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328 PSE Franchise1 3 -f 5 6 7 8 9 10 11 12 13 11 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 311 31 32 33 3 -1 35 36 37 38 39 -iu -11 i3 -i o i7 ORDINANCE N0, 328 AN ORDINANCE granting to Puget Sound Power & Light Company, a Washington corporation, a franchise in a form, of content, and on terms and conditions as set forth in Ordinance No. 323; and amending Section 9 of said Ordinance No. 323 to extend the period within which Puget Sound Power & Light Company may file its written acceptance of said franchise. WHEREAS, on September 10, 1986, a majority of the Town Council of the Town of Yelm passed at a regular meeting Ordinance No. 323. Said Ordinance No. 323 granted to Puget Sound Power & Light Company, a Washington corporation, the right, privilege, authority and franchise to make certain uses of certain roads, streets, avenues, alleys, highways and other public ways of the Town for certain purposes, all as more particularly set forth in said Ordinance No. 323. A copy of said Ordinance No. 323 is attached hereto as "Exhibit A" and is hereinafter referred to as the "Franchise." WHEREAS, Section 9 of the Franchise required Puget Sound Power & Light Company to file with the Town of Yelm its written acceptance of the Franchise not later than thirty (30) days after its effective date. WHEREAS, due to circumstances beyond the control of the Town of Yelm and beyond the control of Puget Sound Power & Light Company, the Franchise was not transmitted to Puget Sound Power & l 2 3 4 5 6 7 H 9 10 11 12 13 1► 15 10 17 18 19 2u 21 22 23 2-i 25 26 27 28 19 30 31 32 33 34 35 36 37 38 39 40 41 tit 43 -1 47 46 47 Light Company in a timely manner and therefore Puget Sound Power & Light Company was not able to provide the Town of Yelm with its written acceptance of the Franchise within said thirty (30) day period. WHEREAS, the Town of Yelm now desires to extend the period within which Puget Sound Power & Light Company may file with the Town of Yelm its written acceptance of the Franchise. NOW, Therefore: BE IT ORDAINED BY THE COUNCIL OF THE TOWN OF YELM, THURSTON COUNTY, WASHINGTON, AS FOLLOWS: Section 1. Franchise. The Town of Yelm does hereby grant to Puget Sound Power & Light Company, a Washington corporation, a franchise in a form, of content, and on terms and conditions as set forth in Ordinance No. 323; provided, however, that Section 9 of said Ordinance No. 323 is hereby amended as follows: This Franchise is and shall remain in full force and effect for a period of thirty (30) years from and after the effective date of this Ordinance No. 328, provided, however, Puget shall have no rights under this Franchise nor shall Puget be bound by the terms and conditions of this Franchise unless Puget shall, within thirty (30) days after the effective date of this Ordinance No. 328, file with the Town its written acceptance of Ordinance No. 323 as amended by this Ordinance No. 328. Section 2. Effective Date. This Ordinance No. 328, having been: (i) first introduced to the Town Council not less than five (5) days before its passage; (ii) submitted to the Town's Attorney; (iii) passed at a regular meeting of the Town Council -2- 1 3 4 5 6 7 8 9 10 11 12 ti 1-i 15 10 17 18 19 20 21 2 '3 2i ?5 26 27 28 9 30 31 2 33 3-1 35 36 37 38 39 =� 0 -► I -+ 3 -F I -15 -10 -i 7 by a vote of at least three members on December 17. 1986; and (iv) published or posted as required by law, shall take effect on December 25, 1986, Signed and approved by the Mayor this 1lthday of Mr^amhar 1986. / Ronald G. Lawton, Mayor- --- e �2 Richard A Patrick Town Clerk Approved as to Form: Randall R. Walker, Town Attorney Date: 04409 -3- HONORABLE MAYOR AND TOWN COUNCIL TOWN OF YELM, WASHINGTON In the matter of the application: of Puget Sound Power & Light Company, 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 Town of Yelm, Washington Franchise Ordinance No. 328 ACCEPTANCE WHEREAS, the Town Council of the Town of Yelm, Washington, has granted a franchise to Puget Sound Power & Light Company, a Washington corporation, its successors and assigns, by enacting Ordinance No. 328, bearing the date of December 19, 1986; and WHEREAS, a copy of said Ordinance granting said franchise was received by the Puget Sound Power & Light Company on December 29, 1986, from said Town of Yelm, Thurston County, Washington. NOW, THEREFORE, Puget Sound Power & Light Company, 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 Town of Yelm, Thurston County, Washington. IN TESTIMONY WHEREOF said Puget Sound Power & Light Company has caused this written Acceptance to be executed in its name by its undersigned Director Real Estate thereunto duly authorized on this /q,,q day of January, 1987. ATTEST: Copy received for Town of Yelm on 3 /�. 1% S7 By: C PI Ce, Town Clerk PUGET SOUND POWER & LIGHT COMPANY By: . ZCAQ41 Director Real Estate 2 -DC -3285 4th Cl. - Ym. 072386 136 "EXHIBIT A" ORDINANCE NO. 123 AN ORDINANCE granting Puget Sound Power & Light Company, a Washington corporation, its successors and assigns, the right, privilege, authority and franchise to set, erect, construct, support, attach, connect and stretch Facilities between, maintain, repair, replace, operate and use Facilities in, upon, over, under, along, across and through the Franchise Area for purposes of transmission, distribution and sale of energy for power, heat, light and any other purpose for which energy can be used; and to charge and collect tolls, rates and compensation for such energy and such uses. BE IT ORDAINED BY THE COUNCIL OF THE TOWN OF YELM, THURSTON COUNTY, WASHINGTON, AS FOLLOWS: Section 1. Definitions. 1.1 All words used in this franchise (the "Franchise ") shall carry their customary and ordinary meaning unless otherwise specifically defined herein. For purposes of this Franchise, the following terms, phrases, words and their derivations shall have the meaning set forth below: 1.1.1 "Puget" means Puget Sound Power & Light Company, a Washington corporation, and its respective successors and assigns. 1.1.2 "Town" means the Town of Yelm, a municipal corporation of the State of Washington, and its respective successors and assigns. 1.1.3 "Franchise Area" means any, every and all of the roads, streets, avenues, alleys, highways, and other public ways of the Town as now laid out, platted, dedicated or improved, or as may hereafter be laid out, platted, dedicated or improved within the present limits of the Town and as such limits may be extended after the effective date of this Franchise. 1.1.4 "Facilities" means poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, braces, guys, anchors, vaults and all necessary or convenient facilities and appurtenances thereto, whether the same be located over or under ground. 1.1.5 "Ordinance" means this Ordinance No. 323 1 which sets forth the terms and conditions of this Franchise. Section 2. Authority. 2.1 The Town hereby grants to Puget the right, privilege, authority and franchise to: 2.1.1 Set, erect, construct, support, attach, connect and stretch Facilities between, maintain, repair, replace, operate and use Facilities in, upon, over, under, along, across and through the Franchise Area for purposes of transmission, distribution and sale of energy for power, heat, light and any other purpose for which energy can be used; and 2.1.2 To charge and collect tolls, rates and compensation for such energy and such uses. Section 3. Noninterference of Facilities. 3.1 Puget's Facilities shall be maintained within the Franchise Area so as not to unreasonably interfere with the free passage of traffic within the Town and in accordance with the laws -1- 2 -DC -3285 4th C1. - Ym. 072386 137 of the State of Washington. Whenever it shall be necessary for Puget, in the exercise of its rights under this Franchise, to make any excavation in the Franchise Area, Puget shall, upon completion of such excavation, restore the surface of the Franchise Area, as nearly as practicable, to the same condition as existed prior to such excavation. Section 4. Relocation of Facilities. 4.1 Whenever the Town causes the grading or widening of the Franchise Area and such grading or widening requires the relocation of Puget's then existing Facilities within the Franchise Area, the Town shall: 4.1.1. provide Puget, within a reasonable time prior to the commencement of such grading or widening, written notice requesting such relocation; and 4.1.2 provide Puget with reasonable plans and specifications for such grading or widening. After receipt of such notice and such plans and specifications, (` Puget shall relocate such Facilities within the Franchise Area at Ln no charge to the Town. If the Town requires the subsequent LO relocation of any Facilities within five (5) years from the date 0 of relocation of such Facilities pursuant to this Section 4.1, the Town shall bear the entire cost of subsequent relocation, unless CO such subsequent relocation is caused by circumstances beyond the .Q Town's reasonable control. 4.2 Whenever any person or entity, other than the Town, requires the relocation of Puget's Facilities to accommodate the work of such person or entity within the Franchise Area; or, whenever the Town requires the relocation of Puget's Facilities within the Franchise Area for purposes other than those set forth in Section 4'.1 above, then Puget shall have the right as a condition of such relocation to require such person or entity to: 4.2.1 make payment to Puget, at a time and upon terms acceptable to Puget, for any and all costs and expenses incurred by Puget in the relocation of Puget's Facilities; and 4.2.2 indemnify and save Puget harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or in conjunction with the relocation of Puget's Facilities, to the extent such injury or damage is caused by the negligence of the person or entity requesting the relocation of Puget's Facilities or the negligence of the agents, servants or employees of the person or entity requesting the relocation of Puget's Facilities. 4.3 Any condition or requirement imposed by the Town upon any person or entity, other than Puget (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, landuse, construction or development) which requires the relocation of Puget's Facilities shall be a required relocation for purposes of Section 4.2. 4.4 Nothing in this Section 4 "Relocation of Facilities" shall require Puget to bear any cost or expense in connection with the location or relocation of any Facilities then existing under benefit of private easement or such other prior rights. Section 5. Indemnification. 5.1 Puget shall indemnify and save the Town harmless from and against any and all claims and demands made against the Town on account of injury or damage to the person or property of -2- 2 -DC -3285 4th C1. - Ym. 1 3 Sanother, to the extent such injury or damage is caused by the negligence of Puget or its agents, servants or employees in exercising the rights granted Puget in this Franchise; provided, however, that in the event any such claim or demand be presented to or filed with the Town, the Town shall promptly notify Puget thereof, and Puget shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand; provided further, that-in the event any suit or action is commenced against the Town based upon any such claim or demand, the Town shall likewise promptly notify Puget thereof, and Puget shall have the right, at its election and its sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own election. Section 6. Moving Buildinqs within the Franchise Area. 6.1 If any person or entity obtains permission from the Town to use the Franchise Area for the moving or removal of any building or other object, the Town shall, not less than fourteen (14) days prior to granting such permission, require such person or entity to make any and all reasonably necessary arrangements with Puget for the temporary adjustment of Puget's overhead cables, wires and lines to accommodate the moving or removal of such building or other object. In such event, Puget shall at the expense of the person or entity desiring to move or remove such building or other object, adjust any of its overhead cables, wires and lines which may obstruct the moving or removal of such building or other object, provided that: 6.1.1 the moving or removal of such building or other object which necessitates the adjustment of Puget's overhead cables, wires and lines shall be done at a reasonable time and in a reasonable manner so as not to unreasonably interfere with Puget's business; 6.1.2 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 Puget's business; and 6.1.3 the person or entity obtaining such permission from the Town to move or remove such building or other object shall be required to indemnify and save Puget harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or in conjunction with the moving or removal of such building or other object, to the extent such injury or damage is caused by the negligence of the person or entity moving or removing such building or other object or the negligence of the agents, servants or employees of the person or entity moving or removing such building or other object. Section 7. Default. 7.1 If Puget shall fail to comply with the provisions of this Franchise, the Town may serve upon Puget a written order to so comply within forty -five (45) days from the date such order is received by Puget. If Puget is not in compliance with this Franchise after expiration of said forty -five (45) day period, the Town may, by ordinance, declare an immediate forfeiture of all rights, privileges, and authority granted to Puget by this Franchise; provided, however, if any failure to comply with this Franchise by Puget cannot be reasonably corrected with due diligence within said forty -five (45) day period ( Puget's obligation to comply and to proceed with due diligence being subject to unavoidable delays and events beyond its control), and so long as Puget has promptly commenced and diligently pursued such corrective action within said forty -five (45) day period, then the time within which Puget may so comply shall be extended for such time as may be reasonably necessary to effect such compliance. -3- 2 -DC -3285 4th C1. - Ym. 072386 Section 8. Nonexclusive Franchise. 8.1 This Franchise is not and shall not be deemed to be an exclusive Franchise. This Franchise shall not in any manner prohibit the Town from granting other and further franchises over, upon, and along the Franchise Area which do not unreasonably interfere with Puget's rights under this Franchise. This Franchise shall not prohibit or prevent the Town from using the Franchise Area or affect the jurisdiction of the Town over the same or any part thereof. Section 9. Franchise Term. 9.1 This Franchise is and shall remain in full force and effect for a period of thirty (30) years from and after the effective date of the Ordinance, provided, however, Puget shall have no rights under this Franchise nor shall Puget be bound by the terms and conditions of this Franchise unless Puget shall, within thirty (30) days after the effective date of the Ordinance, file with the Town its written acceptance of the Ordinance. 11.1 If any term, provision, condition or portion of this Franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining 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. 11.2 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, executed and adopted by ordinance in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise (including, without limitation, Section 5.1 above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the Town in conjuction with the exercise (or failure to exercise) by Puget of any and all rights, benefits, privileges, obligations or duties in and under 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. 11.3 This Franchise is subject to the provisions of any applicable tariff now on file with the Washington Utilities and Transportation Commission. In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. -4- 2 -DC -3285 4th C1. - Ym. 072386 139 Section 10. Assignment. 10.1 Puget shall have the right to assign its rights, benefits and privileges in and under this Franchise; provided, Lo that prior to the effective date of any such assignment, Puget 0 shall file written notice of the assignment with the Town together M with its assignee's written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, Puget shall have the right, without such notice or such written acceptance, to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. Section 11. Miscellaneous. 11.1 If any term, provision, condition or portion of this Franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining 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. 11.2 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, executed and adopted by ordinance in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise (including, without limitation, Section 5.1 above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the Town in conjuction with the exercise (or failure to exercise) by Puget of any and all rights, benefits, privileges, obligations or duties in and under 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. 11.3 This Franchise is subject to the provisions of any applicable tariff now on file with the Washington Utilities and Transportation Commission. In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. -4- 2 -DC -3285 4th C1. - Ym. 072386 139 140 Section 12. Repealer. 12.1 It is the intent of the Town Council that this Ordinance completely replaces and supplants Ordinance No. 318 passed by vote of the Town Council on June 11, 1986; such earlier Ordinance should be and hereby is repealed in its' entirety. Section 13. Effective Date. 13.1 This Ordinance, having been: (i) first introduced to the Town Council not less than five days before its passage; (ii) submitted to the Town's Attorney; (iii) passed at a regular meting of the Town Council by a•vote of at least three members on 4PntPmber 10 1986; and (iv) published or posted as required by law, shall take effect on September 18 , 1986. Signed and approved by the Mayor the loth day of �gPptPmhfr 1986. Approved as to Form: Zndall R. Walker, Town Attorney Date: / 0 _ 51: Ronald Lawton, Mayor ATTEST: S hj- C1 dc"t -- Richard dt -rick, ` cwa -Clark 2- DC -32B5 4th C1. - YM. 072386 STATE OF WASHINGTON ) SS. COUNTY OF THURSTON ) 141 I, Richard Patrick, the duly appointed, qualified Town Clerk of the Town of Yelm, a municipal corporation of the fourth class, situate in the County of Thurston, State of Washington, do hereby certify that the foregoing is a full, true and correct copy of Ordinance No. 323, an ordinance of the Town of Yelm, entitled: ORDINANCE NO. —i?i_ AN ORDINANCE granting Puget Sound Power & Light Company, a Washington corporation, its successors and assigns, the right, privilege, authority and franchises to set, erect, construct, support, attach, connect and stretch Facilities between, maintain, repair, replace, operate and use Facilities in, upon, over, under, along, across and through the Franchise Area for purposes of transmission, distribution and sale of energy for power, heat, light and any other purpose for which energy can be used; and to charge and collect tolls, rates and compensation for such energy and LO such uses. I further certify that said Ordinance.No. 323 was: (i) introduced to the Town Council on the 14thday of August Q 1986: (ii) submitted to the Town Attorney on the lOr1 day of September , 1986; (iii) published or posted according to law; (iv) approved by at least three members of the Town Council at a regular meeting thereof on the 10thday of September , 1986; and, (v) approved and signed by the Mayor of the Town of Yelm on the lothday of September , 1986. WITNESS my hand and official seal of the,Town of Yelm this 12th day of September , 1986. Richard Patrick, Town Clerk Town of Yelm, State of Washington -6- 2 -DC -3285 4th C1. — Yin.