Ordinance No. 2024-16 COBI PSE Updated Franchise (Approved 102224)1
ORDINANCE NO. 2024-16
CITY OF BAINBRIDGE ISLAND
AN ORDINANCE granting to Puget Sound Energy, Inc., a
Washington corporation, and its successors and assigns, the
right, privilege, authority, consent, franchise and approval to
set, erect, lay, construct, extend, support, attach, connect,
stretch Facilities between, maintain, repair, replace, enlarge,
operate, and use Facilities in, upon, over, under, along, across,
and through the Franchise Area for purposes of transmission,
distribution, and sale of electric energy for power, heat, light,
and any other purpose for which electric energy can be used.
WHEREAS, Puget Sound Energy, Inc. (“PSE”) wishes to set, erect, lay, construct,
extend, support, attach, connect, stretch Facilities between, maintain, repair, replace, enlarge,
operate, and use Facilities (as hereinafter defined) in the Franchise Area of the City of
Bainbridge Island, Washington (“City”), to be utilized by PSE in the operation of a system
for the transmission and distribution of electric energy for sale within the City, and, pursuant
to RCW 35A.47.040, PSE wishes to obtain the consent, franchise and approval of the City
Council of the City of Bainbridge Island for such purpose; and
WHEREAS, the City Council of the City is willing to grant PSE such consent, franchise
and approval on a nonexclusive basis, in accordance with the provisions of this Franchise
and RCW 35A.47.040, RCW 35.18.180, RCW 35A.12.120, RCW 35.21.860 and any other
Law.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE
ISLAND DOES ORDAIN AS FOLLOWS:
1. Definitions
1.1 When used in this Franchise, the following terms shall mean:
1.1.1 “BIMC” means the Bainbridge Island Municipal Code.
1.1.2 “City” means the City of Bainbridge Island, Washington, a noncharter code
city subject to Title 35A of the Revised Code of Washington, and its
respective successors and assigns.
1.1.3 “City Manager” means the City of Bainbridge Island City Manager or their
designee.
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1.1.4 “Decommissioned Pole” means a PSE owned utility pole Facility located in
the Franchise Area which is no longer needed to provide a Regulated
Service.
1.1.5 “Director” means the Bainbridge Island Public Works Director or their
designee.
1.1.6 “Dispute” means any and all claims, controversies or disputes arising
between the Parties relating to or in connection with this Franchise.
1.1.7 “Environmental Laws” means and includes any Law relating to the
protection of human health and the environment, including those relating to
the generation, use, handling, transportation, storage, release, discharge, or
disposal of Hazardous Substances, such as the Model Toxics Control Act,
Chapter 70.105D RCW.
1.1.8 “Facility” or “Facilities” means all PSE owned electric transmission and
distribution systems and facilities, including poles (with or without cross
arms), wires, lines, conduits, cables, ducts, transformers, switches,
communication and signal lines, meterreading devices, braces, guys,
anchors, vaults, and all necessary or convenient facilities and appurtenances
thereto, whether the same be located over or under ground.
1.1.9 “Force Majeure Event” means any event or circumstance (or combination
thereof) and the continuing effects of any such event or circumstance
(whether or not such event or circumstance was foreseeable or foreseen by
the Parties) that delays or prevents performance by a Party of any of its
obligations under this Franchise, but only to the extent that and for so long
as the event or circumstance is beyond the reasonable control of the affected
Party; and only to the extent that the affected Party has taken commercially
reasonable measures to avoid the effect of the event or circumstance on the
affected Party’s ability to perform its obligations hereunder and to mitigate
the consequences of the event. A Force Majeure Event may include, without
limitation, the following, to the extent also satisfying the criteria above: (a)
acts of nature, including storms, floods, pandemics, and epidemics; (b) acts
of public enemies, terrorism, war, insurrection, or sabotage; (c) any form of
compulsory government action or change in Law; (d) accidents or other
casualties causing damage, loss, or delay; (e) labor disturbances, strikes,
lockouts, or similar workforce disturbances affecting the Parties or any of
their contractors, subcontractors, agents, or employees; (f) delays in
obtaining necessary materials due to supply chain disruptions; and (g) delay
in obtaining or denial of any regulatory consents or approvals.
1.1.10 “Franchise” means the grant of rights, privileges, and authority granted by
this Ordinance.
1.1.11 “Franchise Area” means any, every, and all rightsofway for public roads,
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streets, avenues, alleys and highways of the City within the present limits
of the City and as such limits may be hereafter extended; and any, every,
and all rightsofway for public roads, streets, avenues, alleys and highways
of the City that may hereafter be laid out, platted, dedicated, or improved
within the present limits of the City and as such limits may be hereafter
extended.
1.1.12 “Law” means any applicable federal, state or municipal code, statute,
ordinance, regulation, rule, tariff (including Tariffs), or other requirement
that is accorded the full force and effect of law and is binding upon the
Parties to this Franchise, as such Law exists, is amended, or may be
created during the term of this Franchise. The term “Law” includes the
Bainbridge Island Municipal Code and any other rules or codes of general
applicability to the use and management of the Franchisee Area as are now
or may hereinafter be adopted by the City.
1.1.13 “Ordinance” means this Ordinance No. 202416, which sets forth the terms
and conditions of this Franchise.
1.1.14 “Party” means either City or PSE, as applicable, and “Parties” means the
City and PSE.
1.1.15 “PSE” means Puget Sound Energy, Inc., a Washington corporation
operating as a public service company pursuant to RCW 80.12.010, and its
successors and assigns.
1.1.16 “Public Improvement Project” means any construction, installation,
relocation, expansion, maintenance, repair or removal of roads, streets,
sidewalks, parks, curbs, gutters, storm drainage facilities, sewer lines, water
utility lines or similar capital improvement project that is undertaken by the
City within the Franchise Area that requires relocation of Facilities within
the Franchise Area, and such capital improvement is funded by the City
either with its own funds or with other public monies obtained by the City
for such capital improvement (including public monies derived from local
improvement districts, utility local improvement districts, transportation
benefit districts, or similar financing mechanisms established by and wholly
controlled by the City that levy special assessments on properties specially
benefitted by such Public Benefit Improvement).
1.1.17 “Regulated Service” means any utility, telecommunications, or similar
service that is subject to the jurisdiction of one or more federal or state
agencies that regulate the terms and conditions of such service (including
the Federal Energy Regulatory Commission, the Federal Communications
Commission, and the WUTC).
1.1.18 “Tariff” means a tariff as that term is defined in WAC 48080030(3), or
such similar definition describing rate schedules, rules, and regulations
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relating to charges and services as may hereinafter be adopted by the
regulatory authority with jurisdiction, under the laws of the State of
Washington, over public service companies.
1.1.19 “Third Party” means any person, party, or entity other than the City (and its
departments) and PSE.
1.1.20 “WUTC” means the Washington Utilities and Transportation Commission
or such successor regulatory agency having jurisdiction over public service
companies.
2. Facilities within Franchise Area.
2.1 Pursuant to the laws of the State of Washington, including RCW 35A.47.040 and
RCW 80.32.010, the City hereby grants to PSE, subject to the terms and conditions
set forth herein, a nonexclusive Franchise for a period of fifteen (15) years,
commencing upon the effective date of this Ordinance; provided, however, PSE
shall have no rights under this Franchise, nor shall PSE be bound by the terms and
conditions of this Franchise, unless PSE shall, within sixty (60) days after the
effective date of the Ordinance, file with the City its written acceptance of the
Ordinance consistent with Section 26.
2.2 Either Party may request an extension of the Franchise for one (1) additional five
(5) year renewal term. Either Party must provide written notice to the other Party
of its desire for the renewal term at least 180 days prior to the end of the initial term.
Such renewal term requires prior mutual written agreement of the Parties in order
to become effective. Either Party may propose changes to the provisions set forth
in this Franchise once a written notice of a desire for the renewal term is received.
Such proposal shall be made prior to the expiration of the initial term and shall be
considered by the nonproposing Party. Proposed changes must be approved by the
nonproposing Party for the changes and renewal term to go into effect. If proposed
changes are not agreed upon by the Parties, the renewal period will not go into
effect and the term of this Franchise and its terms will remain unchanged.
2.3 The City does hereby grant to PSE the right, privilege, authority, franchise, and
approval to set, erect, lay, construct, extend, support, attach, connect, stretch
Facilities between, maintain, repair, replace, enlarge, operate, and use Facilities in,
upon, over, under, along, across, and through the Franchise Area for purposes of
the transmission, distribution, and sale of electric energy for power, heat, light, and
any other purpose for which electric energy may be used.
2.4 Effective as of the Effective Date (as defined below), all prior franchises relating
to the distribution and sale of electrical energy between the City and PSE, and/or
their respective predecessors in interest, shall be repealed.
2.5 PSE shall exercise its rights within the Franchise Area in accordance with Law;
provided, however, in the event of any conflict or inconsistency between any
municipal law, code, statute, ordinance, rule, regulation, policy or other
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requirement of the City and the terms and conditions of this Franchise, the terms
and conditions of this Franchise shall govern and control to the extent of the conflict
or inconsistency. Without limiting the generality of the foregoing, this Franchise
shall not limit or constrain the exercise of the City’s police powers in accordance
with Law, and PSE acknowledges the City’s right to adopt and enforce general
ordinances consistent with Law and this Franchise that are necessary to protect the
health, safety and welfare of the public.
2.6 In the event the City vacates any portion of the Franchise Area containing PSE’s
Facilities during the term of this Franchise, the City shall, if not prohibited by Law,
reserve an easement for PSE’s Facilities in the manner provided by the City’s
vacation procedures. The City shall give PSE advance notice of its intent to vacate
any portion of the Franchise Area and shall consult with PSE regarding the terms
and conditions of the easement to be reserved for PSE’s Facilities.
3. NonFranchise Area City Property.
3.1 Existing Facilities installed or maintained by PSE on public grounds and places
within the City in accordance with prior franchises (but which Facilities are not
within the Franchise Area as defined by Section 1.1.10 above) may be maintained,
repaired, and operated by PSE at the location such Facilities exist as of the effective
date of this Ordinance for the term of this Franchise; provided, however, that no
such Facilities may be enlarged, improved, or expanded without the prior review
and approval of the City.
3.2 This Franchise shall not convey any right to PSE to install new Facilities on or to
otherwise use Cityowned or leased properties or easements located outside of the
Franchise Area. Further, this Franchise shall not govern or apply to Facilities
located on PSEowned or leased properties or easements (whether inside or outside
of the Franchise Area, whether granted by a private or public entity, and whether
now existing or hereafter acquired) and such Facilities are not, and will not be
deemed to be, located pursuant to rights derived from this Franchise or pursuant to
rights otherwise granted by the City.
4. Noninterference of Facilities.
4.1 PSE’s Facilities shall be maintained within the Franchise Area so as not to interfere
with the free passage of vehicular and other motorized and nonmotorized traffic or
with the reasonable ingress and egress to the properties abutting the Franchise Area
as they exist at the time of installation of the Facilities.
4.2 If the City Manager reasonably determines, after providing written notice to PSE
and a reasonable opportunity for PSE to respond to the City Manager’s concerns,
that any one or more of PSE’s Facilities within the Franchise Area interfere with
the free and safe passage of vehicular and other motorized and nonmotorized
traffic or with the reasonable ingress and egress to the properties abutting the
Franchise Area as they exist at the time of installation of the Facilities, PSE shall
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promptly take such action as is reasonably necessary to eliminate such interference.
The City shall cooperate with PSE in good faith, giving due regarding to all relevant
facts and circumstances, to consider changes to or modifications of the Franchise
Area (and other City property), if such changes or modifications provide the most
effective or economical means of eliminating such interference. In the event that
PSE must relocate its Facilities to eliminate such interference, such relocation shall
be governed by Section 6.1 below, or for any such interference resulting from new
development ingress or egress to properties abutting the Franchise Area in
proximity to PSE’s Facilities existing within the Franchise Area prior to the
development shall be subject to Section 6 .2.
4.3 Whenever it shall be necessary for PSE to engage in work within the Franchise
Area, PSE shall inform the City Manager or designee of where and when such work
will be done prior to such work being performed, and shall apply for all required
permits and perform work in accordance with the permit and applicable
requirements of Laws, except to the extent any such requirements are contrary to
or inconsistent with the terms and conditions of this Franchise. In the event of an
emergency situation in which PSE’s Facilities within the Franchise Area are in such
a condition so as to endanger the property, life, health, or safety of any individual,
PSE may take immediate action to correct the condition without first obtaining any
required permit, provided that PSE shall notify the City Manager or designee
telephonically or in person as soon as practicable following the onset of such
emergency situation, and provided that PSE applies for any necessary permit(s)
from the City for such work as soon as reasonably practicable thereafter.
4.4 PSE shall, after installation, construction, relocation, maintenance, removal, or
repair of any of PSE’s Facilities within the Franchise Area, restore the affected
Franchise Area and any other City property situated within the Franchise Area that
may be disturbed or damaged by such work to at least the same condition as it was
in immediately prior to such work, provided PSE shall not be responsible for any
changes or damage to the Franchise Area not caused by PSE’s work or of its
contractors or subcontractors. If PSE fails to restore the Franchise Area as required
by this Section 4.4, the City shall provide PSE with written notice of the same and
if, within a reasonable period following its receipt of the City’s written notice to
PSE, PSE fails to correct such failure, the City reserves the right to: (i) restore the
Franchise Area in accordance with the requirements of this Section 4.4 and (ii)
either bill PSE for the reasonable cost of such restoration, including the cost of labor
and equipment, or draw upon a performance bond, if such bond is available, for the
reasonable cost of such restoration. In no event shall the City work on or cause
work to be done on any of PSE’s Facilities in connection with any such restoration
under this Section 4.4. The City Manager or their designee shall have final approval
of the condition of the Franchise Area after restoration. All survey monuments
which are to be disturbed or displaced by such work shall be referenced and restored
consistent with Law.
In the event that a Party causes damage to the property of the other Party, then the
Party causing such damage will repair the damage it caused at no cost to the other
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Party. Upon discovery by either Party of any such damage, the discovering Party
will promptly notify the other Party. The Parties will inspect the damage and,
giving due regard to all relevant facts and circumstances, work together to agree
upon the repair to be performed and the schedule for completion. In the event the
damaging Party does not make the repair as agreed upon by the Parties, the other
Party may repair the damage as agreed upon by the Parties, to its reasonable
satisfaction, at the damaging Party’s sole expense.
5. Planning and Records of Installation.
5.1 Future Construction Plans. The Parties shall each exercise reasonable efforts to
coordinate construction work either may undertake within the Franchise Area, so
as to promote the orderly and expeditious performance and completion of such
work as a whole. In so doing, the Parties shall undertake cooperative planning so
as to promote the coordinated timing, location, and completion of such work within
the Franchise Area. Upon the request of either Party, but not more than annually
unless otherwise agreed to by the Parties, the Parties will meet to discuss and
coordinate regarding future construction activities then being planned by either
Party within the Franchise Area, including potential Public Improvement Projects
and potential improvements, relocations, and conversions of Facilities within the
Franchise Area. Such discussions and coordination shall be for informational
purposes only and shall not obligate either Party to undertake any specific
improvements within the Franchise Area, nor shall such discussions or coordination
be construed as a proposal to undertake any specific improvements within the
Franchise Area.
5.1.1 Coordination With Other Franchise Holders. PSE shall meet with the City
and other franchise holders and users of the Franchise Area upon reasonable
written request of the City, to coordinate construction within the Franchise
Area. If the City convenes such a meeting, PSE, the City, and other
franchise holders and users of the Franchise Area shall seek to agree on a
plan to reasonably coordinate all construction locations, activities, and
schedules in a manner that minimizes delay or disruption of each Party’s
respective work.
5.1.2 Joint Use Policies. If PSE is excavating within the Franchise Area, then PSE
shall allow the City the opportunity to share the excavation and trenches of
PSE, provided that:
5.1.2.1 Such joint use shall not delay or interfere with the installation,
operation, or maintenance of PSE’s Facilities located therein and
can otherwise be accommodated in accordance with Law and
applicable PSE installation standards;
5.1.2.2 Such joint use shall not increase the cost for PSE in excess of that
which PSE would otherwise bear; and
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5.1.2.3 Such joint use shall be arranged and accomplished on terms and
conditions satisfactory to all Parties and in accordance with Law.
5.2 Planning for PSE Projects; Records. Upon reasonable written request from the
City, PSE shall provide the City with: (i) copies of any available PSE plan of
potential improvements to PSE’s Facilities within the Franchise Area if and as
such information is needed by the City for its own planning purposes; and (ii)
copies of any available drawings in use by PSE showing the approximate location
of its Facilities within the Franchise Area if and as such information is needed by
the City for rightofway management purposes. Any such request by the City
must be reasonable in scope and at intervals that minimize the administrative
burdens on both Parties. Any release of information by PSE to the City pursuant
to this Section 5.2 shall be subject to PSE’s prior approval, which shall not be
unreasonably withheld. Further, any information provided by PSE to the City
pursuant to this Section 5.2: (a) shall be for informational purposes only and shall
not obligate PSE to undertake any specific improvements within the Franchise
Area, nor shall any such information be construed as a proposal to undertake any
specific improvements within the Franchise Area; (b) shall be provided “asis”
and without any warranties with respect to the accuracy of such information; and
(c) to the extent the locations of any of PSE’s Facilities are shown, such Facilities
will be shown in their approximate locations.
5.3 Emergency Management Coordination. Upon the written request of the City, and
not more than once per year, PSE will (i) meet with the City Manager or designee
to coordinate emergency operations plans within the Franchise Area and update
contact information, and (ii) actively participate with appropriate City
representatives in training, exercise, and planning activities related to emergency
preparedness, response, recovery, and mitigation.
5.4 Coordination on Public Improvement Projects. For any Public Improvement Project
that the City has identified as requiring coordination, the City will notify PSE when
it commences design work for the Public Improvement Project and identify a City
representative to coordinate the Public Improvement Project with PSE. After
receiving such notification, PSE shall designate a representative to coordinate the
Public Improvement Project with the City. The project coordinators shall cooperate
and share information with respect to the Public Improvement Project. This
information shall be reasonable in scope and content and be provided with a level
of detail that is appropriate for coordinated planning, and may include, but is not
limited to, project contacts, project details, applicable project schedules,
identification of contractors, location of affected existing and planned Facilities,
project status, and detailed and dimensioned plan specifications.
5.5 Pavement Disturbances. PSE shall comply with Law when disturbing pavement
within the Franchise Area. If PSE has non‐emergency plans to perform work in the
Franchise Area that will require disturbing pavement or sidewalks in the same areas
that the City has plans to resurface, overlay, or reconstruct roads or sidewalks as
part of a Public Improvement Project, PSE will coordinate with the City to schedule
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its work to occur prior to, or in conjunction with, the City’s planned project to the
extent reasonably practical.
5.6 Utility Locations; Scope of Disclosure. Nothing in this Franchise is intended (nor
shall be construed) to relieve either Party of their respective obligations arising
under Law with respect to determining the location of underground utility facilities.
Notwithstanding anything in this Franchise to the contrary, PSE shall have no
obligation to disclose any records, documents, or other information, in PSE’s
reasonable discretion, that are: (i) financial, commercial, or proprietary in nature,
or (ii) critical energy infrastructure information as regulated under the Federal
Power Act, 16 U.S.C. § 791, et seq., unless PSE is required by Law to disclose such
records, documents, or other information.
5.7 Public Records Act. Nothing herein is intended (nor shall be construed) to prohibit
the City from complying with the Public Records Act, Chapter 42.56 RCW (the
“Act”), or any other Law or applicable court order requiring the release of public
records. If the City receives a request under the Act to inspect or copy information
provided by PSE under this Franchise, and the City reasonably determines that the
release of such information is required by the Act or is otherwise appropriate, the
City will notify PSE promptly (and no later than five (5) business days) after the
City identifies the applicable information to allow PSE an opportunity to take action
to prevent or limit the disclosure of such information. If PSE does not communicate
in writing to the City, within ten (10) business days of receipt of the City’s notice,
its intent to take action to prevent or limit the disclosure of such information, then
the City may release the applicable information. If PSE provides notice pursuant to
this Section 5.7 of its intent to take action, PSE will take all necessary actions to
prevent or limit the proposed disclosure in a manner so as to ensure the City’s
response is not delayed or improper under the Act. The City will comply with Law,
including the Public Records Act and the Federal Power Act, and any applicable
court order when responding to a public records request.
6. Relocation of Facilities.
6.1 Relocation Due to Public Improvement Project.
6.1.1 Whenever a Public Improvement Project is to be undertaken within the
Franchise Area, and such Public Improvement Project requires the
relocation of PSE’s then existing Facilities (for purposes other than those
described in Section 6.2), the City shall:
6.1.1.1 Provide PSE, within a reasonable time prior to the commencement
of such Public Improvement Project, written notice of intent
regarding such relocation (“Relocation Notice”).
6.1.1.2 Provide PSE with reasonable plans and specifications sufficient, in
PSE’s discretion, to: (i) evaluate whether the proposed project
constitutes a Public Improvement Project and whether relocation
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of any Facilities within the Franchise Area is necessary, and (ii) if
the project constitutes a Public Improvement Project that requires
any such relocations, to develop an initial system design for such
Public Improvement Project.
6.1.1.3 The City may request that existing overhead PSE Facilities be
relocated underground in conformance with Section 17 hereof or
as addressed elsewhere in this Franchise.
6.1.1.4 After receipt of a Relocation Notice and such plans and
specifications, the City and PSE will work together to review the
plans and specifications provided pursuant to this Section 6.1.1 as
well as any proposed relocation of Facilities for such Public
Improvement Project. For any Facilities that must be relocated
within the Franchise Area for such Public Improvement Project,
PSE will perform such relocations at no charge to the City and in
accordance with a schedule mutually agreed upon by the City and
PSE pursuant to Section 6.1.2. If the City requires the subsequent
relocation of any such Facilities within five (5) years from the date
of relocation of such Facilities pursuant to this Section 6.1, the City
shall bear the entire cost of such subsequent relocation.
6.1.2 Relocation Date. The Relocation Notice shall specify the date by which
relocation in accordance with Section 6.1.1 shall be completed by PSE
(“Relocation Date”). In calculating the Relocation Date, which shall not be
less than one hundred twenty (120) days after the date on which PSE
receives the applicable Relocation Notice unless otherwise mutually agreed
upon by the Parties, the City shall consult with PSE and consider the extent
of Facilities to be relocated, PSE’s customer service requirements, the
construction sequence for the relocation within the City’s overall project
construction sequence, and any constraints to safely complete the relocation
within the desired timeframe. If PSE agrees to complete the relocation of its
existing Facilities within the Franchise Area in accordance with Section
6.1.1 on or before such Relocation Date, then PSE shall so inform the City
within thirty (30) days of PSE’s receipt of the Relocation Notice. If,
however, PSE reasonably determines that it is impossible or impracticable
to perform the relocation by the proposed Relocation Date or if PSE wishes
to propose any alternatives to relocation of PSE’s Facilities, then PSE shall
so inform the City within thirty (30) days of PSE’s receipt of the Relocation
Notice and provide the City a reasonable alternative relocation timeline or
one or more alternatives to relocation of PSE’s Facilities. The Parties shall
promptly meet and confer, in good faith and with due regard to all relevant
facts and circumstance, to discuss the alternative relocation deadline or
alternatives to relocation, as applicable, proposed by PSE and to determine
a mutually agreeable Relocation Date or alternatives to relocation, as
applicable. The City shall review in good faith PSE’s revised timeline or
alternatives to relocation, as applicable, giving it full and fair consideration
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with due regard to all the facts and circumstances which bear upon the
practicality of relocation and alternatives to relocation. PSE shall relocate
such Facilities within the Franchise Area at no charge to the City and prior
to the Relocation Date mutually agreed upon by the Parties.
6.1.3 Emergency Relocation. If, during the construction of any Public
Improvement Project or other improvement undertaken by the City, an
emergency posing a threat to public safety or welfare, or a substantial risk
of severe economic consequences to the City, arises requiring the relocation
of PSE’s Facilities, the City shall give PSE notice of the emergency as soon
as reasonably practicable. Upon receipt of such notice from the City, PSE
shall endeavor to respond as soon as reasonably practicable to address the
emergency situation, and if necessary, relocate the affected Facilities.
6.1.4 Delay Claim. With respect to any Relocation Date that is established in
accordance with Section 6.1.2 above, PSE shall reimburse the City for
additional costs, expenses, and/or damages (if any) incurred by the City that
are directly attributable to PSE’s failure to complete the relocation of its
existing Facilities within the Franchise Area in accordance with Section 6.1
on or before such Relocation Date, but only to the extent that the City is
liable or contractually obligated for the payment of such additional costs or
expenses (“Delay Claim”). Notwithstanding the foregoing, PSE shall not be
obligated to reimburse the City for any Delay Claim (or portion thereof)
attributable to any cause whatsoever that is outside of PSE’s control,
including the acts or omissions of the City or of any third party, or for any
delay attributable to a Force Majeure Event. The City shall notify PSE as
soon as the City becomes aware of any circumstances that might reasonably
result in a Delay Claim and cooperate with PSE to reasonably investigate,
manage, and mitigate any Delay Claim. Upon receipt of a Delay Claim, the
City shall promptly tender such Delay Claim to PSE together with such
information as the City then has or may subsequently acquire pertaining to
the nature and extent of such Delay Claim.
6.2 Relocation Due to Third Party Work.
6.2.1 Whenever any development, other than a Public Improvement Project,
requires the relocation of PSE’s Facilities to accommodate such
development within the Franchise Area or other locations described in
Section 3.1, or whenever the City requires the relocation of PSE’s Facilities
within the Franchise Area or other locations described in Section 3.1 for the
benefit of any Third Party, PSE shall relocate its Facilities and shall have
the right, as a condition of such relocation, to require such person or entity
requiring such relocation to:
6.2.1.1 Make payment to PSE, at a time and upon terms reasonably
acceptable to PSE, for any and all costs and expenses incurred by
PSE in the relocation of PSE’s Facilities; and
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6.2.1.2 Indemnify and save harmless PSE from any and all claims and
demands made against it on account of injury or damage to the
person or property of another arising out of or in conjunction with
the relocation of PSE’s Facilities, to the extent such injury or
damage is caused by the negligence of the person or entity
requesting the relocation of PSE’s Facilities or the negligence of
the agents, servants, or employees of the person or entity
requesting the relocation of PSE’s Facilities.
6.2.2 Any condition or requirement imposed by the City upon any Third Party
(including any condition or requirement imposed pursuant to any contract
or in conjunction with approvals or permits for zoning, land use,
construction, or development) which requires the relocation of PSE’s
Facilities shall be a required relocation for purposes of this Section 6.2;
provided, that if the primary purpose of imposing such condition or
requirement upon such person or entity is to cause the grading or widening
of the Franchise Area on the City’s behalf consistent with the City’s six
year Transportation Improvement Program, Capital Investment Plan, or
Transportation Facilities Program, then PSE shall relocate its Facilities
within the Franchise Area in accordance with Section 6.1.
6.3 City Performance of Relocation Work. If the Parties mutually agree in writing that
elements of relocation work involving PSE’s Facilities within the Franchise Area
to accommodate a Public Improvement Project would be most efficiently
performed by the City or its contractors as part of the City’s work for the underlying
Public Improvement Project, the Parties may enter into a separate written
agreement that details the elements of relocation work to be performed by the City
involving PSE’s Facilities. Except as otherwise required by Law, such agreement
shall require PSE to be responsible for all direct design and construction costs
incurred as a result of the City’s performance of such elements of relocation work
and may require PSE to be responsible for PSE’s pro‐rata share of all reasonable
indirect costs incurred by the City to perform such elements of relocation work,
including construction management and inspection, traffic control, mobilization,
erosion and sedimentation control, trenching, backfill, and restoration as may be
applicable to such elements of the relocation work. Neither Party will be obligated
to enter into any such agreement for the City’s performance of any elements of
relocation work involving PSE’s Facilities. In the absence of any such agreement,
such elements of relocation work will be performed pursuant to this Franchise,
including this Section 6.
6.4 Nothing in this Section 6 shall require PSE to bear any cost or expense in
connection with the location or relocation of any Facilities then existing under
benefit of easement or such other rights not derived from this Ordinance.
7. Indemnification and Hold Harmless.
7.1 PSE shall defend, indemnify and hold harmless the City, its officers, officials,
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employees, and representatives from and against any and all claims, suits, actions,
or liabilities made against the City, its officers, officials, employees, or
representatives for injury or death of any person, or for loss or damage to property,
to the extent such claims, suits, actions, or liabilities are caused by PSE’s negligent
acts, errors, or omissions, or from PSE’s intentional misconduct, in exercising the
rights granted to PSE under this Franchise. If any such claims, suits, actions, or
liabilities are presented to or filed with the City, the City shall promptly notify PSE
thereof in writing, and PSE shall have the right, at its election and at its sole cost
and expense, to control the defense of, settle, and compromise such claims, suits,
actions, or liabilities. Further, if any claim, suit, or action is begun against the City
based upon any such claims, suits, actions, or liabilities, the City shall likewise
promptly notify PSE thereof, and PSE shall have the right, at its election and its
sole cost and expense, to settle and compromise such claim, suit, or action. As
reasonably requested by PSE, and at PSE’s expense, the City shall assist in
defending any such claim, suit, or action. In addition, at its election and at its sole
cost and expense, the City may employ separate counsel and participate in the
defense of any such claim, suit, or action.
7.2 However, should a court of competent jurisdiction determine that this Franchise is
subject to RCW 4.24.115, then, in the event of liability for damages arising out of
bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of PSE and the City, its officers, officials, employees, and
volunteers, PSE’s liability hereunder shall be only to the extent of PSE’s
negligence.
7.3 Inspection or acceptance by the City of any work performed by PSE under this
Franchise at the time of completion of such work shall not be grounds for avoidance
by PSE of any of its obligations under this Section 7.
7.4 Solely to the extent required to enforce the indemnification provisions of this
Section 7, PSE waives its immunity under Title 51 RCW, Industrial Insurance;
provided, however, the foregoing waiver shall not in any way preclude PSE from
raising such immunity as a defense against any claim brought against PSE by any
of its employees. This waiver has been mutually negotiated by the Parties. The
provisions of this Section 7 shall survive the expiration or termination of this
Agreement with respect to any event occurring prior to such expiration or
termination.
8. Insurance.
8.1 Insurance Term. PSE shall procure and maintain for the duration of this Franchise
and as long as PSE has Facilities in the Franchise Area, insurance and/or self
insurance against claims for injuries to persons or damage to property which may
arise from or in connection with this Franchise and use of the Franchise Area.
8.2 No Limitation. PSE’s maintenance of insurance as required by this Franchise shall
not be construed to limit the liability of PSE to the coverage provided by such
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insurance, or otherwise limit the City’s recourse to any remedy available at law or
in equity.
8.3 Minimum Scope of Insurance. PSE shall obtain insurance of the types and coverage
described below:
8.3.1 Commercial General Liability insurance shall be at least as broad as ISO
occurrence form CG 00 01 and shall cover liability arising from premises,
operations, stop gap liability, independent contractors, productscompleted
operations, personal injury and advertising injury, pollution, and liability
assumed under an insured contract. There shall be no exclusion for liability
arising from explosion, collapse, or underground property damage. The City
shall be included as an additional insured under PSE’s Commercial General
Liability insurance policy with respect this Franchise.
8.3.2 Automobile Liability insurance covering all owned, nonowned, hired, and
leased vehicles. Coverage shall be at least as broad as Insurance Services
Office (ISO) form CA 00 01.
8.3.3 Pollution Liability insurance shall be in effect throughout the term of this
Franchise covering losses caused by pollution conditions that arise from the
operations of PSE. Pollution Liability shall cover bodily injury, property
damage, cleanup costs, and legal defense, including costs and expenses
incurred in the investigation, defense, or settlement of claims. Pollution
Liability coverage may be included within Commercial General Liability
and/or selfinsurance at the discretion of the Franchisee.
8.3.4 Workers’ Compensation coverage as required by the Industrial Insurance
laws of the State of Washington.
8.3.5 Excess or Umbrella Liability insurance shall be excess over and at least as
broad in coverage as PSE’s Commercial General Liability and Automobile
Liability insurance. The City shall be included as an additional insured on
PSE’s Excess or Umbrella Liability insurance policy with respect to liability
arising out of activities performed by or on behalf of PSE in connection with
this Franchise to the extent of the limits required herein.
8.4 Minimum Amounts of Insurance. PSE shall maintain the following insurance
limits:
8.4.1 Commercial General Liability insurance shall be written with limits no less
than $5,000,000 each occurrence, $5,000,000 general aggregate.
8.4.2 Automobile Liability insurance with a minimum combined single limit for
bodily injury and property damage of $5,000,000 per accident.
8.4.3 Pollution Liability insurance shall be written in an amount of at least
$2,000,000 per loss, with an annual aggregate of at least $2,000,000.
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8.4.4 Excess or Umbrella Liability insurance shall be written with limits of not
less than $5,000,000 per occurrence and annual aggregate. The Excess or
Umbrella Liability requirement and limits may be satisfied instead through
PSE’s Commercial General Liability and Automobile Liability insurance,
selfinsurance, or any combination thereof that achieves the overall required
limits.
8.5 Other Insurance Provisions. PSE’s Commercial General Liability, Automobile
Liability, and Excess or Umbrella Liability policy or policies are to contain, or be
endorsed to contain, that they shall be primary insurance to the extent of PSE’s
negligence and as respect the City. Any insurance, selfinsurance, or selfinsured
pool coverage maintained by the City shall be excess of PSE’s insurance and shall
not contribute with it.
8.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best rating of not less than A: VII.
8.7 Verification of Coverage. PSE shall furnish the City with original certificates and
a copy of the amendatory endorsements at the time of Franchise acceptance and
then annually, including the additional insured endorsement, evidencing the
insurance requirements of this Franchise.
8.8 Subcontractors. PSE shall cause each and every subcontractor of PSE to provide
insurance coverage that complies with all applicable requirements of PSEprovided
insurance as set forth herein, except PSE shall have sole responsibility for
determining the limits of coverage required to be obtained by such subcontractors.
8.9 Notice of Cancellation. PSE shall provide the City with written notice of any policy
cancellation within ten (10) business days of their receipt of such notice. In the
event of any policy cancellation, PSE shall obtain and furnish to the City evidence
of replacement insurance meeting the requirements of this Section 8.
8.10 PSE – SelfInsurance. If PSE is selfinsured or becomes selfinsured during the
term of this Franchise, (i) the City may review PSE’s financial position via its SEC
filings available at http://www.pugetenergy.com/pages/filings.html; and (ii) PSE or
its parent company is responsible for all required payments within the selfinsured
retention. Upon the City’s request, PSE shall provide the City with reasonable
written evidence that PSE is maintaining such selfinsurance program.
9. Hazardous Substances. PSE shall comply with Environmental Laws in connection with its
use and occupancy of the Franchise Area. PSE shall only use Hazardous Substances within
the Franchise Area incident to PSE’s normal business operations, and in all cases, (a)
limited to such quantities as may be required in its normal business operations, (b) used,
transported, or stored per manufacturer’s instructions, and (c) used, transported, or stored
only for its intended use. In the event PSE or its contractors cause a release of Hazardous
Substances within the Franchise Area, PSE shall notify the City Manager or designee
within twentyfour (24) hours of its discovery. PSE shall act promptly to remediate such
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release of Hazardous Substances in accordance with Environmental Laws.
10. Moving Buildings within the Franchise Area.
10.1 If any Third Party obtains permission from the City to use the Franchise Area for
the moving or removal of any building or other object, the City shall, prior to
granting such permission, require such Third Party to make any necessary
arrangements with PSE for the temporary adjustment of PSE’s wires to
accommodate the moving or removal of such building or other object. Such
necessary arrangements with PSE shall be made, to PSE’s satisfaction, not less than
fourteen (14) days prior to the moving or removal of said building or other object.
In such event, PSE shall, at the expense of the person or entity desiring to move or
remove such building or other object, adjust any of its wires which may obstruct
the moving or removal of such building or other object, provided that:
10.1.1 The moving or removal of such building or other object which necessitates
the adjustment of wires shall be done at a reasonable time and in a
reasonable manner so as not to unreasonably interfere with PSE’s business;
and
10.1.2 Where more than one route is available for the moving or removal of such
building or other object, such building or other object shall be moved or
removed along the route which causes the least interference with PSE’s
business, taking into account interference that alternatives would cause with
other overhead Facilities.
11. Pole Attachments.
11.1 City Use of Facilities.
11.1.1 During the term of this Franchise, and with respect to poles that are
Facilities and that are (i) wholly owned by PSE and (ii) are located within
the Franchise Area, the City, subject to PSE’s prior written consent which
shall not be unreasonably withheld, may install and maintain Cityowned
overhead wires and cables for police, fire, traffic control, communications,
and other noncommercial municipal purposes. The foregoing rights of the
City to install and maintain such wires and cables are further subject to the
following:
11.1.1.1 Such installation and maintenance shall be performed by the City
at its sole risk and expense, in accordance with Law and subject to
such reasonable requirements as PSE may specify from time to
time (including requirements accommodating PSE’s Facilities or
the facilities of other parties having the right to use PSE’s
Facilities); and
11.1.1.2 PSE shall have no obligation under Section 7, Section 8, or Section
9 in connection with any Cityowned wires installed or maintained
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on PSE’s Facilities.
11.1.1.3 The City shall indemnify, defend, and hold harmless PSE in
connection with the City’s use of PSE’s Facilities.
11.1.2 The Parties entering into an appropriate pole attachment agreement,
consistent with Laws and PSE’s thencurrent standards, processes, and
procedures, addressing the terms and conditions applicable to the City’s use
of PSE’s poles. PSE shall not charge the City a fee for its noncommercial
use of such poles in accordance with this Section 11; provided, however,
that nothing herein shall require PSE to bear any cost or expense in
connection with any such use by the City.
12. Third Party Attachments. The City acknowledges that PSE is subject to and must comply
with Law governing attachments of wires, devices, and other equipment owned by third
parties to PSE’s electric distribution pole Facilities within the Franchise Area.
12.1 As of the effective date of this Ordinance, PSE and third parties having attachments
of wires, devices, and other equipment to PSE’s electric distribution pole Facilities
within the Franchise Area use the National Joint Utilities Notification System
(“NJUNS”) as the means of providing official notice between them of actions
required to be taken and reporting of actions taken by such third parties with respect
to such attachments. To the extent consistent with Law and at the request of the
City, PSE will use commercially reasonable efforts (subject to the functional
capabilities and limitations of NJUNS in place from time to time) to include the
City as an interested party to any notification tickets submitted by PSE in NJUNS
with respect to any of PSE’s electric distribution pole Facilities within the Franchise
Area that are permanently no longer in use by PSE and which contain Third Party
attachments. The City may monitor activity associated with such Third Party
attachments through NJUNS.
12.2 The Parties shall work together to utilize commercially reasonable efforts that may
be available, including by not limited to (a) exercising contractual rights stemming
from applicable pole attachment agreements or franchise agreements and (b)
municipal code enforcement authority, to require third parties that have thirdparty
attachments to PSE pole Facilities within the Franchise Area that should be
removed to remove such attachments in a timely manner so as to avoid or minimize
impacts to any PSE relocation, removal, or undergrounding of any of PSE’s
Facilities within the Franchise Area pursuant to this Franchise, or to any other
timeline established by this Franchise whether for a Public Benefit Improvement or
other project type.
13. Dispute Resolution and Noncompliance
13.1 Dispute Resolution.
13.1.1 A Dispute must be resolved in accordance with the dispute resolution
procedures set forth in this Section 13. A Party will notify the other Party
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promptly following the occurrence or discovery of a Dispute. The initial
mechanism to resolve a Dispute will be by negotiation between the Parties’
representatives, so designated by the Parties by notice given pursuant to this
Section 13.1.1.
13.1.2 If the Parties cannot resolve a Dispute satisfactorily within fifteen (15)
business days after receipt of the initial notice in accordance with Section
13.1.1, either Party may thereafter deliver to the other Party notice initiating
the dispute resolution procedures set forth in this Section 13.1.2 (the
“Dispute Notice”). The Dispute Notice shall (a) contain a detailed
description of the issues in Dispute, (b) identify the senior officers or
administrators authorized to settle the Dispute on behalf of the Party
providing such notice, and (c) propose a date or dates not less than thirty
(30) days after the date of the Dispute Notice, on which such officers or
administrators are available for a meeting to resolve such Dispute. The
recipient Party shall, within ten (10) business days following its receipt of
the Dispute Notice, provide to the notifying Party a parallel schedule of
availability of the recipient Party’s senior officers or administrators duly
authorized to settle the Dispute. Following delivery of the respective senior
officers’ or administrators’ schedules of availability, the senior officers or
administrators so designated shall engage in goodfaith negotiations for a
period of at least thirty (30) days after the first meeting between such
officers or administrators (or such other time period as may be agreed upon
by the Parties), to resolve the Dispute to the satisfaction of both Parties.
13.1.3 If at any time after the expiration of such thirty (30) day period (or such
other time period as may be agreed upon by the Parties pursuant to Section
13.1.2), a Party determines that continued negotiations with the other Party
will not result in a resolution of the Dispute, and if the Party reasonably
believes that the other Party is in default of its obligations under this
Franchise, such Party may serve upon the other Party a written order to
comply with the provisions of this Franchise pursuant to Section 13.2
“Noncompliance; Cure”.
13.1.4 Except as otherwise provided in Section 13.1.3, the Parties intend that the
procedures for dispute resolution set forth in this Section 13.1 be exhausted
before a Party exercises any other right or remedy available under this
Franchise.
13.2 Noncompliance; Cure. If PSE fails to comply with the provisions of this Franchise,
the City may serve upon PSE a written order to so comply within sixty (60) days
from the date such order is received by PSE; except, however, if any failure to
comply with this Franchise by PSE cannot reasonably be corrected with due
diligence within said sixty (60) day period (PSE’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 PSE may so comply shall be extended for
such time as may be reasonably necessary and so long as PSE commences promptly
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and diligently to effect such compliance. If PSE is not in compliance with this
Franchise after expiration of the applicable cure period under this Section 13.2, the
City may, by ordinance, declare an immediate forfeiture of this Franchise.
13.3 No Release. Termination of this Franchise shall not release either Party from any
liability or obligation with respect to any matter arising out of this Franchise prior
to the date of such termination, nor shall such termination release PSE from any
obligation to remove or secure its Facilities and restore the Franchise Area pursuant
to the terms of this Franchise.
14. Nonexclusive Franchise.
14.1 This Franchise is not and shall not be deemed to be an exclusive franchise. This
Franchise shall not in any manner prohibit the City from granting other and further
consents, approvals, permits, or franchises over, upon, and along the Franchise
Area which do not interfere with PSE’s rights under this Franchise.
14.2 This Franchise shall not prohibit or prevent the City from using the Franchise
Area or affect the jurisdiction of the City over the same or any part thereof.
14.3 The City reserves the right to acquire, construct, own, operate, and maintain a
municipal electric utility to serve all or any portion of the City, at any time
during the term of this Franchise and to fully exercise such right in accordance
with Law.
15. Assignment.
15.1 PSE shall not assign this Franchise to any unaffiliated third party without the prior
consent of the City, which consent shall not be unreasonably withheld, conditioned
or delayed. If PSE shall assign or transfer rights, benefits, and privileges in and
under this Franchise, such assignee or transferee shall, within thirty (30) days
of the date of any assignment or transfer, file written notice of the assignment
or transfer with the City together with its written acceptance of and agreement
to be bound by all terms and conditions of this Franchise. Nothing herein is
intended to preclude PSE from exercising the right, without notice or written
acceptance by the City, to mortgage its rights, benefits, and privileges in and
under this Franchise.
16. Modification and Amendment.
16.1 This Franchise may be amended only by written instrument, signed by both
Parties, which specifically states that it is an amendment to this Franchise and
is approved and executed in accordance with applicable laws of the State of
Washington. Without limiting the generality of the foregoing, this Franchise
shall govern and supersede and shall not be changed, modified, deleted, added
to, supplemented, or otherwise amended by any consent, approval, permit,
license, agreement, or other document required by or obtained from the City in
conjunction with the exercise (or failure to exercise) by PSE of any and all
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rights, benefits, privileges, obligations, or duties in and under this Franchise,
unless such consent, approval, permit, license, agreement, or other document
specifically:
16.1.1 References this Franchise; and
16.1.2 States that it supersedes this Franchise to the extent it contains terms and
conditions which change, modify, delete, add to, supplement, or
otherwise amend the terms and conditions of this Franchise.
In the event of any conflict or inconsistency between the provisions of this
Franchise and the provisions of any such consent, approval, permit, license,
agreement, or other document, the provisions of this Franchise shall control.
16.2 The Parties agree to renegotiate the terms of this Franchise, if, during the term
of this Franchise:
16.2.1 There becomes effective any change in federal or state law which:
16.2.1.1 Affords either Party the opportunity to negotiate in good faith
a term or condition of this Franchise which term or condition
would not, prior to such change, have been consistent with
federal or state law; or
16.2.1.2 Preempts or otherwise renders null and void any term or
condition of this Franchise which has theretofore been
negotiated in good faith.
Then, in such event, either Party may, within one hundred eighty (180) days of
the effective date of the change in federal law, notify the other Party in writing
that such Party desires to commence negotiations to amend this Franchise. Such
negotiations shall encompass only the specific terms and conditions affected by
such change in federal or state law, and neither Party shall be obligated to re
open negotiations on any other terms or conditions of this Franchise that are
unrelated to such specific terms and conditions. Within thirty (30) days from
and after the other Party’s receipt of such written notice, the Parties shall, at a
mutually agreeable time and place, commence such negotiations. Pending
completion of such negotiations resulting in mutually agreeable amendment of
this Franchise, adoption of such amendment by ordinance by the City and
acceptance of such ordinance by PSE, and except as to any portion thereof
which has been preempted or otherwise rendered null and void by such change
in federal or state law, this Franchise shall remain in full force and effect.
17. Undergrounding of Facilities.
17.1 PSE acknowledges that the City desires to promote a policy of undergrounding
of Facilities within the Franchise Area. The City acknowledges that PSE
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provides electrical service on a nonpreferential basis subject to and in
accordance with Tariffs on file with the WUTC (or such other regulatory
agency having jurisdiction). Subject to and in accordance with such Tariffs,
PSE will cooperate and may participate with the City in the formulation of
policy and development regulations concerning undergrounding of PSE’s
Facilities within the Franchise Area.
17.2 The City may by written notice to PSE request PSE to underground its existing
distribution Facilities (of 15,000 volts or less) within the Franchise Area. Any
such conversion of PSE’s existing Facilities shall be accomplished subject to
and in accordance with PSE’s Tariffs.
17.3 If PSE elects to install new overhead distribution Facilities (of 15,000 volts or
less) within the Franchise Area or a new extension of existing overhead
distribution Facilities within the Franchise Area, PSE will provide written
notice to the City Manager. The City may by written notice to PSE request PSE
to install such Facilities underground within the Franchise Area. Any such
installation underground of PSE’s Facilities shall be accomplished subject to
and in accordance with PSE’s Tariffs.
18. Decommissioned Facilities.
18.1 Notice. If PSE determines a PSEowned utility pole Facility located within the
Franchise Area is no longer necessary to provide PSE service and is a
Decommissioned Pole, then PSE shall so notify the City. PSE shall use
commercially reasonable efforts to remove such Decommissioned Pole from the
Franchise Area within ninety (90) days of the date of such notice, subject to any
delay attributable to the acts or omissions of the City or a Force Majeure Event.
18.2 City Request. If the City reasonably determines that a PSEowned utility pole
Facility located within the Franchise Area is no longer in use by PSE, then the City
may request that PSE determine if such utility pole is a Decommissioned Pole.
Within sixty (60) days after PSE’s receipt of such a request, PSE shall review the
status of the utility pole Facility in question. If PSE should determine such utility
pole Facility to be a Decommissioned Pole, then PSE shall give the City notice
thereof, in accordance with Section 18.1. If PSE shall determine such utility pole
Facility not to be a Decommissioned Pole, then PSE shall so notify the City and
such notice shall explain the basis for making such determination. The Parties agree
to cooperate and establish mutually agreeable procedures for the implementation of
this Section 18.2 to achieve the rightofway management objectives of the City in
a manner that minimizes the administrative burdens on both Parties.
19. Vegetation Management.
19.1 PSE shall, on an annual basis, provide the City a list of locations within the
Franchise Area at which PSE anticipates performing vegetation management
activities; provided that such list shall not limit PSE’s right under this Franchise
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to cut, trim, or otherwise remove vegetation at any time within this Franchise
Area which, due to proximity to PSE’s Facilities, pose an imminent threat to
public safety or as otherwise permitted under Washington law.
19.2 PSE shall, in coordination with the City, identify vegetation species appropriate
for location in proximity to PSE’s Facilities and shall cooperatively act with the
City to promote use of such identified species within and adjacent to the
Franchise Area.
19.3 PSE shall not commence nonemergency vegetation management work without
notice to abutting private property owners or occupants at least ten (10) working
days in advance of the work to be performed, including the location, and
description of the work to be performed, the date work is planned to commence,
and a contact name and telephone number at PSE. In performing vegetation
management work, PSE shall comply with ANSI 300 pruning standards. At the
request of an abutting private property owner, PSE shall employ or consult with a
certified arborist to assess the type of pruning proposed to be done and/or shall
provide the abutting owner with alternatives to the type of pruning proposed to be
done. PSE will reasonably consider alternatives proposed by the abutting property
owner and any arborist hired by the property owner.
19.4 Nothing in this Ordinance is intended to absolve PSE from any liability resulting
from damage caused by trees that are severely pruned or topped by PSE and
subsequently fall as a result of such pruning or topping.
20. Condemnation.
20.1 The existence of this Franchise shall not preclude the City from acquiring by
condemnation, in accordance with Law, all or a portion of PSE’s Facilities within
the Franchise Area.
21. Reimbursement of Administrative Costs.
21.1 Pursuant to RCW 35.21.860, PSE shall reimburse the City for all actual
administrative expenses and costs incurred by the City that are directly related to
receiving and approving a permit, license, or this Franchise, to inspecting plans and
construction pursuant to this Franchise, and to preparing a detailed statement, as
may be required by Chapter 43.21C RCW.
21.2 The City shall invoice PSE for all administrative expenses and costs to be
reimbursed by PSE hereunder within thirty (30) days after such expenses and costs
have been calculated, along with an itemized statement showing such expenses and
costs. PSE shall remit payment therefore within thirty (30) days of receipt of the
City’s invoice.
21.3 If PSE disputes any expense or cost included on the City’s invoice, PSE shall
nevertheless pay such disputed expense or cost within the time period set forth
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above; provided, however, that if the City receives PSE’s written objection to an
invoiced expense or cost within thirty (30) days of the City’s receipt of PSE’s
payment of such disputed expense or cost, the Parties shall thereafter meet in good
faith to discuss and to attempt to resolve PSE’s objection; provided, further,
however, that nothing herein shall be construed as obligating the City to reduce or
eliminate the disputed expense or cost. At such meeting, the City shall provide PSE
such further documentation as may reasonably and practicably be required by PSE
to verify the expense or objection.
22. Performance Bond. PSE may obtain and furnish to the City a performance bond in an
amount of fifty thousand U.S. dollars ($50,000.00) (or such other amount as may be
reasonably requested by the Director and mutually agreed upon by the Parties, up to a
maximum of one hundred thousand U.S. dollars ($100,000.00)) to ensure the performance
of PSE's restoration obligations under this Franchise. PSE will pay all premiums or costs
associated with maintaining such performance bond and will keep such bond in full force
and effect at all times during the term of this Franchise. The Parties agree that PSE’s
maintenance of the bond required under this Section 22 will not be construed to excuse
PSE’s failure to perform such obligations or to limit the liability of PSE to the amount of
such bond, and will be in lieu of obtaining permitspecific bonds as required under the
BIMC.
23. Work of Contractors and Subcontractors. Work performed by PSE’s contractors and
subcontractors is subject to the same restrictions, limitations, and conditions as if the work
were performed by PSE and shall be performed in compliance with this Franchise and Law.
As between the Parties and for purposes only of this Franchise, PSE shall be responsible
for all such work performed on PSE’s behalf by its contractors and subcontractors within
the Franchise Area; provided, however, that nothing herein is intended nor shall be
construed to be a change, modification, amendment, diminution, reduction, waiver, release,
or relinquishment (in whole or in part) of any duty, obligation, responsibility, or liability
of any such contractor or subcontractor for the full, timely, and satisfactory performance
of such work.
24. Notice. All communications required or permitted by this Franchise (collectively, for
purposes of this Section 24, a “Notice”) shall be in writing and directed to the recipient at
the address set forth below, unless Notice of change of address or recipient is provided to
the other Party. Any Notice given shall be delivered in person, via email, sent by
documented overnight delivery service or mailed by certified or registered mail, postage
prepaid, to the appropriate Party at the addresses referenced below or the email address, or
to such other address as the Parties may hereinafter designate. Unless otherwise specified
in this Franchise, a Notice shall be effective (and considered received for purposes of this
Franchise): (a) if delivered by hand, upon delivery; (b) if sent by documented overnight
delivery service, on the date delivered; (c) if by email, when acknowledged by the recipient
as having been received; or (d) if mailed via certified or registered mail, three (3) days after
depositing in the U.S. Mail. Effective notice to the City by any of the methods outlined
above must include delivery of copies to both the City Public Works Department and to
the City Attorney’s office at the addresses set forth below.
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To City:
City of Bainbridge Island
Public Works Department
280 Madison Avenue
Bainbridge Island, WA 98110
Copy to: pwadmin@bainbridgewa.gov
Copy to:
City of Bainbridge Island
City Manager
280 Madison Avenue
Bainbridge Island, WA 98110
To PSE:
Puget Sound Energy
Municipal Relations
P.O. Box 97034
Bellevue, WA 980099734
Copy to: Municipal.Relations@pse.com
25. Miscellaneous.
25.1 Severability; Construction. If any term or provision of this Franchise prohibited or
rendered unenforceable by any Law shall be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining portions of this
Franchise, which shall continue in full force and effect. Upon such determination
that any term or provision of this Franchise is prohibited or rendered unenforceable,
the Parties shall negotiate in good faith to modify this Franchise so as to maintain
the original intent of the Parties as closely as possible in an acceptable manner so
that the rights and obligations of the Parties under this Franchise are fulfilled to the
greatest extent possible. The headings of sections and paragraphs of this Franchise
are for convenience of reference only and are not intended to restrict, affect, or be
of any weight in the interpretation or construction of the provisions of such sections
or paragraphs. Terms such as “includes,” “including,” “such as,” and “or” will be
interpreted as nonexclusive and without limitation.
25.2 Remedies. Nothing in this Franchise shall be construed as limiting any judicial
remedies that the City may have, at law or equity, for enforcement of this Franchise.
25.3 WUTC Tariffs. This Franchise is subject to the provisions of any applicable Tariff
of PSE on file with the WUTC (or such other regulatory agency having
jurisdiction). In the event of any conflict or inconsistency between the provisions
of this Franchise and any PSE Tariff, the provisions of such Tariff shall control. If
PSE makes an application for any changes in its Tariffs affecting the provisions of
this Franchise, PSE shall notify the City in writing of said application and provide
the City with access to a copy of the filing within ten (10) business days of filing
with the WUTC. PSE shall thereafter provide the City with a copy of any approved
Tariff(s) affecting the provisions of this Franchise.
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25.4 Governing Law; Venue. This Franchise shall be governed by and construed in
accordance with the laws of the State of Washington. The Kitsap County Superior
Court have proper venue for any dispute related to this Franchise.
25.5 No Waiver. The failure of either Party to insist upon or enforce strict performance
of any provision of this Franchise, or to exercise any right or remedy under this
Franchise or Law, will not be construed as a waiver or relinquishment to any extent
of the right to assert or rely upon any such provision, right, or remedy in that or any
other instance; rather, the same will be and remain in full force and effect.
25.6 Attorneys’ Fees. If a suit or other action is instituted in connection with any
controversy arising out of this Franchise, each Party shall bear its own legal costs
and attorney fees incurred in defending or bringing such claim or lawsuit, including
all appeals, in addition to any other recovery or award provided by Law; provided,
however, nothing in this Section 25.6 shall be construed to limit the City’s right to
indemnification under Section 7 of this Franchise.
25.7 Publication. The cost of publication of this Franchise shall be borne by PSE.
25.8 No ThirdParty Beneficiary. Nothing in this Franchise shall be construed to create
any rights in or duties to any Third Party, nor any liability to or standard of care
with reference to any Third Party. This Franchise shall not confer any right or
remedy upon any person other than the City and PSE. No action may be
commenced or prosecuted against either the City or PSE by any Third Party
claiming as a thirdparty beneficiary of this Franchise. This Franchise shall not
release or discharge any obligation or liability of any Third Party to either the City
or PSE.
25.9 Survival. All of the provisions, conditions, and requirements of this Franchise that
must be reasonably construed as surviving the expiration or termination of this
Franchise in order to give full force and effect to the intent of the Parties as set forth
herein, shall survive the expiration or termination of this Franchise, regardless of
whether such survival is expressly specified herein.
25.10 Force Majeure. If performance of this Franchise or of any obligation hereunder is
prevented or substantially restricted or interfered with by reason of a Force Majeure
Event, the affected Party, upon giving notice to the other Party, shall be excused
from such performance to the extent of and for the duration of such prevention,
restriction, or interference. The affected Party shall use its reasonable efforts to
avoid or remove such causes of nonperformance and shall continue performance
hereunder whenever such causes are removed. Notwithstanding the foregoing, the
insufficiency of funds, financial inability to perform, or changes in such Party’s
cost of performing its obligations hereunder shall not constitute a Force Majeure
Event.
26. Acceptance. This Franchise may be accepted by PSE by its filing with the City Clerk an
unconditional written acceptance within sixty (60) days from the City’s final approval and
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execution of this Franchise, in the form attached as Exhibit A. Failure of PSE to so accept
this Franchise shall be deemed a rejection by PSE and the rights and privileges granted
herein shall cease.
27.Effective Date. This Ordinance shall be effective on October 30, 2024, having been: (i)
introduced to the City Council of the City not less than five days before its passage; (ii)
first submitted to the City Attorney on May 31, 2024; (iii) published at least five days prior
to the date on which this Ordinance is effective and as otherwise required by Law; and (iv)
passed at a regular meeting of the legislative body of the City by a vote of at least five
members of the City Council of the City on October 22, 2024. This Franchise shall take
effect as of the date of PSE’s written acceptance thereof pursuant to Section 26 (the
“Effective Date”).
PASSED by the City Council this 22nd day of October, 2024.
APPROVED by the Mayor this 22nd day of October, 2024.
Joe Deets, Mayor
ATTEST/AUTHENTICATE:
Christine Brown, MMC, City Clerk
FILED WITH THE CITY CLERK: May 31, 2024
PASSED BY THE CITY COUNCIL: October 22, 2024
PUBLISHED: October 25, 2024
EFFECTIVE DATE: October 30, 2024
ORDINANCE NUMBER: 202416
4877-0332-8628, v. 30
487703328628;30/}
CITY COUNCIL OF THE CITY OF
BAINBRIDGE ISLAND, WASHINGTON
In the matter of the application
of Puget Sound Energy, Inc., a
Washington corporation, for a
Franchise to construct,
operate, and maintain facilities
in, upon, over, under, along,
across, and through the
franchise area of the City of
Bainbridge Island,
Washington
Ordinance No. 202416
ACCEPTANCE
WHEREAS, the City Council of the City of Bainbridge Island, Washington, has granted a
franchise to Puget Sound Energy, Inc., a Washington corporation, its successors and assigns, by enacting Ordinance No. 202416, bearing the date of October 22, 2024; and
WHEREAS, a copy of said Ordinance granting said franchise was received by the Puget
Sound Energy, Inc. on ______________, 2024, from said City of Bainbridge Island, Kitsap
County, Washington.
NOW, THEREFORE, Puget Sound Energy, Inc., a Washington corporation, for itself, its
successors and assigns, hereby accepts said Ordinance and all the terms and conditions
thereof, and files this, its written acceptance, with the City of Bainbridge Island, Kitsap
County, Washington.
IN TESTIMONY WHEREOF said Puget Sound Energy, Inc. has caused this written
Acceptance to be executed in its name by its undersigned ________________ thereunto
duly authorized on this ____ day of ________________, 2024.
ATTEST: PUGET SOUND ENERGY, INC.
________________________________ By: _____________________________
Copy received for City of Bainbridge Island
On October 29, 2024
By: ________________________________
Christine Brown, MMC, City Clerk
October 28, 2024
28th October
Gretchen J. Aliabadi