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Home My WebLink AboutOrdinance No. 5287 ORDINANCE NO. 5287 AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Ordinance No. 4875 and 5226 by extending the term of the franchise granted to Puget Sound Energy, Inc., a Washington corporation, for purposes of transmission, distribution and sale of electricity. WHEREAS, on November 19, 2003 the City Council passed Ordinance No. 4875 ganting Puget Sound Energy("PSE") a franchise for purposes of transmission, distribution and sale of electricity for power, heat, light and any other purpose for which electricity can be used, said ordinance is hereby incorporated by this reference; and WHEREAS, on November 6, 2013 the City Council passed Ordinance No. 5226 extending the term of the franchise two years to November 30, 2015 and to make corrections to certain references in the franchise, said ordinance is hereby incorporated by this reference; and WHEREAS, the City Council and PSE desire to extend the term of the franchise for an additional two years to November 30, 2017; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Amendments to Francllise Ordinances. Ordinance No. 4875 granting PSE a franchise for purposes of transmission, distribution and sale of electricity and Ordinance No. 5226 extending the term of the franchise two years to November 30, 2015 are hereby amended as follows: Franchise Term Extended. The term of the franchise as set forth in Section 9.1 of Ordinance No. 4875 and Section 1 of Ordinance No 5226 is extended two years, from December 1, 2015 to November 30, 2017. With the exception of the amendments set forth in this ordinance, all terms and conditions of Ordinance No. 4875 and Ordinance No. 5226 are reaffirmed and shall remain in full force and effect. SECTION 2. Acceptance of�Ordinance. PSE shall, within sixty(60) days after the effective date of the ordinance, file with the City its written acceptance of the ordinance. SECTION 3. Severabilitv. If any one or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SECTION 4. Eflective Date. This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. 1 Puget Sound Energy Franchise Extensinn 201 S PASSED by the City Council the ! " day of /�f��9�f� , 2015 GRE HEELER, Council President Approved this��ay of /�"��U v�" , 2015 .� PATTY L , yor ATTEST: APPROVED AS TO FORM: +�- �-- S ON CORIN, City Clerk ROGER A. LUBO , City At o ey �1 � � PUBLISHED the �`7� day of /��U;/Q f'YI�I,Q•�/ , 2015 EFFECTIVE the�day of � (�.rvt�.�� , 2015 ORDINANCE NO. � 2�7 PSE Acceptance on.follox�ing page 2 Puget Sound Energy Franchise Extension 2015 AGENDA BILL � H CITY OF BREMERTON CITY COUNCIL ■��a��e��e��■ SUBJECT: Ordinance No. 5287 amending Study Session Date: November 10, 2015 Ordinance No. 4875 and 5226 to extend the COUNCIL MEETING Date: November 18, 2015 Puget Sound Energy Franchise agreement Department: Legal Presenter: Roger Lubovich Phone: (360) 473-2345 SUMMARY: The current franchise agreement with Puget Sound Energy is set to expire November 30, 2015. This ordinance would extend the term of the current franchise agreement to November 30, 2017. ATTACHMENTS: 1) Ordinance No. 5287 2) Ordinance No. 5226 and 3) Ordinance No. 4875 FISCAL IMPACTS (Include Budgeted Amount): None. STUDY SESSION AGENDA: � No Presentation ❑ Full Presentation STUDY SESSION ACTION: ❑x Consent Agenda ❑ General Business ❑ Public Hearing RECOMMENDED MOTION: Move to pass Ordinance No. 5287 amending Ordinance No. 4875 and 5226 to extend the term of the franchise granted to Puget Sound Energy to November 30, 2017. COUNCIL ACTION: [7f Approve ❑ Deny ❑ Table ❑ Continue ❑ No Action Form Updated 01/25/13 ORDINANCE NO. 5226 AN ORDINANCE of the City Council of the City of Bremerton, Washington, amending Ordinance No 4875 by extending the term of the franchise granted to Puget Sound Energy, Inc, a Washington corporation, for purposes of transmission, distribution and sale of electricity WHEREAS, on November 19, 2003 the City Council passed Ordinance No 4875 granting Puget Sound Energy ( "PSE ") a franchise for purposes of transmission, distribution and sale of electricity for power, heat, light and any other purpose for which electricity can be used, said ordinance attached hereto as Exhibit A and incorporated herein by reference, and WHEREAS, the term of the franchise expires on December 4, 2013 and the City Council and PSE desire to extend the term of the franchise two years to November 30, 2015 and to make corrections to certain references in the franchise, NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS SECTION 1. Amendments to Franchise Ordinance Ordinance No 4875 granting PSE a franchise for purposes of transmission, distribution and sale of electricity is hereby amended as follows 1 Franchise Term Extended The term of the franchise as set forth in Section 9 1 of Ordinance No 4875 is extended two years, from December 4, 2013 to November 30, 2015 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 2 Corrections to References The reference to subsection 22 2 in Section 16 1 is corrected to 23 1 and the reference to subsection 2 6 in Section 19 1 is corrected to 2 5 With the exception of the amendments set forth in this ordinance, all terms and conditions of Ordinance No 4875 are reaffirmed and shall remain in full force and effect SECTION2. SeverabihU If anyone or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect SECTION 3. Effective Date This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. 1 Puget Sound Energy Franchise Extension 2013 PASSED by the City Council the � -- day of l�veb�he , 2013 GREG JELER, Council President Approved this !� /-.*, day of ��" , 2013 PATTY LEN ayor TEST APPROVED AS TO FORM SHANNON CORIN, City Clerk RO ER A LUBOVICH, City A o PUBLISHED the day of al/e!1'/ b�!-• 2013 EFFECTIVE the day of 1 2013 ORDINANCE NO PSE Acceptance on following page 2 Puget Sound Energy Franchise Extension 2013 CITY OF BREMERTON KITSAP COUNTY, STATE OF WASHINGTON In the matter of the application of Puget Sound Energy, Inc, a Franchise Ordinance No 5226 Washington corporation, for a franchise to construct, operate (Extension of Franchise Ordinance No 4875 Term) and maintain facilities in, upon, over under, along, across and through the franchise area of the ACCEPTANCE City of Bremerton, Washington WHEREAS, on November 19, 2003, the City Council of the City of Bremerton, Washington, granted a franchise to Puget Sound Energy, Inc, a Washington corporation, its successors and assigns by passing Ordinance No 4875, and WHEREAS, on November 6, 2013, the City Council of the City of Bremerton, passed Ordinance No 5226 to extend the term of the existing franchise to Puget Sound Energy, Inc two years, from December 4, 2013 to November 30, 2015, and WHEREAS, a copy of Ordinance No 5226 was received by the Puget Sound Energy, Inc from the City of Bremerton on , 2013 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 Bremerton, Kitsap County, Washington IN TESTIMONY WHEREOF Puget Sound Energy, Inc has caused this written Acceptance to be executed in its name by its undersigned thereunto duly authorized on this day of 9 2013 PUGET SOUND ENERGY, INC. ATTEST By By Its Its Copy received for City of Bremerton on , 2013 By Shannon Conn, City Clerk R \Legal\l.egal\Files \Current Active Files\FranchisesTSETSE Franchise Extension 2013 docx 3 Puget Sound Energy Franchise Extension 2013 EXHIBIT ORDINANCE NO. 5 AN ORDINANCE granting Puget Sound Energy, Inc., a Washington corporation, the right, privilege, authority and franchise to set, erect, construct, support, attach, connect and stretch Facihties between, maintain, repair, replace, enlarge, operate and use Facilities m, upon, over, under, along, across and through the Franchise Area for purposes of transmission, distribution and sale of energy for power, heat, light and any other purpose for winch energy can be used; and to charge and collect tolls, rates and compensation for such energy and such uses. THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. DEFIMTIONS. 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 such successors and assigns as are approved by the City pursuant to this Franchise Ordinance. 1.1.2 "City" means the City of Bremerton, a municipal corporation of the State of Washington, and its respective successors and assigns. 1 13 "Franchise Area" means any, every and all of the roads, streets, avenues, alleys, highways, and public nghts -of -way as now laid out, platted, dedicated or unproved, and any, every and all roads, streets, avenues, alleys, highways and public nghts -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. "Franchise area" does not, however, include any other public property owned in whole or in part, leased or otherwise occupied by the City. 1. 1.4 "Facilities" means poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, braces, guys, anchors, vaults and all necessary or convenient facihties and appurtenances thereto whether the same be located over or under ground. 1.1.5 "Ordinance" means this Ordinance which sets forth the terms and conditions of this Franchise. SECTION 2. FACILITIES WITHIN FRANCHISE AREA. 2.1 Pursuant and subject to the City Charter, the City does hereby grant to PSE the right, privilege, authority and franchise to. 1 Puget Sound Energy Franchise EXHIBIT 2.1.1 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 energy for power, heat, light and any other purpose for which energy can be used; and 2 1.2 To charge and collect tolls, rates and compensation for such energy and such uses. 2.2 This Francluse does not allow PSE the nght to use the Franchise Area for any purpose other than the transnussion, distribution and sale of electricity, or to install any facilities in the Franclse Area other than the Facilities described herein. 2.3 PSE shall comply with all applicable federal, state and local laws (including, but not limited to, the lawful exercise of the City's general police powers) in connection with the exercise of its rights under this Franchise. Notwithstanding the foregoing, this Franchise shall supersede, govern and control any ordinance, rule, plan, policy, resolution, regulation or other directive of the City to the extent any such ordinance, rule, plan, policy, resolution, regulation or other directive conflicts with, or is inconsistent with, the terms and conditions of this Franchise. 2.4 PSE's Facilities shall be maintained within the Franchise Area so as not to unreasonably interfere with the use of the Franchise Area by the City and by the general public and in accordance with the laws of the State of Washington and the City of Bremerton. 2.5 PSE shall obtain all necessary permits and approvals from the City and all other agencies with jurisdiction and shall comply with all applicable City or state codes, rules, regulations, standards and procedures, as now or hereafter amended, to the same extent as any other person or entity doing business within the City, except as otherwise provided by this Franchise. SECTION 3. RESTORATION OF FRANCHISE AREA. 3.1 When PSE or any person acting on its behalf does any work to or affecting the Franchise Area, it shall, at its own expense, promptly remove any obstructions therefrom and restore, to the City's reasonable satisfaction, such Franchise Area to as good a condition or better as existed before the work was undertaken, unless otherwise directed by the City. Recorded survey monuments shall be restored in accordance with applicable ordinances or laws. 3.2 If weather or other conditions do not permit the complete restoration required by this Section, PSE shall temporarily restore the Franchise Area. Such temporary restoration shall be at PSE's sole expense and PSE shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. 3.3 PSE or other person acting in its behalf within the Franchise Area shall use suitable barricades, flags, flag persons, lights, flares, and other measures as required by applicable law for the safety of all members of the general public. 2 Puget Sound Energy Franchise EXHIBIT A 3.4 The Director of Public Works and Utilities, or designee, shall be responsible for inspection and final approval of the condition of the Franchise Area following any construction and restoration activities therein, according to City engineering standards. 3.5 Except in the case of emergencies as determined by the City, cutting of pavement shall be prohibited a) in a newly constructed, reconstructed or resurfaced street for a period of five (5) years from the paving of such street, or b) in a street where a trench was previously available due to construction or other similar activities, for a period of three (3) years from the date the trench was available when in each mstance, PSE was given reasonable prior notice to perform work in the Franchise Area. The City may require that PSE facilities be located within existing underground ducts or conduits wherever the capacity exists. Provided, however, the Director of Public Works and Utilities, or designee, may m his or her discretion permit pot - holing (subject to conditions to alleviate the harmful effects) where conduit is to be placed underground by means of directional boring and the person seeking permission has provided evidence satisfactory to the Director of Public Works and Utilities, or designee, that (a) such pot -holing is necessary to avoid interference with existing utilities; (b) such pot -holing is the only reasonable alternative available to locate existing utilities and (c) such pot - holing will result in little or no visual or other detrimental impact to the street. 3.6 Any and all property in the Franclse Area that is disturbed or damaged during the construction, operation, repair or removal of any PSE Facility shall be promptly repaired by PSE. The property must be restored to the satisfaction of the City and to a condition as good as or better than, and for street and sidewalk cuts, to a condition as good as before the disturbance or damage occurred. 3.7 PSE shall repair as needed all property in the Franchise Area restored as a result of any activity pursuant to Section 3, (winch may consist of curb, gutter, sidewalk, pavement, or other restored appurtenances), in a condition as good as or better than, the condition of the adjacent undisturbed property in the Franchise Area to the extent such repair is required as a result of the restored area being defective or otherwise inferior to the adjacent untouched or undisturbed area as a result of PSE's activities in the Franchise Area. SECTION 4. RELOCATION OF FACILITIES. 4.1 Whenever the City causes a public right of way improvement to be undertaken within the Franchise Area, and such public right of way improvement requires the relocation of PSE's then existing Facilities within the Franchise Area (for purposes other than those described in paragraph 4.2 below), the City shall: 4.1.1 Provide PSE, within a reasonable time prior to the commencement of such public right of way improvement, written notice requesting such relocation; and 4 12 Provide PSE with reasonable plans and specifications for such public right of way improvement. After receipt of such notice and such plans and specifications, PSE shall relocate such Facilities within the Franchise Area at no charge to the City If the City requires the subsequent relocation 3 Puget Sound Energy Franchise EXHIBIT of any Facilities within five (5) years from the date of relocation of such Facilities pursuant to this Section 4. 1, the City shall bear the entire cost of such subsequent relocation. As used in this Section 4, the term "public right of way improvement" includes an improvement identified in the City's six-year Transportation Improvement Program or the City's Capital Improvement Plan. 42 Whenever (i) any public or private development within the Franchise Area, other than a public right of way 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, 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 Mrs Facilities. 4.3 Any condition or requirement imposed by the City upon any thud party (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, construction or development) which necessitates the relocation of PSE's Facilities within the Franchise Area shall be deemed a condition or requirement causing relocation of PSE's Facilities to occur subject to the provisions of Subsection 4 2 above; provided, however: 4.3,1 If the City reasonably determines, and notifies PSE in writing of such determination, that the primary purpose of imposing such condition or requirement upon such person or entity is to cause, on the City's behalf; a public street improvement within the Franchise Area, then relocation will be pursuant to Section 4.1 above. 4.4 Nothing in this Section 4 "Relocation of Facilities" shall require PSE to bear any cost or expense in connection with the location or relocation of any Facilities then existing under benefit of easement or such other private property rights. 4.5 The conversion to underground service shall be pursuant to Section 12. SECTION 5. INDEMNIFICATION AND INSURANCE. 5.1 Indemnification. 5.1.1 PSE shall defend, indemnify, and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, demands, injuries, damages, losses or suits, including all legal costs and attorney fees, made against it on account of injury or damage to the person or property of another, to the extent such injury or damage results, or is alleged to result, from the negligent or intentional acts or omissions of PSE, its officers, officials, employees, agents and volunteers, in connection with the exercise of the rights granted to PSE in this Franchise, including, but not limited to, the construction, inspection, maintenance, or operation of PSE Facilities, or the placement or location of it's Facilities in the Franchise Area. In the event any such claim or demand is presented to or filed with the City, the City shall promptly notify PSE thereof. The City shall have the right at all times to participate through its own attorney in any suit or action which arises out of any right, privilege or authority granted by or exercised pursuant to this Franchise when the City determines that such participation is 4 Puget Sound Energy Franchise EXHIBIT A required to protect the interests of the City or the public. The cost of such additional City participation shall be borne by the City. PSE's obligation to indemnify the City shall not apply to any claim, demand, injury, loss or suit that is caused by or arises out of the sole negligence of the City, its officers, officials, employees, agents and volunteers. Upon indemnification and defense of the City, PSE shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand, provided further, that in the event any suit or action be begun against the City based upon any such claim or demand, the City shall likewise promptly notify PSE thereof, and PSE shall have the right, at its election and sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own election. S. 1.2 Inspection or acceptance by the City of any work performed pursuant to this Franchise in the Franchise Area by PSE, its agents, servants, contractors, officers, or employees, during or 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. 5.1.3 In the event that PSE refuses a tender of defense under subsection 5. 1.1 above, 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 the PSE, then PSE shall pay the City's reasonable attorneys' fees incurred in connection with the wrongful refusal of such tender (in addition to, and without limitation of, such other costs and expense as are determined by such court or tribunal as being within the scope of subsection 5 1). 5.1.4 As to claims made pursuant to Section 5 1, such claims shall survive the expiration or termination of this Franchise. 5.1.5 The City shall not be liable to PSE for any damage to or loss caused by the City of any PSE Facilities within the Franchise Area as a result of or in connection with any public works, public improvements, construction, excavating, grading, filling, or other City work except to the extent such loss is attributable to intentional acts or omissions or the gross negligence of the City; provided that in no event shall the City be responsible for consequential damages, including, but not limited to, lost profits or business interruption. 5.2 Insurance. 5.2.1 PSE shall maintain for the duration of this franchise, insurance or self insurance against claims for injuries to persons or damage to property that may arise from or in connection with the exercise of franchise rights by PSE, its agents, representatives, employees, contractors or volunteers. PSE shall provide and keep current a certificate of insurance evidencing commercial general liability insurance with limits no less than $1,000,000 combined single limit and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include blanket contractual, products/completed operations, broad form property damage, and explosion, collapse and underground (XCU). The City, its officials, employees, agents and volunteers, shall be named as an additional insured, as respects work performed by or 5 Puget Sound Energy Franchise EXHIBIT on behalf of PSE, and a copy of the endorsement naming the City as additional insured shall be attached to the certificate of insurance PSE's insurance shall be primary insurance as respects the City, and the City shall be given 30 calendar days prior written notice of any cancellation, suspension or material change in coverage. SECTION & MOVING BUILDINGS WITHIN THE FRANCHISE AREA. 6.1 If any person or entity obtains permission from the City to use the Franchise Area for the moving or removal of any building or other object, the City shall, prior to granting such permission, require such person or entity to make any necessary arrangements with PSE for the temporary adjustment of PSE's wires to accommodate the moving or removal of such building or other object. Such necessary arrangements with PSE shall be made, to PSE's reasonable satisfaction, not less than fourteen (14) days prior to the moving or removal of said building or other object. In such event, PSE shall at the expense of the person or entity desiring to move or remove such building or other object, adjust any of its wires which may obstruct the moving or removal of such building or other object &E- CTION 7. REVOCATION OF FRANCHISE. 7.1 This Franchise may be revoked and all rights therein forfeited by the City if PSE shall fail to comply with the terms and conditions of this Franchise. Without limiting the generality of the foregoing, the City may initiate a proceeding to revoke this Franchise if it believes that any one or more of the following actions by PSE constitute a breach of this Franchise. 7. 1.1 Construction or operation of Facilities in the Franchise Area without a franchise, in a manner that is inconsistent with this Franchise; 7.1.2 Construction or operation of Facilities in the Franchise Area at an unauthorized location within the Franchise Area so as to be inconsistent with this Franchise; 7.1.3 Unauthorized assignment of this Franchise by PSE, in a manner that is inconsistent with this Franchise; 7.1.4 Material misrepresentation of fact by or on behalf of PSE upon which the City relies in making a decision to grant, review or amend this Franchise; 7.1.5 Abandonment of Facilities in the Franchise Area, in a manner that is inconsistent with this Franchise; 7.16 Failure to relocate Facilities in accordance with this Franchise; or 7.17 Violation of any other material provision of this Franchise. 7.2 In the event that the City believes that grounds exist for revocation of the Franchise, PSE shall be given written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or 6 Paget Sound Energy Franchlse f EXHIBIT A noncompliance, and providing PSE a reasonable period of time not exceeding thirty (30) days to furnish evidence: 7.2.1 That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance; or 7.2.2 That rebuts the alleged violation or noncompliance; 73 In the event that PSE fails to provide evidence reasonably satisfactory to the City as provided in Subsection 7 2 above, the City shall refer the apparent violation or non- compliance to the City Council. The City Council shall provide PSE with notice and a reasonable opportunity to be heard concerning the matter. 7.4 If the City Council determines that PSE willfully violated or failed to comply with the terms and conditions of this Franchise through willful misconduct or gross negligence or failed to heed or comply with any notice given PSE by the City under the provisions of this Franchise, then upon order of the City Council, this Franchise may be revoked and all rights therein forfeited. 7.5 The foregoing provisions of subsections 7.1 through 7.4 (pertaining to certain remedies afforded the City in the event of a breach of this Franchise by PSE) are in addition to, and not a limitation of, any and all right and remedies afforded a party in the event of a default by the other party. Without limiting the generality of the foregoing, if a party shall be in default of its obligations under this Franchise, the other party may secure an order of specific enforcement of the defaulting party's obligations under this Franchise from the Superior Court. SECTION & NONEXCLUSIVE FRANCHISE. 81 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 which 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 9 FRANCHISE TERM. 91 This Franchise is and shall remain in full force and effect for a period of ten (10) 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. SEMON 10. ASSIGNMENT. 10.1 This Franchise may not, directly or indirectly, be transferred, assigned or disposed of in any manner by PSE except as provided by RCW 80. 12.020 (collectively, "Assignment ") 7 Puget Sound Energy Franchise EXHIBIT 10.2 Without lnnit rig the generality of the foregoing and to the extent consistent with applicable law, an assignment, in whole or in part, shall be subject to the City's prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, the City hereby consents to PSE's mortgage of this Franchise to the trustee for its bondholders. SECTION I.I. HERBICIDES. 11.1 PSE shall not apply any herbicide within the Franchise Area without providing the City fourteen (14) days prior written notice of such application, unless the parties agree to a different term, or the City gives a blanket approval as part of a periodic program of spraying. PSE shall post the relevant portion of the Franchise Area at least 8 days prior to any spraying with notice of intended spraying. Nothing herein is intended or shall be construed to relieve PSE of any and all other requirements of applicable law relating to the application of herbicides SECTION 12. UNDERGROUND AND NEW INSTALLATION OF DISTRIBUTION FACILITIES. 12.1 The City may by written notice to PSE, request PSE to underground its existing distribution Facilities (of 15,000 volts or less) within the Franchise Area improved by the City; provided, that such conversion of PSE's existing Facilities shall be accomplished in accordance with PSE's applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission or its successor, more specifically as applicable, UTC Tanff G, Schedule 74 as enacted and hereinafter amended. 12.2 If PSE elects to install new overhead distribution Facilities (of 15,000 volts or less) within the Franchise Area or a new extension of existing overhead distribution Facilities within the Franchise Area, PSE will provide written notice to the City. The City may by written notice to PSE, request PSE to install such Facilities underground within the Franchise Area, provided, that such installation underground of PSE's Facilities shall be accomplished in accordance with PSE's applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission or its successor, more specifically as applicable, PSE Electric Tariff G, Schedule 74 as enacted and hereinafter amended 12.3 PSE shall submit design drawings of all underground installations showing the location of all existing utilities using best available information with proposed clearances within the right of way to the City Engineer for City review. Upon completion of construction of such underground installation, PSE shall, within thirty (30) days, submit as -built drawings to the City Engineer for City records. SECTION 13. RIGHT OF CITY TO USE PSE'S POLES. 13.1 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 non - commercial City communication systems (including, but not limited to, data, phone and video) and may install and maintain City -owned street lights upon PSE's poles located within the Franchise Area without charge. The foregoing rights of the City to install and maintain such wires, and street lights are further subject to the following: 8 Puget Sound Energy Franchise EXHIBIT A 13. 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 SECTION 14. RECORDS OF INSTALLATION. 141. 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. As to any such drawings 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 ansing under applicable law with respect to determining the location of utility facilities. SECTION 15. STREET LIGHTING. 151 PSE shall provide street lighting services as requested by the City in accordance with applicable schedules and tariffs now on file or hereafter amended with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction). Additionally, PSE shall provide proper maintenance and prompt customer service to the City with respect to the providing of street lighting service to the City. 15.2 The City reserves the right to install and maintain street lights on PSE poles pursuant to Section 13. No reasonable request by the City for City installation of City-owned street lights will be denied by PSE. 15.3 The City reserves the right to purchase any and all street light systems on PSE poles for market value to be negotiated by the parties 15.4 By March 1 of each year, PSE shall provide to the City a current inventory of all street lighting fixtures showing all additions and deletions together with updated utility maps showing the location of each PSE -owned street light for which the City is responsible for payment. SECTION 16. FRANCHISE FEE. 161 The parties understand that the restrictions of RCW 35.21.860 forbid the imposition of a franchise fee. If at any time the restrictions of this statute should be removed or modified, the City may seek to amend this Franchise in accordance with Subsection 22.2 below. SECTION 17. CHARGE FOR ADMINISTRATIVE COSTS. 17.1 As provided in RCW 35.21.860, the City may recover from PSE actual administrative expenses incurred by the City that are directly related to: (i) receiving and 9 Puget Sound Energy Franchise EXHIBIT A approving a permit, license or this Franchise, (ii) inspecting plans and construction, or (iii) preparing a detailed statement pursuant to Chapter 43.21C RCW. SECTION 18. RIGHTS GRANTED. 18.1 No authorization granted under this Ordinance shall convey any right, title or interest in the public ways, but shall be deemed an authorization only to use and occupy the public ways in accordance with RCW 80.32.010 Further, tins Ordinance shall not be construed as any warranty of title. SECTION 19. REPAIR AND EMERGENCY WORK. 19.1 In the event of an unexpected repair or emergency within the Franchise Area for which a permit has not been obtained in accordance with Bremerton Mumcipal Code (BMC) as now or hereafter amended and which such work is not otherwise within the scope of the exemption authorized by the BMC, PSE may commence such repair and emergency response work as required under the circumstances, provided PSE shall notify the City as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable The provisions of this section do not relieve PSE from the requirement to obtain permits and approvals from the City and all other agencies with jurisdiction as set forth is Section 2.6. SECTION 20. MAINTENANCE OF FACILITIES. 20.1 PSE shall maintain its Facilities within the Franchise Area in a manner that complies with all applicable federal, state and local requirements. Additionally, PSE shall provide reasonable maintenance of PSE Facilities, including poles, to prevent deterioration of equipment and service and provide prompt customer response to both the City and the public with respect to deficiencies or failure of Facilities in providing such service. 20 2 Nuisance poles and other Facilities shall be defined, identified and further shall be removed, replaced, relocated or otherwise remedied pursuant to BMC 11.02.270 as currently enacted and as hereinafter amended. 20.3 Replacement of PSE Facilities shall not constitute a requirement that the City upgrade its existing attached equipment or facilities provided transfer of such existing equipment or facilities may be reasonably accommodated on PSE's new Facility. SECTION 21. SHARED USE OF EXCAVATIONS. 21.1 Shared use of excavations shall be pursuant to BMC 11.02.170 as currently enacted or as hereinafter amended. 10 Puget Sound Energy Franchise EXHIBIT SECTION22. HEADINGS. 22.1 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. SECTION23. AMENDMENTS. 23.1 Except as provided in this paragraph 23.1, 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 Imitation, Section 5.1 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. 23. 1.1 references this Franchise; and 23.1.2 states that it supersedes this Franchise to the extent it contains terms and conditions which 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. SECTION 24. TARIFFS. 24.1 This Franchise is subject to the provisions of any applicable tariff now or hereafter on file with the Washington Utilities and Transportation Commission or its successor, as construed by any court with jurisdiction on appeal or otherwise. In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control 24. 1.1 All notices of proposed applicable tariff adjustments, changes, alterations, and additions filed with the Washington Utilities and Transportation Commission by PSE shall be mailed concurrently to the City of Bremerton, to the attention of the Director of Public Works and Utilities. SECTION25. PRIOR FRANCHISE SUPERCEDED. 25.1 This Franchise shall supersede all prior franchises granted to PSE or its predecessors by the City. 11 Puget Sound Energy Franchise EXHIBIT SECTION 26. SEVERABILTTY. 26.1 If any one or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect SECTION 27. EFFECTIVE DATE. 27.1 This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. APPROVED by the City Council the day of , 2003 PASSED by the City Council the day of 2003 ea" CAROL ARENDS, Council President Approved this 2 day of N0 0 -,MVIT — 2003 CARY BOZE , Mayor ATTEST: APPROVED AS TO FORM. THLEE S XEY, Vrty S#k R GER A LUBOVICH, Ci :!A PUBLISHED theme,_ day of eJ , 2003 EFFECTIVE the day of 2003 ORDINANCE NO. 12 Puget Sound Energy Franchise EXHIBIT CITY COUNCIL CITY OF BREMERTON, WASHINGTON In the matter of the application of Puget Sound Energy, Inc., a Franchise Ordinance No. 4875 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 Bremerton, Washington WHEREAS, the City Council of the City of Bremerton, Washington, has granted a franchise to Puget Sound Energy, Inc., a Washington corporation, its successors and assigns, by enacting Ordinance No. 4875, bearing the date of November 19, 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 Bremerton, Kitsap County, 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 Bremerton, Kitsap County, Washington. IN TESTIMONY WHEREOF said Puget Sound Energy, Inc. has caused this written Acceptance to be executed in its name by its undersigned 2003. thereunto duly authorized on this day of ATTEST: PUGET SOUND ENERGY, INC. By: Its: Copy received for City of Bremerton on , 2003 By: Kathleen McCluskey, City Clerk RILEGAMOrdi m mTSE Frwchml DOC 13 Paged Sound Energy Franchise ' EXHIBIT CITY COUNCIL CITY OF BREMERTON, WASHINGTON In the matter of the application of Puget Sound Energy, Inc., a Franchise Ordinance No. 4875 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 Bremerton, Washington ; WHEREAS, the City Council of the City of Bremerton, Washington, has granted a franchise to Puget Sound Energy, Inc., a Washington corporation, its successors and assigns, by enacting Ordinance No. 4875, bearing the date of November 19,2003; and WHEREAS, a copy of said Ordinance granting said franchise was received by the Puget Sound Energy, Inc. on ' bCG i Z -} �- , 2003, from said City of Bremerton, Kitsap County, 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 Bremerton, Kitsap County, Washington. IN TESTIMONY WHEREOF said Puget Sound Energy, Inc. has caused this written Acceptance to be executed in its name by its undersigned ma9 t— L, thereunto duly authorized on this f lay of ce rn be K— 2003. ATTEST: PUGET SOUND ENERGY, INC. By: Attest: Icy Its: � e e rr c,� Seca.cc� Copy ceived for City of Bremerton on 2003 By: een Mc l ey, City Clerk PLUEGAWWWAcOME FinachimI DW 13 Peeget Sowed Energy Franchise CITY OF BREMERTON KITSAP COUNTY, STATE OF WASHINGTON In the matter of the application of Puget Sound Energy, Inc, a Franchise Ordinance No 5226 Washington corporation, for a franchise to construct, operate (Extension of Franchise Ordinance No 4875 Term) and maintain facilities in, upon, over under, along, across and through the franchise area of the ACCEPTANCE City of Bremerton, Washington WHEREAS, on November 19, 2003, the City Council of the City of Bremerton, Washington, granted a franchise to Puget Sound Energy, Inc, a Washington corporation, its successors and assigns by passing Ordinance No 4875, and WHEREAS, on November 6, 2013, the City Council of the City of Bremerton, passed Ordinance No 5226 to extend the term of the existing franchise to Puget Sound Energy, Inc two years, from December 4, 2013 to November 30, 2015, and WHEREAS, a copy of Ordinance No 5226 was received by the Puget Sound Energy, Inc from the City of Bremerton on �10 Wk%kr yrs 5 2013 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 Bremerton, Kitsap County, Washington IN TESTIMONY WHEREOF Puget Sound Energy, Inc has caused this written Acceptance to be executed in its name by its undersigned thereunto duly authorized on this \ � day of Ap,,,\s&-r , 2013 PUGET SOUND ENERGY, INC. ATTEST BY �By Its j,�{Q is 0 Copy rec �ved for City of Bremerton on ESN 013 By �Jop - Shannon Conn, City R \Lega1 \Lep1\Files \Current Active Files\FranchisesTSETSE Franctuse Extension 2013 docx 3 Puget Sound Energy Franchise Extension 2013 CITY OF BREMERTON KITSAP COUNTY,STATE OF WASHINGTON In the matter of the application : of Puget Sound Energy, Inc., a : Franchise Ordinance No. 5287 Washington corporation, for a : franchise to construct, operate . (Extension of Franchise Term established by and maintain facilities in,upon, . Ordinance No. 4875 and Ordinance No. 5226) over under, along,across and : through the franchise area of the : ACCEPTANCE City of Bremerton, Washington : WHEREAS, on November 19, 2003,the City Council of the City of Bremerton, Washington, granted a franchise to Puget Sound Energy, Inc., a Washington corporation, its successors and assigns by passing Ordinance No. 4875; and WHEREAS, on November 6, 2013,the City Council of the City of Bremerton, passed Ordinance No. 5226 to extend the term of the existing franchise to Puget Sound Energy, Inc. two years, from December 4, 2013 to November 30, 2015; and WHEREAS, on November 18, 2015,the City Council of the City of Bremerton,passed Ordinance No. 5287 to extend the term of the existing franchise to Puget Sound Energy, Inc. an additional two years, from December 1, 2015 to November 30, 2017; and WHEREAS, a copy of Ordinance No. 5287 was received by the Puget Sound Energy, Inc. from the City of Bremerton on��yy�s� �D`�'" , 2015. 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 Bremerton, Kitsap County, Washington. IN TESTIMONY WHEREOF Puget Sound Energy, Inc. has caused this written Acceptance to be executed in its name by its undersigned thereunto duly authorized on this �� day of1/�v,a�y ,��- 20/6. PUGET SOUND ENERGY,INC. ATTEST: � By: :Ta��.� K�vv��.� By• ��w �Sr,v�y.v� Its: 1�iv2�;{�, �'t,tStauAe✓ a�t�lY.eGcc� Its:d1r1u.��c�P,�t UA-�1'a.�/ /�'-r.F.v,¢�crz Copy re eived for -ity of Bremerton on . ��(-/i , 201,� By: � Shannon Corin, City Clerk 3 Puget Sound Energy Franchise Extension 201 S ORDINANCE NO. J:iZ5 AN ORDINANCE granting Puget Sound Energy, Inc., a Washington corporation, the right, privilege, authority and franchise to set, erect, construct, support, attach, connect ~d 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 energy for power, heat, light and any other purpose for which energy can be used; and to charge and collect tolls, rates and compensation for such energy and such uses. THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY 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 such successors and assigns as are approved by the City pursuant to this Franchise Ordinance. 1.1.2 "City" means the City ofBremerton, a municipal corporation of the State of Washington, and its respective 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 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. "Franchise area" does not, however, include any other public property owned in whole or in part, leased or otherwise occupied by the City. 1.1.4 "Facilities" means poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, braces, guys, anchors, vaults and all necessary or convenient facilities and appurtenances thereto whether the same be located over or under ground. 1.1.5 "Ordinance" means this Ordinance which sets forth the terms and conditions of this Franchise. SECTION 2. FACILITIES WITHIN FRANCHISE AREA. 2.1 Pursuant and subject to the City Charter, the City does hereby grant to PSE the right, privilege, authority and franchise to: I Puget Sound Energy Franchise , 2.1.1 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 energy for power, heat, light and any other purpose for which energy can be used; and 2.1.2 To charge and collect tolls, rates and compensation for such energy and such uses. 2.2 This Franchise does not allow PSE the right to use the Franchise Area for any purpose other than the transmission, distribution and sale of electricity, or to install any facilities in the Franchise Area other than the Facilities described herein. 2.3 PSE shall comply with all applicable federal, state and local laws (including, but not limited to, the lawful exercise ofthe City's general police powers) in connection with the exercise of its rights under this Franchise. Notwithstanding the foregoing, this Franchise shall supersede, govern and control any ordinance, rule, plan, policy, resolution, regulation or other directive ofthe City to the extent any such ordinance, rule, plan, policy, resolution, regulation or other directive conflicts with, or is inconsistent with, the terms and conditions of this Franchise. 2.4 PSE's Facilities shall be maintained within the Franchise Area so as not to umeasonably interfere with the use of the Franchise Area by the City and by the general public and in accordance with the laws ofthe State of Washington and the City ofBremerton. 2.5 PSE shall obtain all necessary permits and approvals from the City and all other agencies with jurisdiction and shall comply with all applicable City or state codes, rules, regulations, standards and procedures, as now or hereafter amended, to the same extent as any other person or entity doing business within the City, except as otherwise provided by this Franchise. SECTION 3. RESTORATION OF FRANCHISE AREA. 3.1 When PSE or any person acting on its behalf does any work in or affecting the Franchise Area, it shall, at its own expense, promptly remove any obstructions therefrom and restore, to the City's reasonable satisfaction, such Franchise Area to as good a condition or better as existed before the work was undertaken, unless otherwise directed by the City. Recorded survey monuments shall be restored in accordance with applicable ordinances or laws. 3.2 If weather or other conditions do not permit the complete restoration required by this Section, PSE shall temporarily restore the Franchise Area. Such temporary restoration shall be at PSE's sole expense and PSE shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. 3.3 PSE or other person acting in its behalf within the Franchise Area shall use suitable barricades, flags, flag persons, lights, flares, and other measures as required by applicable law for the safety of all members of the general public. 2 Puget Sound Energy Franchise , 3.4 The Director of Public Works and Utilities, or designee, shall be responsible for inspection and final approval of the condition of the Franchise Area following any construction and restoration activities therein, according to City engineering standards. 3.5 Except in the case of emergencies as determined by the City, cutting of pavement shall be prohibited a) in a newly constructed, reconstructed or resurfaced street for a period of five (5) years from the paving of such street, or b) in a street where a trench was previously available due to construction or other similar activities, for a period of three (3) years fxom the date the trench was available when in each instance, PSE was given reasonable prior notice to perform work in the Franchise Area. The City may require that PSE facilities be located within existing underground ducts or conduits wherever the capacity exists. Provided, however, the Director of Public Works and Utilities, or designee, may in his or her discretion permit pot-holing (subject to conditions to alleviate the harmful effects) where conduit is to be placed underground by means of directional boring and the person seeking permission has provided evidence satisfactory to the Director of Public Works and Utilities, or designee, that (a) such pot-holing is necessary to avoid interference with existing utilities; (b) such pot-holing is the only reasonable alternative available to locate existing utilities and (c) such pot-holing will result in little or no visual or other detrimental impact to the street. 3.6 Any and all property in the Franchise Area that is disturbed or damaged during the construction, operation, repair or removal of any PSE Facility shall be promptly repaired by PSE. The property must be restored to the satisfaction of the City and to a condition as good as or better than, and for street and sidewalk cuts, to a condition as good as before the disturbance or damage occurred. 3.7 PSE shall repair as needed all property in the Franchise Area restored as a result of any activity pursuant to Section 3, (which may consist of curb, gutter, sidewalk, pavement, or other restored appurtenances), in a condition as good as or better than, the condition of the adjacent undisturbed property in the Franchise Area to the extent such repair is required as a result of the restored area being defective or otherwise inferior to the adjacent untouched or undisturbed area as a result of PSE's activities in the Franchise Area. SECTION4. RELOCATION OF FACILITIES. 4.1 Whenever the City causes a public right of way improvement to be undertaken within the Franchise Area, and such public fight of way improvement requires the relocation of PSE's then existing Facilities within the Franchise Area (for purposes other than those described in paragraph 4.2 below), the City shall: 4.1.1 Provide PSE, within a reasonable time prior to the commencement of such public right of way improvement, written notice requesting such relocation; and 4.1.2 Provide PSE with reasonable plans and specifications for such public fight of way improvement. After receipt of such notice and such plans and specifications, PSE shall relocate such Facilities within the Franchise Area at no charge to the City. If the City requires the subsequent relocation 3 Puget Sound Energy Franchise of any Facilities within five (5) years from the date of relocation of such Facilities pursuant to this Section 4.1, the City shall bear the entire cost of such subsequent relocation. As used in this Section 4, the term "public fight of way improvement" includes an improvement identified in the City's six-year Transportation Improvement Program or the City's Capital Improvement Plan. 4.2 Whenever (i) any public or private development within the Franchise Area, other than a public fight of way 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, then in such event, PSE shall have the fight 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. 4.3 Any condition or requirement imposed by the City upon any third party (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, construction or development) which necessitates the relocation of PSE's Facilities within the Franchise Area shall be deemed a condition or requirement causing relocation of PSE's Facilities to occur subject to the provisions of Subsection 4.2 above; provided, however: 4.3;1 If the City reasonably determines, and notifies PSE in writing of such determination, that the primary purpose of imposing such condition or requirement upon such person or entity is to cause, on the City's behalf, a public street improvement within the Franchise Area, then relocation will be pursuant to Section 4.1 above. 4.4 Nothing in this Section 4 "Relocation of Facilities" shall require PSE to bear any cost or expense in connection with the location or relocation of any Facilities then existing under benefit of easement or such other private property rights. 4.5 The conversion to underground service shall be pursuant to Section 12. SECTION 5. INDEMNIFICATION AND INSURANCE. 5.1 Indemnification. 5.1.1 PSE shall defend, indemnify, and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, demands, injuries, damages, losses or suits, including all legal costs and attorney fees, made against it on account of injury or damage to the person or property of another, to the extent such injury or damage results, or is alleged to result, from the negligent or intentional acts or omissions of PSE, its officers, officials, employees, agents and volunteers, in connection with the exercise of the rights granted to PSE in this Franchise, including, but not limited to, the construction, inspection, maintenance, or operation of PSE Facilities, or the placement or location of it's Facilities in the Franchise Area. In the event any such claim or demand is presented to or filed with the City, the City shall promptly notify PSE thereof. The City shall have the fight at all times to participate through its own attorney in any suit or action which arises out of any right, privilege or authority granted by or exercised pursuant to this Franchise when the City determines that such participation is 4 Puget Sound Energy Franchise required to protect the interests of the City or the public. The cost of such additional City participation shall be borne by the City. PSE's obligation to indemnify the City shall not apply to any claim, demand, injury, loss or suit that is caused by or arises out of the sole negligence of the City, its officers, officials, employees, agents and volunteers. Upon indemnification and defense of the City, PSE shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand, provided further, that in the event any suit or action be begun against the City based upon any such claim or demand, the City shall likewise promptly notify PSE thereof, and PSE shall have the right, at its election and sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own election. 5.1.2 Inspection or acceptance by the City of any work performed pursuant to this Franchise in the Franchise Area by PSE, its agents, servants, contractors, officers, or employees, during or 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. 5.1.3 In the event that PSE refuses a tender of defense under subsection 5.1.1 above, 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 the PSE, then PSE shall pay the City's reasonable attorneys' fees incurred in connection with the wrongful refusal of such tender (in addition to, and without limitation of, such other costs and expense as are determined by such court or tribunal as being within the scope of subsection 5.1). 5.1.4 As to claims made pursuant to Section 5.1, such claims shall survive the expiration or termination of this Franchise. 5.1.5 The City shall not be liable to PSE for any damage to or loss caused by the City of any PSE Facilities within the Franchise Area as a result of or in connection with any public works, public improvements, construction, excavating, grading, filling, or other City work except to the extent such loss is attributable to intentional acts or omissions or the gross negligence of the City; provided that in no event shall the City be responsible for consequential damages, including, but not limited to, lost profits or business interruption. 5.2 Insurance. 5.2.1 PSE shall maintain for the duration of this franchise, insurance or self insurance against claims for injuries to persons or damage to property that may arise from or in connection with the exercise of franchise rights by PSE, its agents, representatives, employees, contractors or volunteers. PSE shall provide and keep current a certificate of insurance evidencing commercial general liability insurance with limits no less than $1,000,000 combined single limit and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include blanket contractual, products/completed operations, broad form property damage, and explosion, collapse and underground (XCU). The City, its officials, employees, agents and volunteers, shall be named as an additional insured, as respects work performed by or 5 Puget Sound Energy Franchise on behalf of PSE, and a copy of the endorsement naming the City as additional insured shall be attached to the certificate of insurance. PSE's insurance shall be primary insurance as respects the City, and the_City shall be given 30 calendar days prior written notice of any cancellation, suspension or material change in coverage. SECTION 6. MOVING BUILDINGS WITHIN THE FRANCHISE AREA. 6.1 If any person or entity obtains permission from the City to use the Franchise Area for the moving or removal of any building or other object, the City shall, prior to granting such permission, require such person or entity to make any necessary arrangements with PSE for the temporary adjustment of PSE's wires to accommodate the moving or removal of such building or other object. Such necessary arrangements with PSE shall be made, to PSE's reasonable satisfaction, not less than fourteen (14) days prior to the moving or removal of said building or other object. In such event, PSE shall at the expense of the person or entity desiring to move or remove such building or other object, adjust any of its wires which may obstruct the moving or removal of such building or other object. SECTION 7. REVOCATION OF FRANCHISE. 7.1 This Franchise may be revoked and all rights therein forfeited by the City if PSE shall fail to comply with the terms and conditions of this Franchise. Without limiting the generality of the foregoing, the City may initiate a proceeding to revoke this Franchise if it believes that any one or more of the following actions by PSE constitute a breach of this Franchise: 7.1.1 Construction or operation of Facilities in the Franchise Area without a franchise, in a manner that is inconsistent with this Franchise; 7.1.2 Construction or operation of Facilities in the Franchise Area at an unauthorized location within the Franchise Area so as to be inconsistent with this Franchise; 7.1.3 Unauthorized assignment of this Franchise by PSE, in a manner that is inconsistent with this Franchise; 7.1.4 Material misrepresentation of fact by or on behalf of PSE upon which the City relies in making a decision to grant, review or amend this Franchise; 7.1.5 Abandonment of Facilities in the Franchise Area, in a manner that is inconsistent with this Franchise; 7.1.6 Failure to relocate Facilities in accordance with this Franchise; or 7.1.7 Violation of any other material provision of this Franchise. 7.2 In the event that the City believes that grounds exist for revocation of the Franchise, PSE shall be given written notice of the apparent violation or noncompliance, providing a short and concise statement of the natnre and general facts of the violation or 6 Puget Sound Energy Franchise noncompliance, and providing PSE a reasonable period of time not exceeding thirty (30) days to fumish evidence: 7.2. I That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance; or 7.2.2 That rebuts the alleged violation or noncompliance; 7.3 In the event that PSE fails to provide evidence reasonably satisfactory to the City as provided in Subsection 7.2 above, the City shall refer the apparent violation or non- compliance to the City Council. The City Council shall provide PSE with notice and a reasonable opportunity to be heard concerning the matter. 7.4 If the City Council determines that PSE willfully violated or failed to comply with the terms and conditions of this Franchise through willful misconduct or gross negligence or failed to heed or comply with any notice given PSE by the City under the provisions of this Franchise, then upon order of the City Council, this Franchise may be revoked and all rights therein forfeited. 7.5 The foregoing provisions of subsections 7.1 through 7.4 (pertaining to certain remedies afforded the City in the event of a breach of this Franchise by PSE) are in addition to, and not a limitation of, any and all right and remedies afforded a party in the event of a default by the other party. Without limiting the generality of the foregoing, ifa party shall be in default of its obligations under this Franchise, the other party may secure an order of specific enfomement of the defaulting party's obligations under this Franchise from the Superior Court. SECTION8. NONEXCLUSIVE FRANCHISE. 8.1 This Franchise is not and shall not be deemed to be an exclusive Franchise. This Franchise shall not in any manner prohibit the City fi'om granting other and further franchises over, upon, and along the Franchise Area which 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. SECTION9. FRANCHISE TERM. 9.1 This Franchise is and shall remain in full force and effect for a period often (10) 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. SECTION IO. ASSIGNMENT. 10.1 This Franchise may not, directly or indirectly, be transferred, assigned or disposed of in any manner by PSE except as provided by RCW 80.12.020 (collectively, "Assignment") 7 Puget Sound Energy Franchise 10.2 Without limiting the generality of the foregoing and to the extent consistent with applicable law, an assignment, in whole or in part, shall be subject to the City's prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, the City hereby consents to PSE's mortgage of this Franchise to the trustee for its bondholders. SECTION 11. HERBICIDES. 11.1 PSE shall not apply any herbicide within the Franchise Area without providing the City fourteen (14) days prior written notice of such application, unless the parties agree to a different term, or the City gives a blanket approval as part of a periodic program of spraying. PSE shall post the relevant portion of the Franchise Area at least 8 days prior to any spraying with notice of intended spraying. Nothing herein is intended or shall be construed to relieve PSE of any and all other requirements of applicable law relating to the application of herbicides. SECTION 12. UNDERGROUND AND NEW INSTALLATION OF DISTRIBUTION FACILITIES. 12.1 The City may by written notice to PSE, request PSE to underground its existing distribution Facilities (of 15,000 volts or less) within the Franchise Area improved by the City; provided, that such conversion of PSE's existing Facilities shall be accomplished in accordance with PSE's applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission or its successor, more specifically as applicable, UTC Tariff G, Schedule 74 as enacted and hereinafter amended. 12.2 If PSE elects to install new overhead distribution Facilities (of 15,000 volts or less) within the Franchise Area or a new extension of existing overhead distribution Facilities within the Franchise Area, PSE will provide written notice to the City. The City may by written notice to PSE, request PSE to install such Facilities underground within the Franchise Area; provided, that such installation underground of PSE's Facilities shall be accomplished in accordance with PSE's applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission or its successor, more specifically as applicable, PSE Electric Tariff G, Schedule 74 as enacted and hereinafter amended. 12.3 PSE shall submit design drawings of all underground installations showing the location of all existing utilities using best available information with proposed clearances within the right of way to the City Engineer for City review. Upon completion of construction of such underground installation, PSE shall, within thirty (30) days, submit as-built drawings to the City Engineer for City records. SECTION 13. RIGHT OF CITY TO USE PSE'S POLES. 13.1 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 non-commercial City communication systems (including, but not limited to, data, phone and video) and may install and maintain City-owned street lights upon PSE's poles located within the Franchise Area without charge. The foregoing rights of the City to install and maintain such wires, and street lights are further subject to the following: 8 Puget Sound Energy Franchise 13.1.1 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 SECTION14. RECORDS OF INSTALLATION. 14.1. 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. As to any such drawings 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. SECTION 15. STREET LIGHTING. 15.1 PSE shall provide street lighting services as requested by the City in accordance with applicable schedules and tariffs now on file or hereafter amended with the Washington Utilities and Transportation Commission (or such other regulatory agency having jurisdiction). Additionally, PSE shall provide proper maintenance and prompt customer service to the City with respect to the providing of street lighting service to the City. 15.2 The City reserves the right to install and maintain street lights on PSE poles pursuant to Section 13. No reasonable request by the City for City installation of City-owned street lights will be denied by PSE. 15.3 The City reserves the right to purchase any and all street light systems on PSE poles for market value to be negotiated by the parties. 15.4 By March 1 of each year, PSE shall provide to the City a current inventory of all street lighting fixtures showing all additions and deletions together with updated utility maps showing the location of each PSE-owned street light for which the City is responsible for payment. SECTION 16. FRANCHISE FEE. 16.1 The parties understand that the restrictions of RCW 35.21.860 forbid the imposition of a franchise fee. If at any time the restrictions of this statute should be removed or modified, the City may seek to amend this Franchise in accordance with Subsection 22.2 below. SECTION 1 Z CHARGE FOR ADMINISTRATIVE COSTS. 17.1 As provided in RCW 35.21.860, the City may recover from PSE actual administrative expenses incurred by the City that are directly related to: (i) receiving and 9 Puget Sound Energy Franchise approving a permit, license or this Franchise, (ii) inspecting plans and construction, or (iii) preparing a detailed statement pursuant to Chapter 43.21C RCW. SECTION 18. RIGHTS GRANTED. 18.1 No authorization granted under this Ordinance shall convey any right, title or interest in the public ways, but shall be deemed an authorization only to use and occupy the public ways in accordance with RCW 80.32.010. Further, this Ordinance shall not be construed as any warranty of title. SECTION19. REPAIR AND EMERGENCY WORK. 19.1 In the event of an unexpected repair or emergency within the Franchise Area for which a permit has not been obtained in accordance with Bremerton Municipal Code (BMC) as now or hereafter amended and which such work is not otherwise within the scope of the exemption authorized by the BMC, PSE may commence such repair and emergency response work as required under thc circumstances, provided PSE shall notify the City as promptly as possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. The provisions of this section do not relieve PSE from the requirement to obtain permits and approvals from the City and all other agencies with jurisdiction as set forth is Section 2.6. SECTION20. MAINTENANCE OF FACILITIES. 20.1 PSE shall maintain its Facilities within the Franchise Area in a manner that complies with all applicable federal, state and local requirements. Additionally, PSE shall provide reasonable maintenance of PSE Facilities, including poles, to prevent deterioration of equipment and service and provide prompt customer response to both the City and the public with respect to deficiencies or failure of Facilities in providing such service. 20.2 Nuisance poles and other Facilities shall be defined, identified and further shall be removed, replaced, relocated or otherwise remedied pursuant to BMC 11.02.270 as currently enacted and as hereinafter amended. 20.3 Replacement of PSE Facilities shall not constitute a requirement that the City upgrade its existing attached equipment or facilities provided transfer of such existing equipment or facilities may be reasonably accommodated on PSE's new Facility. SECTION21. SHARED USE OF EXCAVATIONS. 21.1 Shared use of excavations shall be pursuant to BMC 11.02.170 as currently enacted or as hereinafter amended. 10 Puget Sound Energy Franchise SECTION22. HEADINGS. 22.1 The headings of sections and paragraphs of this Franchise are for convenience of reference only and arc not intended to restrict, affect or bc of any weight in the interpretation or construction of the provisions of such sections or paragraphs. SECTION 2$. AMENDMENTS. 23.1 Except as provided in this paragraph 23.1, this Franchise may bc 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 5.1 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: 23.1.1 references this Franchise; and 23.1.2 states that it supersedes this Franchise to the extent it contains terms and conditions which 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. SECTION24. TARIFFS. 24.1 This Franchise is subject to the provisions of any applicable tariff now or hereafter on file with the Washington Utilities and Transportation Commission or its successor, as construed by any court with jurisdiction on appeal or otherwise. In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. 24.1.1 All notices of proposed applicable tariff adjustments, changes, alterations, and additions filed with the Washington Utilities and Transportation Commission by PSE shall be mailed concurrently to the City of Bremerton, to the attention of the Director of Public Works and Utilities. SECTION2$. PRIOR FRANCHISE SUPERCEDED. 25.1 This Franchise shall supercede all prior franchises granted to PSE or its predecessors by the City. 11 Puget Sound Energy Franchise SECTION26. SEVER_ABILITY. 26.1 If any one or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SECTION27. EFFECTIVE DATE. 27.1 This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. APPROVED by the City Council theJ~'_.rgw_ day of ~.~,t~..AJ~I~ 2003 PASSED by the City Council the~ day of 2003 CAROL ARENDS, Council President Approved this ~5 day of ~-a0 t0?~fia~D-~' ,2003 It~I~LE]~ ~S~Y, ~y ~k P~LIS~D ~e~ day of~, 2003 EFFECT~E ~e~day of~ 2003 O~CE NO. ~ 7~ 12 Puget Sound Energy Franchise CITY COUNCIL CITY OF BREMERTON, WASHINGTON In the matter of the application : of Puget Sound Energy, Inc., a : Franchise Ordinance No. 4875 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 Bremerton, : Washington : WHEREAS, the City Council of the City of Bremerton, Washington, has granted a franchise to Puget Sound Energy, Inc., a Washington corporation, its successors and assigns, by enacting Ordinance No. 4875, bearing the date of November 19, 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 Bremerton, Kitsap County, 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 Bremerton, Kitsap County, Washington. IN TESTIMONY WHEREOF said Puget Sound Energy, Inc. has caused this written Acceptance to be executed in its name by its undersigned thereunto duly authorized on this day of _, 2003. ATTEST: PUGET SOUND ENERGY, INC. By: Its: Copy received for City of Bremerton on ,2003 By:. Kathleen McCluskey, City Clerk R:kLEGAL\Ordinanees~PSE Franchisel.DOC 13 Puget Sound Energy Franchise ► CITY COUNCII, CITY OF BREMERTON, WASHINGTON In the matter of the application . of Puget Sound Energy, Inc., a . Franchise Ordinance No. 4875 Washington corpora.tion, 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 Bremerton; . Washington . VVf�REAS, the City Council of the City of Bremerton, Washington, has granted a fianchise to Puget Sound Energy, Inc., a Washington corporation, its successors and assigns, by enacting Ordinance No. 4875, bearing the date of November 19, 2003; and VVHEREAS, a copy of said Ordinance granting said franchise was received by the Puget Sound Energy, Inc. on �G i 2- -�-� 2003, from said City of Bremerton, Kitsap County, Washington. NOW, TT�REFORE, 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 Bremerton, Kitsap County, Washington. IN TES'TIl1�iONY WHEREOF said Puget Sound Energy, Inc. has caused this written Acceptance to be executed in its name by its undersigaed m G� �k— �7 u� JrV to� � thereunto duly authorized on this t Z-�-day of �e �n bc rc_ 2003. ATTEST: PUGET SOUND ENERGY, INC. � BY� . Attest: i�: � ee e 2 � �ti � Se,�.cc� - Copy received for City of Bremerton on 2003 By: Ka een McCI ey, City Clerk R:U.EGAL\Ordinances�PSE Fcanchisel.DOC 13 Puget Sound Energy Franchise DATE SUBMITTED: October 13, 2003 BILL # 0,.~ -,.~ ! ~'__ AGENDA BILL CITY OF BREMERTON CITY COUNCIL SUBJECT: PUBLIC HEARING ON Committee Meeting Date: November 4, 2003 ORDINANCE GRANTING PUGET COUNCIL MEETING Date: Nov.~i~m~l 19, 2003 SOUND ENERGY A FRANCHISE Department: City Attorney's Office Presenter: Roger A. Lubovich Phone: 473-2345 SUMMARY: The proposed ordinance grants Puget Sound Energy, Inc. the right, privilege, authority and franchise to install and maintain their Facilities within and upon the City's rights-of-way for purposes of transmission, distribution and sale of energy for power, heat, light and any other purpose for which energy can be used; and to charge and collect tolls, rates and compensation for such energy and such uses. ATTACHMENTS: Proposed Ordinance [~O, q-g'7 5 FISCAL IMPACTS (Include Budgeted Amount): APPROVALS: ~ ./ff (~( /~ / DEPARTMENT DIRECTOR'.ff~['ff ,..~ '//Z/~--~, ~ OPE~TIONS: ~,~ AGE~A ~ CO~CIL P~S~ENT: ~ ~~ 2. I move to p~s Or~n~ce No. 4~ 7 ~ on second reading. COUNCIL ACTION: ~"Approve [] Deny [] Table [] Continue [] No Action