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ORD 11-707ORDINANCE NO. 11-707 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING PUGET SOUND ENERGY, IN�., A NONEXCLUSIVE FRANCHISE TO OCCUPY RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED � FRANCHISE AREA FOR THE PURPOSES OF TRANSMISSION, DISTRIBUTION AND SALE OF - ELECTRICAL ENERGY FOR POWER, HEAT, AND LIGHT AND ANY OTHER PURPOSE FOR WHICH SUCH ENERGY CAN BE USED. WHEREAS, Puget Sound Energy, Inc., has requested a franchise from the City of Federal Way, in order to install, operate and maintain an electrical light and power system in rights-of-way; and WHEREAS, the City Council of Federal Way finds that it is in the public interest to grant such a franchise, which will specify the rights and duties of Puget Sound Energy, Inc., through a franchise; and WHEREAS, RCW 35A.47.040 permits the City of Federal Way to grant nonexclusive franchises for the use of public streets, bridges or other public ways for, inter alia, poles, conduits, tunnels, towers and structures, pipes and wires and appurtenances for transmission, distribution and sale of electrical energy for power, heat, light and any other purposes for which such energy can be used ; and WHEREAS, in granting such a nonexclusive franchise, the City of Federal Way reserves such other powers and authorities granted to Washington code cities by general law; Ordinance No. 11-707 Page 1 of 35 NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHiNGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. De�nitions Where used in this Franchise the following terms shall be defined as follows: 1.1 "City" means the City of Federal Way, Washington, a municipal corporation of the State of Washington; and its successors and assigns. 1.2 "City Code" means the Federal Way City Code as amended from time to time. 1.3 "Council" means the City of Federal Way Council acting in its official capacity. 1.4 "Director" means the Public Works Director, or designee, of the City of Federal Way Public Works Department. 1.5 "Facilities" means, collectively, any and all electric transmission and distribution systems, including but not limited to, poles, wires, lines, conduits, ducts, cables, braces, guys, anchors and vaults, transformers, switches, meter-reading devices, fixtures, and communication systems; and any and all other equipment, appliances, attachments, appurtenances and other items necessary, convenient, or in any way appertaining to any and all of the foregoing, whether the same be located over or under ground. 1.6 "Franchise Area" means rights-of-way for public roads, streets, avenues, alleys, and highways of the City as now existing, or as hereafter laid out, platted, dedicated or improved within the present limits of the City depicted on Exhibit A and as such li�nits may be hereafter extended; all City owned utility easements dedicated for the placement and location of various utilities provided such easement would permit Franchisee to fully exercise the rights granted under this Franchise within the area covered by the easement. The Franchise Area does not, however, include (a) any Ordinance No. 11-707 Page 2 of 3S other public property owned, in whole or in part, leased, or otherwise occupied by the City, or (b) Franchisee-owned or leased properties or easements of any kind. 1.7 "Franchisee" means Puget Sound Energy, Inc., and its permitted successors and assigns as provided in Section 32.3 herein. - 1.8 "Guy Wire" means a tensioned cable designed to add stability to a utility pole subject to unbalanced forces. The cable could be anchored to the ground or aerially to another pole at a distance from the utility pole. 1.9 "Transmission Lines" means electrical transmission lines of a voltage of 115 KV or more including poles and wires. Section 2. Grant/Acceptance 2.1 Grant of Franchise. The City hereby grants to Franchisee, subj ect to the terms of this Franchise, the nonexclusive right to enter upon the Franchise Area for the limited purpose of setting, erecting, laying, constructing, extending, supporting, attaching, connecting, excavating, installing, maintaining, restoring, repairing, replacing, enlarging, operating and using Facilities in, upon, over, under, along, across and through the Franchise Area. This Franchise is specifically limited to the exercise of the foregoing rights with respect to Facilities owned and operated by Franchisee. This Franchise does not permit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities within the Franchise Area to other third-party telecommunications providers unless required by law, government regulation, or approved by the City and/or Franchisee contractually requires that the third-party telecommunications provider have sufficient rights from the City, independent of Franchisee, to use and operate within the Franchise Area. 2.2 Acceptance b_y Franchisee. Franchisee shall have no rights under this Franchise, nor Ordinance No. 11-707 Page 3 of 35 shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee shall, within sixty (60) days after the effective date of this Franchise, file with the City its written acceptance of this Franchise and all of its terms and conditions. Section 3. Non-Franchise Area Propertv 3.1 Cit�Property. This Franchise does not and shall not convey any right to Franchisee to install its Facilities on, under, over, across, or to otherwise use City-owned or leased properties of any kind outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use any City owned or leased property within the Franchise Area other than public roads, streets, avenues, alleys and highways. Notwithstanding the foregoing, existing Facilities installed or maintained by Franchisee on public grounds and places within the City in accordance with prior franchise agreements (but which such Facilities are not within the Franchise Area as defined in this Franchise) may continue to be maintained, repaired, and operated by Franchisee at the location such Facilities exist as of the effective date of this Franchise for the term of this Franchise; provided no such Facilities may be enlarged, improved, or expanded without the prior approval of the City. 3.2 Franchisee Property. This Franchise shall not govern or apply to any Facilities located on Franchisee-owned or leased properties or easements (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 the City. Section 4. Term Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this Franchise shall be for a period of ten (10) years commencing on the effective date of this Franchise, unless terminated earlier pursuant to this Franchise or other applicable law. This Franchise may be Ordinance No. 11-707 Page 4 of 35 renewed for one additional ten (10) year period upon written request of Franchisee, not more than two (2) years or less than one hundred eighty (180) days prior to the expiration of the initial term. Section 5. Location of Facilities 5.1 Location. Franchisee shall provide the City, upon the City's reasonable request, copies of available maps in use by Franchisee showing the location of its Facilities within the Franchise Area, provided the request is limited to Facilities at specific locations in the Franchise Area. In addition, the approximate location of new Facilities installed by Franchisee within the Franchise Area, including underground Facilities and appurtenances, their depths below surface of ground or grade of a right-of-way, and any related existing equipment to which the Facilities are connected shall be depicted on a map and submitted to the City within sixty (60) days of the installation of the Facilities. Upon written request of the City, Franchisee shall update such map to reflect actual or anticipated improvements to such new Facilities. Any such map (or update thereo fl so submitted shall be for informational purposes only, without warranty as to accuracy, and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. 5.2 GIS / Digital Data. At such time as Franchisee develops and deploys Geographic Information System ("GIS") technology for its electrical utility maps and records throughout the Franchise Area and has such information available in digital GIS format for its Facilities within the Franchise Area, the City may request, by written notice to Franchisee, that the parties promptly instigate negotiations with the objective of amending this Section 5.2 to make provision for the distribution of such maps to the City in digital GIS format and for disclaimers the parties may include relative to such distribution if such disclaimers are agreed to by both parties. In the event the Ordinance No. ll -707 Page S of 35 parties cannot, within a reasonable period of time after Franchisee's receipt of the City's request, reach an agreement as to the terms of such amendment, either party may, by written notice to the other party, demand that the foregoing issue be submitted to mediation under and pursuant to the Mediation Rules of the Judicial Arbitration and Mediation Service in Seattle, Washington. If the parties cannot resolve the issue through mediation, this Franchise may be terminated by either party providing sixty (60) days written notice to the other party. 5.3 Design Markin�s. In the event the City desires to design new streets or intersections, renovate existing streets, or make any other City involved improvements within the Franchise Area, Franchisee shall at the City's reasonable request, provide the location of Franchisee's underground Facilities within the relevant portion of the Franchise Area by either field markings or by locating the Facilities on the City's design drawings, and shall provide all other reasonable cooperation and assistance to the City in determining the location of such Facilities. Upon reasonable request by the City, Franchisee shall verify the location and depth of its underground Facilities within the relevant portion of the Franchise Area by excavating (e.g., pot holing) at no expense to the City. 5.4 No Warranty or Waiver. Nothing herein is intended to relieve the parties of their respective obligations arising under Chapter 19.122 RCW or other applicable law with respect to determining the location of utility facilities prior to construction. Further, neither the provisions of this Franchise nor the absence of any specific provision in this Franchise is intended to limit, detract from or render ineffective any disclaimer (including, without limitation, any disclaimer as to accuracy or completeness) placed by Franchisee on any map furnished to the City pursuant to this Section 5. Ordinance No. 11-707 Page 6 of 35 Section 6. Noninterference of Facilities Franchisee agrees to maintain its Facilities and perform any and all activities authorized hy this Franchise: (a) so as not to unreasonably interfere with the free passage of traffic; and (b) in accordance with the laws of the State of Washington and City Code requirements, franchise provisions, regulations, resolutions and rules; as now existing or as hereafter amended; provided, however, in the event of any conflict or inconsistency between City Code requirements or such City regulations, resolutions and rules and the terms' and conditions of this Franchise, the terms and conditions of this Franchise shall govern and control. This requirement applies whether or not the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. Section 7. Requirement to Obtain Permits 7.1 Permits and Permit Applications. Franchisee shall, at its expense, obtain all permits, (including rights-of-way permits), and pay all permit fees required by applicable City ordinances, regulations, resolutions and rules prior to commencing any work within the Franchise Area except for emergency work under Section 7.2 and routine maintenance under Section 7.3. Franchisee permit applications shall, as required by generally applicable City Code requirements and regulations, show the position and location of the proposed Facilities to be constructed, laid, installed, or erected at that time, show their relative position to existing rights-of-way or property lines upon prints drawn to scale, designate rights-of-way by their names and improvements, such as, but not limited to, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes existing on the ground to be occupied, or as required by the Director. As required by Ordinance No. 11-707 Page 7 of 35 generally applicable City Code requirements and regulations, Franchisee shall specify the class and type of materials to be used, equipment to be used, and mode of safeguarding and facilitating the public traffic during construction. The manner of excavation, construction, installation, backfill, and temporary structures such as, but not limited to, traffic turnouts and road obstructions shall meet the standards of the City Code and be reasonably satisfactory to the Director. All traffic control shall be in accordance with the right-of-way permit, and as required by the permit shall be in accordance with the Manual on Uniform Traffic Control Devices (MUTCD). The Franchisee shall indicate on any permit application the time needed to complete the work. The time needed to complete the work is subject to approval by the City as a condition of the issuance of the permit or approval. Franchisee shall restore the surface of the Franchise Area as nearly practicable, to its existing or better condition prior to the work. Such restoration responsibility shall continue for the length of the Franchise, but shall not apply to any subsequent repair or restoration made necessary by the acts or omissions of the City or any third party. 7.2 Emergencv Exception to Permit Rec�uirement. In the event of an emergency in which Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger the property, life, health or safety of any individual, Franchisee may take action immediately to correct the dangerous condition without first obtaining any required permit so long as Franchisee reasonably attempts to inform the City of nature and extent of the emergency, and the work to be performed, prior to commencing the work. This provision shall not relieve Franchisee from later obtaining any necessary permit for the emergency work. Franchisee shall apply for the required permit the next business day following the emergency work or, in the case of an extended state of emergency, as soon thereafter as practical. Ordinance Na l l-707 Page 8 of 35 7.3 Maintenance. Franchisee shall have the right to conduct maintenance to repair, modify, supplement, replace or upgrade the Franchisee's Facilities within the Franchise Area, provided that the Franchisee shall obtain any permits or authorizations required by all applicable federal, state, and local laws, rules and regulations prior to the performance of any said routine maintenance. Notwithstanding any requirements contained herein, routine maintenance that does not <: interfere with pedestrian or vehicular traffic (such as inspection, switching, or opening vaults and enclosures) does not require a permit. 7.4 Notice of Entrv. At least forty-eight (48) hours prior to entering the Franchise Area adjacent to private property to perform excavation or removal of Facilities that is likely to have a material adverse impact on the adj acent private property, except those emergency activities exempted from permit requirements, a written notice describing the nature and location of the work to be performed shall be physically posted upon the affected private property by Franchisee. A pre-printed door hanger may be used for this purpose. Section 8. Standard of Performance The Franchisee shall not excavate a trench and leave the jobsite at the end of the workday without complying with the following: Trench areas within a driving lane in the Franchise Area must be plated or patched, either temporarily or permanently, before the end of the work day in which they have been opened. Trench areas within the Franchise Area, but not with in a driving lane, must also be patched within the time limits specified by the City on the right-of-way use permit. Final surface restoration shall be completed, weather permitting, within the time limits specified by the City in the right-of-way use permit. Any asphalt overlay completed within the Franchise Area during the five (5) year-period immediately prior to the date of permit application (or such longer Ordinance No. ll -707 Page 9 of 35 time as permitted by generally applicable City Code requirements or regulations) shall not be open cut by Franchisee unless required by an emergency and subject to the provisions of Section 7.2 above. If and as required by generally applicable City Code requirements and regulations, Franchisee shall install new asphalt overlay on any street that is open cut, whether in an emergency or otherwise, for a minimum of one (1) block (approximately 500 feet) in length in both directions from the open cut, unless determined otherwise by the Director in accordance with the Cit}F Code or Department of Public Works internal policies. Franchisee shall not open cut any street without an approved permit except as described in Section 7.2. Permit conditions will be reasonable based on facts and circumstances and a one block in length overlay in both directions from an open cut will not apply in all circumstances. The City may elect, by written request to Franchisee, to have Franchisee install conduit in Franchisee's trenches for the City's use and ownership; provided such work for the City does not unreasonably delay the work of Franchisee, the work is arranged and accomplished upon terms and conditions reasonably acceptable to the City and Franchisee, and the City agrees to reimburse Franchisee for the incremental cost of installing such conduit. Within sixty (60) days of completion of any installation of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the Director plans showing the "as-built" location of the Facilities. Franchisee shall, in carrying out any authorized activities within the Franchise Area, comply with all applicable laws, codes and standards, as now existing or hereafter adopted or amended, and in compliance with the terms of this Franchise, whether or not the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction; provided, however, in the event of any conflict or inconsistency of such City laws, codes and standards with the terms and conditions of this Franchise, the terms and conditions of this Franchise shall govern Ordinance No. l l-707 Page 10 of 35 and control. Section 9. Survev Markers and Monuments Franchisee shall, using a licensed surveyor, immediately replace all markers or monuments disturbed during any work by Franchisee within the Franchise Area. Franchisee shall pay all costs associated with replacing such lost, destroyed or disturbed monuments or markers. Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall, using a licensed surveyor, reference all monuments and markers relating to subdivisions, plats, highways, and other surveys if they are likely to be disturbed. The reference points shall be located so that they shall not be disturbed during the Franchisee's operations under this Franchise. The method of referencing these monuments or other points shall be approved by the City before placement. A complete set of reference notes for monuments and other ties shall be filed with the City. Section 10. Surface Markings/Stakes Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall locate its underground Facilities within the Franchise Area in the vicinity of such excavation work by placing temporary identification surface markings on the pavement or hard ground, made with spray paint, spray caulk or temporary wood stakes of the specific color to identify the type of underground utility Facility, which are color coded and marked to indicate the type of underground Facility, all pursuant to the American Public Works Association Uniform Color Code Marking Standards as now existing or as thereafter adopted or amended, and to Chapter 19.122 RCW._ In the event of any conflict or inconsistency between this Section 10 and Chapter 19.122 RCW, as now existing or hereafter amended, Chapter 19.122 will control. Ordinance No. I1-707 Page 11 of 35 Section 11. Right of Citv to Undertake Maintenance Work The laying, construction, maintenance, and operation of Franchisee's Facilities within the Franchise Area as granted under this Franchise shall not preclude the City, its accredited agents or its contractors from doing necessary maintenance work contiguous to the Facilities, provided that the Franchisee shall have sufficient notice of blasting or excavating in order that Franchisee may protect its Facilities or property. Section 12. Ri�ht of Citv to Complete Work In the event Franchisee, in performing work within the Franchise Area, fails to comply with any of its obligations under the terms of this Franchise, and such noncompliance continues for a period of ten (10) days after Franchisee receives written notice from the City regarding the noncompliance (or such longer period of time as may be reasonably necessary to achieve compliance so long as Franchisee commences promptly and diligently to effect such compliance), the City may, but in no event is the City obligated to, order such work completed. If the City causes such work to be done by its own employees or by any person or entity other than Franchisee, Franchisee shall, upon the City's written request, immediately reimburse the City for all reasonable costs and expenses incurred by the City in having such work performed, which costs may include the City's reasonable overhead expenses and attorneys fees. However, the City shall not have any electrical work accomplished by any person or entity other than Franchisee unless it is performed by a qualified and licensed electrical contractor reasonably acceptable to Franchisee and in compliance with all applicable federal, state and local laws and regulations and all applicable rules, standards, specifications and requirements of Franchisee then in effect. Ordinance Na l l-707 Page 12 of 35 Section 13. Relocation of Facilities 13.1 Ci . s Duties. In the event the City undertakes any Public Improvement Project (as defined in Section 13.6 below) within the Franchise Area, and such Public Improvement Project requires the relocation of Franchisee's then existing Facilities within the Franchise Area (for purposes other than those described in Section 13.4 below), the City shall: (a) Provide written notice to Franchisee requesting such relocation within a reasonable time (which in no event will be less than one hundred twenty (120) days) prior to the commencement of such Public Improvement Project; and (b) Provide Franchisee with copies of pertinent portions of the City's plans and specifications so that Franchisee may relocate its Facilities to accommodate such Public Improvement Project. 13.2 Franchisee's Duties. After receipt of the City notice under Section 13.1(a) requiring relocation of the Facilities and receipt of the plans and specifications pursuant to Section 13.1(b), Franchisee shall relocate such Facilities within the Franchise Area at no charge to the City so as to accommodate the mutually agreed upon schedule for the Public Improvement Project. When relocating Facilities located within any portion of the Franchise Area in which all other Facilities of Franchisee are located underground, no Guy Wires that cross aerially over any public road, street, avenue, alley or highway within the Franchise Area from one side to the other side are permitted for Transmission Lines, unless Franchisee reasonably determines (e.g., based on safety considerations) that under the circumstances the use of such Guy Wires cannot reasonably be avoided, and any additional cost incurred by Franchisee to accommodate such restriction shall be at Franchisee's expense. Except as provided otherwise herein, Franchisee shall complete relocation of its Facilities Ordinance No. I1-707 Page 13 of 35 within the Franchise Area at its sole cost and expense. 13.3 Alternative Proposals. The Franchisee may, after receipt of written notice requesting a relocation of its Facilities under this Section 13, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise the Franchisee in writing if one or more of the alternatives are suitable to accommodate the work that would otherwise necessitate the relocation of the Franchisee's Facilities. If so requested by the City, the Franchisee shall submit additional information to assist the City in making such an evaluation. The City shall give each alternative proposed by the Franchisee full and fair consideration. In the event the City determines in its sole discretion that there is no other reasonable alternative, the Franchisee shall relocate its Facitities as provided in this Section 13. The Parties agree to exercise good faith, reasonable and timely decision-making especially when issues arise in the field pertaining to relocation. 13.4 Third Partv Relocations. Whenever (a) any public or private development within the Franchise Area, other than a Public Improvement Project, requires the relocation of Franchisee's Facilities within the Franchise Area to accommodate such development; or (b) the City requires the relocation of Franchisee's Facilities within the Franchise Area for the benefit of any person or entity other than the City, then in such event, Franchisee shall have the right as a condition of such relocation, to require such developer, person or entity to make payment to Franchisee, at a time and upon terms acceptable to Franchisee, for any and all costs and expenses incurred by Franchisee in the relocation of Franchisee's Facilities. 13.5 City Imposed Conditions. Any condition or requirement imposed by the City upon any person or entity, other than Franchisee, that requires the relocation of Franchisee's Facilities shall be a required relocation for purposes of Section 13.4 above (including, without limitation, any Ordinance No. 11-707 Page 14 of 35 condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, construction or development); provided, however, (a) in the event the City reasonably determines (and promptly notifies Franchisee in writing of such determination) that the primary purpose of imposing such condition or requirement upon such person or entity is to cause the construction of a water sewer or storm drainage line or other public street improvement (including without limitation the construction or installation of any traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks or other pedestrian amenities) on the City's behalf, and (b) such public street improvement is otherwise reflected in the City's then- current six-year Transportation Improvement plan, then only those costs and expenses incurred by Franchisee in integrating and connecting such relocated Facilities with Franchisee's other Facilities shall be paid to Franchisee by such other person or entity, and Franchisee shall otherwise relocate its Facilities within such segment of the Franchise Area in accordance with the provisions of Section 13.2. 13.6 Definition. As used in this Franchise, the term "Public Improvement Project" means any capital improvement or repair within the Franchise Area (including, without limitation, the construction, installation and/or maintenance of any electrical, water, sewer or storm drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks or other pedestrian amenity) that is undertaken by or on behalf of the City and is funded by the City (either directly with its own funds or with other monies obtained by the City). 13.7 Reservation of Rights. Nothing in this Section 13 shall require Franchisee to bear any cost or expense in connection with the location or relocation of any Facilities located on Franchisee-owned or leased properties or easements or other rights not derived from this Franchise, Ordinance No. 11-707 Page 1 S of 35 regardless of whether the same is on public or private property and regardless of whether this Franchise co-exists with such easement. Section 14. Undergrounding of Facilities 14.1 Undergrounding of Lines. Franchisee acknowledges the City's desire to encourage the undergrounding of overhead electrical Facilities within the Franchise Area. The City acknowledges that Franchisee utilizes=such overhead Facilities to provide electrical service on non-preferential basis subject to and in accardance with tariffs on file with the Washington Utilities and Transportation Commission. Subject to and in accordance with such tariffs, Franchisee will cooperate with the City in the formulation of policy and regulations. 14.2 By City Request. The City may, by written notice to Franchisee, request Franchisee to convert its existing aboveground Facilities within the Franchise Area (of 15,000 volts or less) to underground Facilities in connection with any improvement within the Franchise Area undertaken by the City including, but not limited to, any Public Improvement Proj ect which otherwise requires the relocation of such Facilities in accordance with Section 13 herein. In such event, such undergrounding shall be arranged, provided and accomplished in accordance with applicable provisions of the City Code, and all applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission or its successor; provided that if any term or condition of such City Code and any term or condition of such schedules and tariffs are in conflict, the term or condition of the schedules and tariffs shall govern and control. 14.3 At Franchisee's Election. If during the term of this Franchise, Franchisee undertakes a major replacement of any of Franchisee's existing aboveground Facilities within the Franchise Area (of 15,000 volts or less) or installs a major addition of new Facilities within the Franchise Area (of Ordinance No. l 1-707 Page 16 of 35 15.000 volts or less), such maj or replacement or addition shall be underground to the extent required by City Code. Such undergrounding shall be done subject to and in accordance with all applicable schedules and tariffs on file with the Washington Utilities and Transportation Commission or its successors. 14.4 • Exclusivitv. This Section 14 shall govern all matters related to undergrounding of Franchisee's Facilities (i.e., conversions or otherwise) in connection with this Franchise. Section 25. ` Citv Use of Facilities 15.1 City-Owned Communications Equipment. During the term of this Franchise, the City may, subject to Franchisee's prior written consent, which shall not be unreasonably withheld, install and maintain City-owned communications equipment, wires and/or fiber on poles that are owned by Franchisee (in whole or in part), that are located in the Franchise Area. The City's use of such equipment, wires or fibers shall be for the City's own non-commercial municipal communications purposes and such use will be administered under a Joint Facilities Use Agreement between Franchisee and the City. 15.2 Citv-Owned Si�ns. During the term of this Franchise, the City may, subject to Franchisee's prior written consent, which shall not be unreasonably withheld, and subject to such reasonable rules and regulations as may be prescribed by Franchisee from time to time, and subject to the limitations prescribed by RCW 70.54.090 or any other applicable law, post and maintain City signs on Franchisee's poles which are Facilities within the Franchise Area. 15.3 Installation and Maintenance of City-Owned Equipment. Installation and maintenance shall be done by the City at its sole risk and expense, in accordance with all applicable laws, and subject to such reasonable requirements as Franchisee may specify from time to time Ordinance No. 11-707 Page 17 of 35 including, without limitation, requirements accommodating Franchisee's Facilities or the facilities of other parties having the right to use Franchisee's Facilities. 15.4 Indemnification. Franchisee shall have no obligation arising under the indemnity and insurance provisions of this Franchise as to any circumstances directly or indirectly caused by or related to such City-owned communications equipment, wires, fiber and or signs or th� installation or maintenance thereof. 15.5 No Rental Char�e to City. Franchisee shall not charge the City a rental fee for the City's use of the poles provided, however, that nothing herein shall require Franchisee to bear any cost or expense in connection with any such installation and/or maintenance by the City. Franchisee may charge the City an administrative fee for the purposes of reviewing such joint facility installations. Section 16. Dama�e Repair In case of damage to the Franchise Area, or to public and private improvements within or adjacent to the Franchise Area, that is caused (but only to the extent it is caused) by the negligence or willful misconduct of Franchisee or its agents or employees in the exercise of Franchisee's rights under this Franchise, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of any such damage, immediately notify the City. The City will inspect the damage, and the parties will mutually agree upon a time limit for completion of the repair. If the City discovers any such damage caused, the City shall give the Franchisee notice of the damage and the parties will mutually agree upon a time limit in which the Franchisee must repair the damage. Ordinance No. 11-707 Page 18 of 3S Section 17. General Maintenance of Facilities 17.1 General Maintenance Franchisee will maintain its Facilities located within the Franchise Area in good operating condition and repair in a manner consistent with applicable law and prudent utility practice, and will comply with the following procedures: , (a) Franchisee will provide the City, on an annual basis upon the City's written request, a proposed schedule of its routine Facilities replacement or repair activities within the Franchise Area. (b) Franchisee will meet, at least annually upon the City's written request, with a City representative to discuss the City's concerns regarding the timing, scope, nature or method of such repair or replacement activities within the Franchise Area. Section 18. Emergencv Operations and Decommissioned Facilities 18.1 Emergency Operations. Prior to the beginning of each winter storm season, Franchisee will, at the request of the City, attend an annual coordination meeting with the City to discuss Franchisee's Emergency Response Plan. At the request of the City, a copy of those portions of Franchisee's Emergency Response Plan that Franchisee makes generally publicly available will be provided to the City at the coordination meeting, along with appropriate telephone numbers and pager numbers used during each emergency. 18.2 Annual Meetin�. Annually, upon the request of the City, Franchisee will meet with the City Emergency Preparedness department to coordinate emergency management operations and, at least once a year, at the request of the City, Franchisee personnel will actively participate with the EOC in emergency preparedness drills or planning sessions. Ordinance No. 11-707 Page 19 of 35 18.3 Decommissioned Facilities. Franchisee will notify the City if Franchisee elects to F, permanently decommission any of its Facilities within the Franchise Area. The City will have the sole right, in its discretion, to require Franchisee to remove such decommissioned Facilities from arterial and collector rights-of-way within the Franchise Area. If so required by the City, Franchisee shall remove its permanently decommissioned Facilities from major arterial rights-of-waywithin the Franchise Area within one hundred twenty (120) days following the later of the date the City notifies Franchisee in writing that such removal is required or the date the Facilities are permanently decommissioned by Franchisee, or such other period as may be mutually agreed by Franchisee and the City. Franchisee shall not be required to remove its permanently decommissioned Facilities from other rights-of-way within the Franchise Area (e.g., residential rights-of-way), but Franchisee otherwise agrees to remove any of its permanently decommissioned Facilities within the Franchise Area at the request of the City as necessary to accommodate public improvement projects or reasonably accommodate other franchised utilities within the Franchise Area. Upon request for a utility locate, Franchisee will provide underground locates for all facilities, including any decommissioned facilities in the City right-of-way. Section 19. Vegetation Management 19.1 General. WAC 296-44-31719 states that "[t]rees which may interfere with ungrounded supply conductors should be trimmed or removed." Franchisee shall coordinate its routine vegetation management activities with the City and will trim vegetation in the vicinity of its Facilities within the Franchise Area in compliance with all City ordinances, regulations, resolutions and rules. Trimming and removal of vegetation within and/or adjacent to the Franchise area will be performed using standard practices accepted by the International Society of Arboriculture addressing Ordinance No. 11-707 Page 20 of 3S vegetation health and aesthetics. However, such obligation to coordinate and comply shall not limit Franchisee's right under this Franchise to cut, trim or otherwise remove vegetation at any time within the Franchise Area which, due to proximity to Franchisee's Facilities, poses an imminent threat to property, public safety or continuity of electrical service. 19.2 Vegetation Mana eg ment. Franehisee will undertake its vegetation management activities within the Franchise Area in a manner consistent with the procedures set forth in this Section and in compliance with all reasonable conditions issued by the City in conjunction with its right-of- way permit. 19.3 Routine Ve�etation Man�ement Activities. Franchisee will conduct its routine vegetation management activities within the Franchise Area in accordance with the following procedures: (a) Franchisee will provide the City, on an annual basis, a proposed schedule of its routine vegetation management activities within the Franchise Area. (b) Franchisee will meet, at least sixty (60) days prior to commencing any routine vegetation management activities within the Franchise Area, with a representative of the City to discuss the City's concerns regarding the timing, scope, nature or method of such routine vegetation management activities. (c) Prior to undertaking its scheduled routine vegetation management activities within the Franchise Area, Franchisee will consider any concerns raised by the City and will incorporate the City's reasonable suggestions as to the timing, scope, nature or method of such scheduled routine vegetation management activities. Both parties recognize that differences of Ordinance No. 11-707 Page 21 of 35 opinion will occur, and if such differences occur, the parties will negotiate in good faith to try to resolve such differences. 19.4 Vegetation Removal Plantin� and Prunin� Activities. Franchisee will conduct vegetation removal, planting and pruning proj ects within the Franchise Area in accordance with the following procedures: (a) Forty-five (45j days prior to commencing any vegetation removal, planting or pruning project within the Franchise Area, Franchisee will notify the City of the project. Such notification will include but not be limited to the following documentation: (i) geographic and electrical system maps of the project; (ii) Vegetation Management Standards; (iii) a copy of any communication between Franchisee and Franchisee's customers with respect to the project and a list of such customers; (iv) a brief vegetation management history and the demographics for the project; and (v) the proposed description of the planned vegetation management activities for the project. In addition, for the following specific types of projects, the notification will also include the following documentation: (vi) for tree removal projects, the notification will identify the tree(s) to be removed and the size,location and reason for removal of the tree(s); (vii) for planting projects, the notification will describe the size, quantity and spacing and the scientific and common names of the new plants; and (viii) for pruning projects, the notification will include a pruning plan that identifies the specific areas to be pruned. (b) Prior to commencing any vegetation removal, planting or pruning proj ect, the City will conduct a project review meeting with Franchisee to discuss the scope of such project, the timing of such project, the landscape plans for such project, and any memoranda regarding such project. At these meetings, Franchisee and the City will review and address tree removal and tree Ordinance Na ll -707 Page 22 of 35 replacement projects on a case-by-case basis. The City will agree to any tree replacement project that would provide a significant enhancement to the utility corridors within the Franchise Area. Both parties recognize that differences of opinion will occur, and if such differences occur, the parties will negotiate in good faith to try to resolve such differences. (c) Prior to the project review meetings, Franchisee will mark in the field all trees , that are candidates for removal: (d) Franchisee will perform all pruning projects within the Franchise Area under _ the direction of an arborist certified by the International Society of Arboriculture. Such arborist will be mutually agreed upon and jointly retained by Franchisee and the City. Franchisee will pay for up to eight (8) hours of arborist review per pruning project. 19.5 Maintenance Assurance. Following completion of any planting proj ect described in paragraph (c) above, Franchisee will provide the following maintenance assurance for such planting pro�ect: (a) Franchisee and the City will enter into a maintenance assurance agreement following completion of the planting project. Under the maintenance assurance agreement, Franchisee will agree to ensure proper installation, establishment and maintenance of the planting project for a one-year period beginning with completion of the project. (b) Franchisee will replace any unhealthy or dead plant materials in accordance with the project plan reviewed by the City for such project. Franchisee will remove the dead plant materials from the project area within a reasonable time after receiving notice from the City or otherwise discovering the need for removal. Franchisee may replace the dead material during the next dormancy period (e.g., during the fall and winter months). Ordinance No. 11-707 Page 23 of 35 Section 20. Default 20.1 Notice of Default. In addition to other remedies expressly set forth in this Franchise, if Franchisee shall fail to comply with any of the provisions of this Franchise, the City may serve a written notice to Franchisee ordering such compliance and Franchisee shall have sixty (60) days from the receipt of such natice in which to comply. 20.2 Revocation of Franchise. If Franchisee is not in compliance with this Franchise after the expiration of the sixty (60) day period, the City may, by ordinance, declare this Franchis'e� immediately revoked; provided, however, if any failure to comply with this Franchise by Franchisee cannot reasonably be corrected with due diligence within such sixty (60) day period (Franchisee'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 Franchisee may so comply shall be extended, upon notice to the Director, for such time as may be reasonably necessary and so long as Franchisee commences promptly and diligently to effect such compliance. Section 21. Limited Rights This Franchise is intended to convey only a limited right and interest to Franchisee in the Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest in or to the Franchise Area to Franchisee. Section 22. Performance Bond (a) Within sixty (60) days of the Effective Date of this Franchise, Franchisee will provide a performance bond to the City, in the total sum of $50,000.00 which will remain in effect for the term of this Franchise in a form acceptable to the City. The performance bond is to ensure the faithful performance of Franchisee's obligations under the Franchise including the payment by the Ordinance Na l l-707 Page 24 of 35 Franchisee of any penalties, claims, liens, fees, or assessments due the City which arise by reason of the transmission, distribution and sale of Electrical Energy within the Franchise Area, except as otherwise provided herein. In the event Franchisee undertakes construction, the cost of which exceeds $100,000, the City shall have the option of requesting the Franchisee provide and maintain, at its sole cost and expense, an additional performance bond. The amount of the bond shall not exceed one-hundred twenty percent (120%) of the cost of the work or improvements covered by the bond bas�d on estimated costs immediately following the expiration of the bond. Franchisee will pay all premiums or other costs associated with maintaining the bond. The City may reduce the amount of the performance bond consistent with Franchisee's performance of its responsibilities under this Franchise and applicable law. (b) The performance bond will be from a major financial institution or surety. The performance bond will not require the consent of the Franchisee prior to the collection by the City of any amounts covered by the performance bond. The City will provide to Franchisee reasonable written notice and opportunity to cure any alleged non-compliance of anyprovision of the Franchise or any penalties, claims, liens, fees or assessments due the City. (c) If the Franchise is terminated, or upon expiration or transfer of the Franchise, the City will return the original bond or sign the necessary documentation to release the bond promptly if Grantee does not have any unexpired obligations with respect to right of way work and does not owe funds to the City or is not in default of a material provision of the Franchise. Section 23. Nonexclusive Franchise This Franchise is not an exclusive franchise. Without limiting Franchisee's rights under this Franchise, this Franchise shall not in any manner prohibit the City from granting other and further Ordinance No. I1-707 Page 25 of 35 franchises in, under, over, upon, and along the Franchise Area that do not interfere with Franchisee's rights under this Franchise. This Franchise shall not prohibit or prevent the City from using the Franchise Area for any reason not inconsistent with this Franchise or affect the jurisdiction of the City over the Franchise Area or any part thereof. Section 24. Eminent Domain The existence of this Franchise shall not preclude the City from acquiring by condemnation, i�i:accordance with applicable law, all or a portion of Franchisees Facilities wit�in the Franchise Area. In determining the value of such Facilities, no value shall be attributed to the right to occupy the Franchise Area conferred by this Franchise. Section 25. Vacation If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City will not be liable for any damages or loss to the Franchisee by reason of such vacation. The City shall notify Franchisee in writing not less than 30 days before vacating all or any portion of the Franchise Area. The City may, after thirty (30) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. Section 26. Compliance with Laws Franchisee shall comply with all applicable federal, state and City laws, franchises, resolutions, regulations, standards, policies and procedures, as now existing or hereafter amended or adopted; provided, however, that if any term or condition of this Franchise and any term or condition of any City law, code, franchise, resolution, regulation, standard, procedure, permit or approval are in conflict, the term or condition of this Franchise will control. Ordinance No. 11-707 Page 26 of 35 Section 27. Char�e for Administrative Costs As and to the extent provided in RCW 35.21.860, Franchisee agrees to pay a fee of $5,000 for the actual reasonable administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Subject to RCW 35.21.860 and other applicable laws, nothing herein shall preclude the City from charging administrative fees or recovering anX �, administrative costs incurred by the City in the approval of permits or in the supervision, inspection . or examination of all work by Franchisee in the Franchise Area as preseribed in accordance with applicable provisions of the City Code. Section 28. UTC Tariff 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 ("WLJTC"). In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. Franchisee shall, when making application for any changes in tariffs affecting the provisions of the Franchise, notify the City in writing of the application and provide City with a copy of the submitted application within five (5) days of filing with the WUTC. Franchisee shall further provide the City with a copy of any actual approved tariff(s) affecting the provisions of this Franchise. Section 29. Indemnification Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials, officers, employees, agents, and volunteers (collectively, the "Indemnitees") from any and all claims, demands, losses, actions or liabilities (including costs and all attorney fees), to or by any and all person or entities, arising from, resulting from or connected with this Franchise to the extent caused Ordanance No. 11-707 Page 27 of 35 in part or in whole by the negligent acts, errors or omissions of the Franchisee, its officers, partners, shareholders, agents, or employees, or by the Franchisee's breach of this Franchise; provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend any Indemnitee against claims or damages arising from the negligence or willful misconduct of the City, its agents or employees or any other Indemnitee. In the event any claim, demand, suit or action is commenced against the Gity that gives rise to Franchisee's obligation pursuant to this Section 29, the City shall promptly notify:Franchisee thereof. The City shall have the right at all times to participate, at its own expense, through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is required to protect the interest of the City or the public. In the event it is determined that RCW 4.24.115 applies to this Franchise, Franchisee agees to defend, hold harmless and indexnnify the City as required by this Section 29 to the m�imum extent permitted thereunder to the full extent of the Franchisee's negligence. Section 30. Insurance 30.1 Minimum Limits. Subj ect to Section 30.4, Franchisee agrees to carry as a minimum, the following insurance using a combination of self insurance and carrier insurance, in such forms and with such carriers as are reasonably satisfactory to the City. (a) Workers compensation and employer's liability insurance in amounts sufficient pursuant to the laws of the State of Washington; (b) Commercial general liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal injury or death, products liability, contractual coverage, operations, explosion, collapse, underground and property damage; and Ordinance No. 11-707 Page 28 of 35 (c) Automobile liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal injury or death and property damage. 30.2 Mandatory Insurance Provisions. The commercial general liability insurance and automobile liability insurance policies shall be endorsed to contain the following provisions: (a) The City, its officers; elected officials, employees, and volunteers are to be named as additional insured; (b) Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; (c) Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested; and (d) Coverage shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance by the City, its officers, officials, employees or volunteers shall be in excess of Franchisee's required insurance. 30.3 Verification of Covera�e. Franchisee shall furnish the City with certificates of insurance and original endorsements evidencing the coverages required by this Section. The certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the City prior to the commencement of any work. 30.4 Self-Insurance. In lieu of the insurance requirements set forth in this Section, Franchisee may self-insure against such risks in such amounts as are consistent with good utility practices. Upon the City's request, Franchisee shall provide the City with reasonable written evidence that Franchisee is maintaining such self-insurance. Ordinance No. ll -707 Page 29 of 35 Section 31. Dispute Resolution 31.1 In the event of a dispute between City and Franchisee arising by reason of this Franchise, or any obligation hereunder, the dispute shall first be referred to the operational officers or I representatives designated by City and Franchisee to have oversight over the administration of this Franchise. Said officers or representatives sha11 meet within thirty (30) calendar days of either -��. . party's request for a meeting, whichever request is first, and the parties shall make a good faith effort to attempt to achieve a resolution of the dispute. 31.2 In the event that the parties are unable to resolve the dispute under the procedures set forth in Section 31.1, then the parties hereby agree that the matter shall be referred to mediation. The parties shall mutually agree upon a mediator to assist them in resolving their differences. Each party shall bear its own expenses related to the mediation and the parties shall share the cost of the mediator equally. 31.3 If either party is dissatisfied with the outcome of the mediation, that party may then pursue any available judicial remedies, provided, that if the party seeking judicial redress does not substantially prevail in the judicial action, it shall pay the other party's reasonable legal fees and costs incurred in the judicial action. Section 32. General Provisions 32.1 Entire Agreement. This Franchise contains all of the agreements of the parties with respect to any matter covered or mentioned in this Franchise and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. 32.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the parties, which agreement specifically states that it is an Ordinance No. I1-707 Page 30 of 35 amendment to this Franchise and is approved in accordance with applicable laws. 32.3 Assignment. Franchisee shall not have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed. Any assignee shall, within thirty (30) days of the date of any appraved assignment, file written notice of the assignment with the Gity: •� �:� together with its written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, Franchisee s�hall have the right, without such notice or such written contest; to:� `�. ° mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. 32.4 Attorne In the event the City or the Franchisee defaults on the performance of any terms in this Franchise, and the Franchisee or the City places the enforcement of the Franchise or any part thereof or for the collection of any monies due, or to become due hereunder, in the hands of an attorney, or files suit upon the same, the prevailing party shall be entitled to an award of all reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. 32.5 No Waiver. Failure of either party to declare any breach or default by the other party immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall not waive such breach or default, but such party shall have the right to declare any such breach or default at any time. Failure of either party to declare one breach or default does not act as a waiver of such party's right to declare another breach or default. 32.6 Governin� Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. Ordinance No. I1-707 Page 31 of 35 32.7 Authority. Each individual executing this Franchise on behalf of the City and Franchisee represents and warrants that such individual is duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City. 32.8 Notices. Any notices required to be given by the City to Franchisee or by Franchisee to the City shall be delivered to the parties at the following addresses; Franchisee: Puget Sound Energy, Inc. Attn: Community Services EST-11W P.O. Box 97034 Bellevue, WA 98009-9734 City: City of Federal Way Attn: CityAttorney 33325 8 th Avenue South Federal Way, WA 98063 Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 32.9 Captions. The respective captions of the sections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise. 32.10 Remedies Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to each party at law, in equity or by statute. Ordinance No. I1-707 Page 32 of 35 Section 33. Severability If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality sha11 not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise. SecNon 34. Effective Date This ordinance shall take effect and be in force thirty (30) days after its passage and publication, as provided by law. PASSED by the City Council of the City of Federal Way this 15 day of November, 2011 CITY OF FEDERAL WAY , S P T, MAYOR ATTEST: m � CAROL MCNEILLY, CMC, Y CLERK, APPROVED AS TO FORM: PATRICIA A. RICHARDSON, CITY ATTORNEY, FILED WITH THE CITY CLERK: 10/25/2011 PASSED BY THE CITY COUNCIL: 11/15/2011 PUBLISHED: 11/19/2011 EFFECTIVE DATE: 12/19/2011 ORDINANCE NO. 11-707 Drdinance No. 11-707 Page 33 of 35 ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted License and acknowledges that such rights and privileges are subj ect to and limited by all of the terms, conditions and obligations contained therein. � .�t�� DATED this -'�_ day of , 2011 PUGET SO ENERGY, INC�,...._v--.-----_, �-____ � ._____._______ . By: � ' , � �°� c� � � Its: � �'� �� ►� 1 �z � �t�c-ti��(—� �� i�-� � ��---�,��.�� t�:-e.� , K:\Ordinances�PSE Franchise Apri12009.doc Exhibit A Present City Limits Ordi�zance No. 11-707 Page 34 of 35 �x�t��itA � �.�ss ��#y� af ��f��,� F�d�r�l �l� ��,��t s��,�,� �� tr�� .�. �� Ordinance No. 11-707 Page 35 of 35 � �� i��,�� ,��,�„ ,. �� "��`�" � �.� 1�� a r� ��,� � �,� �� ;� ��: