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HomeMy WebLinkAboutord2005-076WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2005 -392 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned 10: Dri 'na:or: dl 09119105 P1i 'c— L9 E �J L_, '.0 � { � 4 - 2005 ``��{{ x y� n Y': HA i�L A� 1. 01 F'J f 'if CE1 ". i.' l��J:'..:L 10/11/05 Intro 0/25/05 Public Hear Division Head: Dept, Head: �'tr" 1 zo 05 Praseeoror: d 09119105 Purrhasjn /Bud e1.• Exemiw: TITLE OF DOCUMENT.• Puget Sound Energy Franchise Ordinance (proposed] ATTACHMENTS: Ordinance & Memorandum SETA review required? ( ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Should Clerk schedule a hearing ? Yes ( ) NO Requested Date: October 25, 2005 at 7:00 p.m., in the County Council Chambers of the Whatcom County Courthouse SUMMAR Y STA TEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Pursuant to RCW 36.55.040 and Whatcom County Code 12.24.051, notice is hereby given ofpublic hearing before the County Council on a proposed ordinance that, if adopted, would grant a franchise for a period of twenty -five (25) years Puget Sound Energy to use County right -of -way in certain locations generally within its service area for purposes of placing electrical transmission lines and associated facilities, those locations more fully described within the proposed ordinance on file wnth the County Council. The public hearing will be held during the County Council meeting scheduled for 7:00 p.m., October 25, 2005, in Council Chambers of the Whatcom County Courthouse, 311 Grand Avenue, Bellingham, Washington. Pursuant to RCW 36.55.050, the hearing may be adjourned from time to time by order of the County Council until action is taken by the Council upon the proposed ordinance. COMMITTEE ACTION: COUNCIL ACTION: 10/11/2005: Introduced 10/25/2005: Adopted 7 -0 Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Ord. 2005 -076 Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's websiteat: www.co.whalcom.wa . u.ycounciL ing 2051200973 IIII, II IIII IIII (IIII III III Page: 1 of 15 IIII 12/06/2005 11=40 ,RAN $46. .0 PO Whstcom County. 'WA Req.,est o °: WHR'20% COUNTY COUNCIL RETURN DOCUMENT TO: MARINA ENGELS WHATCOM COUNTY COUNCIL OFFICE DOCUMENT TITLE: ORDINANCE NO, 2005 -075 GRANTING PUGET SOUND ENERGY, INC., A WASHINGTON CORPORATION ITS SUCCESSORS AND ASSIGNS, A FRANCHISE AND THE RIGHT, PRIVILEGE, AND AUTHORITY THEREUNDER 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 ELECTRICAL ENERGY FOR POWER, HEAT, AND LIGHT, AND ANY OTHER PURPOSES FOR WHICH ELECTRICAL ENERGY MAY BE USED REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED: ORDINANCE 2005 -075 GRANTOR(S) : Whatcom County GRANTEE(S): PUGET SOUND ENERGY ABBREVIATED LEGAL DESCRIPTION (Lot, block, plat, or section, township, range) None Additional legal description can be found on page of document. ASSESSOR'S PARCEL NUMBER: None SPONSORED BY: Consent PROPOSED BY: Executive INTRODUCTION DATE: 10111/0 5 ORDINANCE NO.2005 -076 GRANTING PUGET SOUND ENERGY, INC., A WASHINGTON CORPORATION, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE AND THE RIGHT, PRIVILEGE, AND AUTHORITY THEREUNDER 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 ELECTRICAL ENERGY FOR POWER, HEAT, AND LIGHT, AND ANY OTHER PURPOSES FOR WHICH ELECTRICAL ENERGY MAY BE USED. WHEREAS, Puget Sound Energy, Inc. (hereinafter referred to as PSE), a Washington corporation, has applied for a twenty -five year franchise; and WHEREAS, RCW 36.55, Whatcom County Charter, Section 9.30, and Whatcom County Code Chapter 12.24 address the requirements pertaining to the granting of franchises by the County; and WHEREAS, PSE desires a non - exclusive franchise to construct, erect, alter, improve, renew, replace, repair, operate and maintain electric transmission and distribution lines upon, under, over, across and along certain roads and other areas in Whatcom County, Washington: and WHEREAS, said application has come on regularly to be heard by the County Council on the 25th day of October, 2005, and notice of this hearing having been duly published on the 15`" day of October, 2005, and the 22nd day of October, 2005, in the Bellingham Herald, a daily newspaper published in Whatcom County having county -wide circulation; and WHEREAS, it appears to the Council that notice of said application and hearing thereon has been given as required by law in RCW 36.55.040; and WHEREAS, this Council finds, after having considered said application and being otherwise fully advised in the premises, that it is in the public interest for this Council to grant the franchise; NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council as follows: Section 1. Definitions. 1.1 Where used in this franchise agreement (the "Franchise "), the following terms shall fiird:7ii 1.1.1 "County" means the County of Whatcom, a political subdivision of the State of Washington, and its successors and assigns. 1.1.2 "PSE" means Puget Sound Energy, Inc., a Washington corporation, and its successors and assigns. 1.1.3 "Franchise Area" means any, every and all of the roads, streets, avenues, alleys, highways, grounds, and public places of the County as now laid out, platted, dedicated, or improved; and any, every and all of the roads, streets, avenues, alleys, highways, grounds and public places that may hereafter be laid out platted, dedicated or improved within the present limits of the County and as such limits may be hereafter extended. 1.1.4 "Facilities" means, collectively, any and all electric transmission and distribution systems, including but not limited to, poles (with or without crossarms), wires, lines, conduits, cables, braces, guys, anchors and vaults, meter - reading devices, fixtures, and communication systems; and any and all other equipment, appliances, attachments, appurtenances and other items necessary, convenient, or in any way appertaining to any and all of the foregoing, whether the same be located over or under ground. 1.1.5 "Ordinance" means Ordinance Nc2ooS. n07Fa which sets forth the terms and conditions of this Franchise. Section 2. Facilities Within Franchise Area, 2.1 The County does hereby grant to PSE the Franchise, and the right, privilege, and authority thereunder, 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 energy for power, heat, light and such other purposes for which energy may be used. Section 3. County Authority. 3.1 The County, in granting this Franchise, does not waive any rights which it now has or may hereafter acquire with respect to the Franchise Area, and this Franchise shall not be construed to deprive the County of any powers, rights, or privileges which it now has, or may hereafter acquire, to regulate the use of and to control the Franchise Area. Section 4. Noninterference of Facilities. 4.1 PSE's Facilities shall be placed and maintained within the Franchise Area so as not to unreasonably interfere with the free passage of traffic and in accordance with all applicable laws, rules, and regulations. Upon determination by the County that current placement of particular Facilities unreasonably interferes with free or safe passage of traffic, apart from that caused by road improvements necessitated by permit conditions upon new development, the County shall notify PSE which shall, at its own expense, act promptly to rectify the problem in consultation with the County. PSE shall exercise its rights under this Franchise and within the Franchise Area in accordance with all County 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 to the extent authorized by law; provided, further, nothing herein shall be deemed to waive, prejudice or otherwise limit any right of appeal afforded PSE by such County codes and ordinances. 4.2 All construction or installation of such Facilities, service, repair, or relocation of the same, performed over, above, along or under the Franchise Area shall be done in such a manner as not to interfere unreasonably with the construction and maintenance of other utilities, lines, public or private, drains, drainage ditches and structures, irrigation ditches and structures, located therein, nor with the grading or improvement of the Franchise Area. The owners of all utilities, public or private, installed in the Franchise Area prior in time to the Facilities of PSE shall have preference as to the positioning and location of such utilities so installed with respect to PSE. Such preference shall continue in the event of the necessity of relocating or changing the grade of the Franchise Area. PSE shall have such preference as to owners of all utilities, public or private, initially installed in the Franchise Area subsequent in time to PSE's Facilities. 4.3 The laying, construction, operation and maintenance of PSE's Facilities authorized by this Franchise shall not preclude the County, its agents or its contractors from blasting, grading, excavating, or doing other necessary road work contiguous to PSE's Facilities, provided that PSE shall be given forty -eight (48) hours notice of said blasting or other work in order that PSE may protect its Facilities. Section 5. Construction Within the Franchise Area, 5.1 All construction and installation work within the Franchise Area shall be subject to the approval and pass the inspection of the County Engineer, and shall conform to all applicable local, state and federal standards, codes or regulations, and the County expressly reserves the right to prescribe how and where poles, lines and wires shall be installed and may from time to time, upon reasonable notice, require the removal and replacement thereof in the public interest subject to Section 6 of this franchise. 5.2 Prior to commencement of construction of any new Facilities, PSE shall first file with the County Engineer its application for permit to do such work, together with plans and specifications in duplicate showing the position and location of all such Facilities sought to be constructed, laid, installed or erected at that time showing their position relative to existing County roads, rights -of -way, or other County property within the Franchise Area upon plans drawn to scale. The Facilities shall be laid in conformity with said plans and specifications of definite location, except in instances in which deviation maybe allowed thereafter in writing by the County Engineer. The plans and specifications shall specify the class and type of material and equipment to be used, manner of excavation, construction, installation backfill, erection of temporary structures, erection of permanent structures, traffic control, traffic turnouts and road obstructions, etc. No such construction shall be commenced without PSE first securing a written permit from the County Engineer, including approval endorsed on one set of plans and specifications returned to PSE. All such work shall be subject to the approval of and shall pass the inspection of the County Engineer. PSE shall pay all costs of and expenses incurred in the examination, inspection and approval of such work on account of granting the said permits. UUM 5.3 In any work which requires breaking of soil within the Franchise Area for the purpose of laying, relaying, connecting, disconnecting, and repairing PSE's Facilities, and making connections between the same to structures and buildings of consumers or making connections to other Facilities now in existence or hereafter constructed, PSE shall be governed by and conform to the general rules adopted by the officers charged with the supervision and care of the Franchise Area; and PSE at its own expense and with due diligence shall complete the work for which the soil has been broken and forthwith replace the work and make good the Franchise Area and leave the same in as good condition as before the work was commenced; provided, however, that no such breaking of the soil within the Franchise Area shall be done prior to the obtaining of a permit issued by the County Engineer. Applications for such a permit shall be accompanied by specifications for the restoration of the Franchise Area to the same condition as it was in prior to such breaking, and such specifications must be approved by the County Engineer before such breaking of the soil is commenced; provided further, that the County Engineer may require a performance bond in a sum sufficient to guarantee that such Franchise Area shall be restored to the same condition as it was in prior to such breaking of the soil, the amount of said bond to be fixed by the County Engineer. PSE shall pay all costs of and expenses incurred in the examinanon, inspection and approval of such restoration. The County Engineer may at any time do, order, or have done, any and all work that he considers necessary to restore to a safe condition any Franchise Area left by PSE or its agents in a condition dangerous to life or property, and PSE upon demand shall pay to the County all costs of such work. 5.4 In preparing plans and specifications for the installation of Facilities within the Franchise Area, PSE shall reasonably conform to the standards and specifications established by the County Engineer. PSE shall consult with the County Engineer in case it plans to deviate from his standards and specifications in the course of installing Facilities within the Franchise Area and must demonstrate to the satisfaction of the County Engineer that its plans will achieve a legal and functionally equivalent result. 5.5 All work done by and for PSE under this Franchise shall be done in a thorough and workmanlike manner. In the construction of Facilities and the opening of trenches within and the tunneling under the Franchise Area, PSE shall leave such trenches, and tunnels in such a way as to interfere as little as possible with public travel, and shall take all due and necessary precautions to guard the same, so that damage or injury shall not occur or arise by reason of such work. 5.6 Before any work is performed under this Franchise which may affect any existing monuments or markers of any nature relating to subdivisions, plats, roads and all other surveys, PSE shall reference all such monuments and markers. The reference points shall be so located that they will not be disturbed during PSE's operations under this Franchise. The method of referencing these monuments or other points to be referenced shall be approved by the County Engineer. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit, and as directed by the County Engineer. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement by approved monuments shall be borne by PSE. A complete set of reference notes for monuments and other ties shall be filed with the County Engineer's Office. 0� Section 6. Relocation of Facilities. 6.1 If at any time the County shall improve or change any part of the Franchise Area by grading or regrading, planking or paving the same, changing the grade, altering, changing, repairing or relocating the same or by constructing drainage facilities, or in the event that such part of the Franchise Area shall become a State Highway as provided by law, PSE, upon written notice from the County Engineer or the Director of Highways, shall at its sole expense and with due diligence change the location or adjust the elevation of its Facilities so that the same shall not interfere with such County work and so that such Facilities shall conform to such new grades or routes as may be established. PSE shall coordinate such relocation or adjustment of its Facilities with the County and shall perform same in a timely fashion so that, absent conditions beyond the control of PSE, such relocation or adjustment of PSE's Facilities will not impede or delay such improvement or changing of the Franchise Area. 6.2 PSE may propose to the County alternatives to reduce or eliminate the need for relocation of its Facilides pursuant to Section 6.1. Upon the County's receipt from PSE of such alternatives in writing, the County shall evaluate such alternatives and shall advise PSE in writing if one or more of such alternatives are suitable to accommodate the work that would otherwise necessitate relocation of PSE's Facilities. In evaluating such alternatives, the County shall give each alternative proposed by PSE full and fair consideration with due regard to all the facts and circumstances which beat upon the practicality of relocation and alternatives to relocation. In the event the County reasonably determines that such alternatives are not appropriate, PSE shall relocate its Facilities as otherwise provided in Section 6.1. Any acceptance by the County of such alternatives shall not excuse (nor shall be construed to excuse) PSE_ from future relocation or adjustment of PSE's Facilities pursuant to this Section 6. 6.3 As qualified in Section 6.2 above and 6.4 below, whenever any person or entity, other than the County, requires the relocation of PSE's Facilities to accommodate the work of such person or entity within the Franchise Area, or whenever the County requires the relocation of PSE's Facilities within the Franchise Area for the benefit of any person or entity other than the County, then PSE shall have the right as a condition of such relocation to require such person or entity to: 6.3.1 make payment to PSE, at a time and upon terms acceptable to PSE, which acceptance shall not be unreasonably withheld, for any and all costs and expenses incurred by PSE in the relocation of PSE's Facilities; and 6.3.2 indemnify and save PSE 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 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. 6.4 Any condition or requirement imposed by the County upon any person or entity, other than PSE or the County (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, Page 5 construction or development) which requires the relocation of PSE's Facilities shall be a required relocation for purposes of Section 6.3; provided however: 6.4.1. If the County notifies PSE in writing that 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 County's behalf consistent with the County's Six -Year Road Construction Program, then PSE shall relocate its Facilities within the Franchise Area in accordance with Section 6.1. 6.4.2 If the County notifies PSE in writing that the County will bear a portion of the costs of, or will provide funding towards, a project that includes grading or widening of the Franchise Area resulting from the imposition of such condition or requirement upon such person or entity, then PSE agrees to bear a portion of its costs and expenses to relocate its Facilities to accommodate such grading or widening, such portion home by PSE being a percentage equal to that percentage of such project's costs home or funded by the County (the "County Contribution "); provided however, in no event shall such portion borne by PSE exceed the dollar amount of such County Contribution. "Project" shall mean that work directly bearing on the area that necessitates relocation by PSE, and shall not include other off -site improvements that may be performed at the same time. In all other respects such relocation shall be a required relocation for the purposes of Section 6.3 and without limiting the foregoing, PSE shall have the right as a condition of such relocation to require such person or entity to pay to PSE all relocation costs and expenses in excess of the portion home by PSE under this Section 6.4.2. Provided further, if the Facilities to be relocated pursuant to this subsection 6.4 have been located at or relocated within the preceding five (5) years to a location upon which the County had agreed at the time without reservation, then PSE shall be entitled to recovery of all its costs and expenses incurred in the relocation of its Facilities from the party, on whom the condition for road improvements was placed. Documentation of any such agreement between the County and PSE shall be kept in conjunction with the encroachment permit issued by the County for the work of relocation. 6.5 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 pursuant to easement or such other rights not derived from or addressed by this Franchise. Section 7. Indemnification. 7.1 PSE shall defend, indemnify and hold the County harmless from any and all claims, demands, suits, actions, costs and expenses, including but not limited to attorney's fees, made against it on account of injury or damage to the person or property of another, but only to the extent such injury or damage is caused by the actions or failure to act of PSE, its agents, servants or employees in exercising the rights granted to PSE in this Franchise; provided, however, that in the event any such claim or demand be presented to or filed with the County, the County shall promptly notify PSE thereof, and PSE 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 begun against the County based upon any such claim or demand, the County shall likewise promptly notify �s PSE thereof, and PSE 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. If damages to another or others result from concurrent negligence of PSE and the County, PSE and the County shall each be responsible for, and this indemnification provision shall be operative so that each party bears, the proportionate share attributable to its own negligence. In case judgment which is not appealed shall be tendered against the County in such suit or action, PSE shall fully satisfy said judgment within ninety (90) days after said suit or action shall have finally been determined. Upon PSE's failure to satisfy said judgment within ninety (90) days, the County may elect to terminate this Franchise pursuant to the terms of Section 20 herein. The provision for reimbursement of the County shall survive the termination of this Franchise. 7.2 Acceptance by the County of any work performed by PSE at the time of completion shall not be grounds for avoidance of this covenant. Section 8. Acquisition of Right -of -Way. 8.1 In the event that PSE proposes to acquire easements for the location or relocation of its Facilities outside of, and adjacent to the Franchise Area, PSE shall notify the County of same and the County shall have the option, with the concurrence of PSE, to acquire in place of such PSE proposed easements, additional public rights -of -way or equivalent public utility easements for use by PSE. Any such public rights -of -way acquired by the County shall become Franchise Area. Any such public utility easements so acquired by the County shall not be Franchise Area (and shall not be subject to the terms and conditions of this Franchise) and PSE's use of such public utility easements shall be subject to the terms and conditions of such public utility easements.l Section 9. Vacation of the Franchise Area. 9.1 If at any time the County shall vacate any portion of the Franchise Area and said vacation shall be for the purpose of acquiring the fee or other property interest in said portion of the Franchise Area for the use of the County, in either its proprietary or governmental capacity, then the County Engineer may at his option and by giving thirty- (30) days written notice to PSE terminate this franchise with reference to such portion of the Franchise Area so vacated, and the County shall not be liable for any damages or loss to PSE by reason of such termination. 9.2 If at any time the County shall vacate any portion of the Franchise Area in which Facilities are installed at the time of said vacation, and said vacation shall be for the purpose of acquiring the fee or other property interest in said portion of the Franchise Area by other than the County, then the County shall, in its vacation procedure, unless otherwise waived in writing by PSE, reserve an easement to PSE for PSE's Facilities. Section 10. Moving Buildings within the Franchise Area. I A distinction is drawn here between public rights -of -way which are or shall become Franchise Area and thus governed by the terms of the franchise ordinance, and public utility easements which shall not become Franchise Area, the use of which shall be governed by the terms and conditions of the easements themselves and not by the franchise ordinance. 10.1 If any person or entity obtains permission from the County to use the Franchise Area for the moving or removal of any building or other object, the County shall, prior to granting such permission, direct such person or entity to arrange with PSE for the temporary adjustment of PSE's overhead wires necessary to accommodate the moving or removal of such building or other object. Such person or entity shall make such arrangements, upon terms and conditions acceptable to PSE, not less than fourteen (14) days prior to the moving or removal of such building or other object. In such event, PSE shall, at the sole cost and expense of the person or entity desiring to move or remove such building or other object, adjust any of its overhead wires which may obstruct the moving or removal of such building or object. Section 11. County Use of Facilities. 11.1 During the term of this Franchise, and with respect to poles which are Facilities and which are (i) wholly owned by PSE and (ii) within the Franchise Area, the County, subject to PSE's prior written consent which shall not be unreasonably withheld, may install and maintain County - owned overhead wires and cables upon such poles for police, fire, traffic control and other noncommercial municipal communications purposes. The foregoing rights of the County to install and maintain such wires and cables are further subject to the following. 11.1.1 Such installation and maintenance shall be done by the County at its sole risk and expense, in accordance with all applicable laws, and subject to such reasonable requirements as PSE may specify from time to time (including, without limitation, requirements accommodating PSE's Facilities or the facilities of other parties having the right to use PSE's Facilities); 11.1.2 PSE shall have no obligation arising under the indemnity provisions in Section 7 of this Franchise as to any circumstances directly or indirectly caused by or related to such County -owned wires and cables or the installation or maintenance thereof; and 11.1.3 PSE shall not charge the County a fee for the use of such poles in accordance with this Section 11 as a means of deriving revenue therefrom; provided, however, nothing herein shall require PSE to bear any cost or expense in connection with such installation and maintenance by the County, including any costs or expense incurred by PSE to make PSE's poles ready for County use and /or review of County plans and specifications for such County use of PSE's poles. Section 12. Locating Facilities. 12.1 PSE and the County acknowledge and commit to fully comply with their respective obligations, as the same may arise from time to time, under Chapter 19.122 RCW (Underground Utilities Locator Statute) or any other law applicable to determining the location of utility facilities. Section 13. Nonexclusive Franchise. 13.1 This Franchise is not and shall not be deemed to be an exclusive franchise. It shall not in any manner prohibit the County from granting other franchises of a like nature or franchises for other Lj public or private utilities under, along, across, over, and upon any part of the Franchise Area, and shall in no way prevent or prohibit the County from constructing, altering, maintaining, using, or vacating any part thereof , or affect its jurisdiction over any part thereof with full power to make all necessary changes, relocations, repairs, maintenance, etc., the same as the County may deem fit. Section 14. Franchise Term, 14.1 This Franchise is and shall remain in full force and effect for a period of twenty -five (25) years from and after the effective date of the Ordinance; provided, however, PSE shall have no rights under this Franchise not 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 County its written acceptance of the Ordinance. Section 15. Assignment. 15.1 Neither this franchise nor any interest herein shall be sold, transferred, or assigned without the prior consent in writing of the Counts- Council, which consent shall not be unreasonably withheld, except that the grantee may mortgage this franchise to the trustee for its bond holders. Any approved assignee shall, within thirty (30) days of the date of any assignment, file written notice of the assignment with the County, together with its written acceptance of all terms and conditions of this Franchise. 15.2 All the provisions, conditions, and requirements herein contained shall be binding upon the successors and assigns of PSE, and all privileges, as well as all obligations and liabilities of the grantee shall inure to its successors and assigns equally as if they were specifically mentioned wherever PSE is mentioned. Section 16. Amendment. 16.1 Except as addressed in and through Section 16.3 below, 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 County 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, 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 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. UM 16.2 If, during the term of this Franchise, there becomes effective any change in federal or state law (including changes approved by the Washington Utilities and Transportation Commission) which: 16.2.1 affords either party the opportunity to negotiate in good faith a term or condition of this Franchise which term or condition would not have, prior to such change, been consistent with federal or state law; or 16.2.2 pre -empts or otherwise renders null and void any term or condition of this Franchise which has there -to -fore been negotiated in good faith. Then, in such event, either party may notify the other party in writing that such party desires to commence negotiations to amend this Franchise. Such negotiations shall encompass only the specific term or condition affected by such change in federal or state law and neither party shall be obligated to re -open negotiation on any other term or condition of this franchise. 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 County and acceptance of such Ordinance by PSE, and except as to any portion thereof which has been pre - empted or otherwise tendered null and void by such change in federal or state law, this Franchise shall remain in full force and effect. 16.3 Nothwithstanding any language to the contrary contained herein, this Franchise is subject to the provisions of the Whatcom County Charter, Section 9.30, and all rights belonging to the County and its people as set forth therein are hereby reserved thereto. Section 17. Miscellaneous 17.1 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. 172 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. 17.3 This Franchise is subject to the requirements of any and all applicable laws, rules, and regulations, including the Whatcom County Code, as currently enacted or hereafter modified. In the event of any actual conflict between the provisions of this Franchise and the requirements of the Whatcom County Code or County enacted rules or regulations, the provisions of this Franchise shall control, to the extent authorized by law. 17.4 All notices, demands, requests, consents and approvals which mav, or are required to be given by any party to any other party hereunder, shall be in writing and shall be deemed to have been duly given if delivered personally, sent by facsimile, sent by a nationally recognized overnight delivery service, or if mailed or deposited in the United States mail and sent by registered or certified mail, return receipt requested, postage prepaid to: For the County: County Executive For PSE: Puget Sound Energy Whatcom County Courthouse PO Box 90868 311 Grand Ave. Bellevue, WA 98009 -0868 Bellingham, WA 98225 Attn: Community Services or to such other address as the foregoing parties hereto may from time -to -time designate in writing and deliver in a like manner. All notices shall be deemed complete upon actual receipt or refusal to accept delivery. Facsimile transmission of any signed original document, and retransmission of any signed facsimile transmission shall be the same as delivery of an original document. 17.5 No failure by any of the foregoing parties to insist upon the strict performance of any covenant, duty, agreement, or condition of this Franchise or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, agreement, term or condition. No waiver shall affect or alter this Franchise, and each and every covenant, agreement, term and condition of this franchise shall continue in full force and effect with respect to other then existing or subsequent breach thereof. Section 18. Incorporation and Annexation. 18.1 Whenever any part of the Franchise Area, by reason of the subsequent incorporation of any town or city, or extension of the limits of any town or city, shall fall within the city or town limits, this Franchise shall continue in force and effect as to all of the Franchise Area not so included in city or town limits. Section 19. Insurance. 19.1 During the term of this Franchise PSE shall keep in effect, a liability insurance policy covering all liability of PSE to the County, including any assumed by contract between PSE and any other party, with limits at least in the amount of $1,000,000. In lieu of the insurance requirement of this section, PSE may self - insure against such risks. At the time of PSE's acceptance of this Franchise and otherwise upon the County's request, PSE shall provide the County with certificate(s) of insurance or evidence of self - insurance reflecting the requirements of this section. Section 20. Forfeiture and Termination of Franchise. 20.1 If PSE shall willfully violate or fail, through willful or unreasonable neglect, to comply with any of the provisions of this Franchise for sixty (60) days after receipt of written notice from the County, then the County shall have the right by ordinance to declare PSE's forfeiture of all rights hereunder and to declare this Franchise terminated and of no further force or effect thereafter; 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 Page 11 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 21. Effective Date. 21.1 This Ordinance shall be effective on J.iCCf.YYI&rt, , 2005, having been: (i) introduced to the County Council not less than five days before its passage; (ii) fast submitted to the Prosecuting Attorney on 6Sp&PMkgX 1 R, 2005; (iii) published at least five days prior to the above - referenced effective date and as otherwise required by law; and (iv) passed at a regular meeting of the legislative body of the County of Whatcom by a vote of at least 5{VIVL members of the County Council on 0,40ber zS 92005. A V ; •yt,H Cp cl �i' 2 0 C ' + Dana of ortohor, 2005. of tht`Council -ede *,%N APPROVED AS TO FORM: J.1- A Civil Deputy Prosecutor WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON urie Casket'- Schreiber, Council Chair (,;rl pproved O Denied Pete Kremen, County Executive Page 12 Exhibit B Puget Sound Energy, Inc. } .' k . The Whatcom County Council at its meeting of October 25, 2005,;abfjhftrg, Ordinance 2005 -076 approving the petition for franchise filed by Put} "Sook, Energy, Inc. The petition and all related documents are available for review in the Council Office as file number 2005 -392. Puget Sound Energy, Inc. hereby accepts, subject to all the conditions contained in Ordinance 2005 -076, that certain non - exclusive franchise the right, privilege, and authority thereunder, to set, erect, lay, construct, extend, support, attach, connect, maintain, across and through the Franchise Area to provide for the transmission, distribution and sale of energy for power, heat, light and such other purposes for which energy may be used. 'Franchise Area" means any, every and all of the roads, streets, avenues, alleys, highways, grounds, and public places of the County as now laid out, platted, dedicated, or improved; and any, every and all of the roads, streets, avenues, alleys, highways, grounds and public places that may hereafter be laid out, plat'e+ed, dedicated or improved within the present limits of the County and as such limits may be hereafter extended. Granting of this franchise becomes official upon receipt from the petitioner of this signed and notarized document, and payment by petitioner of publication costs incurred by the County Council Office. This franchise, when granted, shall be in effect for a period of twenty -five (25) yea rs. I:\SHARED \FRANCHISES \Franchise Forms \Exhibit B to Ord - Acceptance of Franchise (Merge).doc WHATCOM COUNTY COUNCIL ATTEST: WHATCOM COUNTY, WASHINGTON the4 the+C ncUr aurae Caskey- Schrei6 r Council Chair Agent for t1SblptltIONher, Puget Sound Energy, Inc.: (hLaki c u( Date: State of Washington ) County of Whatcom ) ss. Signed and sworn to before me on this %� day of MileM64C Zpp S , by Notary Public in and for the ate of Washington, P residing at /779 -3,2d AIE e/A IeISS qrF OF '4 *5,.•�, My notary commission expires y Z L3 -D I: \SHARED \FRANCHISES\Franchise Forms \Exhibit 8 to Ord - Acceptance of Franchise (Merge).doc