HomeMy WebLinkAbout6624 ORDINANCE NO. 6.6.2 4
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, RATIFYING
THE FRANCHISE AGREEMENT WITH LAKEHAVEN
UTILITY DISTRICT ADOPTED BY RESOLUTION
NO. 3650
WHEREAS, the Lakehaven Utility District currently owns, operates, and
maintains a water system within the City of Auburn's public rights-of-way within
the City of Auburn corporate boundary; and
WHEREAS, in 2004, the City and Lakehaven Utility District negotiated a
franchise agreement that was approved by the City Council through Resolution
Number 3650; and
WHEREAS, Revised Code of Washington 35A.47.040 includes certain
procedural requirements not typically followed when adopting a resolution; and
WHEREAS, the City wishes to ensure that the benefits and obligations
inured to Lakehaven Utility District through Resolution Number 3650 are not
invalidated by any procedural deficiency; and
WHEREAS, ratification of Resolution Number 3650 by this Ordinance will
resolve any omission in the procedural requirements of RCW 35A.47.040 and
conform to the City's standard practice of franchise adoption by ordinance; and
WHEREAS, following proper notice, the City Council held a public hearing
on ratification of Resolution Number 3650; at which time interested citizens were
heard in a full public proceeding affording opportunity for comment by any and all
persons desiring to be heard; and
Ordinance No. 6624
October 10, 2016
Page 1 of 3
WHEREAS, from information presented at such public hearing, and from
facts and circumstances developed or discovered through independent study and
investigation, the City Council now deems it appropriate and in the best interest
of the City and its inhabitants that Resolution Number 3650 be ratified.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. Grant of Franchise The provisions of Resolution
Number 3650, attached hereto as Exhibit A and incorporated herein by this
reference, are hereby adopted as if fully set forth herein.
Section 2. Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out the
directions of this legislation.
Section 3. Severability. The provisions of this ordinance are
declared to be separate and severable. The invalidity of any clause, sentence,
paragraph, subdivision, section or portion of this ordinance, or the invalidity of the
application thereof to any person or circumstance shall not affect the validity of
the remainder of this ordinance, or the validity of its application to other persons
or circumstances.
Section 4. Effective date. This Ordinance shall take effect and be
in force five days from and after its passage, approval and publication as
provided by law.
NOV 21 2016
INTRODUCED:
PASSED: NOV 21 2016
APPROVED: NOV 21 2016
Ordinance No. 6624
October 10, 2016
Page 2 of 3
CITY OF AUBURN
ANCY B DS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
AP' ' o VEDA• TO F1 RM:
/4 -
1
niel B-t -'., City 7ttorney
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to
Ordinance No. 6624
October 10, 2016
Page 3 of 3
RESOLUTION NO. 3 6 5 0
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO
EXECUTE A FRANCHISE AGREEMENT BETWEEN THE
LAKEHAVEN UTILITY DISTRICT AND THE CITY OF AUBURN,
ALLOWING THE LAKEHAVEN UTILITY DISTRICT TO
CONNECT, INSTALL, OPERATE, MAINTAIN AND REPAIR
WATER SYSTEM, FACILITIES, AND APPURTENANCES IN,
OVER, ALONG, ACROSS AND UNDER THE FRANCHISE
AREA FOR THE PURPOSE OF PROVIDING WATER SERVICE
WHEREAS, the Lakehaven Utility District currently owns, operates, and
maintains a water system within Auburn's public right of way located in the
franchise area; and
WHEREAS, the Lakehaven Utility District is seeking a new
comprehensive franchise with Auburn for public water facilities installed within
Auburn's current and future public right of way; and
WHEREAS, in order to maintain control over the use of City of Auburn
right-of-ways by utilities operating within the City of Auburn, it is appropriate to
enter into franchise agreements with such utilities; and
WHEREAS, Lakehaven Utility District is such a utility, and has
negotiated this franchise agreement with the City of Auburn acceptable to both
parties; and
Resolution No.3650
January 20,2004
Page 1
WHEREAS, the City of Auburn has determined that it is in the best
interests of the public to grant the Lakehaven Utility District a water franchise on
the terms and conditions set for in this Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. The Mayor of the City of Auburn is herewith authorized to
execute a Franchise Agreement between the Lakehaven Utility District and the
City of Auburn in substantial conformity with the Agreement attached hereto,
marked as Exhibit"A" and incorporated herein by this reference.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. This resolution shall be in full force and effect upon
passage and signatures hereon.
Resolution No.3650
January 20,2004
Page 2
DATED this day of4 �a.47 , 2004.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
ke14&)(
Danielle E. Daskam,
City Clerk
APPR P D TO FORM:
Daniel B. He _
City Attorney
Resolution No.3650
January 20,2004
Page 3
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Return Address: KBNT141dA8 _
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City of Auburn
25 West Main St.
Auburn, WA 98001
RECORDER'S COVER SHEET
Document Title(s) (or transactions contained therein):
Franchise Agreement (Resolution No. 3650) 1 ( 3 Lj ,Nv t"
Reference Number(s) of Documents assigned or released: IN Z ( - I a._
DAdditional reference#'s on page of document
Grantor(s)/Borrower(s) (Last name first, then first name and initials)
Auburn, City of
Grantee/Assignee/Beneficiary: (Last name first); x .
1. Lakehaven Utility Distract 4.3 i :!•`?
Legal Description (abbreviated: i.e. lot, block, plat or section, township, range)
PER RCW 39.34
❑Additional legal is on page of document.
Assessor's Property Tax Parcel/Account Number
N/A
0 Assessor Tax#not yet assigned
•
EXHIBIT "A"
CITY OF AUBURN, WASHINGTON
WATER FRANCHISE AGREEMENT
WITH THE LAKEHAVEN UTILITY DISTRICT
THIS F NCHISE AGREEMENT, made and entered into this Z.3✓1 day of
, 2004, by and between the CITY OF AUBURN, Washington and
the KEHAVEN UTILITY DISTRICT:
WITNESSETH:
WHEREAS, the Lakehaven Utility District currently owns,operates,and maintains a water
system within Auburn's public right-of-way located in the franchise area; and
WHEREAS the Lakehaven Utility District is seeking to establish a comprehensive
franchise with the City of Auburn for water system lines within Auburn's current and future
public right-of-way; and
WHEREAS, in order to maintain control over the use of City of Auburn rights-of-way by
utilities operating within the City of Auburn, it is appropriate to enter into franchise
agreements with such utilities; and
WHEREAS, Lakehaven Utility District is such a utility, and has negotiated this franchise
agreement with the City of Auburn acceptable to both parties; and
WHEREAS, the City of Auburn has determined that it is in the best interests of the public
to grant the Lakehaven Utility District a franchise on the terms and conditions set forth in
this franchise agreement.
NOW, THEREFORE THE CITY OF AUBURN AND THE LAKEHAVEN UTILITY
DISTRICT AGREE AS FOLLOWS:
SECTION 1 DEFINITIONS
Where used in this franchise agreement ("Franchise"), the following definitions shall
apply:
1.1 "Franchisee"means the Lakehaven Utility District,a Washington municipal
corporation, and its respective successors and assigns.
1.2 "City" means the City of Auburn, a Washington municipal corporation.
1.3 "Franchise Area" means all of the public roads, streets, avenues, alleys,
highways, and other rights-of-way of the City as now laid out, platted, dedicated or
improved; and any and all public City roads,streets, avenues,alleys, highways,and other
rights-of-way that may hereafter be laid out, platted, dedicated or improved within the
area in which the City has jurisdiction, as described in Attachment 1 and as depicted in
-�
Exhibit W,Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 1 of 12
Attachment 2, both attachments attached hereto,which is by this reference incorporated
as if fully set forth herein; provided, that the Franchise Area shall not include or convey
any right to the Franchisee to install facilities on, or to otherwise use, City owned or
leased properties; and provided that the terms of this franchise (i.e., permitting and
enforcement) shall not apply to those public roads, streets, avenues, alleys, highways,
and other rights-of-way that may hereafter be laid out, platted, dedicated or improved
within the area as described in Attachment 1 and depicted in Attachment 2 until such
time that the City has assumed jurisdiction thereof.
1.4 "Facilities" means the Franchisee's water system, lines, mains, pump
stations, appurtenances, and all other necessary or convenient appurtenances for the
purpose of providing water service.
SECTION 2 FRANCHISE GRANT
Subject to the terms and conditions set forth in this Franchise, the City grants to the
Franchisee the right to construct, own and maintain its Facilities, including,but not limited
to,water pipelines, pump stations, and appurtenances within the City's public right-of-way
and the Franchisee's water service area. In exercising authority to construct and install its
Facilities and to excavate trenches in City roads for the purposes of constructing,
installing, operating, maintaining, removing, and replacing its Facilities, and making
connections between the same to the dwellings and other buildings of the consumers,the
Franchisee shall be governed by and conform to the general rules adopted by the Public
Works Department of the City, and the Franchisee, at no expense to the City, shall
complete all work and shall replace and restore the City roads to the condition of the City
roads existing immediately prior to such disturbance; PROVIDED, HOWEVER, that no
such work shall be done prior to the obtaining of a permit therefor issued by the City's
Public Works Director (hereinafter "Director"), which permit shall set forth conditions
pertaining to the work to be done and specifications for the restoration of the roads to the
same condition as they were immediately prior to such work. If the Franchisee does not
repair the City roads to the satisfaction of the Director,the City may, at its sole discretion,
repair such City roads, or cause them to be repaired, and the Franchisee hereby agrees
to reimburse the City for the cost of such work, including reasonable overhead costs.
SECTION 3 FRANCHISE TERM
This Franchise shall take full force and effect five calendar days after being approved by
the City, and shall be valid for a period of 25 years, expiring in 2029; provided, that this
Franchise shall not take effect and the Franchisee shall have no rights under this
Franchise unless the Franchisee files a written acceptance of this Franchise with the City
pursuant to Section 4 of this Franchise.
SECTION 4 ACCEPTANCE BY FRANCHISEE OF TERMS AND CONDITIONS
The full acceptance of this Franchise and all of its terms and conditions shall be filed with
the City Clerk within forty-five (45) days from the date of the resolution approving this
Franchise by the Franchisee's duly elected Board of Commissioners. Full acceptance of
this Franchise is a condition precedent to its taking effect, and unless this Franchise is
Exhibit"A",Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 2 of 12
accepted within the time specified, this grant will be null and void and have no force or
effect.
SECTION 5 NON-EXCLUSIVE FRANCHISE
This Franchise is not exclusive. It does not prohibit the City from granting franchises for
other public or private utilities in, over, along, across, and under any City property,
including the Franchise Area. This Franchise does not prevent or prohibit the City from
constructing, altering, maintaining or using any of the Franchise Area. The City retains
full power to make all changes, relocations; repair, maintenance or other work to or in the
Franchise Area as the City deems fit.
SECTION 6 JURISDICTION
This Franchise is intended to convey limited rights and interest only as to those roads and
rights-of-way in which the City has an actual interest within the Franchise Area. It is not a
warranty of title or of interest in City road rights-of-way. None of the rights granted to the
Franchisee shall affect the jurisdiction of the City over City road rights-of-way or the City's
power to perform work upon its roadways, rights-of-way or appurtenant drainage facilities
including by constructing, altering, renewing, paving, widening, grading, blasting or
excavating. The parties shall comply with all applicable rules and regulations pertaining
to them in connection with the matters covered herein.
SECTION 7 REGULATION OF USE AND CONTROL
This Franchise does not deprive the City of any powers,rights, or privileges it now has or
may later acquire in the future to regulate the use of and to control the City road rights-of-
way covered by this Franchise. The City reserves the right and power at all times to
exercise its police powers with respect to the time, manner and location of the placement
of the Franchisee's Facilities.
SECTION 8 EMINENT DOMAIN
This Franchise and the limited rights and interests granted by this Franchise are subject
to the exercise of eminent domain. In the event of an exercise of eminent domain by the
City,the value to be attributed to all the rights and interests granted under this Franchise
shall not exceed the actual amount the Franchisee paid to the City in obtaining this
Franchise.
SECTION 9 VACATION
If at any time the City vacates any City rights-of-way covered by this Franchise,the City
will not be held liable for any damages or loss to the Franchisee by reason of such
vacation. The City may, after giving thirty (30) days written notice to the Franchisee,
terminate this Franchise with respect to any City road or rights-of-way vacated. However,
should Franchisee notify the City that an easement is required for existing or proposed
facilities within the proposed vacation area, the City shall withhold approval of such
vacation until the Franchisee has notified the City that the necessary easement(s) have
been secured, or provisions otherwise made to maintain the viability and use of existing
Facilities.
Exhibit'A',Auburn Resolution No. 3650
Auburn-Lakehaven Water Franchise
Page 3 of 12
SECTION 10 ENFORCEMENT
The City's failure to enforce any provision of this Franchise does not constitute a waiver of
its right to enforce that provision or any other provision of this Franchise.
SECTION 11 INDEMNITY AND HOLD HARMLESS
11.1 The Franchisee shall defend, indemnify and hold harmless the City, its
appointed and elected officials, and its employees and agents from and against liability
for all claims, actions, injuries, demands, liabilities, losses, costs, damages and
judgments, including costs of defense thereof, (collectively referred to as"damages")for
injury to persons, death or property damage caused by, arising out of, or incidental to the
Franchisee's exercise of the rights and privileges granted by this Franchise, except for
damages caused by or arising out of the City's sole negligence. In the event that any
such claim or demand for damages is presented to or filed with the City, or if any suit or
action is initiated against the City based on such claims or demands for damages, the
City shall promptly notify the Franchisee of the claim, demand, suit or action and the
Franchisee shall have the right, at its election and its sole cost and expense,to settle and
compromise such claim, demand, suit or action, or defend the same at the Franchisee's
sole cost and expense.
11.2 If it is determined that RCW 4.24.115 applies to this Franchise, the
Franchisee agrees to defend, hold harmless and indemnify the City to the maximum
extent permitted under that statute, and specifically for the Franchisee's negligence
concurrent with that of the City to the full extent of the Franchisee's negligence.
SECTION 12 INSURANCE
12.1 The Franchisee shall keep a policy of insurance in force with a minimum
limit of five million dollars ($5,000,000.00). Verification of insurance coverage is a
condition precedent to the effectiveness of this Franchise.
12.2 The insurance shall be maintained in full force and effect at the
Franchisee's sole expense throughout the term of the Franchise, and, should such
insurance be terminated, this Franchise shall terminate as of the date of the termination
of insurance coverage.
12.3 The coverage provided by the Franchisee's insurance policies shall be
primary to any insurance maintained by the City, except as to losses or damages
attributable to the sole negligence of the City. Any insurance maintained by the City that
might relate to this Franchise shall be in excess to the Franchisee's insurance and shall
not contribute with or to it. The City has no obligation to report occurrences to the
insurance companies unless a claim is filed with the City's City Council;and the City has
no obligations to pay the Franchisee's premiums.
12A The Franchisee shall be solely and completely responsible to perform all
work related to this Franchise in compliance with all applicable federal, state, county and
city statutes, rules, regulations, ordinances, orders and codes. The Franchisee's
attention is directed to the requirements of the Washington Industrial Safety and Health
Act, Chapter 49.17 RCW. The Franchisee shall be solely and completely responsible for
Exhibit°A',Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 4 of 12
•
safety and safety conditions on its job sites and for its work within the Franchise Area,
including the safety of all persons and property during performance of any works therein.
The services of the City or City's consultant personnel in conducting construction review
of the Franchisee's work relating to the Franchise is not intended to include review of the
adequacy of the Franchisee's work methods, equipment, scaffolding, or trenching, or
safety measures in, on or near such Franchise Area or job site. The Franchisee shall
provide safe access for the City and its inspectors to adequately inspect the work and its
conformance with applicable statutes, ordinances, rules, regulations, and the Franchise.
SECTION 13 INSTALLATION, REPAIR, REMOVAL OR RELOCATION
13.1 The Franchisee shall, at no expense to the City, expeditiously repair all
existing Facilities that it owns within the Franchise Area, including any damage caused
directly or indirectly by its Facilities, all appurtenant Facilities and service lines connecting
its system to users, if the City requires such repair for any reasonable purpose.
13.2 The Franchisee shall, at no expense to the City, adjust, remove or relocate
existing Facilities within the Franchise Area, including all appurtenant Facilities and
service.lines connecting its system to users, if the City determines such adjustment,
removal or relocation is reasonably necessary to allow for an improvement or alteration
planned by the City. The City shall give the Franchisee written notice of such requirement
as soon as practicable. The written notice shall include all available information, such as
plans and specifications, as is reasonably necessary for the Franchisee to plan for such
adjustment, removal or relocation.
13.3 Franchisee's Facilities shall be constructed, installed, maintained and
repaired within the Franchise Area so as to provide safety of persons and property, and
not interfere with the free passage of traffic, all in accordance with the laws of the State of
Washington, and the ordinances, resolutions, rules and regulations of the City.
13.4 For projects that are a part of the City's capital improvement program, in
addition to any other notice given to the Franchisee, the City shall provide a copy of the
capital improvementplan and six (6) year transportation improvement plan when
requested. Further, the City shall provide a horizontal plan and vertical profile of the
roadway and drainage facilities within it, both existing and as proposed by the City, and
the proposed construction schedule. The initial design information shall be given at least
one hundred and eighty (180)days before construction is scheduled to begin, except in
cases of urgent construction or emergencies. The Franchisee shall respond to this
notice, and to any later notices of revised designs,within twenty(20) days of the date of
the notice, by providing to the City the Franchisee's best available information as to the
location of all the Franchisee's Facilities, including all appurtenant Facilities and service
lines connecting its system to users, and all Facilities that it has abandoned, within the
area proposed for the project.
13.5 The City shall offer the Franchisee the opportunity to participate in the
preparation of bid documents for the selection of a contractor to perform the public works
project as well as all required adjustments, removals or relocations of the Franchisee's
Facilities. The City shall have sole authority to choose the contractor to perform such
Exhibit"A",Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 5 of 12
•
work. Such bid documents shall provide for an appropriate cost allocation between the
parties. In addition to the Franchisee's allocation of contractor costs,the Franchisee shall
reimburse the City for all costs, to include but not be limited to legal, engineering,
inspections, administration and/or soils testing, related to the Franchisee's work and
reasonably incurred by the City in the administration of such joint construction contracts.
Such costs shall include the direct salary cost of the time of City professional and
technical personnel, including the City's consultants,spent productively engaged in such
work, plus overhead costs at the standard rate charged by the City on other similar
projects. The specific terms of the joint participation on any public work shall be as set
forth in a written agreement between the parties.
13.6 It is understood that emergency situations may arise that could threaten
public health and/or continued operation of the Franchisee's utility system and the
Franchisee may be unable to notify the City in the manner prescribed in Section 14 of this
Franchise. In such a situation the Franchisee shall immediately correct the hazardous
situation and continue to use best efforts to contact the City staff. The Emergency Phone
Number for the City of Auburn is (253) 931-3048, and that for the Lakehaven Utility
District is(253)941-1516. Dialing 911 is advised for emergency situations that may result
in imminent threats to life and/or property.
SECTION 14 REQUIREMENT OF CONSTRUCTION PERMITS
14.1 The Franchisee has the right, privilege and authority to enter the City road
rights-of-way for the purpose of constructing, installing, operating, maintaining, replacing
or repairing its Facilities on the condition that it obtains construction, excavation, and
right-of-way use permits issued by the City. Any work performed,whether by Franchisee,
its contractors, or third parties, shall include necessary paving,patching,grading and any
other reasonably necessary repair or restoration to the City rights-of-way. All work shall
be done to the City's satisfaction.
14.2 All equipment, pipelines and appurtenances which are used in the
construction, installation, operation, maintenance or repair of the Franchisee's Facilities
and which are located within the City road rights-of-way and owned by the Franchisee
shall be considered to be part of the Franchisee's system and shall be the responsibility
of the Franchisee. All permits for the construction,installation,operation,maintenance or
repair of the Franchisee's system shall be applied for and given in the name of the
Franchisee, who will be responsible for all work done under the permit. The Franchisee
remains responsible whether the work is performed by the Franchisee, its contractors, or
by third parties.
14.3 When required by the City's Public Works Director, the Franchisee shall
post a bond to the City in the amount sufficient for any road repair or restoration. The
amount of the bond shall be set by the City and must be filed with the City before a permit
will be issued.
Exhibit'A",Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 6 of 12
•
SECTION 15 PERFORMANCE OF WORK
15.1 Any work performed by the Franchisee in the Franchise Area shall.
conform to all City ordinances and requirements including, but not limited to,Auburn City
Code and the City's Design and Construction Standards in force when the work is
performed. All traffic control shall conform to the current edition of the Manual of Uniform
Traffic Control Devices in force when the work is performed.
15.2 If work performed under this Franchise makes it necessary to turn off or
diminish water pressure or potential flow to any fire hydrant, the Franchisee shall notify
the City's Fire Department by telephone and by written notice, that water pressure or fire
flow conditions have been affected. Except in the case of an emergency,the notice shall
be provided at least 48 hours prior to the water pressure or potential flow being
suspended or diminished. If more than one fire hydrant will be affected, the Franchisee
shall provide a map of the affected area to the Fire Department. Out-of-service fire
hydrants must be identified as not operational by covering with a properly secured burlap
or plastic bag. Fire hydrants should be returned to full service as soon as reasonably
possible or no longer than two working days from the date service was suspended or
diminished. The Franchisee shall notify the City's Fire Department when the hydrant(s)
is/are returned to full service.
SECTION 16 RESTORATION OF CITY RIGHTS-OF-WAY
After performing work on, under or adjacent to City road rights-of-way,the Franchisee is
responsible for and shall leave all City road rights-of-way in the condition of the City road
rights-of-way existing immediately prior to such disturbance. If the Franchisee, its
contractors, or third parties working under permit should fail to diligently restore City road
rights-of-way to the satisfaction of the City, the City may make such repairs or
restorations as are necessary to return the City road rights-of-way to a condition
reasonably comparable to the condition of the City road rights-of-way existing immediately
prior to such disturbance. Upon presentation of an itemized invoice for repairs or
restorations, including all applicable costs, both direct and indirect, to include, but not be
limited to, the cost of labor, tools, materials and equipment, the Franchisee shall pay the
invoice within sixty-five (65) days of its receipt and approval.
SECTION 17 INFORMATION ON LOCATION OF FACILITIES
The Franchisee shall provide the City with all information requested by the City regarding
the location of the Franchisee's current Facilities, including, but not limited to,copies of all
record drawings for such Facilities. If the Franchisee performs any work to install,repair,
reconstruct, or replace Facilities in the Franchise Area after this Franchise's effective
date, the Franchisee shall provide the City with all information requested by the City
regarding the location of those Facilities, including, but not limited to, copies of record
drawings.
Exhibit°A°,Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 7 of 12
•
SECTION 18 COORDINATION OF WORK IN FRANCHISE AREA
To facilitate the coordination of work in City rights-of-way, if either the Franchisee or the
City plans to make excavations in the Franchise Area,the party planning such excavation
shall provide written notice to the other of the planned excavation, affording the other
party the opportunity to share in the excavation; provided,that(1)such joint use shall not
unreasonably delay the work of the party causing the excavation to be made, (2) such
joint use shall be arranged and accomplished on terms and conditions satisfactory to both
parties, and (3) either party may deny such request for safety reasons.
SECTION 19 BLASTING REQUIREMENTS
The Franchisee's right to construct, install, operate, maintain and repair Facilities does
not preclude the City, its agents or contractors from blasting,grading, or doing other road
work contiguous to the Franchisee's Facilities. When practical, the City shall give the
Franchisee forty-eight (48) hours notice of blasting or excavating.
SECTION 20 SURVEY MARKERS AND MONUMENTS
Before any work is performed under this Franchise,the Franchisee shall establish two or
more reference marks to all monuments and markers of every nature relating to
subdivisions, plats, rights-of-way, and all other surveys. The reference points shall be
located so that they will not be disturbed during any of Franchisee's operations under this
Franchise. The method of referencing monuments or other markers or points shall be
approved by the City before placement. The replacement of all markers or monuments
disturbed during any construction of the Franchisee shall be made as promptly as
conditions permit. The cost of monuments or markers lost, destroyed, or disturbed and
the expense or replacement with approved markers or monuments shall be borne by the
Franchisee.
SECTION 21 RESERVATION OF RIGHTS
21.1 The City reserves the right to impose, to the extent authorized by law, a
utility tax on the Franchisee and/or to charge the Franchisee a reasonable fee for services
provided or rights granted under this Franchise.
21.2 The Franchisee agrees that it shall be subject to all authority now or later
possessed by the City or any other governing body having competent jurisdiction to fix
just, reasonable and compensatory rates for services under this Franchise.
21.3 The City reserves the right, upon thirty (30) days written notice to the
Franchisee, to amend or modify the provisions or conditions of this Franchise to conform
to any state, county, federal, or City statute, ordinance, rule or regulation. The City may
terminate this Franchise upon thirty (30) days written notice to the Franchisee if the
Franchisee fails or refuses to comply with such amendment or modification.
Exhibit A.Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 8 of 12
SECTION 22 ASSIGNMENT
The Franchisee shall not have the right to assign this Franchise without the written
consent of the City. No assignment shall be effective unless an acceptance by the
assignee of all rights, conditions, terms, provisions and responsibilities contained within
the Franchise, as well as surety bonds which the City deems necessary to be posted,are
received as allowed by law. The City's approval of the assignment may be made subject
to the assignee's acceptance of new or modified terms of the Franchise.
SECTION 23 PENALTY FOR VIOLATION OF CONDITIONS
If the Franchisee fails to comply with any material term, condition or responsibility under
this Franchise,the City may provide the Franchisee with written notice of the City's intent
to revoke the Franchise if the Franchisee's failure is not cured within thirty (30) days of
the date of the notice. During the thirty (30) days following the date of the notice, the
Franchisee shall have the opportunity to remedy the failure to comply. A public hearing
shall be scheduled before the Auburn City Council at least thirty(30) days following the
notification on the issue of the revocation. If at the hearing, the City Council finds that
grounds exist to revoke the Franchise under this paragraph and that the revocation is in
the public interest, the City Council may by resolution revoke the Franchise. The
revocation shall be effective ninety (90) days after the public hearing.
SECTION 24 EXPIRATION AND RENEWAL
24.1 If the Franchisee requests a renewal of this Franchise prior to its expiration
date, which renewal shall be granted, on terms reasonable to the parties, unless the City
can demonstrate, in good faith,that such renewal would be contrary to its operation of the
right of way, the City may, at the City's sole discretion, extend the term of this Franchise
for up to one year beyond the expiration date to allow for processing of the renewal If
the City elects to extend the term of this Franchise,written notice of the extension shall be
provided to the Franchisee prior to the Franchise expiration date.
24.2 If the Franchisee has not requested a renewal of this Franchise prior to its
expiration date,the City has the right, upon thirty(30)day's prior notice to the Franchisee,
to remove or relocate any of the Franchisee's Facilities as is reasonably necessary for the
public's health,welfare or safety,or for the construction, alteration,or improvement of the
Franchise Area,or for the construction or installation of lines or facilities of other franchise
holders. The Franchisee shall be liable for costs incurred in any removal or relocation of
the Franchisee's Facilities under this section.
24.3 Upon the expiration of this Franchise, the Franchisee shall continue to be
responsible for the operation and maintenance of the Franchisee's existing facilities in the
Franchise Area, but shall not have the right to provide additional services. This Section
and Sections 11, 13, 14, 15, 16, 18, and 20 of this Franchise shall continue in force until
such time as the Franchisee's Facilities are abandoned to the City's satisfaction.
Exhibit"A",Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 9 of 12
•
SECTION 25 COMPLIANCE WITH LAWS
The Franchisee shall conform to all applicable federal, state and local laws and
regulations including,but not limited to,the State Environmental Policy Act and the City's
Environmental Standards and Ordinances.
SECTION 26 NON-DISCRIMINATION CLAUSE
In all hiring or employment made possible or resulting from this Franchise,there shall be
no discrimination against any employee or applicant for employment because of sex,
sexual orientation, age, race, color, national origin, marital status or the presence of any
sensory, mental, or physical handicap, unless based upon a bona fide occupation
qualification. No person shall be denied or subjected to discrimination in receipt of the
benefit of any services or activities made possible by or resulting from this Franchise on
the grounds of sex, sexual orientation, race, color, national origin, age, except minimum
age and retirement provisions, marital status, or the presence of any sensory, mental or
physical handicap.
SECTION 27 NOTICE
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: Lakehaven Utility District:
City Engineer General Manager
25 West Main Street 31627 1st Ave South
Auburn, WA 98001-4998 PO Box 4249
Tel: 253-931-3010 Federal Way, WA 98063-4249
Tel: 253-941-1516
or to such other representative addresses as either party may hereafter from time to time
designate in writing. All notices and payments mailed by regular post(including first class)
shall be deemed to have been given on the second business day following the date of
mailing, if properly mailed and addressed. 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.
If an emergency situation develops, it is recommended that the City or the Franchisee call
911 to solicit an emergency response.
SECTION 28 ATTORNEYS' FEES
If either party shall be required to bring any action to enforce any provision of this
Franchise, or shall be required to defend any action brought by the other party with respect
to this Franchise, 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.
Exhibit'A' Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 10 of 12
•
•
SECTION 29 SEVERANCE
If any term, provision, condition or portion of this Franchise is held to be invalid, such
invalidity shall not affect the validity of the remaining portions of this Franchise which shall
continue in full force and effect, unless the dominant purpose of the Franchise would be
prevented or the public interest would no longer be served, as determined by the City.
SECTION 30 EFFECTIVE DATE
The resolution approving the Franchise, having been introduced at least five days prior to
its date of passage and submitted to the city attorney, and being approved by at least a
majority of the entire city council at a regular city council meeting,shall take effect and be
in force five calendar days after its passage and approval by both parties to this Franchise.
SECTION 31 EXISTING UTILITIES
This Franchise shall govern existing and future water system facilities currently owned,
operated and maintained by Lakehaven Utility District within the City of Auburn.
SECTION 32 DISPUTE RESOLUTION
In the event that a dispute arises with regard to the terms of this Franchise Agreement,
either party may request that the dispute be submitted to non-binding mediation or
arbitration prior to court action. Such request for non-binding mediation or arbitration shall
be made in writing and mailed by first class, U.S. Mail to the other party. The mediator or
arbitrator shall be chosen by agreement of the parties. Either party may refuse to submit to
the dispute resolution process. Refusal to engage in the dispute resolution process shall
not prejudice the refusing party in any way.
Exhibit'A',Auburn Resolution No. 3650
Auburn—Lakehaven Water Franchise
Page 11 of 12
•
IN WITNESS WHEREOF the partie s hereto have executed this Franchise Agreement as of
the day and year first above written.
LAKEHAVEN UTILITY DISTRICT
Approved by Resolution No. acvl /oo6 of the kehaven Utility District, Federal Way,
Washington, at its regular ular meetingheld on they -da of JaKua , 2004.
9 9 Y '�!/''
By:
/(k1 / ft.
Donald T. Perry, Ge 0 al Manager
Lakehaven Utility District
Approved as to form:
r
_ , .1A},,, 4
Steven H. Pritchett, General Counsel
Lakehaven Utility District
CITY OF AUBURN
By:
Peter B. Lewis, Mayor
City of Auburn
Attst:
1..&) 24-CC S'
Danielle Daskam, City Clerk
A! .'r� =d �r
lrJ
• niel B. .el. it Attor ey
AUBURN RESOLUTION NO: 3650
LAKEHAVEN REFERENCE NUMBER: 2454-/dog
Exhibit"A",Auburn Resolution No. 3650
Auburn-Lakehaven Water Franchise
Page 12 of 12
Attachment
Auburn Ordinance No. 3650
Description of Lakehaven Utility District's Water Franchise Area
BEGINNING AT THE SOUTHWEST CORNER OF SECTION 23, TOWNSHIP 21
NORTH, RANGE 4 EAST, W.M.;
THENCE NORTH ALONG THE WEST LINE OF SAID SECTION 23 TO THE
NORTHWEST CORNER OF SAID SECTION 23 AND THE SOUTHEAST CORNER
OF SECTION 15, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M.;
THENCE WESTERLY ALONG THE SOUTH LINE OF SAID SECTION 15 TO THE
SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 15;
THENCE NORTHERLY ALONG THE NORTH-SOUTH CENTERLINE OF SAID
SECTION 15 TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF
SECTION 10, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M.;
THENCE NORTHERLY ALONG THE NORTH-SOUTH CENTERLINE OF SAID
SECTION 10 TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF
SECTION 3, TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M.;
THENCE NORTHERLY ALONG THE NORTH-SOUTH CENTERLINE OF SAID
SECTION 3 TO THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF
SECTION 34, TOWNSHIP 22 NORTH, RANGE 4 EAST, W.M.;
THENCE NORTHERLY ALONG THE WEST LINE OF THE SOUTHEAST QUARTER
OF SAID SECTION 34 TO THE NORTHWEST CORNER OF SAID SOUTHEAST
QUARTER OF SAID SECTION 34;
THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID SOUTHEAST
QUARTER OF SAID SECTION 34 TO THE NORTHWEST CORNER OF THE
SOUTHWEST QUARTER OF SECTION 35, TOWNSHIP 22 NORTH, RANGE 4
EAST, W.M.;
THENCE EASTERLY ALONG THE EAST-WEST CENTERLINE OF SAID SECTION
35 TO THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SECTION 36, TOWNSHIP 22 NORTH, RANGE 4 EAST,W.M.;
THENCE EASTERLY ALONG THE NORTH LINE OF THE SOUTHWEST QUARTER
OF SAID SECTION 36 TO THE NORTHEAST CORNER OF SAID SOUTHWEST
QUARTER OF SAID SECTION 36;
THENCE SOUTHERLY ALONG THE NORTH-SOUTH CENTERLINE OF SAID
SECTION 36 TO THE NORTHWEST CORNER OF THE NORTHEAST QUARTER OF
SECTION 1, TOWNSHIP 21 NORTH, RANGE 4 EAST,W.M.;
Attachment 1;Auburn Ordinance No.3650
Page 1 of 2
• 1 I
THENCE SOUTHERLY ALONG THE NORTH-SOUTH CENTERLINE OF SAID
SECTION 1 TO THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 1;
THENCE WESTERLY ALONG THE SOUTH LINE OF SAID SECTION 1 TO THE
NORTHEAST CORNER OF SECTION 11, TOWNSHIP 21 NORTH, RANGE 4 EAST,
W.M.;
THENCE SOUTHERLY ALONG THE EAST LINE OF SAID SECTION 11 TO THE
NORTHEAST CORNER OF THE NORTHEAST QUARTER OF SECTION 14,
TOWNSHIP 21 NORTH, RANGE 4 EAST, W.M.;
THENCE SOUTHERLY ALONG THE EAST LINE OF SAID SECTION 14 TO THE
NORTHEAST CORNER OF THE NORTHEAST QUARTER OF SECTION 23,
TOWNSHIP 21 NORTH, RANGE 4 EAST,W.M.;
THENCE SOUTHERLY ALONG THE EAST LINE OF SAID SECTION 23 TO THE
SOUTHEAST CORNER OF SAID SECTION 23;
THENCE WESTERLY ALONG THE SOUTH LINE OF SAID SECTION 23 TO THE
POINT OF BEGINNING.
SITUATE IN KING COUNTY, WASHINGTON.
Attachment 1,Auburn Ordinance No.3650
Page 2 of 2
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Legend:
Attachment 2
_.._
Water Franchise Area
0, .....5
City of Auburn
;cation Area
Anne
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1AubuNrno.(i);d615n0ance
._