090-16 - Puget Sound Energy, Inc. - Contract FranchiseRECEIVED
CITY OF PORT ORCHARD 2 2016
KITSAP COUNTY, STATE OF WASHINGTON
CITY OF PORT ORCHARD
^ ITY CI IRKS OFFIC
In the matter of the application of Puget Sound Energy, Inc., a Washington corporation, for a
franchise renewal to construct, operate and maintain facilities in, upon, over, under, along,
across and through the franchise area of the City of Port Orchard, Washington - Existing
Franchise Ordinance No. 1357 which expires on September 3rd, 2016.
ACCEPTANCE: WHEREAS, on August 23rd, 2016, the City Council of the City of Port Orchard,
Washington, granted a franchise to Puget Sound Energy, Inc., a Washington corporation, its
successors and assigns by passing Ordinance No. 028-16; and
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 Port Orchard, Kitsap County,
Washington.
IN TESTIMONY WHEREOF Puget Sound Energy, Inc. has caused this written Acceptance to be
executed, in its name by its undersigned there unto duly authorized on this day September 23,
2016
PUGET SOUND ENERGY, INC.
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Copy received for City of Port Orchard
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By;
Brandy Rinearson, CIVIC, CPRO, City Clerk
Puget Sound Energy
Franchise Renewal 2016
Puget Sound Energy * 6522 Kitsap Way, Bremerton, WA 98312
Page 1
ORDINANCE NO.028-16
AN ORDINANCE OF THE CITY OF PORT ORCHARD REPEALING AND REPLACING
ORDINANCE NO. 1357 (CHAPTER 5.64 OF THE PORT ORCHARD MUNICIPAL CODE) AND
ADOPTING THE FOLLOWING ORDINANCE WHICH GRANTS 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, 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 PORT ORCHARD, WASHINGTON, DO ORDAIN AS
FOLLOWS:
SECTION 1. REPEALER.
(1) Chapter 5.64 of the Port Orchard Municipal Code, as adopted in Ordinance No. 1357,
is hereby repealed upon Puget Sound Energy, Inc.'s acceptance of this Franchise in accordance
with the Section 10 as provided herein.
SECTION 2. DEFINITIONS.
(1) Where used in this franchise ("Franchise") the following terms shall mean:
(a) "City" means the City of Port Orchard, a municipal corporation of the State of
Washington, and its respective successors and assigns.
(b) "Facilities" means any and all electric transmission and distribution systems,
including, but not limited to, poles (with or without crossarms), wires, lines, conduits, cables,
communication and signal lines, braces, guys, anchors, vaults and meter -reading devices, and
any other equipment, appliances, attachments, appurtenances and other items necessary or
convenient to any of the foregoing, whether the same be located over or under ground.
(c) "Franchise Area" means any, every and all of the roads, streets, avenues, alleys,
highways, grounds and public places of the City as now laid out, platted, dedicated or
improved; and any and all roads, streets, avenues, alleys, highways, grounds and public places
Ordinance No. 028-16
Page 2 of 7
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.
(d) "Puget" means Puget Sound Energy, Inc., a Washington corporation, and its
respective successors and assigns.
(e) "Ordinance" means this Ordinance No. 028-16, which sets forth the terms and
conditions of this Franchise.
SECTION 3. FACILITIES WITHIN THE FRANCHISE AREA.
to:
(1) The City does hereby grant to Puget the right, privilege, authority and franchise
(a) Set, erect, construct, support, attach, connect and stretch Facilities
between, maintain, repair, replace, 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
(b) Charge and collect tolls, rates and compensation for such energy and
such uses.
(2) This Franchise shall not convey any right to Puget to install its Facilities on,
under, over or across, or to otherwise use, any City -owned or leased properties of any kind that
are located outside the Franchise Area. Further, this Franchise shall not govern or apply to
Facilities located on Puget owned or leased properties or easements (whether inside or outside
of the Franchise Area, whether granted by a private or public entity, and whether now existing
or hereafter acquired) and such Facilities are not, and will not be deemed to be, located
pursuant to rights derived from this Franchise or pursuant to rights otherwise granted by the
City.
SECTION 4. NONINTERFERENCE OF FACILITIES.
(1) Puget's Facilities shall be maintained within the Franchise Area so as not to
unreasonably interfere with the free passage of traffic and in accordance with laws of the State
of Washington. Whenever it shall be necessary for Puget, in the exercise of its rights under this
Franchise, to make any excavation in the Franchise Area, Puget shall, upon completion of such
excavation, restore the surface of the Franchise Area, as nearly as practicable, to the same
condition it was in prior to such excavation.
SECTION S. RELOCATION OF FACILITIES.
(1) Whenever the City causes the grading or widening of the Franchise Area (for
purposes other than those described in Section 5(2) below), and such grading or widening
Ordinance No. 028-16
Page 3 of 7
requires the relocation of Puget's then existing Facilities within the Franchise Area, the City
shall:
(a) Provide Puget, within a reasonable time prior to the commencement of
such grading or widening, written notice requesting such relocation; and
(b) Provide Puget with reasonable plans and specifications for such grading
or widening.
After receipt of such notice and such plans and specifications, Puget shall relocate such
Facilities within the Franchise Area at no charge to the City. If the City requires the subsequent
relocation of any Facilities within five (5) years from the date of relocation of such Facilities
pursuant to this Section 5(1), the City shall bear the entire cost of subsequent relocation.
(2) Whenever any person or entity, other than the City, requires the relocation of
Puget's Facilities to accommodate the work of such person or entity within the Franchise Area;
or, whenever the City requires the relocation of Puget's Facilities within the Franchise Area for
the benefit of any person or entity other than the City, then Puget shall have the right as a
condition of such relocation to require such person or entity to:
(a) Make payment to Puget, at a time and upon terms acceptable to Puget,
for any and all costs and expenses incurred by Puget in the relocation of Puget's
Facilities; and
(b) Indemnify and save Puget harmless from any and all claims and demands
made against it on account of injury or damage to the person or property of another
arising out of or in conjunction with the relocation of Puget's Facilities, to the extent
such injury or damage is caused by the negligence of the person or entity requesting the
relocation of Puget's Facilities or the negligence of the agents, servants or employees of
the person or entity requesting the relocation of Puget's Facilities.
(3) Any condition or requirement imposed by the City upon any person or entity,
other than the City or Puget (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 requires the relocation of Puget's Facilities shall be a
required location for purposes of Section 5(2).
(4) Nothing in this Section 5 shall require Puget to bear any cost or expense in
connection with the location or relocation of any Facilities then existing pursuant to easement
or other rights not derived from this Franchise, regardless of whether such easement or other
rights are on public or private property and regardless of whether this Franchise co -exists with
such easement or other rights.
Ordinance No. 028-16
Page 4 of 7
SECTION 6. INDEMNIFICATION.
(1) Puget shall indemnify and save the City harmless from any and all claims and
demands made against it on account of injury or damage to the person or property of another,
to the extent such injury or damage is caused by the negligence of Puget or its agents, servants
or employees in exercising the rights granted Puget in this Franchise; provided, however, that in
the event any such claim or demand be presented to or filed with the City, the City shall
promptly notify Puget thereof, and Puget 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 Puget thereof, and Puget shall have the right, at its election
and its sole cost and expense, to settle and compromise such suit or action, or defend the same
at its sole cost and expense, by attorneys of its own election.
SECTION 7. MOVING BUILDINGS WITHIN THE FRANCHISE AREA.
(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 Puget
for the temporary adjustment of Puget's wires to accommodate the moving or removal of such
building or other object. Such necessary arrangements with Puget shall be made, to Puget's
satisfaction, not less than 14 days prior to the moving or removal of the building or other
object. In such event, Puget 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, provided that:
(a) The moving or removal of such building or other object which
necessitates the adjustment of wires shall be done at a reasonable time and in a
reasonable manner so as not to unreasonably interfere with Puget's business;
(b) Where more than one route is available for the moving or removal of
such building or other object, such building or other object shall be moved or removed
along the route which causes the least interference with Puget's business; and
(c) The person or entity obtaining such permission from the City to move or
remove such building or other object shall be required to indemnify and save Puget
harmless from any and all claims and demands made against it on account of injury or
damage to the person or property of another arising out of or in conjunction with the
moving or removal of such building or other object, to the extent such injury or damage
is caused by the negligence of the person or entity moving or removing such building or
other object or the negligence of the agents, servants or employees of the person or
entity moving or removing such building or other object.
Ordinance No. 028-16
Page 5 of 7
SECTION 8. DEFAULT.
(1) If Puget fails to comply with the provisions of this Franchise, the City may serve
upon Puget a written order to so comply within 60 days from the date such order is received by
Puget. If Puget is not in compliance with this Franchise after expiration of the 60-day period,
the City may, by ordinance, declare an immediate forfeiture of this Franchise; provided,
however, if any failure to comply with this Franchise by Puget cannot be corrected with due
diligence within the 60-day period (Puget's obligation to comply and to proceed with due
diligence being subject to unavoidable delays and events beyond its control), then the time
within which Puget may so comply shall be extended for such time as may be reasonably
necessary and so long as Puget commences promptly and diligently to effect such compliance.
SECTION 9. NONEXCLUSIVE FRANCHISE.
(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 which do not interfere with Puget'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 10. FRANCHISE TERM.
(1) This Franchise is and shall remain in full force and effect for a period of thirty
(30) years from and after the effective date of the Ordinance; provided, however, Puget shall
have no rights under this Franchise nor shall Puget be bound by the terms and conditions of this
Franchise unless Puget shall, within sixty (60) days after the effective date of the Ordinance, file
with the City its written acceptance of the Ordinance.
SECTION 11. ASSIGNMENT.
(1) Puget shall have the right to assign its rights, benefits and privileges in and under
this Franchise. Any assignee shall, within thirty (30) days of the date of any assignment, file
written notice of the assignment with the City together with its written acceptance of all terms
and conditions of this Franchise. Notwithstanding the foregoing, Puget shall have the right,
without such notice or such written acceptance, to mortgage its rights, benefits and privileges
in and under this Franchise to the trustee for its bondholders.
SECTION 12. MISCELLANEOUS.
(1) If any term, provision, condition or portion of this Franchise shall be held to be
invalid, such invalidity shall not affect the validity of the remaining portion of this Franchise
which shall continue in full force and effect. 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.
Ordinance No. 028-16
Page 6 of 7
(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 6(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 Puget 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:
(a) References this Franchise; and
(b) 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.
(3) 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.
(4) 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.
In the event of any conflict or inconsistency between the provisions of this Franchise and such
tariff, the provisions of such tariff shall control.
(5) In the event any suit or action is commenced by the City against Puget or by
Puget against the City in a court of competent jurisdiction: (a) to enforce the terms and
conditions of this Franchise; or (b) on account of any default under or breach of this Franchise,
the prevailing party in such suit or action shall be entitled to recover, in addition to all other
relief, from the other party all reasonable attorney's fees incurred by the prevailing party in
connection with such suit or action.
(6) If at any time the City shall vacate any portion of the Franchise Area where
Facilities are installed at the time of said vacation, and said vacation shall be for the purpose of
acquiring the fee or other property interest in said portion of the Franchise Area by a person or
entity other than the City, then the City shall give Puget advance written notice of the same to
allow Puget the opportunity to review and comment on the proposed vacation. Thereafter, the
City shall, in its vacation procedure, unless otherwise waived in writing by Puget, reserve an
easement to Puget for Puget's Facilities based on the input received from Puget.
SECTION 13. SEVERABILITY. If any section, sentence, clause or phrase of this Ordinance should
be held to be unconstitutional or unlawful 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.
Ordinance No. 028-16
Page 7 of 7
SECTION 14. PUBLICATION_ This Ordinance shall be published by an approved summary
consisting of the title.
SECTION 15. EFFECTIVE DATE. This Ordinance shall take effect on September 3, 2016, having
been: (a) introduced to the City Council not less than five days before its passage;(b) first
submitted to the City Attorney on June 10, 2016; (c) published at least five days prior to the
above referenced effective date and as otherwise required by law; and (d) passed at a regular
meeting of the City council by at least five members on August 23, 2016.
PASSED by the City Council of the City of Port Orchard and signed by the Mayor and
attested by the Clerk in authentication of such passage this 23rd day of August, 2016.
ATTEST:
it 7
Brandy Rinearson, CIVIC, City Clerk
APPROVED AS TO FORM:
S aron Cates, City Attorney
PUBLISHED: September 2, 2016
EFFECTIVE DATE: September 3, 2016
Robert Putaansuu, Mayor
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SPONSORED BY:
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Cindy Lucar li, touncilmember