach of its obligations under this Section 7 with respect to the relocation of PSE's Facilities
within the Franchise Area in accordance with the mutually established schedule for the relocation
work. PSE is not responsible for any cost, expense or damage that results from any delay in
meeting the schedule for a Public Improvement if,and to the extent the delay is caused by the City,
any third party, or any force majeure event.
7.3.1 PSE will not be required to reimburse the City unless the City first tenders the third
party contractor delay claim within a reasonable time following the City's receipt of the
claim. If a dispute arises between the City and PSE under this Section 7.3,the Parties shall,
within fifteen(15)days of the date of the City's tendering a claim for delay damages,meet
and commence good faith negotiations to resolve the Parties'differences. The Parties shall
undertake commercially reasonable efforts to resolve their differences, giving due regard
to all pertinent facts and relevant circumstances so as to fully effect the intent of Section
7.3 of the Franchise. The Parties shall make officers or officials with authority to settle the
dispute available for the negotiations. The Parties may elect, by mutual agreement, to
submit the dispute to mediation, to be conducted by a mutually agreeable mediator. In
such event, the mediator's fee shall be divided equally and borne in equal portions by the
Parties. If, at any time during the good-faith efforts to resolve the Parties'differences over
the delay claim, either Party determines that such negotiations will not result in a resolution
of the dispute, such Party may terminate the negotiations by written notice to the other
Party and may thereafter pursue any remedy as may be available to such Party under the
Franchise or applicable law.
7.4 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.
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
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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, or tortious misconduct by, 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. In the event it is determined by a court of competent jurisdiction, that RCW 4.24.115
applies to this Franchise, P SE'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.
9.5 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.
9.6 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
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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.
9.7 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
P SE'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.
10.3 Power services for City facilities within the right-of-way will be placed within the
public right-of-way whenever feasible.
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 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
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for non-commercial, municipal purposes, such as 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 (including those relating to the protection of environmentally sensitive
areas). 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. Lighting.
14.1 PSE shall install, operate and maintain street lighting as requested and paid for by
the City in accordance with applicable schedules and tariffs on file with the Washington Utilities
and Transportation Commission (or such other regulatory agency having jurisdiction), and a
consistent with a separate Street Lighting Services Agreement. Private lighting requested and paid
for by a third-party user to be within the Franchise Area must be in accordance with all applicable
schedules and tariffs on file with the Washington Utilities and Transportation Commission (or
such other regulatory agency having jurisdiction), and to the extent consistent with such schedules
and tariffs, must comply with City ordinances, rules, regulations, and design and construction
standards and will be subject to all applicable City permits.
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
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administrative expenses incurred by the City that are directly related to:(i)receiving and approving
a permit, license or this Franchise, (ii) inspecting plans and construction, or (iii)preparing a
detailed statement pursuant to Chapter 43.21 C 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) calendar days of the receipt of such statements/billings. Failure by PSE to pay such amount
within such thirty (30) calendar 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) calendar 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) calendar 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).
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.
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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) calendar 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.
18.2 Failure to Renew Franchise—Automatic Extension. If the Parties fail to formally
renew this Franchise prior to the expiration of its term or any extension thereof, the Franchise
automatically continues month to month until renewed or either party gives written notice at least
one-hundred eighty(180) calendar days in advance of intent not to renew the Franchise.
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 Commercial General Liability (CGL) insurance with limits not less
than five million dollars ($5,000,000) per occurrence for bodily injury or death, property
damage, and public liability.
19.1.2 Automobile liability for owned, non-owned and hired vehicles with
a Combined Single Limit of three million dollars ($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 one million dollars ($1,000,000).
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 included as an additional insured under PSE' s Commercial General Liability
insurance policy. There shall be no exclusion arising out of liability from explosion, or collapse.
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27,2020
Page 11 of 19
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 PSE shall provide the City with written notice of any policy cancellation within ten
(10)business days of their receipt of such notice. 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 evidence of 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 lieuof 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.
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 an amount reasonably established by the City based on the nature and scope of the
work being performed.(but not to exceed one-hundred thousand dollars ($100,000.00)) to ensure
the full and faithful performance by PSE of its obligations under this Franchise relating to its
construction, installation,maintenance, and/or removal of Facilities in the Franchise Area and for
restoration of the Franchise Area associated with such activities performed under this Franchise,
or to reimburse the City for its direct costs associated with such restoration or removal activities.
Such financial guarantee shall not be construed to limit PSE's liability to the guarantee amount, or
otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or
in equity. 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.
19.5.1 The City reserves the right to require additional bonding from PSE
for PSE projects that have a restoration value for public infrastructure as determined by the
City that exceeds the amount of the bond specified in 19.5 above.
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
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27,2020
Page 12 of 19
withheld or delayed. Prior to any assignment, the intended assignee shall, within
thirty(30) calendar 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 consent, 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:
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.
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27, 2020
Page 13 of 19
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. Any notice, order or
other communication regarding any default or breach of this Franchise, or any resulting
termination or revocation of this Franchise, must be sent under this Section 21.5 to the intended
recipient by certified mail. 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:
Puget Sound Energy Inc.
6905 S 228th Street
Kent WA 98032
Attention: Municipal Liaison Manager
With a copy to:
Puget Sound Energy, Inc.
P.O. Box 90868
Bellevue, WA 98009-0868
Attention: General Counsel
The City's notice address shall be:
City of Auburn
Public Works
25 West Main Street
Auburn, WA 98001-4998
Attention: Public Works Director
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,including backup contacts if the first contact individual is not available
or otherwise not there, within PSE that may be contacted by the City to identify and 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 as necessary(i.e., if changes in applicable contact individuals or contact
information is changed)to ensure that it remains current and shall give written notice of the change
to the City.
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27, 2020
Page 14 of 19
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 rights of way 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.
21.10 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.
21.11 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 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
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27, 2020
Page 15of19
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) calendar 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 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) calendar 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) calendar 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.
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27, 2020
Page 16 of 19
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 A� ,,„.o), \c , 20 a., having been:
(i) introduced to the City Council not less than five days before its passage; (ii) first submitted to
the City Attorney on--,t,,,,,_\.„\ \\ , 2 ; (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 P„,‘\,,„1.1.,., N , 20a4
INTRODUCED: AUG 0 9 2020
PASSED: Cr, D m M
2021
APPROVED: AUG U 3 rr, i
. _
ANCYTACKUS, Mayor
ATTEST: APPROVED AS TO FORM:
Shawn Campbell, MMC, CityClerk Kendra Comeau, City Attorney
P
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27,2020
Page 17 of 19
STATE OF WASHINGTON )
ss.
COUNTY OF KING )
I, Shawn Campbell 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, certify that the foregoing
is a full,true and correct copy of Ordinance No. 6775 an ordinance of the City of Auburn, entitled:
ORDINANCE NO. 6775
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. 6775 was: (i) introduced on theday of
(ii) submitted to the City Attorney on.1 day of Jam 1 , 20
(iii)published on the (0'r= day of -S ;20 „ according to law; (iv) approved by a
majority of the entire legislative body of the City of Auburn, at a regular meeting on 3 day of
p, �,`� 20 and (v) approved and signed by the Mayor of the City of Auburn on the
V, day of �. vs�20
WITNESS my hand and official seal of the City of Auburn,this "\-`t-1/4 day of p,� , ;
20a".
Shawn Campbell, MMC, City Clerk
City of Auburn, State of Washington
Ordinance No. 6775
Franchise Agreement No.FRN20-0002
May 27,2020
Page 18of19
HONORABLE MAYOR AND CITY COUNCIL
CITY OF AUBURN,WASHINGTON
In the matter of the application
of Puget Sound Energy,mc,a Franchise Ordinance No. 6775
Washington corporation,for a
franchise to construct,operate
and maintain facilities in,upon,
over under,along,across and
through the franchise area of the ACCEPTANCE
City of Auburn,Washington
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.6775,bearing the date of 649 ,2a;and.
WHEREAS, a. copy of the Ordinance granting,the franchise was received by the Puget
Sound Energy,hic.on August 6,2020,from said City of Auburn,King County,Washington,
NOW,THEREFORE,Puget Sound Energy,Inc., a Washington corporation,for itself,its
successors and assigns,accepts said Ordinance and all the terms and conditions of the Franchise,
and files this,its written acceptance,with the City of Auburn,king County,Washington.
Dated this /1(14 day of August,2020. .
ATTEST: PUGET SOUND ENERGY,INC.
•
•
(3--07,
By; t,
(k16-41)A4'
Copy i;ece'ved .or City of Auhun on
W,20g
By: Att1:14\
City Clerk
•
Ordinance No.6775
•Franchise Agreement No.FRN20-0002
May 6,2020
Page 19 of 19
/ref
CITY OF * � - .
uUd Nancy Backus, Mayor
`— = WASHINGTON 25 West Main Street*Auburn WA 98001-4998*www.auburnwa.gov*253-931-3000
STATE OF WASHINGTON )
)ss.
COUNTIES OF KING AND PIERCE )
I, Shawn Campbell, the duly appointed, qualified City Clerk of the City of
Auburn, a Municipal Corporation and Code City, situate 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. 6775 of the Ordinance of the City of Auburn, entitled
"AN ORDINANCE."
I certify that said Ordinance No. 6775 was duly passed by the Council and
approved by the Mayor of the said City of Auburn, on the 3rd day of August, 2020.
I further certify that said Ordinance No. 6775 was published as provided by
law in the Seattle Times, a daily newspaper published in the City of Auburn, and of
general circulation therein, on the 6th day of August, 2020.
Witness my hand and the official seal of the City of Auburn, this 28th day of
September, 2020.
4thil\f)604-1\ t t)(4)tall ei tArtArti/
Shawn Campbell, Cit
�W City of Auburn
AUBURN * MORE THAN YOU IMAGINED