Ordinance 35060006.900000
09/25/03
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ORDINANCE NO. 3506
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON, GRANTING OLYMPIC VIEW WATER AND
SEWER DISTRICT A NON - EXCLUSIVE FRANCHISE TO
CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND
REPAIR A WATER AND SANITARY SEWER SYSTEM
WITHIN PUBLIC RIGHTS -OF -WAY OF THE CITY OF
EDMONDS, WASHINGTON, AND FIXING A TIME WHEN
THE SAME SHALL BECOME EFFECTIVE.
WHEREAS, RCW 35A.11.020 grants the City broad authority to regulate the use
of the public right of way; and
WHEREAS, RCW 35A.47.040 authorizes the City "to grant nonexclusive
franchises for the use of public streets, bridges or other public ways, structures or places above or
below the surface of the ground for facilities for public conveyances, for poles, conduits, tunnels,
towers and structures, pipes and wires and appurtenances thereof for transmission and
distribution of electrical energy, signals and other methods of communication, for gas, steam and
liquid fuels, for water, sewer and other private and publicly owned and operated facilities for
public service," and
WHEREAS, the Council finds that it is in the best interests of health, safety and
welfare of residents of the Edmonds community to grant a non - exclusive franchise to the
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Olympic View Water and Sewer District for the operation of a water and sanitary sewer system
within the City right -of -way, NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section 1. Definitions. The following terms contained herein, unless otherwise
indicated, shall be defined as follows:
1.1 City. The City of Edmonds, a municipal corporation of the
State of Washington, specifically including all areas
incorporated therein as of the effective date of this
ordinance and any other areas later added thereto by
annexation or other means.
1.2 City Urban Growth Area. The urban growth area means
that area defined by the City's comprehensive planning
process.
1.3 Days: Calendar days.
1.4. Director: The Mayor or designee.
1.5. District: Olympic View Water and Sewer District.
1.6. Facilities: All pipes, access ways, pump stations, storage
facilities, equipment, and appurtenances thereto, located in
the City's right -of -way, utilized by the District in the
operation of activities authorized by this Ordinance. The
abandonment by District of any facilities as defined herein
shall not act to remove the same from this definition.
1.7. Permittee: A person who has been granted a permit by the
Permitting Authority, and District operating under Section
4.6 Blanket Permit of this agreement.
1.8 Permitting Authority: The City department authorized to
process and grant permits (permitting authority) required to
work in the City's right -of -way, or any agency authorized
to perform this function on the City's behalf. Unless
otherwise indicated, all references to Permitting Authority
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shall include the designee of the department or agency
head.
1.9 Person: An entity or natural person.
1.10 Right -of -way: As used herein shall refer to the surface of
and the space along, above, and below any street, road,
highway, freeway, lane, sidewalk, alley, court, boulevard,
parkway, drive, utility easement, and/or road right -of -way
now or hereafter held or administered by the City of
Edmonds.
1.11 Olympic View Water & Sewer District Service Area: All
the land located within the corporate boundaries of the
District as they now or may in the future exist, plus those
areas lying outside of 'the corporate boundaries of the
District in which the District's water and sanitary sewer
system sand appurtenances are now or may in the future be
located.
Section 2. Franchise.
2.1 Pursuant to RCW 35A.47.040 the City hereby grants to
District, it's successors and assigns, subject to the terms and
conditions hereinafter set forth, a Franchise beginning on
the effective date of this Ordinance.
2.2 This Franchise shall grant District the right, privilege and
authority, subject to the terms and conditions hereinafter set
forth; to construct, operate, maintain, replace and use all
necessary equipment and facilities related to its water and
sanitary sewer systems in, under, on, across, over, through,
along or below the right -of -way for the purpose of its water
and sanitary sewer utility facilities as approved under City
permits issued by the Permitting Authority pursuant to the
Franchise and City ordinances.
2.3 This ordinance is to be construed as granting permission to
District to go only upon any public right -of -way described
herein. Permission to go upon any other property owned or
controlled by the City must be sought from the City and
may be approved on a case by case basis.
Section 3. Non - Interference of Facilities.
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3.1 District's Facilities shall be located, relocated and
maintained within the right -of -way so as not to
unreasonably interfere with the free and safe passage of
pedestrian and vehicular traffic and ingress or egress to or
from the abutting property and in accordance with the
ordinances of the City and laws of the State of Washington.
Nothing herein shall preclude District from affecting
temporary road closures as reasonably necessary during
construction or maintenance of its Facilities provided
District receives prior City approval, which shall not be
unreasonably withheld. Whenever it is necessary for
District, in the exercise of its rights under this Franchise, to
make any excavation in the right -of -way, District shall,
upon completion of such excavation, restore the surface of
the right -of -way to a condition that meets the specifications
established within the City of Edmonds Engineering
development standards and pre- approved plans and in
accordance with standards of general applicability imposed
by the City by ordinance or administrative order.
Section 4. Right -of- WU Management.
4.1 Excavation.
4.1.1 During any period of relocation or maintenance, all surface
structures, if any, shall be erected and used in such places
and positions within the right -of -way so as to interfere as
little as possible with the safe and unobstructed passage of
traffic and the unobstructed use of adjoining property.
District shall at all times post and maintain proper
barricades and comply with all applicable safety
regulations during such period of construction as required
by the ordinances of the City or state law, including RCW
39.04.180, for the construction of trench safety systems.
4.1.2 Whenever District excavates in any right -of -way for the
purpose of installation, construction, repair, maintenance or
relocation of its facilities, it shall apply to the City for a
permit to. do so in accord with the ordinances and
regulations of the City requiring permits to operate in the
right -of -way. In no case shall any such work commence
within any right -of -way without a permit, except as
otherwise provided in this Ordinance. During the progress
of the work, District shall not unnecessarily obstruct the
passage or use of the right -of -way, and shall provide the
City with plans, maps, and information showing the
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proposed and final location of any facilities in accordance
with Section 15 of this Ordinance. Approval shall be
obtained in accordance with the provisions of Sections
4.6.2 and 4.6.3.
4.2 Abandonment of District's Facilities. District shall not
abandon any of its facilities within the right -of -way without
the prior written consent of the City.
4.3 . Restoration after Construction.
4.3.1 District shall, after any installation, construction,
relocation, maintenance, or repair of Facilities within the
right -of -way, restore the right -of -way to City standard and
at least the same condition existing prior to any such
installation, construction, relocation, maintenance or repair.
Survey monuments shall not be removed or destroyed
without the District first obtaining the required Department
of Natural Resources (DNR) permit in accordance with
RCW 58.09.130 and WAC 332 - 120 -030. All survey
monuments, which have been disturbed or displaced by
such work, shall be restored pursuant to all federal, state
and local standards and specifications. District agrees to
promptly complete all restoration work and to promptly
repair any damage caused by such work at its sole cost and
expense.
4.3.2 If it is determined that District has failed to restore the
right -of -way in accordance with this Section, the City shall
provide District with written notice, which shall include a
description of actions the City believes necessary to restore
the right -of -way. If the right -of -way is not restored in
accordance with the City's notice within fifteen (15) days of
that notice, or such longer period as may be specified in the
notice, the City, or its authorized agent, may restore the
right -of -way and District shall be responsible for all
reasonable costs and expenses incurred by the City in
restoring the right -of -way in accordance with this Section.
The rights granted to the City under this Paragraph shall be
in addition to those otherwise provided by this Franchise.
4.4 Bonding Requirement. District, as a public agency, is not
required to comply with the City's standard bonding
requirement for working in the City's right -of -way.
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4.5 Emergency Work, -Permit Waiver. In the event of an
emergency where any facilities located in the right -of -way
are broken or damaged, or if District's construction area for
their facilities is in such a condition as to place the health or
safety of any person or property in imminent danger,
District shall immediately take necessary emergency
measures to repair or remove its facilities without first
applying for and obtaining a permit as required by this
Franchise. However, this emergency provision shall not
relieve District from later obtaining necessary permits for
the emergency work. District shall apply for the required
permits the next business day following the emergency
work or as soon as practical thereafter given the nature and
duration of the emergency.
4.6 Blanket Permit. The terms "Minor Activities" and "Blanket
Activities" are defined in a specifically negotiated "Blanket
Permit for Activity Within The Public right -of- way," which
is incorporated by this reference as fully as if herein set
forth, a copy of which has been filed with the City Clerk
and identified by Clerk's Receiving Number .
Permittee shall be authorized to perform Minor Activities
without a City permit of any kind and Blanket Activities
under the terms and conditions of the Blanket Permit. All
f other activities will require a separate permit in accordance
with City ordinances.
4.6.1 The Permittee shall pay the City a permit
inspection/processing fee in the amount set out in Blanket
Permit Definitions and as established by the City Council.
4.6.2 The Permittee shall provide a monthly list of Blanket
Permit construction activity by the 10th of the following
month listing the previous month's completed activity
authorized under this Section.
4.6.3 For each separate use of the right -of -way under this
Section, and prior to commencing any work on the right -of-
way under this Section, the Permittee shall:
At least twenty- four (24) hours in advance of entering the
right -of -way, fax or otherwise deliver to the Permitting
Authority a City Job Start Notification Form, as provided
by the Permitting Authority. Said form shall include, at a
minimum, the following information: street address nearest
to the proposed work site and description of work to be
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performed. Permittee shall not commence work within the
City right -of -way without approval and obtaining of a
permit number and the Job Start Notification by the City
Engineer or his designee.
4.6.4 The City reserves the right to alter the terms and conditions
of Subsection 4.6 and of Blanket Permit by providing thirty
(30) days written notice to the Permittee. Any change made
pursuant to this Paragraph shall thereafter apply to all
subsequent work performed pursuant to this Section.
4.6.6 In the event the Permittee fails to comply with any of the
conditions set forth in this Section, the City may provide
written notice of termination to operate under this Section
to Permittee, stating with specificity, the basis for the
termination of the Permittee's authority.
4.7 Safety.
4.7.1. District, in accordance with applicable federal, state, and
local safety rules and regulations shall, at all times, employ
ordinary care in the installation, maintenance, and repair of
its facilities utilizing methods and devices commonly
accepted in the sanitary sewer industry to prevent failures
and accidents that are likely to cause damage, injury, or
nuisance to persons or property.
4.7.2. District will make all reasonable effort to construct and
maintain its facilities in the right -of -way in a safe and
operational condition.
4.8. Dangerous Conditions, Authority for City to Abate.
4.8.1 Whenever Facilities or the operations of District cause or
contribute to a condition that appears to endanger any
person or substantially impair the lateral support of the
adjoining right -of -way, public or private property, the City
may direct District, at no charge or expense to the City, to
take actions to resolve the condition or remove the
endangerment. Such directive may include compliance
within a prescribed time period.
4.8.2 In the event District fails or refuses to promptly take the
action, or if emergency conditions exist which require
immediate action to prevent imminent injury or damage to
persons or property, the City may take such action as it
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believes necessary and District shall reimburse the City for
its actual costs incurred.
Section 5. Relocation of System Facilities.
5.1 Whenever the City causes the grading or widening of the
right -of -way or undertakes construction of any water or
storm drainage line, lighting, signalization, sidewalk
improvement, pedestrian amenities, or other public street
improvement (for purposes other than those described in
Section 5.3 below) and such project requires the relocation
of District's then existing Facilities lying within that portion
of the right -of -way, or an area affected by such city
projects, the City shall:
(1) Provide District, at least one hundred twenty (120)
days prior to the commencement of such project,
written notice that a project is expected which will
or may require relocation of a portion of District's
facilities; and
(2) Provide District at least sixty (60) days prior to the
commencement of such project, with reasonable
plans and specifications for such grading, widening,
or construction and a proposed new location within
or adjacent to the right -of -way for District's
Facilities.
5.2. After receipt of such notice and the plans and
specifications, District shall relocate such Facilities within
the right -of -way as to accommodate such street and utility
improvement project ten (10) days prior to commencement
of the project unless there is agreement to a different
schedule for coordinating completion of relocation of
Facilities, provided, however, District may, after receipt of
written notice requesting a relocation of its Facilities,
submit to the City written alternatives to such relocations of
its Facilities and the time schedule. The City shall within a
reasonable time evaluate such alternatives and advise the
District in writing whether one or more of the alternatives
is suitable to accommodate work that would otherwise
necessitate relocation of the Facilities. If so requested by
the City, District shall submit such additional information
as is reasonably necessary to assist the City in making such
evaluation. The City shall give each alternative full and fair
consideration. In the event the City ultimately reasonably
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determines that there is no other reasonable or feasible
alternative, then District shall relocate its Facilities as
otherwise provided in this Section 5. The City shall
cooperate with District to designate a substitute location for
its Facilities within the right -of -way. The cost of relocating
such Facilities existing within the present limits of the City
shall be paid as follows:
(1) if the relocation occurs within five (5) years after
District initially constructed such Facility, then the
relocation shall be at the City's sole cost;
(2) if the relocation occurs more than five (5) years
after District initially constructed such Facility, then
the relocation shall be at District's sole cost.
5.3 Obligations under this Section 5 shall not apply whenever
any person or entity, other than the City, requires the
relocation of District Facilities to accommodate the work of
such person or entity within the Right -of way, or whenever
the relocation of District's Facilities within the right -of -way
is necessary to satisfy any requirement or condition of a
City permit or approval. issued on a land use action
(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) for the benefit of any person or entity other
than the City. However, in the event the City reasonably
determines (and promptly notifies District in writing of
such determination) that the primary purpose of imposing
such condition or requirement upon such person or entity
which necessitates such relocation is to cause the
construction of an improvement on the City's behalf and in
a manner consistent with City approved improvement plans
(as described in subsection 5.1 above) within a segment of
the right -of -way then District shall require only those costs
and expenses incurred by District in integrating and
connecting such relocated Facilities with District's other
Facilities to be paid to District by such person or entity, and
District shall otherwise relocate its Facilities within such
segment of the right -of -way in accordance with the
provisions of subsection 5.1 above.
The provisions of this Section 5.3 shall in no manner
preclude or restrict District from making any arrangements
it may deem appropriate when responding to a request for
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relocation of its Facilities by any person or entity other than
the City, where the facilities to be constructed by such
person or entity are not or will not become City owned,
operated or. maintained facilities, provided that such
arrangements do not unduly delay a City construction
proj ect.
5.4 Any cost or expense in connection with the location or
relocation of any Facilities existing under benefit of
easement or other rights not arising under this Franchise,
shall be borne fifty percent (50 %) by the City, and fifty
percent (50 %) by District.
Section 6. Compliance with Codes and Regulations.
6.1 The rights, privileges and authority herein granted are
subject to and governed by this ordinance and all other
applicable ordinances and codes of the City of Edmonds, as
they now exist or may hereafter be amended. Nothing in
this ordinance limits the City's lawful power to exercise its
police power to protect the safety and welfare of the
general public. Any location, relocation, erection or
excavation by District shall be performed by District in
accordance with applicable federal, state and city rules and
regulations, including the City Public Works Policies and
Pre - approved Plans, and any required permits, licenses or
fees, and applicable safety standards then in effect or any
Memorandum of Understanding with District.
6.2 Upon written inquiry, District shall provide a specific
reference to either the federal, state or local law or the
Washington Utilities and Transportation Commission
(WUTC) order or action establishing a basis for District's
actions related to a specific franchise issue.
6.3 In the event that any territory served by District is annexed
to the City after the effective date of this Franchise, such
territory shall be governed by the terms and conditions
contained herein upon the effective date of such
annexation.
Section 7. System Development Information.
7.1 District will assign a representative whose responsibility
shall be to coordinate with the City on planning for CIP
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projects including those that involve under grounding. At a
minimum, such coordination shall include the following:
(1) District shall meet with the City, other franchisees
and users of the right -of -way, according to a
schedule to be determined by the City, to schedule
and coordinate construction; and
(2) All construction locations, activities, and schedules
shall be coordinated, as required by the Mayor or
his designee, to minimize public inconvenience,
disruption, or damages.
(3) For the purpose of planning, District and the City
shall provide each other with a copy of their
respective current adopted Capital Improvement
Plan annually and upon request by the other party.
Section 8. Planning Coordination. The parties agree, as follows, to participate in
the development of, and reasonable updates, to each other's planning documents.
8.1 For District's service within the City Urban Growth Area
limits, District will participate in a cooperative effort with
the City of Edmonds to develop a Comprehensive Plan -
Utilities Element, that meets the requirements described in
RCW 36.70A.070 (4).
8.2 District will participate in a cooperative effort with the City
to ensure that the Utilities Element of the City's
Comprehensive. plan is accurate as it relates to District's
operations and is updated to ensure it's continued relevance
at reasonable intervals.
8.3 District shall submit information related to the general
location, proposed location, and approximate capacity of all
existing and proposed Facilities within the City as
requested by the Director within a reasonable time, not
exceeding sixty (60) days from receipt of a written request
for such information.
8.4 District will update information provided to the City
whenever there are major changes in the District's system
plans for the City.
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8.5 District will provide information relevant to its operation
within the City within a reasonable period of time after a
written request to assist the City in it's need to develop and
update it's Comprehensive Plan - Utilities Element,
provided that such information is in District's possession or
can be reasonably developed from information in District's
possession.
8.6 The City will provide information relevant to District's
operations within a reasonable period of time following a
written request to assist District in the development or
update of its Comprehensive Sewage System Plan,
provided that such information is in the City's possession,
or can be reasonably developed from the information in the
City's possession.
Section 9. Indemnification by District and Edmonds.
9.1 District hereby releases, covenants not to bring suit, and
agrees to indemnify, defend and hold harmless the City, its
elected officials, employees, agents, and volunteers from
any and all claims, costs, judgments, awards, attorney's
fees, or liability to any person, including claims by
District's own employees to which District might otherwise
be immune under Title 51 RCW, arising from personal
injury or damage to property allegedly due to the negligent
or intentional acts or omissions of District, its agents,
servants, officers or employees in performing activities
authorized by this Franchise. This covenant of
indemnification shall include, but not be limited by this
reference, claims against the City arising as a result of the
acts or omissions of District, its agents, servants, officers or
employees except for claims for injuries and damages
caused by the sole negligence of the City. If final judgment
is rendered against the City, its elected officials,
employees, agents, and volunteers, or any of them, District
shall satisfy the same. The City may appear in any
proceeding it deems necessary to protect the City's or the
public's interests.
9.2 The City hereby releases, covenants not to bring suit, and
agrees to indemnify, defend and hold harmless the District,
its elected officials, employees, agents, and volunteers from
any and all claims, costs, judgments, awards, attorney's
fees, or liability to any person, including claims by City's
own employees to which City might otherwise be immune
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under Title 51 RCW, arising from personal injury or
damage to property allegedly due to the negligent or
intentional acts or omissions of City, its agents, servants,
officers or employees in performing construction,
maintenance or other city activities within the Rights -of-
way. This covenant of indemnification shall include, but
not be limited by this reference, claims against the District
arising as a result of the acts or omissions of City, its
agents, servants, officers or employees except for claims
for injuries and damages caused by the sole negligence of
the District. If final judgment is rendered against the
District, its elected officials, employees, agents, and
volunteers, or any of them, City shall satisfy the same. The
District may appear in any proceeding it deems necessary
to protect the District's interests or the interests of its
ratepayers.
9.3 In the event any such claim or demand be presented to or
filed with either party, such party shall promptly notify the
other thereof, which party shall have the right, at its
election and at its sole cost and expense, to settle and
compromise such claim or demand. In the event any suit or
action be begun against either party based upon any such
claim or demand, such party shall likewise promptly notify
the other party thereof, which party 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.
9.4 Inspection or acceptance by one party of any work
performed by the other at the time of completion of
construction shall not be grounds for avoidance of any of
these covenants of indemnification. Said indemnification
obligations shall extend to claims that are not reduced to a
suit and any claims that may be settled prior to the
culmination of any litigation or the institution of any
litigation.
9.5. In the event either refuses to undertake the defense of any
suit or any claim, after a request for defense and
indemnification has been made pursuant to the
indemnification clauses contained herein, and such 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, such party
shall pay all of the other party's costs and expenses for
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defense of the action, including reasonable attorney's fees
or recovering under this indemnification clause as well as
any judgment against the party.
9.6. Should a court of competent jurisdiction determine that this
Franchise is subject to RCW 4.24.115, then, in 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 District and the City, its officers,
employees and agents, each party's liability hereunder shall
be only to the extent of its negligence. This waiver has been
mutually negotiated by the parties.
Section 10. Insurance.
10.1. District shall procure and maintain in full force for the
duration of the 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 District, its
agents or employees.
10.2 In satisfying the insurance requirement set forth in this
section, District may self - insure against such risks in such
amounts as are consistent with good utility practice.
District shall provide the City with sufficient written
evidence, the sufficiency of which shall be determined at
the reasonable discretion of the City, upon request, that
such insurance (or self - insurance) is being so maintained by
District. Such written evidence shall include, to the extent
available from District's insurance carrier, a written
certificate of insurance with respect to any insurance
maintained by District in compliance with this Section.
10.3 Commercial General Liability insurance policy, written on
an occurrence basis 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 premises, operations,
independent contractors, products- completed operations,
personal injury and advertising injury. There shall be no
endorsement or modification of the Commercial General
Liability insurance excluding liability arising from
explosion, collapse or underground property damage. The
City shall be named as an additional insured under
District's Commercial General Liability insurance policy.
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10.4 Excess Liability in an amount of $5,000,000 each
occurrence and $20,000.00 aggregate limit. The City shall
be named as an additional insured on the Excess Liability
insurance policy.
10.5 Automobile Liability insurance for owned, non -owned and
hired vehicles with limits no less than $2,000,000
Combined Single Limit per accident for bodily injury and
property damage
10.6 Payment of deductible or self - insured retention shall be the
sole responsibility of District.
10.7 District shall require all its subcontractors to carry
insurance consistent with this Section 10.3, and shall
provide evidence of such insurance to the City upon
request.
10.8 The coverage shall contain no special limitations on the
scope of protection afforded to the City, its officers,
officials, or employees. In addition, the insurance policy
shall contain a clause stating that coverage shall apply
separately to each insured against whom claim is made or
suit is brought, except with respect to the limits of the
insurer's liability. District's insurance shall be primary. Any
insurance, self - insurance, or insurance pool coverage
maintained by the City shall be excess of District's
insurance and shall not contribute with it. Coverage shall
not be suspended, voided, canceled by either party, reduced
in coverage or in limits except after thirty (30) days prior
written notice has been given to the City.
Section 11. Default / Enforcement.
11.1 The City reserves the right to revoke and terminate this
Franchise and, all rights and privileges of District in the
event of a substantial violation or material breach of its
terms and conditions.
11.2 A substantial violation or material breach by District shall
include, but shall not be limited to, the following:
(1) An uncured violation of any material provision of
this Franchise, or any material rule, order or
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regulation of the City which would endanger the
public health, safety and welfare;
(2) The practice of any fraud or deceit upon the
ratepayers served by the District's water and
sanitary sewer system.
(3) The practice of any fraud or deceit upon the City.
(4) Misrepresentation of material facts in the
negotiation of this Franchise or its implementation.
(5) An uncured failure to pay the fee associated with
this Franchise.
11.3 No violation or breach of this Franchise shall occur which
is without fault of either District or the City, unless they are
the result of circumstances beyond District's or the City's
reasonable control, such as Acts of God or unrelated third
parties.
Neither District, nor the City, shall be excused by economic
hardship or by nonfeasance or malfeasance of its elected
officials, officers, agents or employees.
Damage to equipment causing service interruption shall be
deemed to be the result of circumstances beyond District's
or the City's control if it is caused by any negligent act or
unintended, omission of its employees (assuming proper
training) or agents (assuming reasonable diligence in their
selection), or sabotage, vandalism or malicious mischief by
its employees or agents. District, or the City, shall bear the
burden of proof in establishing the existence of such
conditions.
11.4 Except in the case of termination of this Franchise pursuant
to Paragraph 11.2d, the City, or District, prior to any
termination or revocation of this Franchise, shall provide
the other with detailed written notice describing any
substantial violation or material breach upon which it
proposes to take action. The party who is allegedly in
breach shall have a period of 60 days following such
written notice to cure the alleged violation or breach, or
demonstrate to the other's satisfaction that a violation or
breach has not occurred or does not exist, or submit a plan
that is satisfactory to the other to correct the violation or
{WSS572714.DOC;1/00006.900000/} -16-
breach. If, at the end of said 60 -day period, the party giving
such notice reasonably believes that a substantial violation
or material breach is continuing and that the party in breach
is not taking satisfactory corrective action, the noticing
party may, by written notice to the other party, declare that
the party in breach is in default. Within 20 days after
receipt of a written declaration of default, the party that is
alleged to be in default may request, in writing, a hearing
before the City Hearing Examiner, as provided by the
City's development regulations.
The Hearing Examiner's decision may be appealed by
either party to the Snohomish County Superior Court
within thirty (30) days following the date of the decision
rendered.
11.5 The City may, in its discretion and without waiving its
rights under Paragraph 11.4 above, provide, in writing, for
an extension of the period for District to remedy any
violation or breach of the Franchise terms or take such
corrective action specified in the Notice and come into
compliance with its obligations under this Franchise, so as
to avoid its termination or revocation.
11.6 Any violation continuing for a period greater than 60 days
may be remedied by the City at District's expense, unless
District is diligently' and in good faith proceeding with
corrective action and its failure to complete corrective
action is caused by unavoidable delays or events beyond its
control.
Section 12. Franchise Term. The term of the Franchise granted hereunder shall
remain in full force for an initial term of ten (10) years from the effective date. It may be
renewed for additional term(s) commensurate with the interlocal agreement between the parties.
Section 13. Non - Exclusive Franchise. 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 under, over, upon, and along the right -of -way which
do not interfere with District's existing water and sanitary sewer system and its rights under this
{WSS572714.DOC;1/00006.900000/} -17-
Franchise. This Franchise shall not prohibit or prevent the City from using the right -of -way or
affect the jurisdiction of the City over the same or any part thereof.
Section 14. Franchise Fee.
14.1. In consideration for the rights granted District under this
agreement and the parties concomitant Interlocal Operating
Agreement to occupy City right -of -way for the purpose of
operating a water and sanitary sewer utility within the City
dated June 28, 2004 and as compensation for the City's
recovery of actual administrative expenses incurred by the
City that are directly related to receiving and approving
permits, licenses, cost of inspections, this franchise and
inspecting plans for construction within the right -of -way,
District agrees to pay the City a franchise fee of $10
annually in addition to those fees identified in Right -of-
Way Management, Section 4. If the interlocal agreement is
terminated by either party or by judicial action, the District
shall pay an annual fee of the lesser of $3,000 or the lowest
fee charged to any other public utility franchised by the
City, whichever is less. Proceeds of the franchise fee
collected shall be distributed to the City no later than 30
days after the end of each calendar year.
14.2 The fees and charges set forth in this ordinance are in
addition to, and not in limitation of, the payments
established by agreement in an interlocal agreement
between the parties.
Section 15. Records. As a condition of this Franchise, and without charge to the
City, District agrees to provide the City with available as -built plans, maps, and records that
show the vertical and horizontal location of its facilities within the right -of -way. This
information shall be provided between one hundred twenty (120) and one hundred eighty (180)
days of the effective date of this Ordinance and shall be updated upon reasonable request by the
City.
Section 16. Survival. All of the provisions, conditions and requirements of
Sections 4.1 Excavation, 4.2 Abandonment Of District's Facilities, 4.3 Restoration After
{WSS572714.DOC;1/00006.900000/} -18-
Construction, 4.8 Dangerous Conditions, Authority For City To Abate, Section 5 Relocation of
System Facilities, and Section 9 Indemnification, of this Franchise, shall be in addition to any
and all other obligations and liabilities District may have to the City at common law, by statute,
or by contract, and shall survive the City's Franchise to District for the use of the areas
mentioned in Section 2.3 herein, and any renewals or extensions thereof. This Ordinance shall
further be binding upon the heirs, successors, executors, administrators, legal representatives and
assigns of District and all privileges, as well as all obligations and liabilities of District shall
inure to its heirs, successors and assigns equally as if they were specifically mentioned wherever
District is named herein.
Section 17. Severability. If any Section, sentence, clause or phrase of this
Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction,
such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
Section, sentence, clause or phrase of this Franchise Ordinance. The Parties may amend, repeal,
add, replace, or modify any provision of this Franchise to preserve the intent of the parties as
expressed herein prior to any finding of invalidity or unconstitutionality.
Section 18. Assignment. This Franchise shall not be sold, transferred, assigned,
or disposed of in whole or in part either by sale, voluntary or involuntary merger, consolidation
or otherwise, without the written approval of the City. This paragraph shall not act to require
City approval of any District action to mortgage or otherwise encumber its facilities, or other
action related to corporate financing, financial reorganization, or refinancing activity.
Section 19. Notice. Any notice or information required or permitted to be given
to the parties under this Franchise may be sent to the following addresses unless otherwise
specified:
{WSS572714.DOC;1/00006.900000/} -19-
District General Manager
Olympic View Water & Sewer District
23725 Edmonds Way
Edmonds, WA 98026 -1856
Phone: 425- 774 -7769
Fax:
Administrative Services Director
City of Edmonds
121— 5th Ave. North
Edmonds, WA 98020
Phone: 425- 771 -0240
Fax: 425- 771 -0265
Section 20. Non - Waiver. The failure of either party to enforce any breach or
violation by the other party of any provision of this Franchise shall not be deemed to be a
waiver or a continuing waiver by the non - breaching party of any subsequent breach or violation
of the same or any other provision of this Franchise.
Section 21. Alternate Dispute Resolution. If the parties are unable to resolve
disputes arising from the terms of this Franchise, prior to resorting to a court of competent
jurisdiction, the parties shall submit the dispute to a non - binding alternate dispute resolution
process agreed to by the parties. Unless otherwise agreed between the parties or determined
herein, the cost of that process shall be shared equally.
Section 22. Entire Agreement. This Franchise constitutes the entire
understanding and agreement between the parties as to the subject matter herein and no other
agreements or understandings, written or otherwise, shall be binding upon the parties upon
execution and acceptance hereof.
Section 23. Directions to City Clerk. The City Clerk is hereby authorized and
directed to forward certified copies of this ordinance to District as set forth in this ordinance.
{WSS572714.DOC ,- 1/00006.900000 /} -20-
District shall have sixty (60) days from receipt of the certified copy of this ordinance to accept
in writing the terms of the Franchise granted to District by this ordinance.
Section 24. District Acceptance of Franchise. District shall have no rights under
this Franchise nor shall District be bound by the terms and conditions of this Franchise unless
District shall, within thirty (30) days after the effective date of the ordinance, file with the City
its written acceptance of this Franchise, in a form acceptable to the City Attorney.
Section 25. Publication Costs. In accord with state law, this ordinance shall be
published in full.
Section 26. Effective Date. This ordinance, being an exercise of a power specifi-
cally delegated to the City legislative body, is not subject to referendum, and shall take effect
five (5) days after passage and publication of an approved summary thereof consisting of the
title.
APPROV D:
MA R Y HAAKENSON
ATTEST /AUTHENTICATED:
CITY CLERK, SANDRA S. CHASE
APPROVED AS TO FORM:
OFFICE OF H
BY (b
W. SCOTT SNYDER
FILED WITH THE CITY CLERK: 06/11/2004
PASSED BY THE CITY COUNCIL: 06/22/2004
PUBLISHED: 06/27/2004
EFFECTIVE DATE: 07/02/2004
ORDINANCE NO. 3506
{WSS572714.DOC;1/00006.900000/} -21-
SUMMARY OF ORDINANCE NO. 3506
of the City of Edmonds, Washington
On the 22"d day of June, 2004, the City Council of the City of Edmonds, passed
Ordinance No. 3506. A summary of the content of said ordinance, consisting of the title,
provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON, GRANTING OLYMPIC
VIEW WATER AND SEWER DISTRICT A NON - EXCLUSIVE FRANCHISE TO
CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A WATER AND
SANITARY SEWER SYSTEM WITHIN PUBLIC RIGHTS -OF -WAY OF THE CITY OF
EDMONDS, WASHINGTON, AND FIXING A TIME WHEN THE SAME SHALL BECOME
EFFECTIVE.
The full text of this Ordinance will be mailed upon request.
DATED this 23rd day of June, 2004.
.4� �• 6k"�
CITY CLERK, SANDRA S. CHASE
{WSS572714.DOC;1/00006.900000/} -22-
AN ORDINANCE OF THE CITY OF EDMON
other
1.7.
1.6
EDM01
Affidavit of Publication
STATE OF WASHINGTON, }
COUNTY OF SNOHOMISH S.S.
CTANON - EXCLUSIVE FRANCHISE TO CONSTRUCT, M I NuA1N,TOPERATE, REPLACE AND RE-
ASHI AND SANITARY SEWER SYSTEM WITHIN PUBLIC RIGHTS•OF -WAY OF THE CITY OF ED-
ASHINGTON, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE.
tCW 35A.11.020 gents the Clty broad authority to regulate the use of the public right of way; and
1CW 35A.47.040 authorizes the City "to grant nonexclusive franchises for the use of public streets, bridge;
Trays, structures or places above or below the surface of the ground for facillties for public conveyances, for
tunnels,-lowers and structures, pipes and wires and appurtenances thereof for, ,for Public c and df ncesli 0
rgy, signals.and other methods of communication, for gas, steam and llquld fuels, for water, sewer and other
is y owned and operated facilities for public service," and
,e Council finds that it is in the best interests of health, safety and welfare of residents of the Edmonds com•
R non - exclusive franchise 10 the OI mpic View Water and Sewer District for the operation of a water and within the
THEYCITYtOF EDMp S,, WASHINGTON, DO ORDAIN AS FOLLOWS:
initions. The following terms contained herein, unless otherwise indicated, shall be defined as follows:
re�Tty bf Edmonds a municipal corporation of the Stet@ of Washington, specifically Including all areas incor-
thafeln as of the e�tective date of this ordinance and any other areas later added thereto by annexation or
awns.
an Growth Area. The urban growth area means that area defined by the City's comprehensive planning
alendar days.
The Mayor or desighee.
Olympic View Water and Sewer District.
All pplppes, access ways, pump stations, storaga facilities, equipCent, and appurtenances thereto, located
iy's ri ht -of -way, utilized by the District in the operation of activities authorized by this Ordinance. The aban-
by District of any facilities as defined herein shall not act to remove the same from this definition.
s: A person who has been granted a permit by the Permitting Authority, and District operating under
1.6 Blanket Permit of this agreement.
g�Authori�: The City department authorized to process and ®rent permits (permitting authority) required to
he Citys nght•of -way i or any agency authorized to perform this function on the City's behalf. Unless other -
cated, all references o Permitting Authority shall Include the designee of the department or agency head.
Annyentity or natural person.
h19Fway Wireeway, lane, sidewalkhallloyetcourt�h ouievafd parlay, drive along, a boment anelowro drghet, road,
now Or hereafter held or administered by the City of Edmonds.
1.11 Olympic View Water & Sewer District Service Area: All the land located within the corporate boundaries of the Dis-
trict as they now or may in the future exist, plus those areas lying outside of the corporate boundaries of the District
in which the District's water and sanitary sewer system sand appurtenances are now or may In the future be located.
Section 2. Franchise.
2.1 Mu—MUant to OW 35A.47.040 the CIry hereby grants to District; it's successors and assigns, subject to the terms
and conditions hereinafter sat forth, a Franchise beginning on the effective date of this Ordinance.
2.2 This Franchise shall grant District the right, privilege and authority, subject to the terms and conditions hereinafter
set forth; to construct, operate, maintain, replace and use all necessary equipment and facilities related to its water
and sanitary sewer systems in, under, on, across, over, through, along or below the right -of -way for the purpose of
�its water and sanitary sewer utility facilities as approved under City permits issued by the Permitting Authority pur-
suant to the Franchise and City ordinances.
2,3 This ordinance is to be construed as granting permission to District to go only upon any public right -of -way de-
r scribed hereiri. Permission to go upon any other property owned or controlled by the City must be sought from the
can ,^City and may be approved on a case by case basis.
0.1 ursmcrs racunies shall be local, relocated and maintained within the right -of -way so as not to unreasonably Inter-
+ fere with the free and safe passage of pedestrian and vehicular traffic and ingress or egress to or from the abutting
i .property and In accordance with the ordinances of the City and laws of the State of Washington. Nothing herein
r shall preclude District from affectingg temporary road closures as reasonably necessary during construction or main-
tenance of Its Facilities provided District receives prior City approval, which shall not be unreasonably withheld.
1 Whenever it is necessary for District, in the exercise of Its rights under this Franchise, to make any excavation In the
! �right-of-way, District shall, upon completion of such excavation, restore the surface of the right -of -way to a condition
that meets the specifications estabiished'within the City of Edmonds Engineering development standards and pre
approved plans and in accordance with standards of general applicability Imposed by the City by ordinance or ad-
t'"" minlstrative order.
Se on 4. Right -of- Wav Management.
Fx_cavation.
�.1.1 buririg anyany period of relocation or maintenance, all surface structures, if any, shall be erected and used Ir such pla-
ces and positions within the right -of -way so as to Interfere as little as possible with the safe and unobstructed pas-
+ sage of traffic and the unobstructed use of adjoining property. District shall at all times post and maintain proper bar -
ricades and comply with all applicable safety regulations during such period of construction as required by the ordi-
nances 4.1.2 the excavates law, including 39.04.180 for the construction for the purpose of Installation, lconsl uclion, repair,
mmaintenance or
relocation of its facilities, It shall apply to the Cify for a permit to do so In accord with the ordinances and regulations
of the City requiring permits to operate In the right-of-way. In no case shell any such work commence within any
rigght -of -way without a permit, except as otherwise provided in this Ordinance. During the progress of the work, pis
trial shall not unnecessarily obstruct the passage or use of the right -of -way, and shall provide the City with plans,
madps, end information showing the proposed and final location of any facilities In accordance with Section 15 of this
1.2 Abandonment of Distr ct'sllFacilities: D In accordance with the istrict shall not abandoprovisions any of ts facilities with n he right-of-way without the
p orawntten consent oT_tTi6 fv.—
annu, aner any installation, construction, relocation, maintenance, or repair of Facilities within the right -of-
way, restore the right -of -way to City standard and at least the same condition existing prior to -any such Installation,
construction, relocation, maintenance or repair. Survey monuments shall not b)e removed or destroyed without the Stu
ral 58.09 130sa d WAC obtaining 32.120 030.dAllesurveyemonuments, which have ebeen disturbed or displaced by uich work,
shall be restored pursuant to all federal, state and local standards and specifications. District agrees to promptly
complete all restoration work and to Promptly repair any damage caused by such work at Its sole cost and expense.
r3.2 If It Is determined that District has failed to restore the right -of -way In accordance with this Section, the City shell pro-
vide District with written notice, which shall include a description of actions the City believes necessary to restore the
rip right -of -way. If the right -of -way is not restored in accordance with the City's notice within fifteen.(15) days of that no-
Mr tice, or such longer period as may be specified in the notice, the City, or its authorized eggbant, ma, restore the rgight-
.
pt-way and n District
gcco danlcee with responsible for granted an edsto and the City undernthisrParagraph shall In be noaidditlon
�r io those otherwise provided by this Franchise.
safety of any person or property in inn
to repair or remove its facilities with
However, this emergency provision sl
cy work. District shall apply for the re,
as practical thereafter given the natur
6 Blanket Permit. The terms "Minor Ac
1Serm I for A iv ity Within The Public
forth, a copy of which has been filed
mittee shall be authorized to perform
the terms and conditions of the Blank
City ordinances.
6.1 The Permittee shall pay the City a pe
lions and as established by the City C, 6.2 The Permittee shall provide a month)
listing the previous month's completed
6.3 For each separate use of the right -of -i
under this Section, the Permittee shall
At least twenty- four (24) hours in adw
thonty a City Job Start Notification For
mum, the following information: street
formed. Permittee shall not comment
gency, is not required to comply with the City's standard bonding
Nay,
rent of an emergency where any facilities located in the right -of -way are
an area for their facillties is in such a condition as to place the health or
danger, District shall Immediately take necessary emergency measures
t applying for and obtaining a permit as required by this Franchise.
relieve District from later obtaining necessary permits for the emergen-
rermits the next business day following the emergency work or as soon
uration of the emergency.
and, "Blanket Activities" are defined in aspecifically negotiated "Blanket
-way,' which is Incorporated by this reference as fully as It herein set
mo- me City Clerk and Identified by C elk's Receiving Number . Per - f
Minor Activities without a City permit of any kind and Blanket cti� under I
at Permit. All other activities will require a separate permit in accordance with
rmit Inspection/Processing fee In the amourt
)uncil. get out in Blanket Permit Defini-
list of Blanket Permit construction activity by the 10th of the following month `.
activity authorized under this Section. k
vay under this Section, and prior to commencing any work on .the right -of -way ` A#
ante of entering the right -of -way, fax or Otherwise deliver to the Permitting Au-
m, as provided by the Permit ing'Authority, -Said Corm shall Include; at a minf-
address nearest to the proposed work site and description of work to be par-
e work within the City r' ht -of -way without a roval and braining
number and the Job Start Notification by the City Engineer or his dealgnee. Pp o of a permit r a it. Lth Ci ty reserves the right to after the forme and Oonditfon5 �i Subs -110 4.6'anf Basket Permit b providing
irty (30) days wrien notie to the PermitieAny change made pursuant to this Paragraph shell lherealYer apply to ll ubsequent IN work performed pursuant to this Sectionwdnen not(ce.ofJermilnaton Its nnArafol�nwfrah fHne,c the•cpndctlonswet forth ln.thls Section, the City may provide
The undersigned, being first duly sworn on oath deposes and says that she is Prir
THE HERALD, a daily newspaper printed and published in the City of Everett, (
Snohomish, and State of Washington; that said newspaper is a newspaper of genr
in said County and State; that said newspaper has been approved as a legal news]
of the Superior Court of Snohomish County and that the notice
City of Edmonds
Ordinance No. 3506
a printed copy of which is hereunto attached, was published in said newspaper pr(
supplement form, in the regular and entire edition of said paper on the following
namely:
June 27, 2004
and that said newspaper was regularly distributed t ' s subscribers during all of s:
Principal
Subscribed and sworn to before me this 28th
day of ,tune, 2004
•� C
Notary Public in and for the tale f Washing siding atd?veatt,Slii
County,
01 �.
-A
Account Number: 101416 Orderl hgberi�/h00
t11aaaar
-or bemane -such -parry -snae uxewrse-promprry no7 me-orner parry mereOT- wnicn -parry-ammmrave^rne- mgrrr -nnre
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.
9.4 Inspection or acceptance by one party of any work performed by the other at the time of completion of construction
shall not be ggrounds for avoidance of any of these covenants of indemnification. Said indemnification obligations
shall extend fo claims that are not reduced to a suit and any claims that may be settled prior to the culmination of
any litigation or the institution of any litigation.
9.5. In the event either refuses to undertake the defense.of any suit or any claim, after a request for defense and indem-
nification has been made pursuant to the indemniifcAtlon clauses contained herein, and such 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, such parry shall pay all of the other party's costs and expenses for defense of the ac-
tion. including reasonable attorney's fees or recovering under this indemnification clause as well as any judgment
against the party. 1
9.6. Should a court of competent jurisdiction determine that this Franchise is subject to RCW 4.24.115, then, in event of
liability for damages arising out of bodily In ury to persons or damages to property caused by or resulting from the
concurrent negligence of District and the ity, its officers, employees and agents, each party's liability hereunder
shall be only to the extent of its negligence. This waiver has been mutually negotiated by this parties.
Section 10. Insurance. t
10.17154it cfsFaR procure and maintain In full force for the duration of the Franchise,, insurance against claims for inludes
to.persons or damages to property which may prise from or In connection with the exercise of the rights, priv ages
and authority granted hereunder to District, Its agents or employees.
10.2 In satisfying the Insurance requirement set forth in this section, District may self - insure against such risks in such
- amounts as are consistent with good utility practice. District shall provide the City with sufficient written evidence, the
sufficlencyof which shall be determined at the reasonable discretion of the City, upon request, that such Insurance
(or self - insurance) Is being so maintained by, District. Such written evidence shall include, to the extent available
from District's insurance carrier, a written certificate of insurance with respect to any insurance maintained by District
In compliance with this Section.
10.3 Commercial General Liability Insurance policy, written on an occurrence basis with limits rvodees then $1;000 000
combined single limit per occurrence and $2,000,000 aggregate for personal Injury, bodily injury and propertyr am-
age. Coverage shall per premises, operations, Independent contractors, products - completed operations, per-
sonal injury and advertising injury. There shall be no endorsement or modification of the Commercial General Liabili-
ty Insurance excluding liability arising from explosion, collapse or undarQround property damage. The City shall be
named as an additional insured under District's Commercial General Liabilityty Insurance policy.
10.4 Excess Liability In an amount of $5,000,000 each occurrence and $20,000.00 aggregate limit. The City shell be
named as an additional insured on the Excess Liability insurance policy.
10.5 Automobile Liability Insurance for owned, non -owned and hired vehicles with limits no less than $2,000,000 Com-
bined Single Limit per accident for bodily injury and property damage
10.6 Payment of deductible or self - insured retention shall be the sole responsibility of District.
10.7 District shall require all its subcontractors to carry insurance consistent with this, Section 10.3, and shall provide evi-
dence of such insurance to the City upon request.
10.6. The coverage shall contain no special limitations on the scope of protection afforded to the City, Its officers, officials,
or employees. In addition, the insurance policy shall Contain a clause stating that coverage shall appply separatelyy to
each insured against whom claim is made or suit is brought, except with respect to the limits of the ineurer's flabllity.
District's Insurance shall be primary. Any Insurance; self-insurance, or insurance pool coverage maintained by the
City shall be excess of District's insyrance and shall not contribute with It. Coverage shall not be suspended, voided,
canceled by either party, reduced In coverage or in limits except after thirty (30) days prior written notice has been
given to the City.
Section 11. Default/ Enforcement.
11 1 The City reserves the right fo revoke and terminate this Franchise and all rights and privileges of District in the event
of a substantial violation or material breach of its terms and conditions.
11.2 A,substantial violation or material breach by District shall include, but shall not be limited to, the following:
(1) An uncured violation of any material provision of this Franchise, or any material rule, order or regulation of the
City which would endanger the public health, safety and welfare;
(2) The practice of any fraud or deceit upon the ratepayers served by the District's water and sanitary sewer
system.
�41� The practice of any fraud or deceit upon the City.
Misrepresentation of material facts in the negotiation of this Franchise or Its implementation.
An uncured'tailure to pay the tee associated with this Franchise.
91.3 violation or breach of this Franchise shall occur which'is without fault of either District or the City, unless they are
the result of circumstances beyond District's or the City's reasonable control, such as Acts of God or unrelated third
parties.
Neither District, nor the City, shall be excused by economic hardship or by nonfeasance or malfeasance of its elect
ad officials, officers, agents or employees.
Damage to eqquipment causing service interruption shall be deemed to be the result of circumstances beyond Dis-
trict's or the Cfl's control if it is caused by anT, no9gligent act or unintended omission of its employees (assuming,
proper training) or agents (assuming reasonable diligence In their selection), or sabotage, vandalism or malicious
mischief by Its employees or agents, District, or the City, shall bear the burden of proof in establishing the existence
of such conditions.
11.4 Exce ppt in the case of termination of this Franchise pursuant to Paragraph 11.2d, the City, or District, prior to any ter-
mination or revocation of this Franchise, shall provide the other with detailed written notice describingq any substan-
tial violation or material breach upon which It proposes to take action. The party who is allegedly (n breach shall
have a period of 60 days following such written notice to cure the alleged violation or breach, or demonstrate to the
other's satisfaction that a violation or breach, has not occurred or does not exist, or submit a plan that is satisfactory
to the other to correct the violation or breach. If, at the end of said 60 -day period, the parry giving such notice rea-
sonably believes that a substantial violation or material breach Is continuing and that the party in breach is not taking
satisfactory corrective action, the noticing party may, by written notice to the other party, declare that the party in
breach is to default. Within 20 days after receipt of a written declaration of default, the party that Is alleged to be in
default may rerjuest, in writing, a hearing before the City Hearing Examiner, as provided by the City's development
regulations.,
The Hearing Examiner's decision may be appealed by either party to the Snohomish County Superior Court within
thirty (30) days following the date of the decision rendered.
11.5 The City may, in its discretion and without waiving its rights under Paragraph 11.4 above, provide, in writing, for an
extension of the period for District to remedy any violation or breach of the Franchise terms or take such corrective
action specified in the Notice and come into compliance with Its obligations under this Franchise, so as to avoid Its
termination or revocation.
11.6 Any violation continuing for a period greater than 60 days may be remedied by the City at District's expense, unless
District Is diligently and in good faith proceeding with corrective action and its failure to complete corrective action is
caused by unavoidable delays or events beyond Its control.
Section 12. Franchise Term. The term of the Franchise granted hereunder shall remain in full force for an initial term of
enT1b years frorn tfi effective date. It may be renewed for additional term(s) commensurate with the interlocal agreement
3etween the parties.
Section 13. Non - Exclusive Franchise. This Franchise is not and shall not be deemed to be an exclusive Franchise. This
Frenofifse sliia not in any manner prohibit the City from granting other and further franchises under, over, upon, and along
the right -of -way which do not interfere with Districts existing water and sanitary sewer system and its rights under this Fran -
:hise. This Franchise shall not prohibit or prevent the City from using the right -of -way or affect the jurisdiction of the City
wer the same or any part thereof, i
Section 14. Franchise Fee.
14.9-in cn`s derat(orS or the rights granted District under this agreement and the parties concomitant Interlocal Operating
Agreement to occupy City right -of -way for the pu }pose of operating a water and sanitary sewer utility within the City
dated and as compensation for the City's recovery of actual administrative expenses incur-
red by the City that are directly related to receiving and approving permits, licenses, cost of inspections, this fran-
chise and inspecting. plans for construction within lire right -of -way, District agrees to pay the City a franchise fee of
$10 annually in addition to those fees identified In Right -of -Way Management, Section 4. If the interlocal agreement
Is terminated by either party or by (udicial action, the District shall pay an annual fee of the lesser of $3,000 or the
lowest fee charged to any other pu6lio utility franchised by the City, whichever Is less. Proceeds of the franchise fee
collected shall be distributed to the City Maier then 30 a s after the end of each calendar year.
14.2 The fees and charges set forth in this ordinance are in addition to, and not In limitation of, the payments established
by agreement in an interlocal agreement between the parties.
Section 15. Records. As a condition of this Franchise, and without charge to the City, District agrees to provide the City
with avifa6l
- ae asbu t 016ns, maps, and fecords that show the vertical and horizontal location of Its facildies within the right -
bf -way. This information shall be provided between one hundred.twenty (120) and one hundred eighty (180) days of the at-
lecttve date of this Ordinance and shall be updated upon reasonable request by the City.
Section 16. Survival. All of the provisions, conditions and requirements of Sections 4.1 Excavation, 4.2 Abandonment Of
Distract Ts-F-aclflhes 44.3 Aestoratlon After Construction, 4.8 Dangerous Conditions, Authority For-City To Abate, Section 5 Re-
location of Syystem Facilities, and Section 9 Indemnification, of this Franchise, shall be in addition to any and all other obliga-
tions and liabjiffies District may have to the City at common law, by statute, or by contract, and shall survive the C1 's Fran-
chise to District for the use of the areas mentioned in Section 2.3 herein, and any renewals or extension thereof. This Ordl-
nanca shall further be bindinn upon the heirs, successors, executors, administrators, least representatives and assigns of
Seolion 17. Seve�rabilfty. If any Section, sentence, clause or phrase of this Ordinance should be held to be invalid or un-
)nstit- 'uhonafby a court o1 competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitu-
mality of any other Section, sentence, clause or phrase of this Franchise Ordinance. The Parties may amend, repeal, add,
?place, or modify any provision of this Franchise to preserve the intent of the parties as expressed herein prior to any find -
ig of invalidity or unconstitutionality:
Section 18. Assstgnnm�ent. This Franchise shall not be sold, transferred, assigned, or disposed of in whole or in part either
y sa�evouitary or InvoTntary merger, consolidation or otherwise, without the written approval of the City. This paragraph
all not act to require City approval of any District action to mortgage or otherwise encumber its facilities, or other action re-
tied to corporate financing, financial reorganization, or refinancing activity. r- -_ -- �.-- _ ' -
Section 19, Notice. Any notice or Information required or permitted to be given to the parties under this Franchise may be
ant fo t e flowing addresses unless otherwise specified:
District General Manager. - r 1#1 i I . r. -
Olympie View Water 8, Sewer District . I f r
23725 Edmonds Way- �� J : t
Edmonds, WA 98026 -1856
Phone: 425-774-7769
Fax:
Administrative Services Director
CI1y of Edmonds ;
129 - 5th Ave. North t r }
Edmonds, WA 98020
The failure of either parry to enforce any breach or violation by the other party of any provision of
deemed to be a waiver or a continuing waiver by the non - breaching party of any subsequent
me or any other provision of this Franchise.
pute Resolution. If the parties are unable to resolve disputes arising from the terms of this Fran -
i courTof competent jurisdiction, the parties shall submit the dispute to a non - binding alternate
agreed to by tha part ies. Unless otherwise agreed between the parties or determined herein, the
constitutes the entire understanding and agreement between the parties as
ants or understandings, written or otherwise, shall be binding upon the par-
Section 23. Directions to City Clerk. The City Clerk Is hereby authorized and directed to forward certified copies of this or-
dinance to Distn as sezTo,_N sits -ordinance. District shall have sixty (60) days from receipt of the certified copy of this or-
dinance to accept In writing the terms of the Franchise granted to Dismal by this ordinance.
Section 24. District Acceptance of Franchise, District shall have no rights under this Franchise nor shall District be bound
by the terms and conations oflhr NncFtlse unless_ District shall, within thirty (301 days after the effective date of the ordi-
nance, file with the City its written acceptance of this Franchise, in a form acceptable to the City Attorney.
Section 25. Publicat or�Cosis. In accord with state law, this ordinance shall be published in full.
act on 2 .gflect ve -Date. -'rhis ordinance, being an exercise of a power specal -tally delegated to the City legislative
body, Ts not sub ect'fo referendum, and shall,take effect five (5) days after passage and publication of an approved summary
thereof consisting of the title.
' APPROVED: �
ATTEST /AUTHENTICATED: MAYOR GARY HAAKENSO
I
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1
5.3
5.4
6.3
-woe vismorwnrrwnnen nonce; wmcn snan incmoe a oescnpaon or actions-me viry oeieyes-necessary to restore the
rigbt -of -way. if the right -oi -way is not restored In accordance with the City's notice within fffteen,(15) days of that no-
tice, or such loner period as may be specified in the notice, the City, or its authorized agent, may restore the right -
of -way and District shall be responsible for all reasonable costs and expenses Incurred by the City in restoring the
right -of -way in accordance with this Section. The rights granted to the City under this Paragraph shall be in addition
to those otherwise provided by this Franchise.
B ndin Requirement. District, as a public agency, is not required to comply with the City's standard bonding
requ rt ement for working In the City's right -of -way.
Emer ency Work, Permit Waiver. In the event of an emergency where any facilities located In the right -of -way are
broken
or damaged, of if District's construction area for their facilities is in such a condition as to place the health or
safety of any person or property in imminent danger, District shall Immediately take necessary emergency measures
to repair or remove its facilities without first applying for and obtaining a permit as required by this Franchise.
However, this emergency provision shall not relieve District from later obtaining necessary permits for the emergen-
cy work. District shall apply for the required permits the next business day following the emergency work or as soon
as practical thereafter given the nature and duration of the emergency.
Blanket Permit. The terms "Minor Activities" and, "Blanket Activities" are defined in a-specifically negotiated "Blanket
Permit r Activity Within The Public right -of- way," which is incorporated byy this reference as fully as If herein set
forth, a copy of which has been tiled with the City Clerk and identified by Clerks Receiving Number n . Per-
miftee shall be authorized to perform Minor Activities without a City hermit of any kind and Blanket Activities under
the terms and conditions of the Blanket Permit. All other activities will require a separate permit In accordance with,
City ordinances. i
The Permittee shall pay the Ciry a permit Inspection /processing fee in the amouV het out in Blanket Permit Definl-
lions and as established by the fly council.
The Permittee shall provide a monthly list of Blanket Permit construction activity by the 10th of the following month
listing the previous month's completed activity authorized under this Section.
For each separate use of the right -of -way under this Section, and prior to commencing.any work on the right -of -way
under this Section, the Permittee shall:
At least twenty four (24) hours in advance of entering the right -of -way, fax or otherwise deliver to the Permitting Au
thori ty a City Job Start Notification Form, as provided by the, Permitting Authority.•• Sold form shall Include, at a mint-'
mum, the following Information: street address nearest to the proposed work site and description of work to be per -'y
formed. Permittee shall not commence work within the City right -of -way without approval and obtaining of a permits
number and the Job Start Notification by the City Engineer or his designee. j
The City reserves the right to after the terms and Condltlons'of Subsectlon,4.6''and of Blanket Permit by-Providing,
thirty (30) days written notice to the Permittee. Any change made pursuant to this Paragraph shall thereafter apply to
all subsequent work performed pursuant to this Section.
In the event the Permittee fails to comply with any of the conditions at forth in this Section, the City me y provide
written notice of termination to operate under ihis.Section to Permittee, stating with specificity. the basis for the
termination of the Permittee's authority. ' 11 ' '
i, in accordance with applicable federal, state, and local safety rules and regulations shall, at all times, employ
ry care in the installation, maintenance, and repair of Its facilities utilizing methods and devices commonly ac-
in the sanitary sewer industry to prevent failures and accidents that are likely to cause damage, Injury, or nul-
to persons or property.
1 will -make all reasonable effort to construct and maintain its facilities in the right -of -way in a safe and opera -
•rinriitinn ..
Whenever -FaciTties of t�iahons of i�t cause or contribute to a condition that appears to endanger any per-
son or substantially impair t e lateral support of the adjoining right -of -way, public or private property, the City may
direct District, at no charge or expense to ihe.City, to take actions to resolve the condition or remove the
endangerment. Such directive may Include compliance within a prescribed time period.
In the event District falls or refuses to promptly take the action, or if emergency conditions exist which require imme-
diate action to prevent imminent Injury or damage to persons or property, the City may take such action as, it be-
lieves necessary and District shall reimburse the City for its actual costs Incurred. I ,
never ifie� ty causes a g�aaingg or widening of the right -of -way or undertakes construction of any water or
storm drainage line, lighting siggnalfzatlon, sidewalk Improvement, pedestrian amenities, or other public street im-
provement (for purposes other thanthose described in Section 5.3 below) and such project requires the relocation
of District's then existing Facilities lying within that portion of the right -of -way, or an area affected by such city proj-
ects, the City shall:
(1) Provide District, at least one hundred twenty (120) days prior to the commencement of such project, written no-
tice that a project is expected which will or may require relocation of a portion of District's facilities; and
(2) Provide District at least sixty (60) days prior to the commencement of such project, with reasonable plans and
specifications for such gradingg widening, or construction and a proposed new location within or adjacent to the
right -of -way for District's Feeliities.'
After receipt of such notice and the plans and specifications, District shall relocate such Facilities within the right -of-
way as to accommodate such street and utility improvement project ten (10) dayys prior to commencement of the
project unless there is agreement to a different schedule for coordinating complelton of relocation of Facilities, pro-
vided, however, District may, after receipt of written notice requesting a relocation of Its Facilities, submit to the City
relocations f 1 Facilitie and the time schedule. The i shall within a reasonable time
written alternatives to such o is s City
evaluate such afterhatives and advise the District in writing whether one or more of the alternatives Is suitable to
accommodate work that would otherwise necessl)ate relocation of the Facilities. If so, requested by the City, District
shall submit such additional information as is reasonably necessary to assist the City in making such evaluation.
The City shall give each alternative full and fair consideration. In the event the City ultimately reasonably determines
that there Is no other reasonable or feasible alternative, than District shall relocate its Facilities as othenvfse provid-
ed in this Section 5. The City shall cooperate with District to designate a substitute location for its Facilities within the
right -of -way. The cost of relocating such Facilities existing within the present limits of the City shall be paid as
(1) if the relocation occurs within five (5) years after District initially constructed such Facility, then the relocation
shall be at the City's sole cost;
(2) if the relocation occurs more than five (5) years after District initially constructed such Facility, then the reloca-
tion shall be at District's sole cost.
Obligations under this Section 5 shall not apply'whenever any person or entity, other than the City, requires the relo-
cation of District Facilities to accommodate the work of such person or entity within the Righi -o way, or whenever
the relocation of District's Facilities within the right -of -way Is necessary to satisfy any requirement or condition of a
City permit or approval issued on a land use action (including, without limitation, any condition or requirement IM -1
posed pursuant to any contract or in conjunction With approvals or permits for zoning, land use, construction or
development) for the benefit of anyy person or entity other than the City. However,. in the event the City reasonably t
determines (and Promptly notifies District in writing of such determination) that the primary purpose of imposing such
condition or requirement upon such person or entity which necessitates such relocation (s to cause the construction
of an improvement on the City's behalf and in a manner consistent with City approved Improvement plans (as de-
scribed in subsection 5.1 above) within a segment of the right -of -way then District shall require only those costs and
expenses Incurred by District in Integrating and connecting such relocated Facilities with District's other Facilities to
be paid to District by such person or entity, and District shall otherwise relocate its Facilities within such segment of
j
the right -of -way in accordance with the Provisions of subsection 5.1 above.
The provisions of this Section 5.3 shall In no manner preclude or restrict District from making any arrangements it
may des rr� appropriate when responding to a request for relocation of its Facilities by any person or entity other than
the City, Where the facilities to be constructed by such person or entity are not or will not become City owned, operet-
ed or maintained facilities, provided that such arrangements do not unduly delay a City construction pro act.
Any cost or expense in`connectfon with the location or relocation of any Facilities existing under benefi�of easements
or other rights not arising under this Franchise, shall be borne fifty percent (50 %) by the City, and fifty percent (50 %)
by District.
in 6. Compliance with Codes and Regulations.
if a rights, privileges an aut ority arem granted are subject to and governed by this ordinance and all other
applicable ordinances and codes of the City of Edmonds, ss they now exist or may hereafter be amended. Nothing
In this ordinance limits the City's lawful power to exercise Its police power to protect the safety and welfare of the
general public. Any location, relocation, erection or excavation by District shabe performed by District In accord
•
ante with applicable federal, state and city rules and regulatlons, Including the City Public Works Policies and Pre -
approved Plans, and any required permits, licenses or lees, and applicable safety standards then in effect or any
Memorandum of Understanding with District.
Upon written inquiry, District shall provide a specific reference to either the federal, state or local law or the Wash-
ington Utilities and Transportation Commission (WUTC) order oraction establishing a basis for District's actions re-
lated to a specific franchise issue.
In the event that any territory served by District is annexed to the City after the effective date of this Franchise, such
territory shall be governed by the terms and conditions contained herein upon the offeciive date of such annexation.
73 — D)stdFW assign a representative w ose responsibility shall be to coordinate with the City on planning for CIP proj-
ects including those that involve under grounding. At a minimum, such coordination shall include the following:
(1) District shall meet with the City, other franchisees and users of the right -of -way, according to a schedule to be
determined by the City, to schedule and coordinate construction; and
(2) All construction locations, activities, and schedules shall be coordinated, as required by the Mayor or his desig-
nee, to minimize public inconvenience, disruption, or damages.
(3) For the purpose of planning, District and the City shall provide each other with a copy of their respective cur-
rent adopted Capita Plan annually and upon request byy the other party.
Section 8. Planning Coordination. The parties agree, as follows, to participate In the development of, and reasonable up-
ates, taeach of tier s piannTng�o'cments.
8.1 For District's service within the City Urban Growth Area limits, District will participate in a cooperative effort with the
City of Edmonds to develop a Comprehensive Plan - Utilities Element, that meets the requirements described In
RCW 36.70A.O70 (4).
8.2 District will participate in a cooperative effort with the City to ensure that the Utilities Element of the City's Compre-
hensive plan is accurate as it relates to District's operations and is updated to ensure ft's cohtinued relevance at rea-
- sonable intervals.
8.3 District shall submit information related to the general location, proposed location, and approximate capacity of all
existing and proposed Facilities within the City as requested by the Director within a reasonable tlme,.not exceeding
sixty (60) days from receipt of a written request for such information,
8.4 District will update Information provided to.tha City whenever'here•ars major changes In the District's system plans
for the Cfly. ,
3'.5 District will provide inlorme ion relevant to Its operation within the City within a reasonable period of time after a writ-
ten request to assist the City fn It's need to develop and update i1 "s Comprehensive Plan - Utilities Element, provided
that such Information is in District's possession or can be reasonably developed from Information in District's
possession.
8.6 The Ctty will provide information relevant to District's operations within a seasonable period of time following a writ-
ten request to assist District in the development or update of its Comprehensive Sewage System Plan, provided that
such information is in the City's possession, or can be reasonably developed irom the information In the City's
Sa _Gisirfc-t herebreleases, Covenants not tobrr ng suit, and agrees to Indemnify, defend and hold harmless the City, its
elected officials, employees, agents -and volunteers from any and all claims, costs, iudgments, awards, attorney's
fees, or liablllty to any person, mcGing claims by District's own employees to which bDistdct might otherwise be im-
mune under. 51 RCW, arising from personal injury or damage to property allegedly due to the negligent or In-
tentional acts or omissions of District, Its agents, servants, officers or employees In performing activities authorized
by this Franchise: This covenant of indemnification shall include, but not be Invited by this reference, claims against
the Clty arising as a result of the acts or omissions of District, its agents, servants, ottscers or employees except for
claims for injuries and damagges caused by the sole negligence of the City. Ii final Judgment Is rendered against the
City, its elected officials, amploy9as, agents, and volunteers, or arty of them, District shall satisfy the same. The Ctry i
may apppear in any proceeding It deems necessary to protect the City's or the public's interests.
9.2 The City hereby releases, covenants not to bring suit, and agrees to Indemnify, defend and hold harmless he Die
trict, Its elected offigfals, employees, agents, and volunteers from any and ell claims, costs, Judgments, awards,
attorney's fees, or liatllity t6an– iperson, Including claims by di s own employees to which City might otherwise bo
immune under Title 51 RCW, arising from personal injury or damage to property allegedly due to the negligent or In-
tentional acts or omissions of City , its agents, servants, officers or employees in performing construction, mainte•
nance or other city activities within the Rights -of -way. This covenant of Indemnification shall include, but not be limit-
ed by this reference, claims against the District arising as a result of the acts or omissions of City, its agents, serv-
ants, officers or employees except for claims for Injuries and damages caused by the sole negligence of the District.
It final ' udgment Is rendered against the District, Its elected officials, employees, agents, and volunteers „or any of
them, Sty shall satisiy the same. The District may appear in any proceeding it deems necessary to protect the Dis-
trict's interests or the Interests of its ratepayers.
9.3 In the event any such claim or demand be presented to or filed with either party, such party shall promptl; notity the
_nlhar tharenf.which narty shall haves the rinht -at 44 gigot— anri at ite_<nia.o & era. ass .e....,,............_._-_–