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Home My WebLink About3660 RESOLUTION NO. 3 6 6 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL AGREEMENT WITH THE MUCKLESHOOT INDIAN TRIBE FOR THE COST SHARING IN THE REPLACEMENT AND MAINTENANCE OF A NEW WASTEWATER CONVEYANCE FACILITY CONVEYING WASTEWATER FROM MUCKLESHOOT INDIAN TRIBE PARCELS LOCATED OUTSIDE CITY LIMITS TO KING COUNTY CONVEYANCE AND TREATMENT FACILITIES WHEREAS, both the City and the MIT are agencies qualified to engage in furnishing sanitary sewer service within their approved service areas; and WHEREAS, the King County Department of Natural Resources, Water Pollution Control Division is engaged in developing and operating a regional sewage disposal system and the City and the MIT are engaged in developing and operating a sewage collection system; and WHEREAS, the City and MIT intend to replace the Auburn Way South Sanitary Sewer Conveyance System (hereinafter AWSCS); and WHEREAS, the replaced AWSCS is the subject of this Agreement, and is intended to be consistent with applicable law and comprehensive planning for sewage disposal; and WHEREAS, the MIT desires to provide sewer service only to customers within the MIT's approved sewer service area; and WHEREAS, Auburn's existing wastewater conveyance facility surcharges and requires improvements to allow for additional flow capacity and avoiding potential overflow of sewage and the damages associated with said overflows; and ---------------------- Resolution No. 3660 2/13/04 Page 1 013 WHEREAS, the MIT desires ownership of a portion of the capacity within a sanitary sewer conveyance facility extending from that portion of the MIT service area, outside of the City's service area, into King County's wastewater conveyance system; and WHEREAS, this agreement shall supercede the existing Auburn - MIT sanitary sewer Agreement, executed in accordance with City Ordinance No. 4967; and WHEREAS, to provide wastewater conveyance and ownership responsibilities of the public sanitary sewer facilities that extend from the boundary of the City's service area along Auburn Way South to King County's conveyance facilities at the corner of 1 ih Street SE and K Street SE, it is necessary that this agreement be entered into between the City and the MIT, establishing the rights and duties of the parties; and WHEREAS, the Muckleshoot Indian Tribe, and the City of Auburn are authorized to enter into this Agreement under the authority of their respective enabling legislation and under the authority of Chapter 39.34 RCW, the Interlocal Cooperation Act; and WHEREAS, the MIT received approval from the Bureau of Indian Affairs, hereinafter referred to as "BIA", for this agreement, pursuant to Title 25, Section 81, of the U.S. Code, or the BIA has determined and so informed the MIT that approval of this Agreement is not required under 25 USC 81. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor is hereby authorized to execute an interlocal agreement with the Muckleshoot Indian Tribe, in substantial conformity with the ----_.---------------- Resolution No. 3660 2/13/04 Page 2 of 3 agreement attached hereto, marked as Exhibit 1 and incorporated herein by this reference. Section 2. That the Mayor is authorized to implement such other administrative procedures as may be necessary to carry out the directives of this legislation. Section 3. That this resolution shall take effect and be in full force upon passage and signatures hereon. DATED and signed this / }!.--- day of March 2004. CITY OF AUBURN W-y PETER B. LEWIS MAYOR ATTEST: ,. \.. 0 j f'1\ II t2{;;;:t¡' /ìV.ú,#'¡¿þ----/ Da . lie E. Daskam, City Clerk ---------------------- Resolution No. 3660 2/13/04 Page 3 of 3 1-.1 :!' 'J Ret Aub City 25W Aub \1\"'''''''''''' 2004112900!P.i42 PACIFIC NY tIt AG urn Address: ~~~~~'~0~~ ~~t~9 .- .. urn City Clerk KING COUNt~, . of Auburn est Main SI. urn, WA 98001 RECORDER'S COVER SHEET ument Title(s) (or transactions contained therein): L~ I( s- Co¡ Prvkl' rlocal Agreement (RES 3660) L-.J 9 ?-'lL,,"IL erence Number(s) of Documents assigned or released: ditional reference #'5 on page of document ntor(s)/Borrower(s) (Last name first, then first name and initials) urn, City of . ntee/Assignee/Beneficiary: (Last name first) Muckleshoot Indian Tribe al Description (abbreviated: i.e. lot, block, plat or section, township, range) RCW 39.34 dditionallegal is on page of document. essor's Property Tax Parcel/Account Number sessor Tax # not yet assigned Doc Inte Ref DAd Gra Aub Gra 1. Leg PER DA Ass N/A DAs ,t .... 'I' EXHIBIT 1 AUBURN - MUCKLESHOOT INDIAN TRIBE SANITARY SEWAGE AGREEMENT (Auburn Way South Sanitary Sewer Conveyance System) For the construction, ownership, and maintenance of the sanitary sewer conveyance facility that provides service to Muckleshoot tribal property located outside of Auburn's municipal limits to King County's wastewater conveyance and treatment facilities. This Agreement is entered into in King County, Washington, between the City of Auburn, a municipal corporation under the laws of the State of Washington, hereinafter referred to as the "City" and the Muckleshoot Indian Tribe, a federally recognized Indian Tribe located on the Muckleshoot Indian Reservation, hereinafter referred to as the "MIT" WHEREAS, both the City and the MIT are agencies qualified to engage in furnishing sanitary sewer service within their approved service areas; and WHEREAS, the public health, welfare and safety of the residents of the City, the MIT and the residents of their service areas require the elimination of potential sources of water pollution and the preservation of the fresh water resources of the area; and WHEREAS, the King County Department of Natural Resources, Water Pollution Control Division, hereinafter referred to as "King County", is engaged in developing and operating a regional sewage disposal system and the City and the MIT are engaged in developing and operating a sewage collection system; and WHEREAS, consistent with the standards prescribed by the State of Washington, Department of Ecology, hereinafter referred to as "DOE", for the collection and disposal of sewage effluent within the State, the City and the MIT are improving a sanitary sewage conveyance system that conveys wastewater from the MIT and the City service areas to King County's facilities; and WHEREAS, the City and MIT intend to replace the Auburn Way South Sanitary Sewer Conveyance System (hereinafter AWSCS); and WHEREAS, the replaced AWSCS is the subject of this Agreement, and is intended to be consistent with applicable law and comprehensive planning for sewage disposal; and E.>sf:1jÞ.i!.1.......mm.......m Resolution No. 3660 Page 1 of19 .) ." WHEREAS, the MIT desires to provide sewer service only to customers within the MIT's approved sewer service area; and WHEREAS, Auburn's existing wastewater conveyance facility surcharges and requires improvements to allow for additional flow capacity and avoiding potential overflow of sewage and the damages associated with said overflows; and WHEREAS, the MIT desires ownership of a portion of the capacity within a sanitary sewer conveyance facility extending from that portion of the MIT service area, outside of the City's service area, into King County's wastewater conveyance system; and WHEREAS, to provide for the conveyance and disposal of sewage conveyed to King County from properties located within City's service area and from that portion of the MIT service area located outside of the City's servicè area, the two parties are entering into contracts with King County; and WHEREAS, this agreement shall supercede the existing Aubum - MIT sanitary sewer Agreement, hereinafter referred to as the "1997 Auburn MIT Agreement" executed in accordance with City Ordinance No. 4967; and WHEREAS, the City and MIT are entering into this Agreement, on a government to government basis, with the intention of cooperatively and equitably designing, and constructing the AWSCS and thereafter assuring that its operation meets the needs of the parties, as more fully set out in this Agreement; and, WHEREAS, to provide wastewater conveyance and ownership responsibilities of the public sanitary sewer facilities that extend from the boundary of the City's service area alon~ Auburn Way South to King County's conveyance facilities at the corner of 1 t Street SE and K Street SE (the King County M Street Trunk Line), it is necessary that this agreement be entered into between the City and the MIT, establishing the rights and duties of the parties; and WHEREAS, the MIT has determined and so informed the City that approval of this Agreement is not required by the Bureau of Indian Affairs under Title 25, Section 81, of the U.S. Code. NOW, THEREFORE, in consideration of the mutual covenants contained herein and in order to provide a connection between the City's, the MIT's and King County's wastewater conveyance facilities, IT IS HEREBY AGREED AS FOllOWS: e:_'5taJÞ.iLLmh...........m__. Resolution No. 3660 Page 2 of 19 .' . 't I. SEWAGE FLOW CAPACITY 1.1 MIT's comprehensive planning has determined that the portion of MIT service area located outside of Auburn's municipal city limits (south of the south section line to Section 27, Township 21, Range 5) will require a maximum peak capacity of 7.85 CFS within the AWSCS. 1.2 The City's comprehensive planning has determined that the City's maximum peak capacities within the AWSCS are as set out in Exhibit "A". The AWSCS shall be sized to convey the MIT's and the City's combined maximum peak capacities consistent with this Agreement. A table listing the capacity requirements for the AWSCS is provided in Exhibit "A", a copy of which is attached hereto and is incorporated herein by this reference. 2. MIT/CITY RELATIONSHIP FOR WASTEWATER CAPACITY AND NATURE OF PARTICIPATION 2.1 Ownership and Participation: The MIT and the City shall each own a portion of the capacity of the AWSCS as shown in Exhibit "A". MIT affirms that the City shall have the administrative role for the implementation of the AWSCS and the City affirms that MIT may, in its discretion, maintain active participation in the implementation consistent with the terms of this Agreement and the equity provided by the MIT to the AWSCS project. 2.1.1 Nature of capacity ownership: The respective capacity ownership interests of the MIT and City in the AWSCS shall be determined by the maximum capacity contribution that each makes to the AWSCS, as noted in Exhibit "A". The MIT and City have agreed on wastewater conveyance capacity maximums at specific locations along the sections of AWSCS. Those maximum capacity estimates are set out in Exhibit "A". Until changed by mutual agreement of the parties the capacities set out in Exhibit "A" shall govern the capacity ownership under this Agreement. The parties will share equally in the project costs. 2.1.2 Additional Capacity: Should either party desire to increase its respective capacity in the AWSCS beyond the maximum capacities set out in Exhibit A, the party seeking the additional capacity shall be responsible for the costs associated with the facilities necessary to provide the additional capacity. Either party may rent, assign or convey to the other a portion of the capacity that a party has as set out in Exhibit A if a party has no need for the capacity. Any conveyance of capacity may be for an agreed period or may be a permanent transfer. If a party does convey a portion of its capacity to the other party the parties shall agree on fair compensation for the transferred capacity. In the absence of an agreement between the parties, no party may take any E.~bjþ'i!J......... ............n Resolution No. 3660 Page 3 of 19 .1 " action that would use, or appropriate to itself any of the unused capacity that the other party may have in the AWSCS; nor take any action that would limit, reduce or interfere with the ability or right of the other party to fully use the full capacity that the party owns under this Agreement. The right held by both parties to this Agreement to use its full ownership interests in the AWSCS shall not be subject to modification under Section 10. 2.1 .3 Total Capacity: The City's maximum capacity and the MIT's maximum capacity shall be equal to 100% of the AWSCS capacity. Any remaining excess capacity within the AWSCS due to pipe sizing shall be owned by the parties based upon their respective percentage contributions determined from the maximum capacities as set out in Exhibit "A". 2.1.4 City and MIT Representation: The City and MIT will each designate a representative who may be assisted by other employees and/or project advisors, to assure that each may fully participate as provided under this Agreement. The representatives and advisors will work to minimize areas of dispute, and to resolve all implementation issues as they arise and, as far as possible, minimize the need for recourse to dispute resolution provisions of this Agreement. 2.2 Project Costs and Responsibilities: For purposes of this Agreement, the MIT and City have agreed upon a plan as outlined in Exhibit "A", for the upgrade of the AWSCS to meet the needs of both the City and MIT. Only costs directly attributable to the AWSCS shall be considered as Project Costs. Activities, responsibilities, and costs not directly attributable to the AWSCS are not to be considered Project Costs and shall not be included in the allocation of costs under this Agreement. 2.2.1 Allocation of Costs: The parties have agreed to share equally (50%-50%) in the costs required to upgrade the AWSCS. The capacity each party will have in the upgraded system is as noted in Exhibit "A". "Project Costs" subject to allocation include the following: design engineering, construction, permitting, inspection, contract administration services, and other cost items agreed to by the parties. Each party will be responsible for payment of its share of the actual agreed costs. An estimate of the agreed costs for each segment is set out in Exhibit "A". The following costs incurred by the City prior to the execution of this Agreement shall be included in the allocated costs between the parties, subject to the cost allocation formula set out in this section: Consoer Townsend Envirodyne Engineers, Inc. for Section B design plans and a preliminary design for the entire AWSCS, $276,585.16. E.>sf:1jÞ.i!J.........mmmn.... Resolution No. 3660 Page 4 of 19 · ' ." Pentec Environmental, Inc. for a wetland assessment for Section B's proposed alignment, $3,499.75. 2.2.2 Invoicing and Fund Distribution: The City shall provide to the MIT an invoice for the design, construction and project management and inspection work of the AWSCS done pursuant to Section 2.3 of this Agreement. The MIT shall provide for a fund transfer of the MIT's share of the invoice amount to a financial institution of the City's choice within 5 calendar days of the date that the MIT receives the invoice. To the extent that the MIT disputes the amount of the invoice, or whether the contract or the work performed is in conformity with this Agreement and the approved contract documents, that dispute shall be resolved under Section 10 of this Agreement. Interest of 5% shall be added to any invoice that is 30 days past due and found to be properly owed. 2.2.3 Alternative Invoicing and Fund Distribution: At the option of the City, it may elect to receive the MIT share of ¡he design, construction, project management work and inspection of the AWSCS done pursuant to Section 2.3 and this section, but not under Section 2.2.2. The City shall make its election in writing to the MIT at the same time that the design or construction contracts to design or build each segment of the AWSCS is executed by the City. Once the City makes election it may not change its decision during the design or construction of the segment awarded without the consent of the MIT. (a) Prior to letting of the consultant contract or the request for bids and upon notification by the City that the City has committed funds to meet its payment obligations under this Agreement, the MIT shall deposit their share of the estimated project costs into a bank account that Auburn can draw from to pay for work related to the AWSCS segment being constructed or the consultant contract. The parties agree that costs incurred in design and construction of the AWSCS will be paid equally by the City and MIT as the costs are incurred, except as otherwise set out in this Agreement. Once funds are deposited into this account they will be unavailable for MIT until project completion or if the project is terminated early, upon termination. The account will earn interest for the MIT. Payment from this account does not guarantee MIT approval or waive the MIT's right to protest any expenditure by the City. (b) MIT approved contract changes may require additional funds be deposited into this account to ensure sufficient funding to support MIT's portion of said change. Account adjustments shall occur within 10 calendar days of MIT approval for said change. (c) To the extent that the MIT has provided construction funds that remain unexpended at the end of the construction of a segment of ç)~tJjRiLLm_h..." Hum.._ Resolution No. 3660 Page 5 of 19 " ,1 the AWSCS, any remaining funds shall be carried forward and shall be used to fund a portion of the MIT's share of a subsequent section. When the entire AWSCS is completed or upon termination if terminated early with funds remaining in the MIT's account, those funds, with accrued interest, shall be refunded to the MIT. The City shall provide periodic reports, no less frequently than quarterly on the expenditure of funds for the project, as noted in Section 2.2.4 and at the completion or termination of each segment a final accounting of the funds expended will be provided. (d) To the extent that the parties to this Agreement have a dispute with respect to invoices, the reasonableness of costs associated with a segment or other matters related as a party's duty to fund, that dispute shall be resolved under the procedures set out in Section 10 of this Agreement. 2.2.4 Final Accounting: The City shall provide periodic reports, no less frequently than quarterly on the expenditure of funds for the project, as noted in Sections 2.2.1 and 2.2.2. At the completion or termination of each segment the City will provide a final accounting of the funds expended. 2.3 Design and Construction Contract Development: The City shall be the contracting agent responsible for managing contracts with design and construction professionals consistent with the terms of this agreement and applicable laws. Direction to the consultant and contractor shall be through the City, which is the contracting party. 2.3.1 Reviews: The MIT shall have the opportunity to participate in the review and approval of: (1) the selection of any consultants, contractors, consistent with any bid documents and bid procedures, and the development of their corresponding contracts for work to be paid by allocated funds under this Agreement; and (2) design documents (including any intermediate designs that require approval) bid documents, construction plans, budgets, sequencing changes, schedules, project specifications, and similar documents. MIT review(s) and approval(s) shall take place prior to the time that such document(s) are considered final by the City and prior to the time that such documents are submitted by the City to the contracting party for signature. The parties shall work cooperatively to assure that all relevant comments are considered in the contract development process. MIT shall provide its approval, disapproval, comments, or notice of its intention to waive its rights to approve within 15 calendar days of the date that the documents are submitted for MIT review and approval. Failure to respond in the time set out in this section shall constitute approval of the document. Once MIT approval is granted, no further changes to the contract shall be allowed without further concurrence between both parties. 1;.~DjR.itL__ _ _ _ u u_ _ _ nnn _ _.. Resolution No. 3660 Page 6 of 19 · J .' 2.3.2 Correspondence and Meetings: The MIT shall receive pertinent copies of project correspondence and may, at its option, audit the City's project file and participate in any matter relating to the project including work schedules, project meetings, project reports, change orders, claims, pay estimates, billings, project close out, provision for continuation of services, and related matters. The City shall inform the MIT of all progress and design meetings with the consultanVcontractor and MIT may, at its option, attend these meetings. The MIT may contest any billing as not being consistent with applicable contract documents or the terms of this Agreement and take any actions necessary to protect its interests if claims are filed. Progress meetings will be established regularly but no less frequently than monthly to confer on the construction project and any other aspect of the AWSCS project. To the extent that the MIT believes that the City is not complying with the terms of any construction contract or the terms of this Agreement and the dispute is not resolved, either party may seek to resolve the dispute under Section 10 of this Agreement. 2.3.3 Scheduling: The proposed construction sequencing for improvements to the AWSCS is as identified in Exhibit A. Approval of this Agreement confirms the parties' agreement with the sequencing and grants the City authority to begin processing bills for funds expended on the design of the AWSCS consistent with the provisions set out in Section 2 of this Agreement. To the extent the parties are unable to reach agreement or any party believes the other is acting inconsistent with the terms of this section, the dispute shall be resolved under Section 10 of this Agreement. 2.4 Actual Construction: The City shall be responsible for the actual construction of the AWSCS, paying all construction related costs consistent with the construction/bid documents and assuring that construction of each segment is completed pursuant to the contract terms and consistent with the terms of this Agreement and Exhibit "A". The City shall be responsible for preparing record drawings and providing one full and complete copy to the MIT within 90 calendar days of final project acceptance by the City. The City shall follow normal contracting rules, procedures, and standards as commonly accepted by the public works industry, except as might be modified by this Agreement. 2.4.1 Project Monitoring: The City shall be responsible for monitoring construction, and shall assure that all contractors, subcontractors and material men are paid and any liens are discharged as required in the respective contracts, or by operation of law. MIT shall not be liable for any cost, expense or liability associated with the failure to pay any contractor, subcontractor or material man. E.~bjþ'i!.1.... h.h............... Resolution No. 3660 Page 7 of 19 .' l' The MIT shall have access to the project site at all times that construction operations are underway for the purpose of monitoring the project progress and ensuring compliance with contract documents and the terms of this Agreement. The MIT shall follow appropriate safety requirements for construction zones and shall report any concerns to the City Project Manager or Project Inspector consistent with Section 2.3. 2.4.2 The City shall indemnify MIT against any loss, cost or expense arising out of any action brought against MIT seeking payment for work done on the AWSCS based on a contract that is not approved by MIT. 2.5 Contract Changes: The City may, without MIT prior concurrence, approve changes for consultant and construction contracts up to 5% of original contract costs. The 5% of an approved construction contract may be set out in anyone segment as either, (a) minor changes (individual changes under $5,000 each), (b) line item quantity changes (changes to a line item quantity on the bid form), or as (c) a change order (if the individual change exceeds $5,000). Changes in bid quantities, minor changes, or change orders shall all be brought to the MIT's attention no later than the next scheduled progress meeting between the City and MIT. A description of the change along with an explanation for the change shall be supplied to the MIT for its concurrence. If MIT determines that the change was not proper it may refuse to pay that portion of the cost of the change that would otherwise be allocated to the MIT. If the parties do not agree on this issue then the issue or disagreement shall be resolved under the procedures set out in Section 10. Contract changes exceeding 5% of the total contract estimate shall require City and MIT approval prior to implementation. All changes that require City council approval shall also require MIT approval without regard to the amount. City and MIT shall provide their approval, disapproval, comments, or notice of its intention to waive its rights to approve within 15 calendar days of the date that the change is submitted in writing to each of the agencies. Failure to respond in the time set out in this section shall constitute approval of the document. 2.6 Final Inspection: Every contract let to construct, modify, or repair the AWSCS shall provide for a final inspection of the work done prior to any final payment under the contract or the release of any funds held back. The City shall take the lead in providing a final inspection. The MIT shall be informed of any final inspection or testing events at the time of scheduling, or 5 calendar days prior to any scheduled inspection, whichever is the shorter. The MIT may provide input and options, on the methods and means to be used to 1;,.~t1jQit1_______________________. Resolution No. 3660 Page 8 of 19 · J ,I inspect the completion of each segment; the entire AWSCS; and during the life of this Agreement, any repairs or modifications done to the AWSCS. The MIT, in its discretion, may participate in or monitor the final inspection. If the parties cannot agree on the methods and means of any final inspection the dispute shall be resolved under the procedures set out in Section 10 of this Agreement. 3. OPERATIONS AND MAINTENANCE 3.1 Operation and Maintenance Duty: The City shall be responsible for undertaking all the routine operation and maintenance associated with the AWSCS. Routine operations and maintenance shall consist of inspection and cleaning of the trunk line together with the activities set out in Exhibit "B. The MIT's duty to contribute to operations and maintenance shall commence when the MIT and King County execute the Agreement set out in Section 4. 3.2 MIT Contribution: MIT's maximum obligation to contribute towards the operations and maintenance set out in Section 3.1 shall be $600.00 (six hundred dollars) per year. This fee shall be payable within the month of January of each year. The MIT shall have no other financial obligation to fund operation and maintenance set out in Section 3.1.The MIT shall begin making this contribution upon the establishment of the MIT as a King County Component Agency for the conveyance and treatment of wastewater flows to King County. This fee shall be reviewed after 15 years from the date of this Agreement. If an increase in the annual fee is determined justifiable then the City and the MIT shall negotiate the new fee. 3.2.1 In order to measure MIT wastewater volume and contribution, MIT shall install and maintain a flow meter to be located at the southern terminus of the AWSCS. The meter shall have a totalizer that records the volume of wastewater conveyed to the AWSCS. This meter shall be used in quantifying MIT wastewater flow into King County's system. 3.2.2 If requested by MIT, the City will install, at the City's expense and at a location designated by the MIT, a temporary flow monitor to sufficiently capture the cumulative City and MIT flows in the conveyance piping. The meter will be installed at a frequency not to exceed once every 20 months. The City shall have three months to establish the meter upon receipt of written request by the MIT. All information concerning the flows from said meter shall be provided to the MIT. Any information provided from King County to City concerning the flows from the AWSCS shall be forwarded to MIT for their records within 15 calendar days of receipt. 3.3 Extraordinary Repair: Should the AWSCS require additional repair or maintenance or upgrade over and above the routine maintenance ~_~t1jRÎtL__ _ _ _ _ _ _____._____ _ _ _. Resolution No. 3660 Page 9 of 19 · J 1 1 described in part 3.1, in order to meet the requirements of the MIT and City, and where the need for maintenance is not caused by the negligence of either party, the City and MIT shall meet together to agree on the nature and cost of the repair or upgrade. Upon reaching agreement on the nature and costs of the repair, each party shall contribute to the repair and/or upgrade in the same percentage as each contributed to the construction of the AWSCS. The City may complete repairs without concurrence from MIT where the failure to immediately complete the repairs would create a public health hazard caused by the release of wastewater outside of the sewer system. When the City acts without the concurrence of MIT, the City shall document the reasons for such repair and costs. MIT may contest the need for the emergency repair and or the amount expended. If the parties are unable to reach agreement on the nature of Extraordinary Repairs, the costs associated with such repairs, or any dispute than resolution will be sought under Section 10 of this Agreement. 3.4 Coordination of Operation and Maintenance: The parties shall each name one representative to coordinate operation and maintenance matters and to serve as a medium of communication on such matters. The representatives shall meet at least monthly to examine and agree on maintenance schedules, cost items and similar matters relating to the operation and maintenance of the AWSCS. Neither representative shall have the power to bind or commit a party to costs that exceed the operation and maintenance fund established in the Agreement. Disputes shall be resolved under the procedures set out in Section 10. 3.5 Effective Date: The duty of the MIT to contribute to Extraordinary Repairs under Section 3.3 shall apply only to those segments of the AWSCS that are replaced under this Agreement and only when the replacement is complete. The MIT shall not be responsible for the cost of ordinary repairs and maintenance under Section 3.1 on Segments of the AWSCS that have not been replaced under this Agreement where the cost of ordinary maintenance and repair is related to the age of the AWSCS extant as of the date of this Agreement. 4. SEPARATE AGREEMENT BETWEEN KING COUNTY AND TRIBE. 4.1 The MIT shall execute a separate interlocal agreement with King County for King County's conveyance and treatment of the MIT's wastewater. 4.2 The MIT shall be governed by the existing conditions of the 1997 Auburn MIT Agreement for wastewater conveyance established with the City as noted in Exhibit "C", a copy of which is attached hereto and is incorporated herein by this reference, until an agreement is established between the MIT and King County for the conveyance and treatment of E.~t1jþ'i!.L............ ..nn... Resolution No. 3660 Page 10 of 19 , , wastewater. Upon the establishment of said agreement with King County the MIT shall begin paying Operation and Maintenance fees as set out in Section 3.2 of this Agreement. 4.3 Upon the establishment of said agreement with King County the City shall provide the MIT with a final monthly sewer bill based upon all the facilities that have connected to the sanitary sewer pipe that drains into Auburn. The MIT shall supply documentation detailing all of the MIT connections to the wastewater conveyance facility. 4.4 Upon the execution of this Agreement, Section 5.1 of the 1997 Agreement shall not apply, and the MIT may continue to move wastewater through the existing and when completed new AWSCS without regard to the number of MIT hook-ups or the source of the wastewater so long as the wastewater meets the standards set out in the 1997 agreement and capacity within the AWSCS is not exceeded. Prior to the completion of the AWSCS, if capacity within the existing AWSCS is exceeded then the MIT shall be required to delay their peak flows until off-peak hours or until the problem lines are repaired. For the purpose of this Section 4.4 off-peak hours shall be defined as weekends and anytime except 6:30 AM to 6:30 PM. 4.5 The parties agree that upon establishment of the MIT as a King County wastewater agency, the MIT will no longer be subject to any City fees including but not limited to monthly service fees and new connection system development charges, unless otherwise noted in this Agreement. All fees associated with conveyance, treatment, and disposal of wastewater shall be billed from King County directly to the MIT except the maintenance and operational costs outlined in Section 3.2 above. 4.5.1 The King County capacity charge shall continue to be billed directly to the MIT from King County for new connections to the sanitary sewer system. 5. WASTEWATER COLLECTION LIMITATIONS 5.1 The M IT agrees to limit its local sanitary sewer service area for sewer connections to Indian lands located on or near the MIT Reservation located outside of the City's service area as defined as of the effective date of this Agreement. This region is consistent with the area used to define the peak flows noted in Exhibit "A". 5.2 The capacity required by the City for the AWSCS shall provide service to those properties within the City's approved service area based upon existing zoning, future growth projections, and topographical features. Ex.t1iþj!J.........mm....nn Resolution No. 3660 Page 11 of 19 , ' 5.2.1 Nothing in this Agreement is intended to apply City zoning to MIT owned lands within the City. 5.3 The MIT and City may agree in the future to add MIT land located within the City's service area to the MIT's service area. If the MIT and the City so agree, the respective Operation and Maintenance obligation of the parties set out in Section 3 shall be adjusted. 6. WASTEWATER OPERATIONAL LIMITATION 6.1 The MIT and City agree to maintain soluble hydrogen sulfide levels in the City's and MIT's wastewater below 0.5 ppm over a six-hour average. Each will provide chemical addition to its wastewater infrastructure if sulfide is determined to be creating a corrosive environment. In addition, the parties shall require pretreatment of industrial wastes to King County standards and shall require grease traps to be installed and maintained by all restaurants. 6.2 The MIT and City shall enforce all sewage collection and transmission system wastewater quality standards required by King County Department of Natural Resources and Parks, Wastewater Treatment Division and/or the EPA, as applicable, for all wastewater discharged into the AWSCS. To the extent that the City imposes additional limits on sewage that may be accepted into the City's sanitary sewer system, those additional limitations shall apply to the MIT so long as they (a) address the quality of effluent accepted into the system; and (b) apply to all customers served by the City either directly or by contract. Provided, that prior to the imposition of any limit, the City shall confer with the MIT and provide assurances to the MIT that any change will not affect or otherwise limit existing MIT services. Provided further, the City may not impose any additional limit that would affect the right of the MIT to fully utilize its capacity ownership rights in the AWSCS, or that would be inconsistent with the express provisions and limits set out in this Agreement. The MIT shall deliver to the AWSCS only such sewage collected or received by the MIT as is in conformity with the rules and standards set out in this section. The MIT shall not accept sewage or wastes from any person, firm, corporation, or other entity that is located outside of its service area boundaries, without written consent of the City. Should the MIT or the City at any time suspect that the wastewater is not meeting these standards, the party suspected of being in violation shall make every effort to locate and eliminate the source of contamination. 6.3 Damage to the AWSCS resulting from wastewater from either the MIT or City collection systems that does not meet the standards of Section 6.1 and 6.2, shall be addressed as follows: Where the MIT is the offending party, it will reimburse the City for any and all such damages; where the City is the offending party it shall be responsible for repairing any damage at its sole E.>sf:1!Þ,i!.L...........mmm Resolution No. 3660 Page 12 of 19 · ' cost and expense. In addition, either party that believes that the other party is delivering wastewater to the AWSCS that does not meet the standards set out in this section may seek injunctive relief under Section 10.3 against the offending party to enjoin the violation without first complying with the requirements of Sections 10.1 and 10.2. 6.4 MIT specifically agrees that should the City believe that the MIT is delivering wastewater that does not meet the standards set out in this Agreement and the City does not take action permitted under Section 6.3, the failure to take such action shall not be deemed a waiver of any of the City's rights under this Agreement and the MIT will not assert the doctrine of wavier, estoppel, or laches against the City in any subsequent action relating to the delivery of wastewater that does not meet the standards under this Agreement. 7. RESPONSIBILITY FOR DAMAGES 7.1 The City and the MIT shall each be responsible for any damage that is caused to the AWSCS (not including routine maintenance and repair) by their respective negligent acts or the acts of their customers. In such case the cost of repair shall be born by the negligent party. 7.2 The City shall perform repairs to the AWSCS as noted in Section 3.3. Where the repair was necessitated by the negligent actions of the MIT as described in Section 7.1 above, the reasonable cost for such repairs will be billed to the MIT, and shall bear interest, at the then existing ninety (90) day Treasury Bill rate, after thirty days from the date of billing. Where the repairs to the AWSCS are caused by the City, the City shall complete the repairs, at its sole expense, in a reasonable time so as not to interfere with the continued operation of the AWSCS. Where the damage is caused by both the MIT and City, each shall be equally (50%-50%) responsible for its share of the damage repair costs. Questions as to whether particular damage is the result of the negligence of either or both parties and the needed repairs to fix the damage shall be resolved under Section 10. 8. CAPACITY RIGHTS Payment of invoices associated with the design, construction, inspection and project management of AWSCS's sewer improvements entitles the MIT to ownership of capacity within the AWSCS as outlined within Exhibit "A". 9. TERMINATION OF AGREEMENT It is the intention of the parties that this Agreement shall not terminate during its term. If a party believes that the other party is in violation of this Agreement, that party may seek redress under Section 10. Provided, that the E.~bjþ'i!.1...........m......m Resolution No. 3660 Page 13 of 19 , ' parties thereto may agree in writing to terminate this Agreement on whatever terms and conditions they determine to be acceptable. Provided further, that neither party may force the other party to terminate this Agreement, nor shall the failure to agree to terminate this Agreement be subject to the procedure setout in Section 10. 10. DISPUTE RESOLUTION AND LIMITED WAIVER OF SOVEREIGN IMMUNITY 10.1 Dispute Resolution - Mediation. In the event the MIT and the City are engaged in a dispute, which relates to or arises under this Agreement, and they are unable to resolve said dispute within 30 calendar days, either party may request mediation. 10.1.1 The party requesting Mediation shall notify the other party in writing of its request to mediate a dispute identified in Section 10.1. If the parties agree to enter into mediation within 20 calendar days from such request the matter shall be deemed stayed and the arbitration clause contained herein shall not be put into effect. Mediation shall continue for no more than 90 calendar days at which point the mediation shall be deemed failed unless the parties have reached an agreement and have had such agreement approved by the governing bodies of each respective party and, if applicable, the Bureau of Indian Affairs. The parties may agree to continue mediation for a longer period. If such agreement is not approved by the governing bodies of each respective party or is not enforceable in the United States District Court for the Western District of Washington, the mediation shall be deemed failed and the unresolved-issue-shall be submitted to binding arbitration as set forth herein. 10.2 Failure to mediate: In the event that the parties do not reach an agreement to mediate within 20 calendar days of receipt of the notice requesting mediation by the non-requesting party, the matter shall be submitted to binding arbitration as set forth herein. 10.3 Arbitration: Any controversy or claim that relates to or arises under this Agreement or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its applicable rules. Judgment on the decision rendered by the arbitrator may be entered into the United States District Court for the Western District of Washington. The arbitrator shall not have authority to enter an order terminating this Agreement. 10.4 Attorney fees and costs: Each party shall bear its own costs of mediation and arbitration. l;)sh!Þ.itLm...u_.___________. Resolution No, 3660 Page 14 of 19 10.5 Limited Waiver of Sovereign Immunity and Consent to Jurisdiction of Federal Court. The MIT hereby waives its sovereign immunity and consents to the jurisdiction of the United States District Court for the Western District of Washington concerning disputes regarding the interpretation of this Agreement and the enforcement of any rights, obligations or liabilities, in law or in equity, pertaining to hold harmless provisions of this Agreement. Such waiver of Sovereign Immunity and Consent to jurisdiction shall apply to no other court. This Limited Waiver of Sovereign Immunity and Consent to Jurisdiction has been specifically negotiated by the parties and the decision of the City to enter into this Agreement was made in part based on this limited waiver of sovereign immunity. 10.6 Disclaimer of MIT Tribal Court Jurisdiction. The MIT agrees that the MIT Tribal Court has no jurisdiction over the force, effect, and interpretation of this Agreement, nor the resolution of disputes that pertain to its implementation. The MIT further agrees that it has no authority to submit the City to the jurisdiction of the MIT Tribal Court with regard to any sewer-related matters or disputes that may arise between the parties under this Agreement. 11. PERFORMANCE, AMENDMENT, AND INTERPRETATION Each party agrees that it will execute any and all instruments, documents and resolutions or ordinances necessary to give effect to the terms of this Agreement. This Agreement may be modified only if such modifications are written and approved by written resolutions adopted jointly by the Auburn City Council, the MIT Tribal Council, and the BIA, if required. The parties shall comply with all applicable rules and regulations pertaining to them in connection with the matters covered herein. This document has been mutually negotiated between the parties. No adverse inference or ambiguity shall be construed against the party preparing this document for signature. No waiver by either party of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition, nor shall a waiver of any breach be deemed to constitute a waiver of any subsequent breach, whether of the same or a different portion of this Agreement. 12. TERM OF AGREEMENT The initial Term of this Agreement shall continue until the AWSCS constructed under this Agreement is replaced in its entirety or 50 years whichever is the longer. If the parties jointly agree to replace the AWSCS the ç)~þj~it 1... __._____ _ no _ ___ ____. Resolution No. 3660 Page 15 of 19 · . parties shall negotiate the terms and conditions of a new agreement that provides for both MIT and City ownership and use of capacity in the new sewer line. If the parties can not reach an agreement on the terms of a new agreement with respect to the new AWSCS, then the MIT may continue to have the right to use the AWSCS in the same manner and under the same conditions as set out in this Agreement until the existing AWSCS is fully replaced or until the 50 year term referred to above ends, whichever is longer. 13. INDEMNIFICATION The MIT agrees to indemnify and hold the City and its agents, employees, and/or officers, harmless from and shall process and defend at its own expense any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages or costs, of whatsoever kind or nature, brought against the City arising out of, in connection with, or incident to the execution of this Agreement and/or the Tribe's performance or failure to perform any aspect of this Agreement; provided, however, that if such claims are caused by or result from the concurrent negligence of the City, its agents, employees, and/or officers, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the Tribe; and provided further, that nothing herein shall require the Tribe to hold harmless or defend the City, its agents, employees, and/or officers, from any claims arising from the sole negligence of the City, its agents, employees, and/or officers. No liability shall attach to the City by reason of entering this Agreement except as expressly provided herein. The City agrees to indemnify and hold the MIT and its agents, employees, and/or officers, harmless from and shall process and defend at its own expense any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages or costs, of whatsoever kind or nature, brought against the MIT arising out of, in connection with, or incident to the execution of this Agreement and/or the City's performance or failure to perform any aspect of this Agreement; provided, however, that if such claims are caused by or result from the concurrent negligence of the MIT, its agents, employees, and/or officers, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the City; and provided further, that nothing herein shall require the City to hold harmless or defend the MIT, its agents, employees, and/or officers, from any claims arising from the sole negligence of the MIT, its agents, employees, and/or officers. No liability shall attach to the MIT by reason of entering this Agreement except as expressly provided herein. Each party shall maintain in full force and effect throughout the term of this Agreement a policy of comprehensive general liability insurance, or demonstrate that the party is self-insured, with minimum coverage of one E.~~jþ'i!.L..................... Resolution No. 3660 Page 160f 19 million dollars per occurrence / two million dollars aggregate for personal injury, including death, and property damage. The parties may agree to increase the coverage limits set out in this section or if no agreement on different limits can be reached, any party can submit the issue for resolution under Section 10. If insurance is provided the insured party shall include the other party as an additional named insured. If a party relies on self-insurance, the other party shall be named as a third party beneficiary with enforcement rights to seek indemnification. The City and MIT agree to hold each other harmless from third-party claims arising from the use of wastewater conveyance facilities within the respective jurisdictions and service areas. 14. ASSIGNMENT The parties shall not assign this Agreement or any interest, obligation or duty therein without the express written consent of the other party. 15. ATTORNEY'S FEES If either party shall be required to bring any action to enforce any provision of this Agreement, or shall be required to defend any action brought by the other party with respect to this Agreement, and in the further event that one party shall substantially prevail in such action, the losing party shall, in addition to all other payments required therein, pay all of the prevailing party's reasonable costs in connection with such action, including such sums as the court or courts may adjudge reasonable as attorney's fees in trial court and in appellate courts. 16. NOTICES All notices between the two agencies hereunder may be delivered or mailed. If mailed, they shall be sent to the following respective addresses: City of Auburn Public Works Director 25 West Main Street Auburn, WA 98001 (253)-931-3010 Muckleshoot Indian Tribe Assistant Tribal Operations Manager Community Development 39015 172nd Ave. S.E. Auburn, WA 98092 253-876-3104 or to such other representative addresses as either party may hereafter from time to time designate in writing. All notices and payments mailed by first class mail, postage prepaid shall be deemed to have been given on the second business day following the date of mailing, if properly mailed and addressed. 1;_~jþJt1__________________mn. Resolution No. 3660 Page 17 of 19 .' ,} Notices and payments sent by certified or registered mail shall be deemed to have been given on the day next following the date of mailing, if properly mailed and addressed. For all types of mail, the postmark affixed by the United States Postal Service shall be conclusive evidence of the date of mailing. 17. NONDISCRIMINATION Each of the parties, for itself, its heirs, personal representatives, successors in interest, and assigns, as part of the consideration hereof, does hereby covenant and agree that it will comply with statutes, executive orders and such rules as are promulgated there under that are applicable to a party to assure that no person shall on the grounds of race, creed, color, national origin, sex, age, or the presence of any sensory, mental or physical handicap be discriminated against or receive discriminatory treatment by reason thereof. 18. INTEGRATION. This Agreement constitutes the entire agreement of the parties regarding the subject matter hereof, and there are no other representations or oral agreements other than those listed herein, which vary the terms of this Agreement. Future agreements may occur between the parties to transfer additional or future service areas by mutual agreement. 19. OBLIGATION INTACT. Nothing herein shall be construed to alter the rights, responsibilities, liabilities, or obligations of either the MIT or the City regarding provision of sewer service, except as specifically set forth herein. 20. OBLIGATION TO COMPLETE PROJECT. The Parties expect that the AWSCS shall be constructed in substantially the same form as described in Exhibit A. The parties expect that, absent an unforeseen intervening event that is outside the control of the parties, that could not be avoided by the use of due care, that all segments of the AWSCS will be completed within six years of the effective date of this Agreement, unless otherwise agreed upon by the parties. Should either party fail to take any action required under this Agreement such that the AWSCS is delayed or its construction stopped, the other party may seek injunctive relief under Section 10 to compel the other party to undertake any required action under this Agreement to complete the AWCSC. Provided, that if the City is the non- complying party, the MIT may continue to transport effluent through the existing Auburn Way South sewer line to accommodate at least a peak flow of 1.34cfs without any limitation on the source of such effluent so long as it comes from the MIT service area and meets effluent standards set out in this Agreement until the AWSCS is completed. Provided further, unless a court holds otherwise, should the City be held to be legally incapable of completing the AWSCS the MIT may transport effluent through the existing Auburn Way South f;_~þjþ'itL________ _ _ _ _ ____n _ _ _. Resolution No. 3660 Page 18 of 19 · . sewer line to accommodate at least a peak flow of 1 .34cfs without any limitation on the source of such effluent so long as it comes from the MIT service area and meets effluent standards set out in this Agreement. Provided further, to the extent that the MIT has paid any money to the City as required under this Agreement and the City has become legally incapable of completing the AWSCS, the City shall return to the MIT any funds paid by the MIT, including accrued interest, without regard to whether the funds have been expended by the City, unless some other agreement between the MIT and the City can be established. IN WITNESS TO THE TERMS OF THIS AGREEMENT, the parties hereto have subscribed their names: MUCKLESHOOT INDIAN TRIBE aniels Jr. irperson, Muckleshoot Tri CITY OF AUBURN --- c ) th' Date - Peter B. LewIs, Mayor, City of Auburn ATTEST: J) ~ I (I' /J¿¡,UJ"d{ JJ~c!b--- Danielle Daskam, City Clerk, City of Auburn APPROVED AS TO FORM: o ~)~!)jþ'itL._____..__.mnm..' Resolution No. 3660 Page 19 of 19 - I: Q) E Q) Q) ... C) <C - en Q) U C) en co ~ 3: Q) - (/) E >- Q) ... - co ~ :!:: I: en co Q) <C(/) CJ r::::: - Q) ~ .- .c .c ._ Q) J: ... > >< I- r::::: W I: 0 CO U "C ..r::::: - I: ~ - 0 - en 0 >- 0 CIS ..c: == tI) Q) r::::: :s2 ... ~ CJ ..c j ~ :æ: <C I: ... j .c j <C " 0 "C 0 0 0 0 0 0 II> ~ ~ 0 0 0 0 0 - ... 0 00_ 00 0 0 '" .. " ~ ..... ci ,.: '" <tJ E - '" ro ~ '" 0 ~ ~ 0 - '" :;::; '" 0 " "'- N_ '" LO '" " CJ '" '" '" ro ~ ~ W 0 .". .". .". .". .". .". CJ ~ " :J1 "" "" "" "" "" . ~ ~ " 0 0 0 0 0 " 00 " ..... '" " ..c M ci <Ó <Ó 0 " CD :;::; <C ~ '" " LO .. u .2 :¡¡: "" "" "" "" "" t:: 0 0 0 0 0 ;= '" N '" '" '" 0 :¡¡ <Ó cD M M cri ii: 00 '" LO " '" II> N ¡¡j ~ ~ ~ ~ " " " " " " " " " " " " ..... 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I i I .-J I , i n ;-_.,,- , , i I 7 ~ --c-===-c -~'- -'~ .-4-"""- ----~-'--- --- , r,¡, '- j ~ , , , I J SODO woo I , ~ ! I Ii Ii , ' . . , . : ¡ , , ì , 0.25 I I i , , , i i I coo , ! I--- I I I I ODO' . o ! I I ¡ , : \ \ \ IIJIp.-": ) 1______,____ , n '- , MlL,:S """"',""""""""= Existing Sanitary Sewer Proposed Replaœment AuburnCityUmits ""''''' LLLLL "'-" EXHIBIT A AUBURN MUCKLESHOOT INDIAN TRIBE SANITARY SEWAGE AGREEMENT AUBURN WAY SOUTH CONVEYANCE SYSTEM ¡ I ¡ Exhibit 1 Exhibit A Resolution No. 3660 Page 2 of 2 Exhibit B Auburn-Muckleshoot Indian Tribe Sanitary Sewage Agreement Auburn Way South Conveyance System (AWSCS) Operation and Maintenance Activities Line Locates Locate sewer lines for construction activities that take place near existing sewer pipes. High Velocity Jetting Use high-pressure water discharged from a nozzle to scrub the internal surfaces of the A WSCS. Vacuum Cleaning Vacuum clean the A WSCS to collect solids, fats, oils and possibly grease that may have accumulated. This will typically be done in conjunction with high pressure cleaning. Rat Baiting Place rat poison in manholes to eliminate existing or potential problems. Visual Inspection of AWSCS Pull manhole lids to visually observe the flow and assess whether capacity problems are being experienced. This will be done most frequently during storm events. Smoke Testing Smoke test A WSCS to determine if any cracks or broken pipe exist. TV Inspection Inspect A WSCS for breaks, bellies or other pipeline problems. Manhole Maintenance Re-grout A WSCS manhole collars that may have shifted and cracked allowing ground water to enter the manhole. Add a riser ring if needed due to manhole settlement. Repairs and Replacement Repairs and replacement to the A WSCS shall be made consistent with the terms of the Agreement. E~hiþitL: ~~.hibitB Resolution No. 3660 Page 1 of 1 Exhibit C SANITARY SEWAGE CONNECTION AGREEMENT between the CITY OF AUBURN and the MUCKLESHOOT INDIAN TRIBE of . the MUCKLE SHOOT INDIAN RESERVATION KING COUNTY, WASHINGTON, USA This Agreement is entered into on this d~ of . 1997. in King County. Washinaton. between the City of Auburn,. a municipal corporation under the laws of the State of Washington, hereinafter referred to as thè "City," and the Muckleshoot Indian Tribe, a federally recognized Indian Tribe located on the Muckleshoot Indian Reservation, hereinafter referred to as the "MIT" and "MIT Reservation" respectively. WHEREAS, in order to meet the standards prescribed by the State of washington, Department of Ecology, for the collection and disposal of sewage effluent within the State, the City constructed a sanitary sewage collection system including transmission facilities to the King County Department of Natural Resources, Water pollution Control Division, hereinafter referred to as "Metro", wastewater treatment plant; and WHEREAS, the MIT has identified the need for community .sewage collection and disposal facilities to resolve current sanitation needs of the MIT Reservation not currently served by a sanitary sewage collection system; and WHEREAS, the Indian Health Service, hereinafter referred to as "IHS;" the Environmental Protection Agency, hereinafter referred to as "EPA," the MIT and the City conour in the need for a sewage collection, treatment and disposal system to protect the health of MIT members and to safeguard the. environment in and around the MIT Reservation; and WHEREAS, the IHS, the. EPA, the MIT and the City have entered into a separate Memorandum of Agreement to provide. for the construction of a sewage collection and transmission system on the MIT Reservation and for connection of this sewage system to the City's sewage system utilizing funding from the Indian Set-ASide Program of the Clean Water Act 198,' amendments, through the EPA and funding from the IHS through Sanitation Facilities Construction Program, Public Law 86-121, under Project PO-94-690; and ~.~jºtt.L.:..¡;1ffill;>jU;:................... Resolution No. 3660 Page 1 of 18 -1- WHEREAS, this Agreement is required by EFA and IRS fer the MIT te óbtain the funding t.o res.olveits current residential sanitatien needs; 'and WHEREAS, the censideratien the City will receive frem this Agreement is enhancement .of public health by c.ennecting current septic systems t.o a new liIewer system; and WHER~, furtherance .of public health and safety .of area inhabitants requires that all sewage c.ollected by the MIT and discharged inte the City's system .of sanitary' sewers be both n.on- harmful and n.on-te><:ic. te beth the City's. system .of sanitary sewers and area residents, as well as in cenfermity with reasenable rules apd regulatiens; and ..,.J ß.~ 'II wM'E"REMJ, the Auburn City C.ouncil has by Reselutien. Ne. "'2...E>oo,/C:-;;'.oP1"".of which ~ttached heret.o and is incerp.orated herein by this reference, e><:pressly reviewed and reaffirms the p.olièy set f.orth in Res.oluti.on N.o. 2671 auth.orizing the executien .of the September 6,·1995, Mem.orandum .of Agreement Am.ong the IRS, the EPA, the City, and the MIT .of the MIT Reservati.on, alse identified as Public Law B6-121, Preject PO-94-690 ("F.our Party Agreement" herein), and thereby authorized its 'Mayer te execute this Agreement which autherizes sanitary sewage cennectiens fer residential, single family heusing units and specific existing nen~residential facilities; WHEREAS, all parties agree that this Agreement is liIelely fer the purpese .of protecting public health and centemplates .only the cennectien .of. the 4~ existing hemes in the Skepabsh Village, up te 230 units .of residential heusing, and these ether facilities set ferth in the City's Reselutien Ne. 2671,page twe, which are defined as. "Tribal administratien, Tribal scheel, library, senier center, Tribal stere, churches·; WHEREAS, the MIT Tribal Ceuncil has by Reselutien Ne. 41Afll, a cepy .of which. is attached herete and is incerperated ~ by this reference, e><:pres.sly reviewed and. appreved this Agreement and .secured Bureau of Indian Affairs, hereinafter referred te as ."BIA·, appreval. pursuant t.o Title 25, Sectien Bl, .of the U.S. Cede; and WHEREAS, . ·the dispute reselutien previsiens .of this Agreement shall, apply te all issues arising between the parties which relate te sewer and sewer related services; and NOW, THEREFORE, in .order te previde fer cennectien and centinued use .of the MIT's sewage cellectien and transmissien system te the City'liI sewage system, the parties mutually agree: Exhibit 1 - Exhibit C Fiëäölü¡¡ö;ï¡¡ö:·S66Ö.........·........· Page 2 of 18 -2- I. CONNECTION AUTHORIZED 1.1 MIT is authorized to connect to City sewer line to service only 40 existing homes in Skopabsh Village, MIT residential units in existence at ,he time of City Resolution No. 2671 passage (estimated to be approximately 130 units), up to a maximum of 100 additional units. of single family housing, and MIT governmental or community facilities such as administration, school, library, senior center, store, and churches. II. CITY'S SYSTEM DEVELOPMENT CHARGE 2.1 Determination of System Development Charge. That the MIT agrees to provide the City with' a listing of all connections to the MIT's sewage system and agrees to pay the' City a one-time System Development Charge, hereinafter referred to as SDC, for each connection to the MIT's sewage system. This listing will be updated by the MITas needed on a monthly basis as an attachment to the monthly utility fee paid to the City. The SDC for each connection shall be as calculated utilizing Metro forms 1057, 1058, and 0461, latest revisions, 'copies of which are attached hereto, for Residential CUstomer Equivalents, hereinafter referred to as "RCE'sN. The MIT has already pre-paid the SDC's for 230 RCE units with IHS funds in April, 1996. The current charge for a single family residential and every other RCE connection is $840. . 2 .2 This SDC rate is subj ect to chang", as described in Article XIV. of this Agreement. 2.3 The City agrees to waive the SDC for the 40 existing HIT homes in the Skopabsh Village housing area due to these homes being connected to the City sewage system since 1977. IIJ:. CITY'S USER FEE 3.1 Because the 'MIT has responsibility ·for ownership, operation and maintenance of the MIT's sewage collection and transmission system, the parties agree that the MIT will provide the City with· a monthly user fee equivalent to fifty percent (50%) of the user fee charged to City customers. 3.2 The 'MIT will provide the City with 50% pf the City monthly user fee as charged to. the City customers.. For other than single family residential connection, this will include an additional volume amolµlt per month. The volume amount shall be calculated as follows: .r;,~):ij!1jU...:..¡;¡çhlQ.ijJ'-...n............. Resoiution No. 3660 Page 3 of 18 -3- . , v ; monthly volu~~ from water service méter, in cubic feet R ; current appliqable rate, in dollars [V - 750] * R * (0.5) Volume amount billing -------------------------- (100) * (7.5) 3.3 Each connection other than single family residential shall have a water service meter installed prior to sanitary sewer connection. Each single family residential.connection shall have a water service meter installed prior to 1 September 1997, or prior to sanitary sewer connection thereafter. . 3.4 This rate and the applicable percentage to ownership, operation, and maintenance is subject to change as described in Article XIV. of this Agreement. IV. METRO'S USER FER 4.1 The MIT will provide the City with the Metro monthly user fee as charged to the City customers. For other than single family residential connection, this will include an aciditional volume amount per month. The volume amount shall be calculated as follows: V ; monthly volume from water service meter, i~ cubic feet R ; current applicable rate, in dollars [V - 750] * (R) Volume amount bi].ling ; - - -- -- -- -.- - - - - - -- - --- (100) * (7.5) 4.2 Each connection other than single family residential shall have a water service meter installed prior .to sanitary sewer connection. 4.3 This rate is subject to change as described in Article ·XIV. of this Agreement. v. QUALITY OF SEWAGR 5.1 The MIT agrees to connect only the 40 homes in the Skopabsh village, up to 230 units of residential housing, and those other facilities set forth in the City's Resolution No. 2671, page two,· which are defined as "Tribal administration, Tribal school, library, senior center, Tribal store, church.. . . .. that discharge domestic type sewage into the.' city's sew_i_ system. The MIT will not permit industrial waste producing developments to connect to their community sewage system. 1"01' ExhiM 1 - Exhibit C ÄešöÎ¡j¡¡ö¡¡·¡.¡ö:·366Ö...........·...... Page 4 of 18 -4- purposes of this Agreement domestic type sewage shall be defined as that type of,. sewage which is contributed by a residential user. S.2 The !'lIT agrees to enforce all sewage collection and transmission system effluent quality standards as required by the City, Metro and/or ',the EPA for all effluent discharged into the City's sewage system. The MIT shall deliver to the City sanitary sewer' system only such sewage cOllected or received by the MIT as is in conformity with and subject to such reasonable rules and regulations as currently exist or as may be adopted from time to time by'the City, Metro, or the EPA. The MIT 'shall not accept sewage or wastes from any person, firm, corporation, or other entity which is located within or without it boundaries, or is otherwise delivering its sewage into the MIT's sanitary. sewer system, without written consent of the City. Should the MIT or the City at any time suspect. that the effluent from the MIT collection system is not meeting these standards, the MIT shall make 'every effort to locate and eliminate the source of contamination. 5.3 Should damages .to the City system effluent· from the MIT's collection system that does standards of Section 5.2, the MIT will reimburse the such damages. 5.4 The MIT's transmission of effluent to the City which does not meet the effluent quality standards as required by the City, Metro, and/or the EPA shall constitute a material breach .of this· Agreement by the MIT entitling the City to immediately terminate -this Agreement for cause. Without tèrminating this Agreement, the City may in its sole discretion and upon provision .of notice to the MIT refuse to accept any effluent it believes is not meeting the effluent quality standards as required by the City, Metro, and/or the EPA and contirtueto accept effluent which does meet applicable standards. In such event, the MIT specifically agrees that the City shall not be deemed to have waived' any of . its right:,s. under this Agreement and the MIT will not assert doctrines of waiver, estoppel, and laches against the City in any subsequent" aotion pertaining to this Agreement and the rejection and acceptance of conforming and non-conforming effluents. result from not meet the City for any " J;K~jÞ.i!.L.:..!;Xt!lI;>j!.ç........·..·..·..·· Resolution No. 3660 PageS of 16 -5- VI. SEWER COII!IISSYSTEMS COORDINATION 6.1 In the interest of continuing to promote better communication and· cooperation between the MIT and the City, both parties agree to send a representative to participate in all regular and special meetings of the MIT's Utility District and the City's Public works Committee. Both parties shall notify the other party in writing of all such meetings. 6.2 The MIT and the City agree to provide technical and operational assistance to the other party upon request and as resources of manpower or equipment or plant may be available on a cost reimbursable basis. If one party assists the other, the party assisted agrees to. honor payment of bilÌings for labor and equipment rental. Both parties will make available established hourly rates for purposes of èncouraging this program. VII. SEWAGB FLOW MEASUREMENT 7.1 The quantity of sewage entering the City's collection system shall be measured by a flow meter located in the City's regulation station. The proper calibration of this flow meter will be the responsibility of th", City. The MIT shall keep monthly records of the sewage pumps running time hour meters and of the average pumping rate for each pump for comparison and confirmation of the flow meter calibration on an annual cycle. In the event that the flow meter appears to have malfunctioned, the hour m",ter readings and the corresponding flow rates shall be Used to d",termine the amount of sewage that has been pumped to the City's sewage system until the flow meter repairs are. completed. The MIT will report the total sewage flow as measured utilizing the pump running time hour meters estimated method to the City monthly, as an attachment to the monthly user fee payment. VIII. TRIBAL OR CITY OWNERSHIP AND MAINTENANCB 8.1 The MIT shall own, operate and maintain all gravity collection lines, sewag'" lift stations and force main piping located upstr",am of th", City's regulation station and g",n",rally within the southeastern portion of the MIT Reservation in Sections 1, 2 and '12 of Township 20 North, Rang", S'Sast, W.M., bút, also including the gravity and force main piping locat",d outside of the MIT Reservation boundaries in Section' 35 of Township 21 North, Range 5 Sast, W.M., upstream from the City's r",gulation station.' ' ~~.1).i!1!!J...:..~hlQ.i!.Ç,.................. Resolution No. 3660 Page6_<>f 18 -6- , , '.. a .2 . The gr;ivity and force main line located downstream from the City's ~egulation station to the connection manhole at the corner of Auburn-Enumclaw Highway and 368th Street shall be conveyed to and be owned, operated and maintained by the City provided however that MIT residential connections will be permitted, but no'non-MIT copnections will be authorized without MIT written appro-val. 8.3 The MIT operations staff . facilities in conformance with the Plan with the assistance of the IHS during the of the facilities. shall operate their of Operation developed design and construction 8.4 In order to maintain compatibility of design/construction operating systems, thè MIT agrees to construct and maintain all property referred to herein in accordanc.e with standards and specifications provided by the : City. IX. INTERRUPTION OF SERVICE 9.1 It is understood that the City will periodically need to .restrict or shut off sewage flow into their collection system in order to perform repair or maintenance on downstream facilities. For scheduled maintenance' or repair activities the City shall notify the MIT, in writing, at least five working days in advance. Such notice shall indicate the work that is to be performed, the anticipated duration of ,this work, what 'restrictions or changes to the Plan of Operation will be necessary and a· contact_ person for coordinating all activities with the MIT's operations staff. 9.2 It is also understood that emergency situations may arise that could threaten public health and/or the continued operation of the City's sewage collection system and the City may be unable to notify the MIT in the manner prescribed above (in Section 9.1). In such' a situation the City shall use best efforts .to contact the MIT's Utility staff (operator or Council officers) and request assistance in regulating the discharge of effluent from the MIT's sewage system. . 9.3 The MIT, by reason of this Agreement, shall grant the City' an access. easement to pump station #2 sufficient to permit the City to regulàte the sewage flow and to permit e\1\ergency repair work on the City's sewage system. .A copy of·the Eásement form is attached hereto'as Exhibit A and is incorporated herein by re.ference as though fully set forth. Exhibit 1 - Exhib~ c ÄëSölü¡¡öíï¡.¡ö:·366Ö..·..·...........·· Page 7 of 18 -7- . . 9.4 .' The MIT agrees to assume lia.bility, if any, for sewage back-ups, : if any, within the MIT's sewage system that are . caused by capacity shortfalls and flow control spill incidents within the MIT' ssewage system, and will hold the City harmless from any such élaims, all as more particularly described in Article X. of this Agreement. 9.5 The MIT shall procure and maintain in full force and effect throughout the term of this. Agreement a policy of comprehensive general liability insurance with minimum coverage of . one million dollars per occurrence/two million. dollars aggrègate' for personal injury including death, and property damage. As a condition of providing service, the City reserves the right, in its sole discretion, to demand increased minimum covera.ge limits. at five (5) year intervals' from the date of signing hereof. In the event the MIT does .not· provide proof of insurance issued by. a company approved by the City, with increased limits, within thirty (30) days of such· request the City shall be authorized to procure such a policy on its own behalf and deduct such policy premiums from the reserve account established pursuant to this Agreement. Such policy shall name the City as an additional named insured and 'shall include a provision in such policy prohibiting cancellation or reduction in coverage except upon at least thirty (30) written days notice to the City. Cancellation or reduction of the required insurance shall constitute a material breach of this Agreement and, at the City's sole option, may constitute grounds for the City to immediately terminate this Agreement. Further, the MIT agrees to execute all documents and do all things' necessary to allo.w the City, as additional nam~d insured, to recover directly from the insurance carrier in the event of loss, without having to first commence dispute resolution proceedings or bring suit against the ·MIT. . X. SEWAGB FLOW CAPACITY Release. Monitoring, Metering and Regulation. 10.1 Conceptual Premises. The MIT and the City agree to the following conceptual premises with regard' to operation and maintenance of the sewer system pursuant to this Agreement. " A. Prior to City approval of sanitary sewer connection, the City shall approve construction documents as per the Four Party Agreement and. the following plans, specifications, and conditions will' be met: .¡;~JJjÞ.¡!.L.:..!;xhl~.I!'Q........ Resolution No. 3660 .......... Page 8 of 18 -8- , , 1. The MIT agrees to construct and dedicate in fee title all infrastructure concerning' the system, èxcept for the regulation station vault to be designed and constructed by the City, from the upstream" side of the vault, 'northwesterly to the City's receiving manhole near the City limits. (Exhibit B:' general map illustration) 2. The City will design and construct' the regulation station, dOwnstream monitoring gauges, telemetry and control cabinet. The City will .se.ek to coordinate this design with the MIT's consultant (IHS.) to assure compatibility with the connection and regulation telemetry of the MIT's #2 pump station.. 3. The MIT and City agree to cost share the City's design and construction effort referenced in .Section 10 .1.A. 2. on a SO/50 percentage basis according to and for .the mutual benefits accruing to both parties. The MIT agrees to pay its share of the City's improvements prior' to construction contract award. No connection shall be allowed until such time as all payments are received by the City. 4. The MIT and City agree to share the monthly communication and any associated maintenance and repair bills as ·necessary to operate and maintain the tel!,metry system so long as the MIT's sanitary Sewer system is connected to the City's sanitary sewer system. These costs will. be included on each monthly sewer bill presented to the . MIT. The City will be responsible for maintaining the telemetry 'system up to and including the telemetry intertie box located at the' pump station #2. . The MIT hereby grant's the City and its system maintenance agents right of entry to all locations 'served by the City's telemetry system. 10.2 Regulatory Concept: components consist of: L Downstream monitoring gauges will be installed at two manholes in the City's system for purposes of measuring, recording and telemetering "real time" control signals to the MÌT's pump station that regUlates releases to the City's· system. Generally the system Exhibn 1 . Exhibn C Fiëšö'Uí¡öiïNö:·šsSÖ··....·....·..·..·· Page g of 18 _.~~----~- -9- , ~ , '. 2. '. A regulatory vault consisting of and containing a manual' gate valve, a motor operated ball' valve, flow meter, and telemetry devices shall be instal.led at a location along the force main downstream of Pump Station #2. 3 .In Pump Station #2 the design shall provide an additional' wet well surcharge m1n1mum capacity volume of 1,400 cubic feet to accommodate pump regulation. Pumping capacity at Pump Station #2 may be overridden by City telemetry. Override telemetry will control operation of both high volume and low volume pumps, as the IHS has installed no variable, flow pumps. As such, the only operations available are fixed high volume, fixed low volume, and all off - no volume, 4. The regulation of the pump station shall be responsive to the downstream monitoring gauge signals and the flow control valve in the regulation vault to assure the performance objectives outlined herein are met, and maximum flows are therefor not exceeded. 5. The telemetry system shall be capable of recording the actual flow data in digital format on a continuous basis and down-loading to a computer system in both the MIT office and the City utility office via ·modem. The computer software will be capable of showfng the real-time flow data at all monitored points (Pump Station #2, Regulatory vault, and monitoring gauges).. 6. As the City and MIT decide to modify this Agreement to accommodate adjustments of release rates allowable, the telemetry system shall be capable of receiving programmable updates. 7. Prior to issuance .of the connection approval the MIT and its contractor will perform commissioning tests to demonstrate to the City's satisfaction that the system . accomplishes the following performance objectives: a. The pump station responds to regulate the flow releases to the City's system in such a manner that when the City's 'pipe being monitored is equal to or gI:eaterthan SO% full as measured by .~J)jþ'j!.L:..¡;~!!lQ.ijJ:................... Resolution No. 3660 Page 10 of 1S -10- · , flow. depth within the pipe, the pumping rate is curtailed,. and if necessary, reduced to zero. b. As the City's pipe being monitored drops to a 75% .of full condition, the system will query the status of wet well levels and pump downtimes to assess when pumps are. re-energized to commence pumping. ' The system will periodically continue to query system status at such time as pumping decisions are required. c. The pump station can' be calibrated to deliver flows as dictated by the City's downstream capacity available, and within. the limits of flow control as provided by IHS.construction to date. d. At a monitored one-foot surcharge within a gauging manhole, the regulation station will åutomatically shut off influent flow from the MIT's Pump Station #2, and influent flow shall remain off until the surcharge has disappeared. This will be the only condition mandating zero flow from the MIT's Pump Station #2 except for emergency conditions. 10.3 Maximum Flow to Be Acce.ptecl By City. The maximum allowable sewage flow rate from the MIT's sewage system to the City' ssewage system shall not exceed the capacity available within the City's system at any time as determined by City monitoring gauges. .Su~h flow can be released at any time capacity is available within the City's system. 10.4 Funding of Futur._ Improvements By ·KIT A Condition Precedent to Continuing Flow to the City System. a. The MIT acknowledges that its share of funding the design and construction of any future capacity expansion effort of the City system is an express condition precedent to the City proceeding with .expansion of its system. Payment of this funding share by the MrT is necessitated by the fact that acceptance of MIT flow by the City will consume previously existing capacity, makeg such capacity unavailable to the City, and requires subsequent improvements to the City' system in order for the City to have and maintain the capacity necessary for the City's own needs and uses. Such funding amounts may be credited against future MIT SDC amounts, if any. Exhibn 1 - Exhibit c ¡:¡ëSÖlü¡¡öñ·¡¡ö:·äëëö·................. Page 11 of 18 -11- b. projects based on The prorata share of City system expansion between the MIT and the City shall be determined benefit received. XI. COLLECTION 01' FEES, TERMINATION OF SERVICE, AND BREACH OF AGREEMENT 11.1 Collection of Development Charges, User, and Connection Fees. A. Paym"nt as Cond; tion Preced"nt. The Agreement is between the MIT and the City and no third parties;' even ·though third parties may be indirectly benefited.. As a condition .precedent to connection and continued service, theMIT shall pay all necessary development charges and user fees. Additiortally the MIT shall apply for any necessary City approvals on behalf of members or property owners within MIT jurisdiction who desire to be connected to the sewer system. The City's issuance of a permit shall be directly conditioned upon completion of those items' specified in any particular permit as well as the MIT's payment of the permit fees. The MIT and the City expressly agree that the City shall not be responsible for collecting of SDC' s, user charges, permitting fees, or any other moneys of any kind from any other individual or entity. " B. E~t~h]i~hmen~ of Resprve A~coun~ Tor Future System F.xpansion and Relatpd Costs. The City and MIT.shall, upon execution of this 1\,greement, establish a supplemental reserve account in the amount of Five Hundred Thousand Dollars ($500,000.00) to provide for future funding of anticipated system expansion necessitated on account of increased' flows resulting from this Agreement, non-budgeted uses of funds necessitated by natural disasters and other public health reasons, payment of insurance premiums, and any other unpaid charges or fees pertaining to the use of the system or permits pertaining thereto. The City and the HIT shall each. contribute Two Hundred Fifty Thousand Dollars ($250,000.00) and the fund shall be maintained at this level' with each party replacing the funds which are withdrawn on account of its respective obligations. The fund shall' be established in a Restricted Use account of the Sanitary Sewer Fund as designated by the City. The interest accruing thereon;', if any, shall be apportioned between the parties in relation to their respeçtive contributions and any such interest and principal remaining at the terminatiòn of this. Agreement shall be returned to the remitter of such funds upon such termination and settlement of all claims and disputes pertaining to this Agreement. The City shall, upon consultation ~!<.~jj¡jU...:..¡;1(!!lII.~.Q..... Resolution No. 3660 ............. Page 12 of 18 -12- , ~ with the MIT, be authorized to immediately draw upon and use the funds. in the reserve account for the uses and purposes herein mentioned. The City shall account to the MIT for all such funds used. Nothing contained herein shall derogate from the need of theMIT to pay in. advance as a condition precedent for the City's performance under other provisions of this Agreement. 11.2 HIT's Right to Terminate Ag2:'eement. The MIT shall have the right to terminate the discharge of sewage from their sewage system to the City's at any time for any reason, or no reason whatsoever, by providing the City with a minimum of five (5) years' written notice prior to termination of such discharge. The City agrees to terminate this Agreement with the MIT at the date noted upon said written notice. Monetary and other obligations owed by the MIT to the City on the date of termination shall survive. 11.3 City's Right to Terminate Agreement. The City shall have the right to terminate this Ag2:'eement at any time for any reason, or no reason whatsoever, by providing the MIT with a minimum of five (5) years' written notice prior to termination. The City shall also have the right to immediately terminate this Agreement for any reason constituting a material. breach. In addition to those breaches defined by law, the 'City and the MIT expressly agree that a material breach justifying the City to immediately terminate service shall include, but not be limited to, the non-payment of SDC's or user fees, failure of the MIT to' provide proof of insurance required herein, exceeding the number of type of sewer co~ections allowed under this' Agreement, discharge of non-domestic sewage into the system, and/or failure of MIT to honor easements, and/or failure to fund the reserve account 'specified herein. 11. 4 Right to. Rely upon Notice of· Termination. As between the City and the HIT, in the event that one party, hereinafter referred to, as the "Transmitting Party,· sends the other party a notic'e to terminate this Agreement, the party receiving such notice, hereinafter referred to as the "Receiving Party,. shall have a right to rely upon such notice. Absent prior written .agreement to the contrary, the Transmitting Party shall not be allowed to revoke its notice of intent·to terminate this Agree~ent or to otherwise keep this. Agreement in full fórce and effect beyond the termination date specified in the notice. This' pro:vision shall be effective regardless of whether or not . the Transmitting Party actually changes its position, or the Receiving Party otherwise relies in any material manner upon the Transmitting Party's notice of termination. Exhib~ 1 - Exhibh C Fiëšölü¡¡öiïNö:·sëšö.....·....·....... Page 13 of 18 -13- . ~ -' '.J XII. DISPUTE RESOLUTION AND LIMITED WAIVER or SOVEREIGN IMMUNITY 12.1 Dispute Resolution - Mediation. In the event the MITand the City are engaged in a dispute which relates to this Agreement or any other issue arising relating to sanitary sewer, and they are unable to resolve said dispute within ninety (90) days, either party may request mediation of any dispute, in any manner agreed upon by the parties. a. Mediation shall be commenced by the party requesting it notifying the other party in writing of its .request to mediate a dispute arising between the parties. which relate to sanitary sewer and sewer related services. If the parties agree to' enter into mediation within 20 days from such request the matter shall be deemed stayed and the arbitration clause continued herein shall not be put into effect.. Mediation shall continue for no more than one hundred twenty (120) days at which point the mediation shall be deemed failed unless the parties have reached an agreement and have had such agreement approved by the governing bodies of each respective party and, if applicable, the Bureau of Indian Affairs. If such agreement is not approved by the governing bodies of each . respective party or is not enforceable in the United States District Court for the Western District of Washington, the mediation shall be deemed failed and the unresolved issue shall be submitted to binding arbitration as set forth herein. b. In the event the parties do· not reach an . agreement to mediate within twenty (20) days of receipt of the notice requesting mediation by the non-requesting party, the mat~er shall be submitted to binding arbitration as set forth herein. c. Each party shall bear its own costs of mediation. 12.2 Arbitration. Any controversy or c.laim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration. Association in accordance with its applicable rules. Judgment on the decision rendered by the arbitrator may be entered into .the United States District Court for the Western District of Washington. Each party shall bear its own costs of arbitration. Exhibit 1 . Exhibit C Äë;;ölüiiöiiï.¡ö:-¡3ëšöm................ Page 14 of 18 -14- · '" ",t'< .... , 12.3 Limited Waiver of Sovereign Immunity and Consent to Jurisdiction: of'" Federal Court. The MIT hereby waives its sovereign'immunity and consents to the jurisdiction of the United States District Court for the Weste.rn District of Washington concerning disputes regarding the interpretation of this Agreement and the .enforcement of any rights hereunder, including collection of any' SDC's, User Fees, or other òbligations or liabilities, in law or in equity, pertaining to hold harmless provisions of this Agreement. Such waiver of Sovereign Immunity and Consent to jurisdiction shall apply to no other court. This Limited Waiver of Sovereign Immunity and Consent to Jurisdiction has been specifically negotiated by the parties and decision of the city to extend sanitary sewer service' to the MIT and a portion of the MIT's payments hereunder are expressly made the consideration for this Limited Waiver' and Consent to Jurisdiction. 12.4 Disclaimer of KIT Tribal Court Jurisdiction. The HIT. agrees, that the MIT Tribal Court has no jurisdiction over the force, effect, and interpretation of this Ag.reement, nor the resolution of disputes which pertain to its implementation. The HIT further agrees that it has no authority to submit the City to the jurisdiction of the MIT Tribal Court with regard to any sewer-related matters or disputes which may arise between the parties. XIII. FEE AND CHARGES PAYMENTS '. 13.1 The City shall bill the HIT on a monthly basis for any fees or charges as determined in ~ticles II, III, and IV of this Agreement. The HIT shall have thirty (30) days to provide payment of the amount to the City from the date of bill issuance. 13.2 In the event that any payments for a sewer bili due under this Agreement shall remain unpaid in excess of the thirty '. (30) days from the date of issuance, then the bill shall be delinquent. In the event that a bill becomes ,delinquent, the City shall give' the MIT fifteen (15) days' notice of its intent to enforce collection of said bill. A bill which has been properly addressed and deposited in the United States Postal Service. shall be deemed to be presented to the MIT for payment. 13.3 If the MIT believes ·that the City's bill for fees or charges is in error, the HIT shall notify the City of the error no later than fifteen (15) days following the date of bill issuance, accompanied by any supporting documents. within ten (10) days thereafter, the City and MIT shall meet to attempt to resòlve the dispute. If the dispute cannot be resolved - -" ,.."",..._.,~.--"":;",.=-.,,,~~,.,~. Exhibit 1 - Exhibit C Äë¡;öiüÏiö¡ïNö·..'3ŠŠÖ....·.............· Page 150f 16 -15- --~.~~._...--." . ... ". ,.. ~ informally, ..then the parties shall proceed pursuant to Article XII (Dispute Resolution). In any event, the MIT shall' pay any uncontested portion of the bill within thirty (30) days after date of ~ssuance. The MIT shall also continue to pay uncontested sUQsequent monthly bills as provided in this Section. 13.4 If the bill remains unpaid fifteen (15) days following the City's notice of intent to enforce collection, then ·the City may at its discretion discontinue service to the MIT; provided that the MIT has not provided notice to the City pursuant to Paragraph 12..1. If the MIT has given such notice, the City shall have the authority to discontinue service for failure to pay only in the event that the MIT has not paid the uncòntested portion of the bill. 13.5 If the billing dispute is resolved in favor oftóhe City pursuant to Article XII (Dispute Resolution), and' the bill .remains unpaid for five working days thereafter, the City may at its discretion discontinue service to the MIT unless otherwise specified within the dispute resolution. XIV. CHANGES TO RATES AND CHARGBS The' City's. and/or Metro's user fee rate structure and charges for theMIT shall be changed only at such times as the City and/or Metro adjusts its rates and charges through established procedures for all other users. XV. HOLD !!ARMLESS AND INDEMNIFICATION The MIT agrees to indemnify and hold harmless' City, and its agents and employees, from and against all claims, damages, losses, and expenses, including reasonable attorneys' fees, which originate from events which occUr on MIT owned or controlled' land .or facilities including, but not being limited to, sanitary sewer backups, floods., spillage, property damage, personal injury, and other types of sewage contamination, except that this indemnification shall not apply to the sole negligent or intentional acts of the City and its agents and employees. XVI. PERFORMANCE OF AGREEMENT Each party agrees that. it . will execute any and all instruments, documents and ,resolutions or ordinances necessary to . give effect to the terms of this A9reement. Furthermore, the City shall have access at reasonable times and on reasonable notice to inspect the MIT's sanitary sewer system and related Exhibit 1 . Exhibn C ÄëSöiûtiö¡;·Nö·..366Ö........·....·...·· Page 16 of 18 -16- . ... .-, )I ._ facilities for the .purpose of verification of the number of hook ups, type of discharge, and operation levels which constitute the basis of the MIT'S obligations to the City on account of fees and charges. xVI. AMENDMENT OF THIS AGREEMENT This Agreement are written and are jointly by the Auburn the BIA. may be modified only if such modifications approved by written resolutions adopted City Council, the MIT Tribal Council, and xVII. CONSTRUCTION 1INP INTERPRETATION. . This document has been mutually negotiated between the parties. No adverse inference or ambiguity shall be construed against the party preparing' this document for signature. No . waiver Py either party of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition, nor sháll a waiver of any breach be deemed to constitute a waiver of any subsequent breach, whether of the same or.a different portion of this Agreemept. XVIII. TERM OF AGREEMEN'J'. Thp initial Term of this Ägrep-ment: sha11 hp- fiftv (SO) yp-RrA frnm the datp- that the' partíp-R ·p.xe~ut':ed this Agreement 1J~1~A':A terminatP:d ear' ier pl1r~maT1t: ._tn· !=:ec<tinn XI ðf this ~~~~ement. . This Ac¡:rep-ment sha] 1 he ;:mtomatically renewed fc>r, an ~drl~;;onal term'Òf fifty_ (SO) yearA '(without r.lny acT-ion required h~ ~ither party). provided that either party may ðe~line to renew thP:- Aareement': by nntifyi1?9' the nther party by w~:i.ttennnt:ice .at ì~~Rt fivp IS) years prinr to the endnf the initial Term of this Agrep.ment-. IN WITNESS TO THE TERMS OF THIS AGREEMENT, the parties hereto have subscribed their names: . .~ IND~ TRIBB . ~~ . ....'ll -...i_' - -,ss, Qhairperson, Muckleshoot Tribal Council Date: ,Ç-¿;-97 Consented to, Agreed and Approved as to Form: United States Department of ~nterior ~tli.l;>.n.:..!;)!hlÞ.i.tÇ,.................. Resolution No. 3660 Page 17 of 18 -17- -.,.....,; .... .Bureau of Indian Affairs AccolTlTlodation Approval BY: JJl. t1/£lv I" . Its: Super; ntendent·, Puget Sound Agency Date: Approved as to Form: MAY 20 1997 klh Tribill Attorney CITY OF AUBURN BY: ~hQrl~ D. ß~ CHARLES A. BOOTH, MAYOR ATTEST: ~iJJ~' Robin Wohlhueter, City Clerk Æ;~~ Mike J. Reynolds, City Attorney ~X!!ll,1.U.,..Exþibft C Resolution Ñö·.300Ö....·......·....... Page 18 of 18 -18-