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HomeMy WebLinkAboutOrdinance No. 2020-018 An Ordinance Granting Puget Sound Energy, Inc., a Washington Corporation, its Successors and Assigns, the Right, Privilege, Authority and Franchise to Set, Erect, Lay, Construct.. ORDINANCE NO. 2020-018 AN ORDINANCE GRANTING PUGET SOUND ENERGY, INC., A WASHINGTON CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT,PRIVILEGE,AUTHORITY AND FRANCHISE TO SET,ERECT,LAY, CONSTRUCT, EXTEND, SUPPORT, ATTACH, CONNECT, MAINTAIN, REPAIR, REPLACE, ENLARGE, OPERATE AND USE FACILITIES IN, UPON, OVER, UNDER, ALONG, ACROSS AND THROUGH THE FRANCHISE AREA TO PROVIDE FOR THE TRANSMISSION, DISTRIBUTION AND SALE OF NATURAL GAS FOR POWER, HEAT AND LIGHT, AND ANY OTHER PURPOSES FOR WHICH NATURAL GAS AND ELECTRIC ENERGY MAY BE USED. THE CITY COUNCIL OF THE CITY OF ARLINGTON, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Definitions. 1.1 Where used in this franchise (the "Franchise") the following terms shall mean: 1.1.1 "PSE" means Puget Sound Energy Inc.,a Washington corporation, and its successors and assigns. 1.1.2 "City" means the City of Arlington, a Municipal Corporation within the State of Washington, and its successors and assigns. 1.1.3 "Franchise Area" means any, every and all right-of-way for public roads, streets, avenues, alleys, highways, and other public ways of the City as now laid out, platted, dedicated or improved; and any, every and all right-of-way for public roads, streets, avenues, alleys, highways, and other public ways 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. For the purpose of this definition, right-of-way includes property owned by the City and used for public roads and other public ways of the City. 1.1.4 "Facilities" means, collectively, any and all (i) natural gas distribution systems, including but not limited to, gas pipes, pipelines, mains, laterals, conduits, feeders, regulators,meters,meter-reading devices,and communication systems; and(ii)any and all other equipment, appliances, attachments, appurtenances and other items necessary, convenient, or in any way appertaining to any and all of the foregoing, whether the same be located over or under ground. 1.1.5 "Ordinance" means Ordinance No. 2020-018, which sets forth the terms and conditions of this Franchise. 1.1.6 "Public right of way improvement" is a City-funded capital improvement to the Franchise Area. ORDINANCE NO.2020-018 Page 1 Section 2. Facilities within Franchise Area. 2.1 The City does hereby grant to PSE the right,privilege, authority and franchise to set, erect, lay, construct, extend, support, attach, connect, maintain, repair, replace, enlarge, operate and use Facilities in, upon, over, under, along, across and through the Franchise Area to provide for the transmission, distribution and sale of gas for power, heat, light and such other purposes for which gas may be used. Section 3. Noninterference of Facilities. 3.1 PSE's Facilities shall be maintained within the Franchise Area so as not to unreasonably interfere with the free passage of traffic and in accordance with the laws of the State of Washington and the City. PSE shall exercise its rights within the Franchise Area in accordance with applicable City codes and ordinances governing use and occupancy of the Franchise Area;provided,however, in the event of any conflict or inconsistency of such codes and ordinances with the terms and conditions of this Franchise, the terms and conditions of this Franchise shall govern and control; provided, further, nothing herein shall be deemed to waive, prejudice or otherwise limit any right of appeal afforded PSE by such City codes and ordinances. 3.2 PSE shall provide the City,upon the City's reasonable request,copies of available drawings in use by PSE showing the location of its Facilities at specific locations within the Franchise Area and shall provide field markings of its underground Facilities within the Franchise Area for the design of City projects at no cost to the City. As to any such drawings so provided, PSE does not warrant the accuracy thereof and, to the extent the location of Facilities are shown, such Facilities are shown in their approximate location. With respect to any excavations within the Franchise Area undertaken by or on behalf of PSE or the City, nothing herein is intended (nor shall be construed) to relieve either party of their respective obligations arising under applicable law with respect to determining the location of utility facilities. Section 4. Relocation of Facilities. 4.1 Whenever the City causes a public right of way improvement to be undertaken within the Franchise Area, and such public right of way improvement requires the relocation of PSE's then existing Facilities within the Franchise Area(for purposes other than those described in paragraph 4.2 below), the City shall: 4.1.1 Provide PSE, within a reasonable time prior to the commencement of such public right of way improvement, written notice requesting such relocation; and 4.1.2 Provide PSE with reasonable plans and specifications for such public right of way improvement. After receipt of such notice and such plans and specifications, PSE shall relocate such Facilities within the Franchise Area at no charge to the City, The City will makes its best efforts to avoid the need for such moving or changing whenever possible. If the City requires the subsequent relocation of any Facilities within five (5) years from the date of relocation of such Facilities ORDINANCE NO.2020-018 Page 2 pursuance to this Section 4.1, the City shall bear the entire cost of the subsequent relocation. In the event the City receives any federal, state or other funds for gas line relocating purposes, PSE will be given credit to the extent any such funds are actually received by the City. 4.2 Whenever (i) any public or private development within the Franchise Area, other than a public right of way improvement, requires the relocation of PSE's Facilities within the Franchise Area to accommodate such development; or(ii)the City requires the relocation of PSE's Facilities within the Franchise Area for the benefit of any person or entity other than the City, then in such event, PSE shall have the right as a condition of such relocation,to require such developer,person or entity to make payment to PSE, at a time and upon terms acceptable to PSE, for any and all costs and expenses incurred by PSE in the relocation of PSE's Facilities. 4.3 Any condition or requirement imposed by the City upon any person or entity, other than PSE, that requires the relocation of PSE's Facilities shall be a required relocation for purposes of paragraph 4.2 above(including,without limitation,any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, construction or development). 4.4 Nothing in this Section 4 "Relocation of Facilities" shall require PSE to bear any cost or expense in connection with the location or relocation of any Facilities then existing pursuant to easement or such other rights not derived from this Franchise. Section 5. Indemnification. 5.1 PSE hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by PSE's own employees for which PSE might otherwise be immune under Title 51 RCW, for injury or death of any person or damage to property caused by or arising out of the negligent acts or omissions of PSE, its agents, servants, officers or employees in the performance of this Franchise, and any rights granted hereunder. The foregoing shall not be interpreted or construed as a waiver of PSE's right to assert any such immunity, defense, or protection directly against any of its own employees, or such employees' estates or other personal representatives. If PSE is required to indemnify and defend the City,PSE shall control the defense. PSE shall not settle such claim,judgment, award or liability without the consent of the City, which consent shall not be unreasonably withheld. This section is not, and shall not be interpreted or shall not constitute as to third parties, a waiver of any defense or immunity available to either Party. PSE, in defending any suit, action, claim or proceeding on behalf of the City, shall be entitled to assert in any such suit, action, claim or proceeding every defense or immunity the City could assert on its own behalf. This Franchise shall not be interpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability pursuant to Washington law or statute. 5.2 Inspection or acceptance by the City of any work performed by PSE at the time of completion of construction shall not be grounds for avoidance by PSE of any of its obligations under this Section 5. Said indemnification obligations shall extend to claims which are properly tendered to PSE but are not reduced to a suit and any claims so tendered which may be compromised prior to the culmination of any litigation or the institution of any litigation. ORDINANCE NO. 2020-018 Page 3 5.3 In the event that PSE refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification provision contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter),to have been a wrongful refusal on the part of PSE,then PSE shall pay all of the City's costs for defense of the action, including all expert witness fees, costs, and attorney's fees, including costs and fees incurred in recovery under this indemnification provision. 5.4 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, employees and agents, PSE's liability hereunder shall be only to the extent of PSE's negligence. It is further specifically and expressly understood that the indemnification provision provided herein constitutes PSE's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this Section shall survive the expiration or termination of this Franchise. Section 6. Insurance 6.1 PSE shall procure and maintain for the duration of this Franchise, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights,privileges and authority granted hereunder to PSE by this Franchise. PSE shall provide a copy of a Certificate of Insurance to the City for its inspection prior to the adoption of this Franchise Ordinance, and such insurance certificate shall evidence a policy of insurance that includes: 6.1.1 Automobile Liability insurance with limits no less than $1,000,000 Combined Single Limit per occurrence for bodily injury and property damage; and 6.1.2 Commercial General Liability insurance,with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products and completed operations;broad form property damage;explosion,collapse and underground (XCU); and employer's liability. 6.2 PSE may satisfy the requirements of Section 6.1 by a self-insurance program or membership in an insurance pool providing substantially the same coverage as set forth above. Upon the City's request, PSE shall provide the City with reasonable written evidence that PSE is maintaining such self-insurance. Section 7. Vacation or Disposal of Franchise Area. 7.1 In the event the City considers vacating or disposing of any portion of the Franchise Area during the term of this Franchise, the City shall provide PSE prior written notice of the same to allow PSE the opportunity to review and comment on the proposed vacation. Thereafter, unless otherwise requested by PSE, the City shall, in its vacation or disposal procedure reserve an easement for existing utilities suitable for PSE's Facilities based on the input received from PSE unless the Arlington City Council finds that such reservation conflicts with the best interests of the public welfare and the City. ORDINANCE NO. 2020-018 Page 4 Section 8. Default. 8.1 If PSE willfully violates or fails to comply with any of the provisions of this Franchise, or through willful misconduct or gross negligence fails to heed or comply with any notice given PSE by the City under 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. If PSE is not in compliance with this Franchise after expiration of said sixty(60)day period,the City may,by ordinance,declare an immediate forfeiture of this Franchise; provided,however, if any failure to comply with this Franchise by PSE cannot 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 and diligently to effect such compliance.. Section 9. Remedies to Enforce Compliance. 9.1 The City may elect,having first provided PSE with a written order to comply and the opportunity to cure such noncompliance in accordance with Section 8,in lieu of the remedies provided by Section 8 and without any prejudice to any of its other legal rights and remedies,to obtain an order from the superior court having jurisdiction compelling PSE to comply with the provisions of this Ordinance and to recover damages and costs incurred by the City by reason of PSE's failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force PSE and/or its successors and assigns to comply with the terms hereof,and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Section 10. City Ordinances and Regulations. 10.1 Except as otherwise provided by Section 3.1 with respect to any conflict or inconsistency with the terms and conditions of this Franchise: 10.1.1. nothing herein shall be deemed to restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating performance of the conditions of this Franchise, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public; 10.1.2. 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 within the Franchise Area by PSE; 10.1.3.PSE shall promptly conform with all such regulations,unless compliance would cause PSE to violate other requirements of law or applicable regulation; and 10.1.4. the provisions of Arlington Municipal Code shall apply to performance of the conditions of this Franchise. ORDINANCE NO.2020-018 Page 5 Section 11. Nonexclusive Franchise. 11.1 This Franchise is not, and shall not be deemed to be, an exclusive Franchise. This Franchise shall not in any manner prohibit the City from granting other and further franchises over, upon, and along the Franchise Area that do not interfere with PSE's rights under this Franchise. This Franchise shall not prohibit or prevent the City from using the Franchise Area or affect the jurisdiction of the City over the same or any part thereof. Section 12. Franchise Term. 12.1 This Franchise is and shall remain in full force and effect for a period of twenty (20) years from and after the effective date of the Ordinance; provided, however, PSE shall have no rights under this Franchise nor shall PSE be bound by the terms and conditions of this Franchise unless PSE shall, within sixty (60) days after the effective date of the Ordinance, file with the City its written acceptance of the Ordinance. Section 13. Assignment. 13.1 This Franchise may not be assigned or transferred without the written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed.PSE shall provide prompt written notice to the City of any such assignment or transfer, and all of the provisions, terms, conditions, and requirements this Franchise shall be binding upon successors and assigns as if they were specifically mentioned wherever PSE is named herein. Notwithstanding the foregoing, PSE shall have the right to mortgage its rights, benefits and privileges in and under this Franchise for the benefit of bondholders. Section 14. Acceptance. 14.1 Within sixty (60) days after the passage and approval of this Ordinance, this Franchise may be accepted by PSE by its filing with the City Clerk an unconditional written acceptance thereof. Failure of PSE to so accept this Franchise within said period of time shall be deemed a rejection thereof by PSE, and the rights and privileges herein granted shall,after the expiration of the sixty day period, absolutely cease and determine,unless the time period is extended by ordinance duly passed for that purpose. Section 15. Survival. 15.1 All of the provisions,terms,conditions and requirements of this Franchise as may be reasonably construed to survive the expiration or termination of this Franchise(including Sections 4,Relocation of Facilities; 5, Indemnification; and 6, Insurance) shall survive the termination or expiration of this Franchise and any renewals or extensions thereof. ORDINANCE NO.2020-018 Page 6 Section 16. Notice. 16.1 Any notice or information required or permitted to be given to the parties under this Franchise agreement may be sent to the following addresses unless otherwise specified: CITY OF ARLINGTON PUGET SOUND ENERGY, INC. Public Works Director P.O. Box 97034 EST04W 238 N. Olympic Ave. Bellevue,WA 98009-9734 Arlington, WA 98223 Attn: Municipal Relations With a copy to: Puget Sound Energy, Inc. P.O. Box 90868 Bellevue, WA 98009-0868 Attn: General Counsel The parties may change their respective notice addresses and designated recipient by written notice to the other party at any time. Section 17. Severability. 17.1 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 unless such invalidity or unconstitutionality materially alters the rights,privileges, duties, or obligations hereunder, in which event either party may request renegotiation of those remaining terms of this Franchise materially affected by such courts'ruling. Section 18. Miscellaneous. 18.1 If any provision, term, condition or portion of this Franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining portions of this Franchise, which shall continue in full force and effect. The headings of sections and paragraphs of this Franchise are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. 18.2 This Franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this Franchise and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise (including, without limitation, Section 5 above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise)by PSE of any and all rights, benefits,privileges,obligations or duties in and under this Franchise,unless such permit,approval, ORDINANCE NO.2020-018 Page 7 license, agreement or other document specifically: 18.2.1 references this Franchise; and 18.2.2 states that it supersedes this Franchise to the extent it contains terms and conditions that change, modify, delete, add to, supplement or otherwise amend the terms and conditions of this Franchise. In the event of any conflict or inconsistency between the provisions of this Franchise and the provisions of any such permit, approval, license, agreement or other document, the provisions of this Franchise shall control. 18.3 This Franchise is subject to the provisions of any applicable tariff on file with the Washington Utilities and Transportation Commission or its successor. In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. Section 19. No Third Party Beneficiary. 19.1 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,nor 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 other party claiming beneficiary of this Franchise and nothing this Franchise shall release or discharge any obligation or liability of any third party to either the City or PSE. Section 20. Effective Date. 20.1 This Ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect (5) days after passage and publication of an approved summary thereof consisting of the title. Section 21. Cost of Publication. 21.1 The cost of the publication of this Ordinance shall be borne by PSE. Passed by the City Council of the City of Arlington the 21 st day of September, 2020. APPROVED: BARBARA TOLBERT, MAYOR ORDINANCE NO.2020-018 Page 8 ATTEST/AUTHENTICATED: 71 WENDY VA DER MEERSCHE, CITY CLERK APPROVED AS TO FORM: BY: CITY (TTO YT�VEN J. PEIFFLE ORDINANCE NO.2020-018 Page 9 CERTIFICATION OF ORDINANCE I, Wendy Van Der Meersche, being the duly appointed City Clerk of the City of Arlington, Washington, a municipal corporation, do hereby certify that the following Ordinance No. 2020-018 was approved at the September 21, 2020 City Council meeting. ORDINANCE NO. 2020-018 "AN ORDINANCE GRANTING PUGET SOUND ENERGY, INC.,A WASHINGTON CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE,AUTHORITY AND FRANCHISE TO SET, ERECT, LAY, CONSTRUCT, EXTEND, SUPPORT,ATTACH, CONNECT, MAINTAIN, REPAIR, REPLACE, ENLARGE, OPERATE AND USE FACILITIES IN, UPON, OVER, UNDER,ALONG,ACROSS AND THROUGH THE FRANCHISE AREA TO PROVIDE FOR THE TRANSMISSION, DISTRIBUTION AND SALE OF NATURAL GAS FOR POWER, HEAT AND LIGHT,AND ANY OTHER PURPOSES FOR WHICH NATURAL GAS AND ELECTRIC ENERGY MAY BE USED." A true and correct copy of the original ordinance is attached. Dated this 22nd day of September, 2020. Q4� Wendy Varf Der Meersche City Clerk for the City of Arlington