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ORD 16-817ORDINANCE NO. 16 -817 AN ORDINANCE of the City of Federal Way, Washington, extending the term of the franchise agreement established in ordinance 06 -517 and granting the City of Tacoma Department of Public Utilities, Light Division a nonexclusive franchise to occupy rights -of -way of the City of Federal Way, Washington, through the franchise area within the specified franchise area for purposes of constructing, maintaining, repairing, and operating an electrical light and power system within and through the City of Federal Way; (Amending Ordinance No. 06 -517). WHEREAS, the City of Tacoma Department of Public Utilities, Light Division, previously requested, and was granted, a franchise from the City of Federal Way, in order to install, operate and maintain an electrical light and power system in certain rights -of -way as attached in Exhibit A and incorporated herein; and WHEREAS, the City Council of Federal Way finds that it is in the public interest to specify the rights and duties of the City of Tacoma Department of Public Utilities, Light Division, 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, wires, and appurtenances thereof for transmission and distribution of electrical energy: 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; WHEREAS, Section 4 of the franchise established in Ordinance 06 -517 allows the parties to extend the term of the original 10 -year franchise for an additional term of 10 years, and the City of Tacoma Department of Public Utilities, Light Division, has expressed a desire to do so; and Ordinance No. 16 -817 Page 1 of 4 WHEREAS, the City Council of Federal Way finds that it is in the public interest to extend this franchise for an additional 10 year term; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. The term of the franchise established in Ordinance 06 -517 and attached as Exhibit A is extended for an additional ten (10) years commencing on the effective date of this ordinance. Section 2. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances. Section 3. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener /clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 4. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 5. Effective Date. This ordinance shall be effective thirty (30) days after passage and publication as provided by law. Ordinance No. 16 -817 Page 2 of 4 PASSED by the City Council of the City of Federal Way this 15th day of March, 2016. ATTEST: PHA IE CITY OF FEDERAL WAY COURTNEY, ST OURTNEY, CMC AS TO FORM: CITY A1( '(pRNEY, AMY JO PEARSALL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: Ordinance No. 16 -817 02/26/2016 03/15/2016 03/18/2016 04/17/2016 16 -817 Page 3 of 4 EXHIBIT A FRANCHISE ORDINANCE NO. 06 -517 Ordinance No. 16 -817 Page 4 of 4 ORDINANCE NO. 06.- SO AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING UNTO THE CITY OF TACOMA DEPARTMENT OF PUBLIC UTILITIES, LIGHT DIVISION, A MUNICIPAL CORPORATION, A NONEXCLUSIVE FRANCHISE TO OCCUPY THE RIGHTS -OF -WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, THROUGH THE FRANCHISE AREA FOR THE PURPOSES OF CONSTRUCTING, MAINTAINING, REPAIRING, RENEWING AND OPERATING AN ELECTRICAL LIGHT AND POWER SYSTEM WITHIN AND THROUGH THE CITY OF FEDERAL WAY. WHEREAS, The City of Tacoma Department of Public Utilities, Light Division, has requested a franchise from the City of Federal Way, in order to install, operate and maintain a electrical light and power system in certain rights -of -way as depicted in Exhibit A on file with the City Clerk; and WHEREAS, the City Council of Federal Way finds that it is in the public interest to specify the rights and duties of the City of Tacoma Department of Public Utilities, Light Division, 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 thereof for transmission and distribution of electrical energy; 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; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: ORD # 06S17 PAGE 1 SECTION 1. DEFINITIONS 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 respective successors and assigns. 1.2 "Council" means the City of Federal Way Council acting in its official capacity. 1.3 "Director" means the Public Works Director, or designee, of the City of Federal Way Public Works Department. 1.4 "Facilities" means all plant, equipment, wires, conduit, meters, communication equipment for remote meter reading and systems automation, generation equipment, and transmission and distribution poles as may be necessary to provide electric utility service for customers. It does not include cable television business equipment used for cable television activities. 1.5 "FWCC" means the Federal Way City Code. 1.6 "Franchise Area" means rights -of -way for public roads, streets, avenues, alleys, and highways of the City as set forth in Exhibit A. The Franchisee shall place Facilities on the right -of -way in the Franchise Area, but not on any other public property owned, in whole or in part, leased, or otherwise occupied by the City. 1.7 "Franchisee" means The City of Tacoma Department of Public Utilities, Light Division, a municipal corporation, and public utility, and its respective successors and assigns. SECTION 2. GRANT /ACCEPTANCE 2.1 Grant of Franchise. The City does hereby grant to Franchisee, subject to the terms of this Franchise, the right, privilege, authority and franchise to lay, construct, extend, repair, renew, and replace Facilities in the Franchise Area. ORD # 06-.517 PAGE 2 2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor 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 CITY 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. 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 the terms of this Franchise or other applicable law. This Franchise may be renewed for one additional ten (1 0) 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. Notwithstanding the foregoing, Franchisee may terminate this Franchise, and remove its facilities, at any time upon at least 90 -days written notice to the City. SECTION 5. LOCATION OF FACILITIES 5.1 1,ocation. In addition to the other requirements in this Franchise, the location of the Facilities, including the underground Facilities and appurtenances, their depths below surface of ground or grade of a right -of -way (when available), shall be depicted on a map and submitted to the City within thirty (30) days of ORD # 06-5 t7PAGE 3 acceptance of this franchise or installation. Upon written request of the City, Franchisee shall update such map to reflect actual or anticipated improvements to the Facilities. Any such map (or update thereof) so submitted shall be for informational purposes only 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 Data. Franchisee shall submit the information required in Subsection 5.1 above in digital Geographic .Information System ( "GIS ") format, showing the location of its Facilities within the Franchise Area. 5.3 Design Markings. In the event the City desires to design new streets or intersections, renovate existing streets, or make any other public improvements, Franchisee shall further provide the location of Franchisee's underground Facilities within 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. 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 Section 5.2 of this Franchise. SECTION 6. NONINTERFERENCE OF FACILITIES Franchisee agrees to maintain its Facilities, perform all work within the Franchise Area, and exercise any and all rights authorized by this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic, (2) in accordance with the laws of the State of Washington and City ordinances, Franchise provisions, ORD # 06-517 .PAGE 4 regulations, resolutions and rules, as now existing or as hereafter amended, and (3) as reasonably required by the Director. SECTION 7. REOUIREMENT 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 routine maintenance, defined in Section 7.3. Franchisee permit applications shall show the position and location of the 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. The Franchisee shall specify the type of materials to be used, equipment to be used, and mode of safeguarding and facilitating the public traffic during construction. Materials and equipment shall be in new or like -new condition for its type and kind. The manner of excavation, construction, installation, backlit], and temporary structures such as, but not limited to, traffic turnouts and road obstructions shall meet the standards of the FWCC and the satisfaction of the Director. All traffic control shall be in accordance with the right -of -way permit, and shall be in accordance with the Manual on Uniform Traffic Control Devices (MUTCD). The Franchisee shall indicate on the right -of -way use 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 right -of -way permit. 7.2 Emergency Exception to Permit Requirement 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 ORD # 06 5t1PAGE 5 action immediately to correct the dangerous condition without first obtaining any required permit so long as: (1) Franchisee in forms the City of the nature and extent of the emergency, and the work performed, prior to commencing the work if reasonably possible, or immediately following cessation of the emergency if not; and (2) such permit is obtained by Franchisee as soon as practicable following cessation of the emergency. 7.3 Maintenance Franchisee shall have the right to conduct maintenance to repair, modify, supplement, replace or upgrade the Franchisee's Facilities, provided that the Franchisee shall obtain a Right of Way Use Permit and any other 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. SECTION 8. STANDARD OF PERFORMANCE The Franchisee shall not excavate a trench and leave the jobsite at the end of the workday without immediately backfilling and compacting to surface grade and the satisfaction of the Director. Backfilled trench areas within a driving lane must be patched or plated, either temporarily or permanently, before the end of the work day in which they have been opened. Trench areas within the right -of -way, but not within 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 within two (2) weeks, weather permitting, and shall be equal to or better than the surface condition prior to permit issuance. The City may elect to have Franchisee install conduit in Franchisee's trenches for the City's use and ownership provided the City agrees to reimburse Franchisee for the incremental cost of installing such conduit. ORD # 06- 51rAGE 6 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. 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 and any permit conditions, whether or not the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. Upon completion of any installation of Franchisee's Facilities within the Franchise Area, the "as- built" location of the Facilities shall be shown in the plans submitted by Franchisee to the City's Public Works Department. Nothing herein is intended to relieve the parties of their respective obligations arising under applicable law with respect to determining the location of utility facilities. SECTION 9. SURFACE MARKINGS /STAKES Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall, using a Iicensed surveyor, reference all monuments and markers relating to subdivisions, plats, highway, and other surveys 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 referencing these monuments or other points shall be approved by the City before placement. The construction shall be made as expeditiously as conditions permit, and as directed by the City. 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 such lost, destroyed or disturbed monuments or markers. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement of the monuments, shall be borne solely by the Franchisee. A complete set of reference notes for monuments, markers, and other ORD # 06-517 PAGE 7 ties shall be filed with the City. In the event of any conflict or inconsistency between this Section 9 and Chapter 19.122 RCW, as now existing or hereafter amended, Chapter 19.122 RCW will control. SECTION 10. RIGHT TO CITY TO UNDERTAKE MAINTENANCE WORK The laying, construction, maintenance, and operation of Franchisee' s Facilities 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 11. RIGHT OF CITY TO COMPLETE WORK In the event Franchisee fails to comply with any of the terms of this Franchise, and such noncompliance continues for a period of ten (10) business days after Franchisee receives written notice from the City regarding the noncompliance, the City may, but in no event is the City obligated to, order any work completed, including without limitation Franchisee's obligation to repair pursuant to Section 13 herein and Franchisee's obligation to remove facilities pursuant to Section 12 herein. 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 administrative expenses. However, the City shall not have any electrical work accomplished by any person or entity other than Franchisee or a qualified and licensed electrical contractor reasonably acceptable to Franchisee. SECTION 12. NOTICE TO FRANCHISEE OF WORK BY CITY 12.1 City Reservation of Rights. The City reserves the right to use, occupy and enjoy the Franchise Area for any purpose that is not inconsistent with the terms and conditions of this Franchise. The ORD # 06- 5l,PAGE 8 Rights reserved herein include, without limitation, the construction of any electrical, water, sewer or storm drainage line, installation of traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. 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 franchises in, under, over, upon and along the Franchise Area. 12.2 City's Duties. In the event the City undertakes any street improvement project, or use of the Franchise Area as authorized by Subsection 12.1 herein, and such project or other City use necessitates the relocation or underground conversion of Franchisee's then existing Facilities within the Franchise Area, the City shall: (a) Provide 180 days written notice to Franchisee requesting such relocation or underground conversion within a reasonable time prior to the commencement of such project or other City use; and (b) Provide Franchisee with copies of pertinent portions of the City's plans and specifications for such project so that Franchisee may relocate or convert its Facilities to accommodate such project or other City use; and (c) Use its best efforts to provide space sufficient for the safe and efficient installation, operation, repair and maintenance of all of the Facilities within the Public Right of Way. 12.3 Franchisee's Duties. Within 180 days of notification from the City requesting the relocation or underground conversion of the Facilities pursuant to Subsection 12.2(a) and receipt of the plans and specifications pursuant to Subsection I2.2(b), Franchisee shall raise, lower, or move such Facilities within the Franchise Area to a location or position directed by the City to comply with City requirements or, to cause the least interference with the improvement, repair, or alteration contemplated by the City and so as to conform to such new grades as may be established. If the City improves a right -of -way, Franchisee shall replace the ORD # 06 411 PAGE 9 Facilities located in the improved subgrade of the improvement with Facilities conforming to the specifications for the improvement of the right -of -way. If the Franchisee is required to relocate three spans and/or 500 feet or more due to a City project, the Facilities shall be converted to underground pursuant to FWCC. Except as provided otherwise herein, Franchisee shall complete relocation of its Facilities at its sole cost and expense. 12.4 Alternative Proposals. The Franchisee may, after receipt of written notice requesting a relocation of its Facilities, 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 Facilities as provided in Section 12.3. The Parties agree to exercise good faith, reasonable and timely decision - making especially when issues arise in the field pertaining to relocation. The provisions of this Section shall survive the expiration or termination of this Franchise. 12.5 Subsequent Relocation. If any portion of Franchisee's Facilities that has been required by City to be relocated under the provisions of this section is subsequently required to be relocated again within five (5) years of the original relocation, City will bear the entire cost of the subsequent relocation. 12.6 Underground Conversion Cost Allocation. Whenever the City desires the underground conversion of the Facilities in conjunction with a City improvement project, as described in 12.1, the costs shall be allocated as follows: (a) Forty percent (40 %) of the total actual and reasonable costs of converting the Franchisee's existing overhead primary electrical distribution system and data lines to underground shall be paid by the City. (Total actual cost shall include, but not be limited to, vaults, conduit, cable, data conduit and cable, switch gears, and transformers.) ORD # 06-$ (1 PAGE 10 (b) Sixty percent (60 %) of the total actual and reasonable costs of converting the Franchisee's existing overhead primary electrical distribution system and data lines to underground shall be paid by the Franchisee. (Total actual cost shall include, but not be limited to, vaults, conduit, cable, data conduit and cable, switch gears, and transformers.) (c) If sufficient space, as mutually agreed upon, is not available within the Public Right of Way, the City shall acquire additional right of way as necessary and the costs of such additional right of way shall be a "shared cost" to be paid forty percent (40 %) by City and sixty percent (60 %) by Franchisee. (d) One hundred percent (100 %) of all trenching, restoration, and surveying costs of converting the Franchisee's existing overhead primary electrical distribution system and data lines to underground shall be paid by the City. (e) Conversion of the secondary electrical service on private property is not to be included in the computation of the allocation of payments. The customer must supply and install the secondary conductor, power conduit and Franchisee's data conduit from the meter to the secondary electrical service box located near the property line. (f) Franchisee may elect to install conduit for data use in trenches where existing overhead data lines are not present for no additional share of trenching costs. The City may elect to have Franchisee install conduit in Franchisee 's trenches for the City's use, provided the City agrees to reimburse Franchisee for the incremental cost difference. The incremental cost shall be the actual cost of the conduit plus the labor to install it, without profit markup. 12.7 Other Relocation. The provisions set forth under Sections 12.3 through 12.6 shall not be applicable if any private person or entity requires the relocation of Franchisee's Facilities to accommodate the work of such private person or entity within the Franchise Area. Payment for such relocation shall be a private matter between Franchisee and the private person or entity whose work necessitates the relocation. ORD # 06 -517PAGE 11 SECTION 13. DAMAGE REPAIR In case of damage by the Franchisee or by the Facilities of the Franchisee to rights -of -way, or to public and private improvements to rights -of -way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall immediately notify the City of the damage. The City will inspect the damage, and set a time limit for completion of the repair. If the City discovers damage caused by the Franchisee to rights -of -way, or to public and private improvements to rights -of -way, the City shall give the Franchisee notice of the damage and set a time limit so the Franchisee may repair the damage. The City may, in the event the Franchisee does not repair a right -of -way or an improvement to a right -of -way as required in this section, do, order, and have done the repairs and the Franchisee, upon demand, shall pay to the City the actual costs of the work. SECTION 14. DEFAULT 14.1 Notice of Default. 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 notice in which to comply. 14.2 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 resolution, declare an immediate forfeiture of this Franchise; 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 maybe reasonably necessary and so long as Franchisee commences promptly and diligently to effect such compliance. ORD # 06 -S11 PAGE 12 SECTION 15. 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 franchises in, under, over, upon, and along the Franchise Area. 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. The City reserves the right to use, occupy and enjoy the Franchise Area for any purpose that is not inconsistent with the terms and conditions of this Franchise, including without limitation, the construction of any electrical, water, sewer or storm drainage line, installation of traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. SECTION 16. 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 17. 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 will (1) notify Franchisee of proposed vacations of streets within which Franchisee's Facilities are located and (2) reserve an easement for Franchisee's Facilities within a vacated area if feasible. The City may, after thirty (30) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. ORD # 06-511 PAGE 13 SECTION 18. COMPLIANCE WITH LAWS Franchisee shall comply with all applicable federal, state and City laws, ordinances, resolutions, regulations, standards and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Protection Act; provided, however, that if any term or condition of this Franchise and any term or condition of any City law, code, ordinance, resolution, regulation, standard, procedure, permit or approval are in conflict, the term or condition of this Franchise will control. Nothing herein shall be deemed to direct or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations the location, elevation, manner of construction and maintenance of any facilities by the Franchisee and the Franchisee shall promptly conform with all such regulations, unless compliance would cause the Franchisee to violate other requirements of law. SECTION 19. GUARANTEE Franchisee shall guarantee work completed by the Franchisee under this franchise for a period of ten (10) years against settlement or repair. SECTION 20. CHARGE FOR ADMINISTRATIVE COSTS Franchisee agrees to pay a fec or charge to recover the actual reasonable administrative expenses incurred by the City which are directly related to receiving and approving this Franchise not to exceed One Thousand and No /100 Dollars ($1,000.00). Nothing herein shall preclude the City from recovering any 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 prescribed in accordance with applicable provisions of the City's code. ORD # 06 -514 PAGE 14 SECTION 21. INDEMNIFICATION Franchisee agrees to indemnify and hold the City, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Franchise to the extent caused in part or in whole by the negligent acts, errors or omissions of the Franchisee, its officers, partners, shareholders, agents, employees, or by the Franchisee's breach of this Franchise. In the event any claim, demand, suit or action is commenced against the City which gives rise to Franchisee's obligation pursuant to this Section 21, the City shall promptly notify Franchisee thereof, and Franchisee shall have the right, at its election and sole cost and expense, to defend, settle or compromise such suit or action by attorneys selected by Franchisee with the prior consent of the City; provided that the City may withhold such consent only on the grounds that the attorneys selected by Franchisee are precluded by rules of professional responsibility or applicable law from undertaking such representation. The City shall have the right at all times to participate through its own attorney in any suit or action which anses pursuant to this Franchise when the City determines that such participation is required to protect the interests of the City or the public. In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Franchisee and the City, or their respective officers, employees and agents, the Franchisee's indemnification obligations hereunder shall apply only to the extent of the proportional fault of Franchisee, its officers, employees and agents pursuant to RCW 4.24.115. SECTION 22. INSURANCE 22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following insurance, in such forms and with such carriers as are satisfactory to the City. ORD # 06 -97 PAGE 15 (a) Workers compensation and employer's Iiability insurance in amounts sufficient pursuant to the laws of the State of Washington; (b) Commercial general liability insurance with combined single limits of liabilitynot 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 (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. 22.2 Mandatory Insurance Provisions. The comprehensive 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 with respect to activities performed by or on behalf of Franchisee; (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. 22.3 Verification of Coverage. Franchisee shall fumish 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. At the City's request, Franchisee shall deliver certified copies of all required insurance policies. ORD It 06-S11 PAGE 16 22.4 Self - Insurance. In satisfying 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. Franchisee shall provide the City with sufficient written evidence, upon request, that such insurance (or self - insurance) is being so maintained by Franchisee. Such written evidence shall include, to the extent available from Franchisee's insurance carrier, a written certificate of insurance with respect to any insurance maintained by Franchisee in compliance with this Section. SECTION 23. DISPUTE RESOLUTION. 23.1 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 representatives designated by City and Franchisee to have oversight over the administration of this Franchise. Said officers or representatives shall 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. 23.2 In the event that the parties are unable to resolve the dispute under the procedure set forth in Section 23.1, 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. 23.3 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 24. REMOVAL OF FACILITIES Upon the expiration, termination, or revocation of the rights granted under this Franchise, the Franchisee shall remove all of its Facilities from the Franchise Area within 90 days of receiving notice from the ORD # 06-Sa PAGE 17 Public Works Director to do so. Provided, however, that the City may permit the Facilities to be abandoned in place in such a manner as the City may prescribe. Upon permanent abandonment, the Facilities shall become the property of the City. SECTION 25. GENERAL PROVISIONS 25.1 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. 25.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the Parties. 25.3 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. Any assignee shall, within thirty (30) days of the date of any approved 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, Franchisee shall 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. 25.4 Attorney Fees. 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 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 attomeys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. 25.5 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 ORD # 46 -5 .PAGE 18 such breach or default, but such party shall have the right to declare any such breach or default at any time. Failure of cither party to declare one breach or default does not act as a waiver of such party's right to declare another breach or default. 25.6 Governing Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. 25.7 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. 25.8 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: Cltv: Tacoma Power Attn: Power Superintendent 3628 South 35th Street P.O. Box 11007 Tacoma, WA 98411 -0007 City of Federal Way Attn: City Attorney 33325 — 8th Avenue S. P.O. Box 9718 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. 25.9 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 m any respect any of the provisions of this Franchise. 25.10 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 the City at law, in equity or by statute. ORD # 06 -54 PAGE 19 SECTION 26. SEVERABILITY If any section, sentence, clause, or phrase of this Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. SECTION 27. RATIFICATION Any act consistent with the authority and prior to the effective date of this Ordinance is hereby ratified and affirmed. SECTION 28. EFFECTIVE DATE This Ordinance shall take effect and be in full force thirty (30) days after its passage, approval and publication, according to law. PASSED by the City Council of the City of Federal Way this a15E day of ___ 2006. CITY OF FEDERAL WAY CITY • ERK, LAURA HATH APPij.pVED AS TO FORM: ,2. n ti... CCl'Y ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: o% PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORD # 06-51) PAGE 20 K:\ORDIMTaconv Power Irma:hist Final HONORABLE MAYOR AND CITY COUNCIL CITY OF FEDERAL WAY, WASHINGTON In the matter of the application of the City ) of Tacoma Department of Public Utilities, ) Light Division, a Municipal Corporation, ) ACCEPTANCE OF FRANCHISE for a franchise to construct, operate and ) maintain electrical facilities in, upon, ) under, along, across and through certain ) franchise areas of the City of Federal Way) Washington ) WHEREAS the City Council of the City of Federal Way, Washington has granted a franchise to the City of Tacoma Department of Public Utilities, Light Division, a Municipal Corporation, its successors and assigns, by enacting City of Federal Way Ordinance No. 06 -517, adopted on the 21St day of February, 2006; WHEREAS copies of said Ordinance received from the City of Federal Way granting said franchise were approved by the Public Utility Board for the City of Tacoma Department of Public Utilities on February 22, 2006; NOW, THEREFORE, the City of Tacoma Department of Public Utilities, Light Division, a Municipal Corporation, for itself, its successors and assigns, hereby accepts said Ordinance granting a franchise, and all the terms and conditions thereof, and files this, its written acceptance, with the City of Federal Way, King County, Washington. IN TESTIMONY WHEREOF said Franchise Grantee, City of Tacoma Department of Public Utilities, Light Division has caused this written Acceptance to be executed in its name by its undersigned Power Superintendent thereunto duly authorized on this 7- , day of March, 2006. CITY OF TACOMA, DEPARTMENT OF PUBLIC UTILITIES, LIGHT DIVISION Attest: ', 1,, Cie / ' ublic Utility Board Copy received for ity Feder - ; ay: i By:�..'��t • City Clerk By: Stev= J. Klein Su s /ntendent ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted Franchise and acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions and obligations contained therein. DATED this 7 PIday of rj R IC C 14 , 2006. ORD # 0611 PAGE 21 TACOMA PUBLIC UTILITIES By: Its: APPROVED AS 10 FORM: Assistant City Attorney EXHIBIT A Location of Facilities within Franchise Area ORD # 06 -513 PAGE 22 pxw 4YOUoinaelalewun,s16 Zm w c 49AV W CO 0 n CT NE cn 50 AV NE W H "0 —I Z O C�i/i, w w CO 0o co • M "SSr �y �� �rn —ni z G < 52 AV NE Z M 53 AI, STONEGATE NE 1, cn 34 AV SW 53 PL 2 34 PL SW a NE co 34 ,s F 33 PL i4 AV NE c�� 33 AV SW SW AV 55 PL NE -0 � (1•- r - - - -_ ____... �a W 31 m ?., 32 AV 31 CT ▪ AV -! 5 55 SW —I S W 31 AV AV NE 30 AV SW 30 AV SW cn Cu "' cn * w ���C �� 28PL �C°� O C 2(Q w Cn co -0 co 28 ^ S'A5 w rn r ccn W W Cn 2�p V. cn AV 27 AV SW V —12 7 17 w (/) y co CP * --10: s V � r --i o 26 ct 26 PL —10)* cn L., "F CT SW 25 AV SW co W -o cCn w * w W coo �fl G N W CO W Z W '''° M —0 ,v \ r y 0) �co cu Z 3N 49 AV NE m /4.a(Z) cu 37 AV 36 PL SW SW co35AV co SW ld Ot7 MS 'AV NE cocuc 38F W 0 3 ?SW cn s� W ndg� 35 PL r SW 3 IS 0P£ MS IS 6OC MS w3 CA) co Z� easy paleiodioou!un ewooel ;o Alin Aem leJapaj ;o /uepuno8 Aluno3 6 0 3 0 0 m r LC co /SeM Iaaapad 40 I4i3 63 AV NE 64 AV NE --4 z fm (0 cn 66 AV 68 AV NE f _._._64 AV NE _._I 65 AV NE 0 01 N N "•r 0) o cn 0) m z 20 AV SW C1, —125 AV 'SW C1) cn --, cn z 23 AV SW z m m —+ --1 m z m e -4° w —{ w Hu, 0, Q 67 AV NE tv CT cn AV SW c`) N cco SW -13 \5 6 W cn t chl //AJ 15 AV SW — C� i N� cn 1 \p' 6, cn rn 14 AV SW \N 13AVSW ccv��yS `S� 13 AV SW .. i ,p !2 4, 12 AV SW r 12 AV SW 11 CT 0) 11 11 AV SW 11 AV SW SW w PL cp 10 CT 11AVSW 10 PL r' Si. '21 AV SW 0) w cn N 0) w 01 w w 01 N 0) • v cn 19 A NORTHWOOD AV NE W 14 AV SW cn 2 Z o�'' 0 w o m O ti -a w ry cn SW , 10 AV SW SW co w w a) 8AV 0) 0 9 AV 84/ ,° S W cn 0 ---1 *-1 cn 8 A SW r. 8AVsil, w c.� , , 1S b5£ MS W Cn r w eaiv paleJodJoouiun ewooel ;o AeM leJapad ;o Akio tiepunog Aluno3 6ui eaJv aolmag JaMOd ewooel r n K -a cn m 3 11) ° CD Ae/ leaapad 10 Ain ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted Franchise and acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions and obligations contained therein. DATED this / 1 day of / 7.4ccA , 2016. CITY OF TACOMA DEPARTMENT OF PUBLIC UTILITIES LIGHT DIVISION 40010e1; B Chris Robinson Its: City of Tacoma Power Superintendent/COO Approved as to form: 1/11,‘,14:0t/74 (I. XVII-e--- By: William C. Fosbre City of Tacoma Chief Deputy City Attorney ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted Franchise and acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions and obligations contained therein. DATED this / 7 day of ArcX , 2016. CITY OF TACOMA DEPARTMENT OF PUBLIC UTILITIES LIGHT DIVISION By: Chris Robinson Its: City of Tacoma Power Superintendent /COO Approved as to form: . ,( By: William C. Fosbre City of Tacoma Chief Deputy City Attorney Tacoma City of Tacoma Office of the City Attorney March 21, 2016 Mark D. Orthmann City of Federal Way 33325 — 8th Ave. S Federal Way, WA 98003 -6325 Dear Mr. Orthmann: Enclosed please find a copy of the Federal Way Franchise Agreement, Ordinance No. 16 -817, for your file. If you need anything further, please contact our office. Thank you. Sincerely, Kristine Harper Legal Assistant Encl. Department of Public Utilities 1 3628 S. 35th St., P.O. Box 11007 1 Tacoma, WA 98411 1 (253) 502 -8348 1 FAX (253) 502 -8672