Regular Meeting of the Board of Commissioners Monday, April 8, :30 PM

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1 1 Regular Meeting of the Board of Commissioners Monday, April 8, :30 PM Estimated Minutes Time Allocated 03:30 PM 1 CALL TO ORDER 03:31 PM 1 APPROVAL OF AGENDA 03:32 PM 2 PUBLIC COMMENTS Public comment is limited to three minutes per person or five minutes per group 03:34 PM 1 CONSENT AGENDA A 223rd Muller-Warren Assemblage - Final Acceptance Resolution - Parcels , 9116, 9165, 9196 B Approval of the Blanket Summary Voucher Approval Document ACTIVE AGENDA 03:35 PM 45 A Franchise 101 Presentation 04:20 PM 10 B Claim Notice Resolution Update 04:30 PM 45 C King County Wastewater Treatment - Northern Diversion REPORTS 05:15 PM 5 Attorney 05:20 PM 5 General Manager 05:25 PM 20 Commissioner 05:45 PM ADJOURN Next Meeting - Regular Meeting - Monday, April 15, 2019

2 Consent Agenda 2

3 3 Consent Agenda Item A

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7 7 Consent Agenda Item B

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14 Active Agenda 14

15 15 Active Agenda Item A Franchise 101 Presentation

16 16 FRANCHISE 101 PRESENTED TO SAMMAMISH PLATEAU WATER April 8, 2019 John W. Milne

17 17 FRANCHISE TOPICS TO BE ADDRESSED: May cities, counties, and the State require Title 57 water-sewer districts to enter into franchise agreements as a condition of using public streets and rights-of-way for their utility facilities? If districts enter into franchise agreements with cities, counties or the State, what franchise fees and administrative charges may be imposed upon or agreed to by districts? In addition to fees and charges, key terms and conditions which may be included in franchises such as definitions, term and extension, franchise fees, planning coordination, facilities relocation, indemnification, insurance, nonassumption, fire hydrant costs and enforcement will be discussed.

18 18 CITY FRANCHISE STATUTES The power to grant a franchise is a sovereign power of the state which may be legally delegated to cities and counties. General Telephone Co. v. Bothell, 105 Wn.2d 579, 584 (1986). The power to grant franchises is specifically delegated to code cities by RCW 35A RCW 35A provides as follows:

19 19 Every code city shall have authority to permit and regulate under such restrictions and conditions as it may set by... ordinance and to grant non-exclusive franchises for the use of public streets... above or below the surface of the ground for... water, sewer and other private and publicly owned and operated facilities for public service. The power hereby granted shall be in addition to the franchise authority granted by general law to cities. RCW 35A (emphasis added)

20 20 CITY INCORPORATION CANCELS FRANCHISES The incorporation of any territory as a city or town shall cancel, as of the effective date of such incorporation, any franchise or permit theretofore granted to any person, firm or corporation by the State of Washington, or by the governing body of such incorporated territory, authorizing or otherwise permitting the operation of [a].. public service business or facility within the limits of the incorporated territory, but the holder of any such franchise or permit cancelled.. shall be forthwith granted by the incorporating city or town a franchise to continue such business within the incorporated territory for a term of not less than the remaining term of the original franchise or permit, or not less than seven years, whichever is the shorter... RCW (emphasis added)

21 21 CITY ANNEXATION CANCELS FRANCHISES The annexation by any city or town of any territory.. shall cancel, as of the effective date of such annexation, any franchise or permit theretofore granted to any person, firm or corporation by the State of Washington, or by the governing body of such annexed territory, authorizing or otherwise permitting the operation of [a].. public service business or facility within the limits of the annexed territory, but the holder of any such franchise or permit cancelled.. shall be forthwith be granted by the annexing city or town a franchise to continue such business within the annexed territory for a term of not less than seven years from the date of issuance thereof.... RCW (emphasis added)

22 22 CITY MAY NOT REQUIRE BOND A city or town may not require any unit of local government to secure the performance of a permit requirement with a surety bond or other financial security device, including cash or assigned account, as a condition of issuing a permit to that unit of local government for a building construction project. As used in this section, building construction project includes, in addition to its usual meaning, associated landscaping, street alteration, pedestrian or vehicular access alternation, or other amenities or alternations necessarily associated with the project. RCW (emphasis added)

23 23 COUNTY FRANCHISE STATUTES Chapter RCW Franchises on Roads and Bridges, also authorizes counties to grant franchises. RCW provides as follows: Any board of county commissioners may grant franchises to persons or private or municipal corporations to use the right-ofway of county roads in their respective counties for the construction and maintenance of water works, gas pipes, telephone, telegraph, and electric light lines, sewers and any other such facilities. RCW (emphasis added)

24 24 COUNTY FRANCHISE STATUTES (Cont.) Unlike cities and towns, the statutory delegation to counties of the power to grant franchises contains certain express limitations and restrictions. RCW provides as follows: (1) Any person constructing or operating any utility on or along a county road shall be liable to the county for all necessary expense incurred in restoring the county road to a suitable condition for travel. (2) No franchise shall be granted for a period of longer than 50 years. (3) No exclusive franchise or privilege shall be granted. (4) The facilities of the holder of any such franchise shall be removed at the expense of the holder thereof, to some other location on such county road in the event it is to be constructed, altered, or improved or becomes a primary state highway, and such removal is reasonably necessary for the construction, alteration or improvement thereof. (Emphasis added)

25 25 COUNTY MAY NOT REQUIRE BOND A county legislative authority may not require any unit of local government to secure the performance of a permit requirement with a surety bond or other financial security device, including cash or assigned account, as a condition of issuing a permit to that unit of local government for a building construction project. As used in this section, building construction project includes, in addition to its usual meaning, associated landscaping, street alteration, pedestrian or vehicular access alternation, or other amenities or alternations necessarily associated with the project. RCW (emphasis added)

26 26 STATE STATUTORY AUTHORITY Chapter RCW Franchises on State Highways the department of transportation may grant franchises to use any State highway for the construction and maintenance of water pipes and other such facilities.

27 27 DISTRICT STATUTORY AUTHORITY However, the legislature has also delegated certain powers to districts. A district that provides water service has the power: To construct, condemn and purchase, add to, maintain, and supply water works to furnish the district and inhabitants thereof, and any other persons, both within and without the district, with an ample supply of water for all uses and purposes public and private, with full authority to regulate and control the use, content, distribution, and price thereof in such a manner as is not in conflict with general law, and may construct, acquire, or own buildings and other necessary district facilities. RCW (3) (emphasis added).

28 28 Similarly, a district that provides sewer services has the power: To construct, condemn and purchase, add to, maintain, and operation systems of sewers for the purpose of furnishing the district, the inhabitants thereof, and persons outside the district with an adequate system of sewers for all uses and purposes,publicandprivate,...withfullauthoritytoregulate the use and operation thereof and the service rates to be charged. RCW (5) (emphasis added).

29 29 Note also that a district that provides water services has the authority to: For such purposes, a district may take, condemn and purchase, acquire, and retain water from any public or navigable lake, river or watercourse,.. and by means of aqueducts or pipeline conduct the same throughout the district and any city or town therein and carry it along and upon public highways, roads, and streets, within and without such district. RCW (3) (emphasis added)

30 30 Note also that a district that provides sewer services has the authority to: For such purposes, a district may conduct sewage throughout the district and throughout other political subdivisions within the district, and construct and lay sewer pipe along and upon public highways, roads, and streets, within and without the district, and condemn and purchase or acquire land and rights-of-way necessary for such sewer pipe. RCW (5) (emphasis added)

31 31 DISTRICT AUTHORITY TO BE LIBERALLY CONSTRUED The role of strict construction shall not apply to this title, [Title 57 Water Sewer Districts ] which shall be liberally construed to carry out its purposes and objects. RCW

32 32 CITIES & COUNTIES CANNOT REQUIRE DISTRICTS TO ENTER INTO UTILITY FRANCHISES City of Lakewood v. Pierce County, 106 Wn. App. 63 (2001) FACTS: After city incorporated in 1996, city demanded that Pierce County enter into a city franchise agreement for county sewer lines in public streets and rights-of-way; After attempts to negotiate a franchise, city filed suit contending that: 1. City had legal authority to require county to have franchise; and 2. City could charge the county a franchise fee

33 33 CITIES & COUNTIES CANNOT REQUIRE DISTRICTS TO ENTER INTO UTILITY FRANCHISES (Cont.) Trial court held that: 1. City could not require the county to enter into a franchise agreement; and 2. City could not charge the county a fee for such franchise in excess of the city s administrative costs

34 34 CITIES & COUNTIES CANNOT REQUIRE DISTRICTS TO ENTER INTO UTILITY FRANCHISES (Cont.) Division II Court of Appeals affirmed the trial court s decision as follows: The city could not require the county to enter into a franchise Authority to grant a franchise means to allow, but not require ; Franchises have the legal status of contracts; Until both parties accept the terms of a franchise, it lacks the essentials of a contract; A city cannot compel a utility to accept its terms for the continued occupation of the streets.

35 35 CHARGES THAT MAY BE INCLUDED IN THE FRANCHISE FEE The city could not charge the county a franchise fee that exceeded the city s administrative costs related to the county s operation of its sewer line in city streets Cost to issue permits Cost to inspect and oversight

36 36 USE OF FRANCHISE AGREEMENTS TO ACHIEVE OTHER PURPOSES Burns v. City of Seattle, 161 Wn.2d 128 (2007) holding: The Washington State Supreme Court upheld Seattle City Light s payment of a percentage of its revenues (6%) earned within the cities of Lake Forest Park, Shoreline, Burien, SeaTac and Tukwila to those cities in exchange for permission to maintain Seattle s electrical facilities in city right-of-way in consideration of their forbearance of their right to develop a competing electrical utility A franchise is a contract and forbearance was lawful consideration to support payment The amounts paid were not for the franchise itself, but instead for the noncompete promise.

37 37 USE OF FRANCHISE AGREEMENTS TO ACHIEVE OTHER PURPOSES (Cont.) Facilities Relocation Expense: City bears cost to remove or relocate District facilities in consideration of fee payment Fire Hydrant Cost: District pays franchise fee to help city defray cost of fire hydrant invoice; but District must receive consideration such as nonassumption provision.

38 38 USE OF FRANCHISE AGREEMENTS TO ACHIEVE OTHER PURPOSES (Cont.) Non-Assumption Sample Provision In consideration of the franchise fee and acceptance of the other terms and conditions of this franchise, the city agrees that it will not exercise its statutory authority to attempt to assume jurisdiction over the District or any District responsibilities, property, facilities or equipment located within or without the city s corporate limits while this franchise is in effect.

39 39 SUMMARY 1. Cities, counties and the State cannot require districts to obtain a franchise to operate and maintain utility facilities in right-ofway 2. However, a city or county may contend a district cannot use, continue to use and may be enjoined from using public rightof-way if no franchise is obtained when demanded 3. Cities, counties and the State have the right to recover their administrative fees and costs incurred to issue and administer a franchise (e.g., application, inspection)

40 40 NEGOIATING FRANCHISE TERMS & CONDITIONS

41 41 KEY SECTIONS OF A FRANCHISE AGREEMENT Definitions Term & Extension Franchise Payment/Excise Tax Non-Assumption Facility Relocation Planning Coordination ROW Permit Issuance Insurance Dispute Resolution Abandoned Facilities/Removal Street Vacation Fire Hydrants

42 42 TERM & EXTENSION Pursuant to RCW , counties are prohibited from issuing franchises for a period of longer than 50 years. King County has historically granted franchises of 25 years. Most cities also grant franchises not exceeding 25 years. Automatic renewal of the franchise could be sought for agreed-upon time periods.

43 43 FRANCHISE FEE If franchise fees are paid, they are normally the city's or county's actual administrative costs incurred to process the franchise and/or (1) an identified percentage of the gross revenue obtained from the district's water and sewer business within the city's corporate limits, or (2) a charge based on the lineal footage of the district's pipe within the city's rights-of-way But if (1) or (2) above, the district should receive consideration for any payments in excess of city administrative costs.

44 44 DEFINITION OF REVENUE AND WHY IS THAT IMPORTANT? Revenue: Income derived only from the sale of metered water to customers whose connections are within the City of. Revenue shall not include late fees; impact or mitigation fees; any type of connection charges, general facilities charges, or local facilities charges; grants; contributed assets (CIAC); loans; income from legal settlements not related to water sales; income from cellular antenna leases; income from real property or real property sales; income from the sale of surplus equipment, tools or vehicles; interest income; penalties; hydraulic modeling fees; water system extension agreement (WSEA) fees and charges; income from street lights; labor, equipment and materials charges; income from the sale of bidders documents and plan sets; or any other fees and charges

45 45 RELOCATION OF FACILITIES Counties: RCW Cities: Case Authority State: RCW

46 46 RELOCATION OF FACILITIES (Cont.) 1. Notice 2. Reasonable Alternative Process 3. Responsibility for Cost 4. Joint Construction Projects (Chapter 39.34)

47 47 RELOCATION OF FACILITIES (Cont.) a. If the relocation occurs within ten years after the District initially constructed the facility, then the relocation shall be at the city's sole cost; b. If the relocation occurs more than ten years but within twenty years after the District initially constructed the facility, then the city shall pay 50% of the cost of such relocation, and the District shall pay the remaining 50%; and c. For the purpose of planning, the District and the city shall provide each other with a copy of their respective current adopted capital improvement annually and upon request. d. A provision should be included that whenever any person or entity other than the city requires a relocation of the district's facilities to accommodate the work of that person or entity, the district should be reimbursed for all of its costs and expenses incurred to relocate its facilities.

48 48 VACATION FROM RIGHT-OF-WAY Require city or county to obtain acceptable easements RCW Hearing Ordinance of Vacation The ordinance may provide that the city retain an easement or the right to exercise and grant easements in respect to the vacated land for the construction, repair, and maintenance of public utilities and services. See also RCW (Counties) Retention of Easement for Public Utilities and Services

49 49 INDEMNITY & INSURANCE Lane v. Seattle Fire hydrant cost waiver? Self-insurance Coverage limits No surety bond (cities and counties)

50 50 DEFAULT Notice and opportunity to cure Contest finding of default Mitigation and opportunity to cure

51 51 FRANCHISE MODIFICATION (AFTER EXECUTION) Nothing herein shall be deemed to restrict the City s ability to adopt and enforce all necessary and appropriate ordinances regulating the rights-of-way including any reasonable ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. Such action(s) by the City shall not unreasonably affect or modify any portion of this agreement without the approval of the District. Should the District and City not be able to agree, they shall resolve the differences through Section 13 Alternate Dispute Resolution.

52 52 SURVIVAL OF FRANCHISE TERMS & CONDITIONS (AFTER EXPIRATION OR TERMINATION) Be Careful what provisions survive to expiration of termination of a franchise? For example, relocation requirements, restoration and indemnity Limit survival

53 53 NEGOTIATING FRANCHISES WORDS TO THE WISE Get the right people to the table (the decision-makers!) Keep them there Outline all the issues and work through them methodically Keep a running written record of agreements during negotiations When the document is drafted, pay attention to the fine print

54 CITY OF BURIEN, WASHINGTON ORDINANCE NO. 54 Proposed Water Franchise Template February 15, 2019 AN ORDINANCE OF THE CITY OF BURIEN, WASHINGTON GRANTING DISTRICT A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A WATER SYSTEM WITHIN PUBLIC RIGHTS-OF-WAY OF THE CITY OF BURIEN, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, District, a Washington special purpose municipal corporation ( District"), owns and operates water facilities ( Facilities ) and provides water utility service to customers located within the District s corporate and approved retail water utility service area boundary; a portion of the District s Facilities are located in the City of Burien, a Washington non-charter municipal code city ("City"), and a portion of such Facilities are located within the City right-of-way as hereinafter defined; and WHEREAS, RCW (3) authorizes the District to conduct water throughout the District and any city and town therein, and construct and lay facilities along and upon public highways, roads and streets within and without the District; and WHEREAS, RCW 35A authorizes the City to grant non-exclusive franchises for the use of the public streets above or below the surface of the ground by publicly owned and operated water facilities; and WHEREAS, the City and the District have prepared a Franchise Agreement to provide for the operation of District Facilities within the City right-of-way. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURIEN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Definitions. Where used in this franchise (the "Franchise") these terms have the following meanings:

55 Proposed Water Franchise Template February 15, 2019 A. "City" means the City of Burien, a Washington municipal corporation, and its respective successors and assigns. B. "District" means the District, a Washington municipal corporation, and its respective successors and assigns. C. Facility or "Facilities" means tanks, reservoirs, water treatment facilities, meters, pipes, mains, valves, blow offs, vaults, fire suppression water facilities, risers, generators, electrical control panels, power meters, telephone connections, pressure reducing valves ("PRVs"), pump stations, meter stations, lines, service lines located in the Franchise Area as defined below, and all other necessary or convenient facilities and appurtenances thereto for the purpose of operating a water utility system, whether the same be located over, on or underground. D. "Franchise Area" means every and all of the public roads, streets, avenues, alleys, highways and rights-of-way of the City as now or hereafter 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 in the District's service area within the present corporate boundaries of the City (as depicted in Exhibit B, attached hereto, which is by this reference incorporated as if fully set forth herein), and as such corporate boundaries may be extended within District's service area by annexation or otherwise, but shall not include private roads, streets, avenues and alleys. The Franchise Area shall not include or convey any right to the District to install facilities on, or to otherwise use, City owned or leased properties. E. "Ordinance" means this Ordinance No., which sets forth the terms and conditions of this Franchise. F. "Party" or "Parties" means the City or the District individually, or collectively as addressed in this Franchise. G. "Revenue" means income received by the District from the sale of metered water to direct retail customers (including domestic, commercial, governmental, and/or industrial uses) whose properties receiving such service from the District's water system are located within the City. Revenue shall not include: late fees; shut-off and reconnect fees; delinquent service charge collection costs and expenses; surcharges; impact or mitigation fees; permit fees and costs; any type of connection charges, general facilities charges, or local facilities charges; local improvement district and utility local improvement district assessments and payments; grants; contributed assets (contributions in aid of construction); income to recover the cost of fire suppression facilities and to pay for the provision of fire suppression services; loans; income from legal settlements not related to water sales to District customers; income from telecommunication leases or

56 Proposed Water Franchise Template February 15, 2019 licenses; income from real property or from real property sales; income from the sale of surplus equipment, tools or vehicles; interest income; penalties; hydraulic modeling fees; water system extension agreement fees and charges; income from street lights; labor, equipment and materials charges; or any other fees and charges. H. Routine Maintenance means miscellaneous maintenance, repair and replacement activities undertaken by the District on Facilities located in the streets and right-of-ways covered by this Franchise. Routine Maintenance includes, but shall not be limited to, flushing mains, video inspection of mains, operations, maintenance, repair and replacement of services, pumps, air-vacs, PRV stations, valves and hydrants, repair of surface areas around existing Facilities, hydro-excavation and potholing, and valve box adjustments. City permits are not required for Routine Maintenance. I. City Manager means the City Manager of the City of Burien, or the City Manager s designee. Section 2. Franchise. A. In addition to the authority granted by State law to the District to locate, operate and maintain its Facilities in public roads and streets, the City does hereby grant to District the non-exclusive right, privilege, authority and franchise to construct, install, lay, support, attach, maintain, repair, renew, replace, remove, enlarge, operate and use Facilities in, upon, over, under, along, through and across the Franchise Area for purposes of its water utility functions as defined in Title 57 RCW beginning on the Effective Date of this Franchise; provided the City's grant of the right to use the Franchise Area to the District as provided herein for its Facilities shall not be construed to require the District to provide such Facilities to the City. B. Nothing contained in this Ordinance is to be construed as granting permission to District to go upon any other public place other than those types of public places specifically designated as the Franchise Area in this Ordinance. Permission to go upon any other property owned or controlled by the City must be sought on a case-by-case basis from the City. C. In addition to the rights granted to the District to undertake and perform activities within the Franchise Area as provided herein, District shall have the right to discharge District water supply to and into the City s storm water system while performing water system flushing and other District activities, provided any District water to be discharged to the City s storm water system must comply with all applicable federal and state water quality standards and the City s NPDES permit relating to the City s storm water system. D. At all times during the term of this Franchise, District shall fully comply with all applicable federal, and state laws and regulations, including, but not limited to, RCW for construction trench safety systems, chapter RCW for utility damage prevention, the State

57 Proposed Water Franchise Template February 15, 2019 Environmental Policy Act, the State of Washington Pollution Control Law, and the Federal Clean Water Act. E. The terms of this Franchise shall not impair or interfere with the District s rights under any easements that cover areas within any existing or future City rights-of-way. The District s easement rights shall remain in effect unless formally relinquished by the District or condemned by the City. Section 3. Non-interference of Facilities. A. District's Facilities shall be located, relocated and maintained within the Franchise Area so as not to unreasonably interfere with the free and safe passage of pedestrian, bicycle, and vehicular traffic and ingress or egress to or from the abutting property and in accordance with the laws of the State of Washington, and the ordinances, resolutions, rules and regulations of the City of Burien. Nothing herein shall preclude District from effecting temporary road closures as reasonably necessary during construction or maintenance of its Facilities provided District receives prior City approval, which shall not be unreasonably withheld, and, provided further, District shall have the right to effect temporary road closures in the event of emergencies to maintain, repair and replace its Facilities without prior City approval but the District shall obtain City approval of such road closures as soon as reasonably possible. B. Whenever it is necessary for District, in the exercise of its rights under this Franchise, to make any excavation in the Franchise Area, District shall, upon completion of such excavation, restore the surface of the Franchise Area to City standards, as nearly as reasonably possible to its condition prior to any such excavation, installation, construction, relocation, maintenance or repair, at no expense to the City; PROVIDED, HOWEVER, that no such work, with the exception of emergency work or Routine Maintenance, shall be done prior to the obtaining of a permit therefor issued by the City Manager, which permit shall set forth conditions pertaining to the work to be done and specifications for the restoration of the streets and right-ofways. C. If the City reasonably determines that the District has failed to restore the rightof-way in accordance with the conditions set forth in this Franchise, the City shall provide the District with written notice, which shall include a description of actions the City believes necessary to restore the right-of-way. If the right-of-way is not restored in accordance with the City's notice within fifteen (15) days of that notice, or such longer period as may be specified in the notice, the City, or its authorized agent, may restore the right-of-way and District shall be responsible for all reasonable costs and expenses incurred by the City in restoring the right-ofway in accordance with this Section. The rights granted to the City under this Section shall be in addition to those otherwise provided by this Franchise. D. The District shall, at no expense to the City, expeditiously repair all

58 Proposed Water Franchise Template February 15, 2019 existing Facilities that it owns, operates and maintains within the Franchise Area, including any damage caused directly or indirectly by its Facilities. E. Survey monuments shall not be removed or destroyed without the District first obtaining the required Department of Natural Resources (DNR) permit in accordance with RCW and WAC , and as such statute and regulation may be modified and amended. A Professional Land Surveyor (PLS) shall be responsible for perpetuating and documenting existing monuments in compliance with the Application Permit to Remove or Destroy a Survey Monument in accordance with WAC Following approval by the Public Land Survey Office, copies of the approved permits shall be forwarded to the City. All survey monuments, which have been distributed or displaced by such work, shall be restored pursuant to all federal, state and local standards and specifications. District agrees to promptly complete all restoration work and to promptly repair any damage caused by such work at its sole expense. Section 4. Relocation of Facilities. A. Whenever the City causes the grading or widening of the Franchise Area or undertakes construction of City-owned utilities, storm drainage lines, lighting, signalization, sidewalk improvements, pedestrian and bicycle amenities, or other public street improvements and such project requires the relocation of the District's then-existing Facilities within such Franchise Area, the City shall: (1) Pursuant to RCW , or as amended, consult with the District in the predesign phase of any such project in order to coordinate the project's design with District Facilities within such project's area; and (2) Provide the District, at least three hundred sixty (360) days prior to the advertisement for bid of construction of such project, written notice that a project is expected to require the relocation of District Facilities, together with reasonably accurate and specific plans and specifications for such grading, widening, or construction and a proposed new location within the Franchise Area for the District's Facilities; and (3) Coordinate and work diligently with the District to minimize conflicts between existing Facilities and the project improvements where possible, and to avoid having the District relocate their facilities, whenever possible. The District acknowledges that there may be situations and circumstances where no other feasible alternatives are available. B. After receipt of such notice and such plans and specifications, District shall relocate such Facilities within the Franchise Area so as to accommodate such street and city utility improvement project; provided, however, District may, after receipt of written notice

59 Proposed Water Franchise Template February 15, 2019 requesting a relocation of its Facilities, submit to the City written alternatives to such relocations. The City shall within a reasonable time evaluate such alternatives and advise the District in writing whether one or more of the alternatives is suitable to accommodate work that would otherwise necessitate relocation of the Facilities. If so requested by the City, District shall submit such additional information as is reasonably necessary to assist the City in making such evaluation. The City shall give each alternative full and fair consideration. If the City reasonably determines that there is no other feasible alternative, the City shall provide the District with further written notice to that effect, and the District shall then relocate its Facilities by its own forces, by separate public works contract or by participating in the City s public works project in accordance with Section 4 (G). The City shall cooperate with the District to designate a substitute location for its Facilities within the Franchise Area. The City will establish a date by which Facilities will be relocated, which date will be not less than one hundred eighty (180) days after further written notice to the District as to the Facility to be relocated. District must finish relocation of each such Facility by the date so established. C. The cost of relocating such Facilities existing within the Franchise Area shall be paid as follows: (1) If the relocation occurs less than ten (10) years after the District or a third party on the District s behalf constructed such Facility, then the City shall pay one hundred percent (100%) of the cost of such relocation. (2) If the relocation occurs between ten (10) and twenty (20) years after the District or a third party on the District s behalf constructed such Facility, then the City shall pay fifty percent (50%) of the cost of such relocation and the District shall pay the remaining fifty percent (50%). (3) If the relocation occurs more than twenty (20) years after the District or a third party on the District s behalf constructed such Facility, then the relocation shall be at the District's sole cost. (4) However, if the City requires the relocation of Major Facilities defined as water mains of ten (10) inch diameter or greater and appurtenances, supply stations, pump stations or vault structures ("Major Facilities" or Major Facility ) to accommodate the completion of or as a result of a City project, where such facility cannot reasonably be supported, disconnected, relocated or removed, then the cost of relocating such Major Facilities shall be paid as follows: (a) If the relocation occurs less than ten (10) years after the District or a third party on the District s behalf constructed such Major Facilities or Major Facility, then the City shall pay one hundred percent (100%) of the cost of such relocation

60 Proposed Water Franchise Template February 15, 2019 (b) If the relocation occurs ten (10) or more years after the District or a third party on the District s behalf constructed such Major Facilities or Major Facility, then the City shall pay fifty percent (50%) of the cost of such relocation and the District shall pay the remaining fifty percent (50%); provided, the City and District agree to give full and fair consideration to any lower-cost alternatives to relocating the Major Facility meeting the minimum operational requirements of the Parties, and the City and the District shall each pay fifty percent (50%) of the lower-cost alternative. (5) For the purposes of this Section 5, the date of the Facility s acceptance by the District Board of Commissioners shall determine the age of the Facility. D. Whenever the City is undertaking a road or City-owned utility project or improvement, the City will not use its authority to require the District to relocate water facilities for third party utilities. If conflicts between third party utilities and the District Facilities cannot be resolved, and relocation of District Facilities is necessary, the District shall have the right as a pre-condition of such relocation to require payment from the third party utilities to the District for any and all costs and expenses incurred by the District in the relocation of such District Facilities. E. For the purpose of this Section 4, a project or improvement is considered to be caused by the City (as described in Section 4(A) above) if the project is City-initiated and is part of the City s annually adopted Capital Improvement Project (CIP) Program, and can include projects or improvements where a third party has made an in lieu payment for a portion of the City s capital improvement project, provided, the City is responsible for the majority of the cost of the project or improvement, which, if applicable, includes any grant funding received by the City from any federal or state agency. A project or improvement is not considered to be caused by the City if the project or improvement is constructed by the City on behalf of a third party, where the third party is responsible for the majority of the project or improvement cost, and makes payment to the City in lieu of performing the project or improvement. F. Whenever any person or entity, other than the City, requires the relocation of District Facilities to accommodate the work of such person or entity within the Franchise Area, the City agrees not to use its authority to require the District to relocate the existing facilities. The District shall have the right as a pre-condition of such relocation to require such person or entity to: (1) Make payment to District at a time and upon terms acceptable to the District for any and all costs and expense incurred by the District in the relocation of District Facilities; and (2) Protect, defend, indemnify and save the District harmless from any and all claims and demands made against it on account of injury or damage to the person or

61 Proposed Water Franchise Template February 15, 2019 property of another arising out of or in conjunction with the relocation of District Facilities, to the extent such injury or damage is caused by the negligence or willful misconduct of the person or entity requesting the relocation of District Facilities or other negligence or willful misconduct of the agents, servants or employees of the person or entity requesting the relocation of District Facilities. G. If a City project requires the relocation of then existing Facilities within the Franchise Area, the District shall have the right by interlocal agreement with the City to include the relocation of any Facilities as required by the City as part of the City s public works project. Such interlocal agreement shall include and provide for, but not be limited to, the following terms and conditions: (1) The inclusion of the District s work as part of the City s project; (2) The District to provide plans and specifications of the District s work to the City in a timely manner for inclusion as a separate bid schedule in the City project, whether such District plans and specifications are prepared by the District at the District s expense, or the City prepares the plans and specifications for the District s work at the District s expense; (3) The City bidding the project, including the District s work by separate bid schedule, and the District s approval of the contractor s bid for the District s work in the separate bid schedule, or, alternatively, the District s rejection of the contractor s bid for the District work and the District s right to perform the District s work through a District contractor, provided that in so doing the City s project is not unreasonably delayed; (4) The City s contractor to install both the City work and the District work, the City s obligation to pay the City s contractor for both the City work and the District work, and the District s obligation to reimburse the City for the cost of the District work performed by the City contractor (5) The District s obligation to reimburse the City for District project administration and inspection fees and costs based on a time and materials basis, provided the City and the District may negotiate a lump sum payment on a per project basis, or a percentage of the total District project construction cost, and provided the District shall not be required to pay for any City-issued permits related to the City work and the District work. H. The Parties expressly agree that this Section 4 shall not survive the expiration, revocation or termination of this Franchise, unless modified by separate agreement. Section 5. Right-of-Way Management

62 Proposed Water Franchise Template February 15, 2019 A. Excavation. Whenever the District excavates in any right-of-way for the purpose of installation, construction, operation, maintenance, repair or relocation of its Facilities, it shall apply to the City for a permit to do so in accordance with the ordinances and regulations of the City requiring permits to operate in City right-of-way. Except for emergencies or Routine Maintenance, no District excavation work shall commence within any City right-of-way without a permit, except as otherwise provided in this Franchise and applicable City Ordinance. All work shall be done to the City s reasonable satisfaction. B. Restoration after Construction. The District shall, after any installation, construction, relocation, operation, maintenance or repair of Facilities within the Franchise Area, restore the right-of-way to City standards as nearly as reasonably possible to its condition prior to any such work. The District agrees to promptly complete all restoration work and to promptly repair any damage to the right-of-way caused by such work at its sole cost and expense. The District further agrees to repair or replace any defective restoration work occurring within two (2) years of such restoration work. If it is determined the District has failed to restore the right-of-way in accordance with this Franchise and other applicable City regulations or if the District s restoration work is subsequently determined to be defective, the City shall provide the District with written notice including a description of the actions the City believes necessary to restore the right-of-way or repair or replace the work. C. Bonding Requirement. The District, as a public agency, shall not be required to comply with the City's standard bonding requirement for working in the City's right-of-way. D. Emergency Work, Permit Waiver. In the event of an emergency where any District Facilities located in the right-of-way are broken or damaged, or if the District's construction area for the District's Facilities is in a condition as to place health or safety of any person or property in imminent danger, the District shall immediately take any necessary emergency measures to repair, replace or remove its Facilities without first applying for and obtaining a permit as required by this Franchise; provided the District shall notify the City as soon as reasonably possible relative to such emergency activity and shall immediately obtain a permit for such activity if required by this Franchise or City Ordinance. E. City Work Zones. The District shall not be required to obtain a City right-ofway permit to undertake utility work when the District has included its work as part of a City public works project in accordance with Section 4.G. F. Complete Permit Applications. If the District is required to obtain a City right-of-way permit to undertake utility work within City right-of-way, the City shall issue a permit within fourteen (14) calendar days of receiving a complete application for such permit from the District

63 Proposed Water Franchise Template February 15, 2019 G. City Invoices. The City shall invoice the District for all City fees and charges relating to the issuance of any City right-of-way permit to the District, including inspection fees and charges, on a monthly basis, and the City s final fees and charges within thirty (30) days of the completion of any District work in City right-of-way subject to a City permit, and the City s final acceptance of any such District work. Section 6. Planning Coordination. A. The Parties agree to participate in the development of, and reasonable updates to, the other Party's planning documents as follows: (1) For the District's service area within the City limits, the District will participate in a cooperative effort with the City to develop City's Comprehensive Plan Utilities Element that meets the requirements described in RCW 36.70A.070(4). (2) The District will participate in a cooperative effort with the City to ensure that the Utilities Element of City's Comprehensive Plan is accurate as it relates to the District's operations and is updated to ensure continued relevance at reasonable intervals. (3) The District shall submit information related to the general location, proposed location, and capacity of all existing and proposed Facilities within the City as requested by the City within a reasonable time, not exceeding twenty (20) days from receipt of a written request for such information, provided that such information is in the District's possession, or can be reasonably developed from the information in the District's possession. (4) The City will provide information relevant to the District's operations within a reasonable period of written request to assist the District in the development or update of District's Comprehensive Water Comprehensive Plan(s), provided that such information is in the City's possession, or can be reasonably developed from the information in the City's possession. B. District and City shall each assign a representative whose responsibility shall be to coordinate planning for capital improvement plan projects including those that involve undergrounding. At a minimum, such coordination shall include: (1) For the purpose of planning, the District and the City shall provide each other with a copy of their respective current adopted Capital Improvement Plan annually and upon request by the other Party. (2) By February 1st of each year, District shall provide the City with a schedule of the District's planned capital improvements which may affect the rights-ofway for that year

64 64 Proposed Water Franchise Template February 15, 2019 (3) By October 1st of each year, City shall provide the District with a schedule of City's planned capital improvements which may affect the rights-of-way over the next twelve (12) month period including but not limited to street overlays and repairs, storm drainage improvements and construction, and all other rights-of-way activities that could affect District capital improvements and infrastructure. (4) The District shall meet with the City, and other franchisees and users of the right-of-way, as necessary, to schedule and coordinate construction activities. (5) All construction locations, activities, and schedules shall be coordinated to minimize public inconvenience, disruption or damages. (6) The City and the District agree to cooperate in the planning and implementation of emergency operations response procedures. (7) Without charge to either Party, both Parties agree to provide each other with as-built plans, maps and records in electronic format as available that show the location of its facilities within rights-of-way. Section 7. Indemnification. A. District shall indemnify, defend and hold the City, its agents, officers, employees, volunteers and assigns harmless from and against any and all claims, demands, liability, loss, cost, damage or expense of any nature whatsoever, including all costs and attorney's fees, made against them on account of injury, sickness, death or damage to persons or property which is caused by or arises out of, in whole or in part, the willful, tortious or negligent acts, failures and/or omissions of District or its agents, servants, employees, contractors, subcontractors or assigns in the construction, operation or maintenance of its Facilities or in exercising the rights granted District in this Franchise; provided, however, such indemnification shall not extend to injury or damage to the extent caused by the negligence or willful misconduct of the City, its agents, officers, employees, volunteers or assigns. B. City shall indemnify, defend and hold the District, its agents, officers, employees, volunteers and assigns harmless from and against any and all claims, demands, liability, loss, cost, damage or expense of any nature whatsoever, including all costs and attorney's fees, made against them on account of injury, sickness, death or damage to persons or property which is caused by or arises out of, in whole or in part, the willful, tortious or negligent acts, failures and/or omissions of City or its agents, servants, employees, contractors, subcontractors or assigns in the City's performance, administration and operation of this Franchise or in exercising the rights granted City in this Franchise; provided, however, such indemnification shall not

65 Proposed Water Franchise Template February 15, 2019 extend to injury or damage to the extent caused by the negligence or willful misconduct of the District, its agents, officers, employees, volunteers or assigns. C. In the event any such claim or demand be presented to or filed with the District or the City arising out of or relating to the acts or omissions in whole or in part of the other Party, the Party shall promptly notify the other Party thereof, and the notified Party shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand. D. Should a court of competent jurisdiction determine that this Franchise is subject to RCW , then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of City and District, their officers, employees and agents, District's liability hereunder shall be only to the extent of District's negligence and the City s liability shall be only to the extent of the City s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the parties' waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. Section 8. Default. If the District fails to comply with any of the provisions of this Franchise, unless otherwise provided for herein, the City may serve upon the District a written order to so comply within thirty (30) days from the date such order is received by the District. If the District is not in compliance with this Franchise after expiration of said thirty (30) day period, the City may act to remedy the violation and may charge the costs and expenses of such action to District. The City may act without the thirty (30) day notice in case of an emergency. The City may in addition, by ordinance adopted no sooner than five (5) days after notice of the City Council hearing (at which District will have an opportunity to be heard) on the impending ordinance, declare an immediate forfeiture of this Franchise, provided, however, if any material failure to comply with this Franchise by District cannot be corrected with due diligence within said thirty (30) day period, the District's obligation to comply and to proceed with due diligence being subject to unavoidable delays and events beyond its control, in which case the time within which the District may so comply shall be extended for such time as may be reasonably necessary and so long as the District commences promptly and diligently to effect such compliance, provided a good faith dispute does not exist concerning such compliance. In addition to other remedies provided herein, if the District is not in compliance with requirements of the Franchise, and if a good faith dispute does not exist concerning such compliance, the City may place a moratorium on issuance of pending District right-of-way use permits until compliance is achieved. Section 9. Non-exclusive Franchise

66 66 Proposed Water Franchise Template February 15, 2019 This Franchise is not and shall not be deemed to be an exclusive Franchise. This Franchise shall not in any manner prohibit the City from granting other and further franchises over, upon, and along the Franchise Area, which do not interfere with District's rights under this Franchise. This Franchise shall not prohibit or prevent the City from constructing, altering, maintaining, or using the Franchise Area or affect the jurisdiction of the City over the same or any part thereof. Section 10. 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. Section 11. Franchise Term. This Franchise shall have a term of twenty (20) years from its Effective Date as defined in Section 35 herein, provided this Franchise shall be automatically extended for one additional five (5) year period unless either Party, at least one hundred eighty (180) days prior to the termination date of the Franchise provides written notice to the other Party of its intent to terminate the Franchise at the end of the then current Franchise term (collectively, the Term ). Section 12. Franchise Fee. As compensation to the City for its costs of creating and administering this Franchise, the District shall pay to the City a one-time franchise fee ("Franchise Fee") of Five Hundred Dollars ($500.00). The Franchise Fee shall be paid by the District to the City within thirty (30) days of the Effective Date of the Franchise. Section 13. Non-assumption. In consideration of the District's payment of the Franchise Fee and Franchise Payment to the City as provided in Sections 12 and 14 herein, and the District's acceptance of the other terms and conditions of this Franchise, the City agrees not to exercise and to forbear its statutory authority pursuant to chapter 35.13A RCW or other statutes to attempt to assume jurisdiction over all or part of the District or any District responsibilities, property, facilities, equipment or utility customers located within or without the City's corporate limits during the term of this Franchise. The City's agreement and forbearance includes not facilitating or cooperating with any other city or town to attempt pursuant to RCW 35.13A.060 or as such statute may be amended or superseded to assume jurisdiction over the District or any District responsibilities, property, facilities, equipment or utility customers located within or without the City's corporate

67 Proposed Water Franchise Template February 15, 2019 limits during the Term of this Franchise; provided, that this provision shall not be construed to prohibit or prevent the City from responding to requests for public records related to such attempts by other cities or towns. Section 14. Franchise Payment. A. In consideration of the rights granted the District under this Franchise, the District shall pay to the City a franchise payment ( Franchise Payment ) beginning the first day of the first month occurring at least thirty (30) days after the Effective Date of this Franchise, subject to the provisions of Section 14(B) herein, as follows: (1) Four percent (4%) of the District s Revenue derived from the provision of retail water service in 2020; and (2) Six percent (6%) of the District s Revenue derived from the provision of retail water service in 2021 and thereafter until the termination of this Franchise, including any extension of the term of this Franchise. B. Franchise Payments shall be paid to the City in bi-monthly (i.e., every other month) installments due and payable within thirty (30) days following the end of the bi-monthly period. C. Should the District be prevented by judicial or legislative action from paying any or all of the Franchise Payments, the District shall be excused from paying that portion of the Franchise Payment. Should a court of competent jurisdiction declare the Franchise Payment invalid, in whole or in part, then the District's obligation to pay the Franchise Payments to the City under this Section shall be terminated in accordance with and to the degree required to comply with such court action, provided, the Parties agree to meet to discuss alternatives and amendments to this Franchise to retain the essential purposes of this section. If the Parties are unable to agree on appropriate amendments to this Franchise, the City shall have the right to void Section 14.E. of this Agreement and may impose an Excise Tax on the District s Revenue; provided, if any such Excise Tax exceeds six percent (6%), the District shall have the right to terminate this Franchise and shall have the right to bring an action to challenge the legal validity of any such Excise Tax. D. In consideration of the District s payment of a Franchise Fee and Franchise Payment to the City as provided herein, and the District s acceptance of the other terms and conditions of this Franchise, the City agrees not to exercise, and to forbear, any legal authority it may have to impose compensation or a rental fee (collectively, Rental Fee ) upon the District for the District s use of the Franchise Area as provided for in this Franchise

68 Proposed Water Franchise Template February 15, 2019 E. In consideration of the District's payment of a Franchise Payment to the City as provided in Section 14 herein, and the District's acceptance of the other terms and conditions of this Franchise, the City agrees not to exercise, and to forbear, any legal authority it may have to impose a utility, business and occupation tax, public utility tax, privilege tax, excise tax or any other tax (collectively "Excise Tax") upon the District based on the District's revenues, gross receipts, or gross income during the term of this Franchise. F. If a court of competent jurisdiction determines the City may not agree to forbear its statutory authority to impose an Excise Tax upon the District based on the District's revenues, gross receipts, or gross income during the term of this Franchise, or may not agree to limit any such Excise Tax on the District s revenues, gross receipts, or gross income, and thereafter the City imposes an Excise Tax on the District, the District shall have the cumulative rights and options, at its sole election, to (1) terminate this Franchise and the payment of Franchise Payments to the City, or (2) elect not to terminate this Franchise and may elect to pay any such Excise Tax, provided the District s Franchise Payments herein to the City during any period to which the Excise Tax applies shall be credited against any such Excise Tax the City may impose. G. The District shall have the right to recover the Franchise Payments from the District's ratepayers residing within the City and may identify the Franchise Payments as a separate billing item on utility customer billings. H. The District agrees while this Franchise is in effect that it will not pursue or support any legal challenge to the Franchise Payment set forth herein. I. If the District fails to pay any fee required under this Franchise within ninety (90) days after the due date thereof, there shall be added to such fee a penalty of 1.5 percent (1.5%) of the amount of such fee. Section 15. Compliance with Codes and Regulations. A. The rights, privileges and authority herein granted are subject to and governed by this ordinance and all other applicable City ordinances and codes, as they now exist or may hereafter be amended, provided the City shall not unreasonably affect or modify any portion of this Franchise without District's written approval. Nothing in this ordinance limits the City's lawful power to exercise its police power to protect the safety and welfare of the general public or 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. Any location, relocation, erection or excavation by District shall be performed by District in accordance with applicable federal, state and City rules and regulations, including the City public works policies and pre-approved plans, and any required permits, licenses or regulatory fees, and applicable safety standards then in effect or any Memorandum of Understanding with District

69 69 Proposed Water Franchise Template February 15, 2019 B. If any territory served by District is annexed to the City after the Effective Date of this Franchise, this Franchise shall be deemed to be the new agreement required to be granted to a franchisee in annexed territory by RCW 35A for whatever period of time is then required under that statute or the remaining time left under this Franchise for the Franchise Area, whichever is longer. Such territory shall then be governed by the terms and conditions contained herein upon the effective date of such annexation. The first Franchise Payment for any annexed area shall be calculated pro rata from the effective date of the annexation to the end of the next bi-monthly billing period and paid to the City at the same time as the fee for the Franchise Area is paid for that bi-monthly billing period. Section 16. Location of Facilities and Equipment. With the exception of components that are traditionally installed above ground such as fire hydrants, blow offs, vault lids, risers, pump stations, generators, electrical control panels, power meters, telephone connections, automated reading equipment and appurtenances, and utility markers, all Facilities and equipment to be installed within the Franchise Area shall be installed underground; provided, however, that such Facilities may be installed above ground if so authorized by the City, which authorization shall not be unreasonably withheld, conditioned or delayed, consistent with the provisions of the City's land use and zoning code and applicable development pre-approved plans. Section 17. Record of Installations and Service. With respect to excavations by District and the City within the Franchise Area, District and the City shall each comply with its respective obligations pursuant to chapter RCW, and as such statute may be modified and amended, and any other applicable state law. Upon written request of the City, District shall provide the City with the most recent update available of any plan of potential improvements to its Facilities within the Franchise Area; provided, however, any such plan so submitted shall only be for informational purposes within the Franchise Area, nor shall such plan be construed as a proposal to undertake any specific improvements within the Franchise Area. Upon written request of District, the City shall provide District with the most recent update available of any plan of potential improvements to its improvements located within the Franchise Area; provided, however, any such plan so submitted shall only be for informational purposes within the Franchise Area, nor shall such plan be construed as a proposal to undertake any specific improvements within the Franchise Area. As-built drawings of the location of any Facilities placed by District in the Franchise Area, shall be made available to the City within twenty (20) working days of request

70 70 Proposed Water Franchise Template February 15, 2019 Section 18. Shared Use of Excavations. A. District and the City shall exercise best efforts to coordinate construction work either may undertake within the Franchise Area so as to promote the orderly and expeditious performance and completion of such work as a whole. Such efforts shall include, at a minimum, reasonable and diligent efforts to keep the other Party and other utilities within the Franchise Areas informed of its intent to undertake such construction work. District and the City shall further exercise best efforts to minimize any delay or hindrance to any construction work undertaken by themselves or other utilities within the Franchise Area. B. If at any time, or from time to time, either District, the City, or another franchisee, shall cause excavations to be made within the Franchise Area, the Party causing such excavation to be made shall afford the others, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (1) No statutes, laws, regulations, ordinances or District policies prohibit or restrict the proximity of other utilities or facilities to District's Facilities installed or to be installed within the area to be excavated; (2) Such joint use shall not unreasonably delay the work of the Party causing the excavation to be made; (3) Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both Parties. The Parties shall each cooperate with other utilities in the Franchise Area to minimize hindrance or delay in construction. The City reserves the right to not allow open trenching within any City street within five (5) years following a street overlay or improvement project; however, the District may open trench provided it grind and overlay a minimum distance of fifty (50) feet each side of the excavation. District shall be given written notice at least one hundred eighty (180) days prior to the commencement of any street overlay or improvement project. Section 19. Insurance. (1) The District 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. (2) The insurance shall be maintained in full force and effect at the District'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

71 Proposed Water Franchise Template February 15, 2019 The District shall provide the City annually with original certificates evidencing insurance as required by this Agreement. (3) The coverage provided by the District's insurance policies shall be primary to any insurance maintained by the City, except as to losses or damages attributable to the negligence of the City. Any insurance maintained by the City that might relate to this Franchise shall be in excess to the District'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 District's premiums. (4) The District 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 as presently constituted or as may be subsequently amended. The District's attention is directed to the requirements of the Washington Industrial Safety and Health Act, Chapter RCW. The District shall be solely and completely responsible for 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 District's work relating to the Franchise is not intended to include review of the adequacy of the District's work methods, equipment, scaffolding, or trenching, or safety measures in, on or near such Franchise Area or job site. The District shall provide reasonable and appropriate access for the City and its inspectors to adequately inspect the work and its conformance with applicable statutes, ordinances, rules, regulations, and the Franchise. 71 Section 20. Abandonment and/or removal of District Facilities. The Parties agree that the standard practice will be to abandon underground District Facilities in-place whenever practical, subject to the following conditions: (1) The District shall continue to own and be responsible for any such facilities abandoned within the Franchise Area. (2) The City shall have the right to require the District to remove any Facilities abandoned within the Franchise Area if the City reasonably determines the removal of the abandoned Facility is required to facilitate the construction or installation of a City project within the Franchise Area and the City determines there is no other feasible alternative to the removal of the Facility. The City will make reasonable efforts to avoid conflicts with abandoned Facilities whenever possible, however, whenever a conflict cannot be resolved except by removal from the right-of-way of previously abandoned District Facilities, then the District shall, at the District's expense, remove such abandoned Facilities by their own forces or by participating in the City s public works project. When necessary, removal of abandoned Facilities shall be limited to the area of

72 Proposed Water Franchise Template February 15, 2019 direct conflict. In removing such material, the District shall conform to all local, state, and federal regulations applicable to asbestos abatement, when applicable. (3) The District shall maintain records indicating the location of abandoned Facilities within the Franchise Area. When requested by the City, the District shall provide record drawings or other available information depicting the location of abandoned Facilities within ninety (90) days. (4) The District shall abandon in-place all Facilities by a method consistent with industry practice to prevent collapse of the abandoned Facilities. (5) The Parties expressly agree that this Section shall survive the expiration, revocation or termination of this Franchise, unless modified by separate agreement. Section 21. Vacation of Franchise Area. If the City determines to vacate any right-of-way which is part of the Franchise Area where District Facilities are located or maintained, any ordinance vacating such right-of-way shall provide and condition such vacation on the District obtaining, at no cost to the District, a permanent easement at least fifteen (15) feet wide in such vacated right-of-way for the construction, operation, maintenance, repair and replacement of its Facilities located and to be located in such vacated right-of-way. The center line of such easement shall to the extent reasonably possible be located over the District Facilities. Section 22. Assignment. All of the provisions, conditions, and requirements herein contained shall be binding upon the District, and no right, privilege, license or authorization granted to the District hereunder may be assigned or otherwise transferred without the prior written authorization and approval of the City, which the City may not unreasonably withhold, condition or delay, provided that a merger or consolidation of District with or into another Title 57 water-sewer district shall not be considered an assignment for the purposes of this provision and shall not be subject to the City's approval. Section 23. Reservation of rights. The City reserves the right, upon thirty (30) days written notice to the District, to amend or modify the provisions or conditions of this Franchise to conform to any state, county, or federal statute, ordinance, rule or regulation. Unless mandated by state or federal law, if any term or condition of this Franchise and any term or condition of any City code, ordinance, resolution, or regulation are in conflict, the terms of this Franchise shall control

73 73 Proposed Water Franchise Template February 15, 2019 Section 24. Notice. Unless applicable law requires a different method of giving notice, any and all notices, demands or other communications required or desired to be given hereunder by any Party (collectively, "notices") shall be in writing and shall be validly given or made to another Party if delivered either personally or by Federal Express or other overnight delivery service of recognized standing, or if deposited in the United States Mail, certified, registered, or express mail with postage prepaid, or if sent by with electronic confirmation. If such notice is personally delivered, it shall be conclusively deemed given at the time of such delivery. If such notice is delivered by Federal Express or other overnight delivery service of recognized standing, it shall be deemed given one (1) business day after the deposit thereof with such delivery service. If such notice is mailed as provided herein, such shall be deemed given three (3) business days after the deposit thereof in the United States Mail. If such notice is sent by , it shall be deemed given at the time of the sender's receipt of electronic confirmation. Each such notice shall be deemed given only if properly addressed to the Party to whom such notice is to be given as follows: To City: To District : City Clerk City of Burien 400 SW 152 nd St. Burien, WA Phone: (206) Fax: ( ) General Manager District, WA Phone: (206) Fax: (206) Any Party may change its address for the purpose of receiving notices as herein provided by a written notice given in the manner required by this Section to the other Party. Section 25. Severability. If any term, provision, condition or portion of this Franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining portions of this Franchise, which shall continue in full force and effect

74 74 Proposed Water Franchise Template February 15, 2019 Section 26. Non-Waiver. The failure of either Party to enforce any breach or violation by the other Party or any provision of this Franchise shall not be deemed to be a waiver or a continuing waiver by the non-breaching Party of any subsequent breach or violation of the same or any other provision of this Franchise. Section 27. Alternate Dispute Resolution. If the Parties are unable to resolve disputes arising from the terms of this Franchise, prior to resorting to a court of competent jurisdiction, the Parties may submit the dispute to mediation or other non-binding alternate dispute resolution process agreed to by the Parties. Unless otherwise agreed upon between the Parties or determined herein, the cost of that process shall be shared equally by the Parties. Section 28. Attorney fees. All fees and expenses for mediation or arbitration shall be borne by the parties equally. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's or the District s right to indemnification under Section 7 of this Agreement. Section 29. Governing Law/Venue. This Franchise shall be governed by the laws of the State of Washington. Any suit to enforce or relating to this Agreement shall only be filed in King County Superior Court, King County, Washington. Section 30. Entire Agreement. This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution and acceptance hereof. Section 31. Amendment. This Franchise may be amended only by written instrument, signed by both Parties, which specifically states that it is an amendment to this Franchise, and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the

75 Proposed Water Franchise Template February 15, 2019 foregoing, this Franchise (including, without limitation, Section 7 Indemnity above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise) by District of any and all rights, benefits, privileges, obligations, or duties in and under this Franchise. Section 32. Directions to City Clerk. The City Clerk is hereby authorized and directed to forward certified copies of this ordinance to the District as set forth in this ordinance. District shall have thirty (30) days from the receipt of the certified copy of this ordinance to accept in writing the terms of the Franchise granted to the District by this ordinance and file with the City Clerk the Statement of Acceptance, attached hereto as Exhibit A, and incorporated by reference. Section 33. District Acceptance of Franchise. District shall have no rights under this Franchise nor shall District be bound by the terms and conditions of this Franchise unless District shall, within thirty (30) days after the effective date of the ordinance, file with the City its written acceptance of this Franchise. Section 34. Effective Date of Ordinance. This ordinance shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title. Section 35. Effective Date of Franchise. The terms and conditions of this ordinance shall not be binding on the City and the District unless the District Board of Commissioners within thirty (30) days of the effective date of this ordinance adopts a resolution accepting this Franchise, and the date of the adoption of such resolution by the District Board of Commissioners shall be the effective date ("Effective Date") of the Franchise. ADOPTED BY THE CITY COUNCIL OF THE CITY OF BURIEN, WASHINGTON, AT A REGULAR MEETING THEREOF THIS DAY OF, CITY OF BURIEN Jimmy Matta, Mayor

76 76 Proposed Water Franchise Template February 15, 2019 ATTEST/AUTHENTICATED Monica Lusk, City Clerk Approved As to form: Lisa Marshall, City Attorney Filed with the City Clerk: Passed by the City Council: Ordinance No.: Date of Publication:

77 77 Proposed Water Franchise Template February 15, 2019 SUMMARY OF ORDINANCE NO. of the City of Burien, Washington On the day of, 2019, the City Council of the City of Burien, passed Ordinance No.. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF BURIEN, WASHINGTON GRANTING DISTRICT A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A WATER SYSTEM WITHIN PUBLIC RIGHTS-OF-WAY OF THE CITY OF BURIEN, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. The full text of this Ordinance will be mailed upon request. DATED this day of, CITY CLERK,

78 78 Proposed Water Franchise Template February 15, 2019 EXHIBIT A ACCEPTANCE OF FRANCHISE The undersigned authorized representative of District hereby declares on behalf of District the acceptance of the nonexclusive franchise to District approved by the Burien City Council on, 2019, by the adoption of City of Burien Ordinance No.. DATED this day of, District By: Its:

79 79 Proposed Water Franchise Template February 15, 2019 EXHIBIT B DEPICTION OF CITY CORPORATE BOUNDARIES

80 CITY OF BURIEN, WASHINGTON ORDINANCE NO. 80 Proposed Sewer Franchise Template February 15, 2019 AN ORDINANCE OF THE CITY OF BURIEN, WASHINGTON GRANTING DISTRICT A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A SEWER SYSTEM WITHIN PUBLIC RIGHTS-OF-WAY OF THE CITY OF BURIEN, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. WHEREAS, District, a Washington special purpose municipal corporation ( District"), owns and operates sewer facilities ( Facilities ) and provides sewer utility service to customers located within the District s corporate and approved sewer utility service area boundary; a portion of the District s Facilities are located in the City of Burien, a Washington non-charter municipal code city ("City"), and a portion of such Facilities are located within the City right-of-way as hereinafter defined; and WHEREAS, RCW (5) authorizes the District to accept and conduct sewage throughout the District and any city and town therein, and construct and lay facilities along and upon public highways, roads and streets within and without the District; and WHEREAS, RCW 35A authorizes the City to grant non-exclusive franchises for the use of the public streets above or below the surface of the ground by publicly owned and operated sewer facilities; and WHEREAS, the City and the District have prepared a Franchise Agreement to provide for the operation of District Facilities within the City right-of-way. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURIEN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Definitions. Where used in this franchise (the "Franchise") these terms have the following meanings:

81 Proposed Sewer Franchise Template February 15, 2019 A. "City" means the City of Burien, a Washington municipal corporation, and its respective successors and assigns. B. "District" means the District, a Washington municipal corporation, and its respective successors and assigns. C. Facility or "Facilities" means pipes, mains, laterals, force mains, valves, vaults, risers, manholes, generators, electrical control panels, power meters, telephone connections, meter stations, pump stations, lift stations, lines, wastewater treatment plants and facilities, service lines located in the Franchise Area as defined below, and all other necessary or convenient facilities and appurtenances thereto for the purpose of operating a sewer utility system, whether the same be located over, on or underground. D. "Franchise Area" means every and all of the public roads, streets, avenues, alleys, highways and rights-of-way of the City as now or hereafter 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 in the District's service area within the present corporate boundaries of the City (as depicted in Exhibit B, attached hereto, which is by this reference incorporated as if fully set forth herein), and as such corporate boundaries may be extended within District's service area by annexation or otherwise, but shall not include private roads, streets, avenues and alleys. The Franchise Area shall not include or convey any right to the District to install facilities on, or to otherwise use, City owned or leased properties. E. "Ordinance" means this Ordinance No., which sets forth the terms and conditions of this Franchise. F. "Party" or "Parties" means the City or the District individually, or collectively as addressed in this Franchise. G. "Revenue" means income received by the District from the provision of sewer service to direct retail customers (including domestic, commercial, governmental, and/or industrial uses) whose properties receiving such service from the District's sewer system are located within the City. Revenue shall not include: late fees; shut-off and reconnect fees; delinquent service charge collection costs and expenses; surcharges; impact or mitigation fees; permit fees and costs; any type of connection charges, general facilities charges, or local facilities charges; local improvement district and utility local improvement district assessments and payments; grants; contributed assets (contributions in aid of construction); loans; income from legal settlements not related to sewer service to District customers; income from telecommunication leases or licenses; income from real property or from real property sales; income from the sale of surplus equipment,

82 Proposed Sewer Franchise Template February 15, 2019 tools or vehicles; interest income; penalties; hydraulic modeling fees; sewer system extension agreement fees and charges; income from street lights; labor, equipment and materials charges; or any other fees and charges. H. Routine Maintenance means miscellaneous maintenance, repair and replacement activities undertaken by the District on Facilities located in the streets and right-of-ways covered by this Franchise. Routine Maintenance includes, but shall not be limited to, pipeline flushing, pipeline video inspections, adjustment of manhole frames and covers to grade, hydro-excavation and potholing, and repair of surface areas around existing Facilities. City permits are not required for Routine Maintenance. I. City Manager means the City Manager of the City of Burien, or the City Manager s designee. Section 2. Franchise. A. In addition to the authority granted by State law to the District to locate, operate and maintain its Facilities in public roads and streets, the City does hereby grant to District the non-exclusive right, privilege, authority and franchise to construct, install, lay, support, attach, maintain, repair, renew, replace, remove, enlarge, operate and use Facilities in, upon, over, under, along, through and across the Franchise Area for purposes of its sewer utility functions as defined in Title 57 RCW beginning on the Effective Date of this Franchise; provided the City's grant of the right to use the Franchise Area to the District as provided herein for its Facilities shall not be construed to require the District to provide such Facilities to the City. B. Nothing contained in this Ordinance is to be construed as granting permission to District to go upon any other public place other than those types of public places specifically designated as the Franchise Area in this Ordinance. Permission to go upon any other property owned or controlled by the City must be sought on a case-by-case basis from the City. C. At all times during the term of this Franchise, District shall fully comply with all applicable federal, and state laws and regulations, including, but not limited to, RCW for construction trench safety systems, chapter RCW for utility damage prevention, the State Environmental Policy Act, the State of Washington Pollution Control Law, and the Federal Clean Water Act. D. The terms of this Franchise shall not impair or interfere with the District s rights under any easements that cover areas within any existing or future City rights-of-way. The District s easement rights shall remain in effect unless formally relinquished by the District or condemned by the City

83 83 Proposed Sewer Franchise Template February 15, 2019 Section 3. Non-interference of Facilities. A. District's Facilities shall be located, relocated and maintained within the Franchise Area so as not to unreasonably interfere with the free and safe passage of pedestrian, bicycle, and vehicular traffic and ingress or egress to or from the abutting property and in accordance with the laws of the State of Washington, and the ordinances, resolutions, rules and regulations of the City of Burien. Nothing herein shall preclude District from effecting temporary road closures as reasonably necessary during construction or maintenance of its Facilities provided District receives prior City approval, which shall not be unreasonably withheld, and, provided further, District shall have the right to effect temporary road closures in the event of emergencies to maintain, repair and replace its Facilities without prior City approval but the District shall obtain City approval of such road closures as soon as reasonably possible. B. Whenever it is necessary for District, in the exercise of its rights under this Franchise, to make any excavation in the Franchise Area, District shall, upon completion of such excavation, restore the surface of the Franchise Area to City standards, as nearly as reasonably possible to its condition prior to any such excavation, installation, construction, relocation, maintenance or repair, at no expense to the City; PROVIDED, HOWEVER, that no such work, with the exception of emergency work and Routine Maintenance, shall be done prior to the obtaining of a permit therefor issued by the City Manager, which permit shall set forth conditions pertaining to the work to be done and specifications for the restoration of the streets and right-ofways. C. If the City reasonably determines that the District has failed to restore the rightof-way in accordance with the conditions set forth in this Franchise, the City shall provide the District with written notice, which shall include a description of actions the City believes necessary to restore the right-of-way. If the right-of-way is not restored in accordance with the City's notice within fifteen (15) days of that notice, or such longer period as may be specified in the notice, the City, or its authorized agent, may restore the right-of-way and District shall be responsible for all reasonable costs and expenses incurred by the City in restoring the right-ofway in accordance with this Section. The rights granted to the City under this Section shall be in addition to those otherwise provided by this Franchise. D. The District shall, at no expense to the City, expeditiously repair all existing Facilities that it owns, operates and maintains within the Franchise Area, including any damage caused directly or indirectly by its Facilities. E. Survey monuments shall not be removed or destroyed without the District first obtaining the required Department of Natural Resources (DNR) permit in accordance with RCW and WAC , and as such statute and regulation may be modified and amended. A Professional Land Surveyor (PLS) shall be responsible for perpetuating and documenting existing monuments in compliance with the Application Permit to Remove or

84 Proposed Sewer Franchise Template February 15, 2019 Destroy a Survey Monument in accordance with WAC Following approval by the Public Land Survey Office, copies of the approved permits shall be forwarded to the City. All survey monuments, which have been distributed or displaced by such work, shall be restored pursuant to all federal, state and local standards and specifications. District agrees to promptly complete all restoration work and to promptly repair any damage caused by such work at its sole expense. Section 4. Relocation of Facilities. A. Whenever the City causes the grading or widening of the Franchise Area or undertakes construction of City-owned utilities, storm drainage lines, lighting, signalization, sidewalk improvements, pedestrian and bicycle amenities, or other public street improvements and such project requires the relocation of the District's then-existing Facilities within such Franchise Area, the City shall: (1) Pursuant to RCW , or as amended, consult with the District in the predesign phase of any such project in order to coordinate the project's design with District Facilities within such project's area; and (2) Provide the District, at least three hundred sixty (360) days prior to the advertisement for bid of construction of such project, written notice that a project is expected to require the relocation of District Facilities, together with reasonably accurate and specific plans and specifications for such grading, widening, or construction and a proposed new location within the Franchise Area for the District's Facilities; and (3) Coordinate and work diligently with the District to minimize conflicts between existing Facilities and the project improvements where possible, and to avoid having the District relocate their facilities, whenever possible. The District acknowledges that there may be situations and circumstances where no other feasible alternatives are available. B. After receipt of such notice and such plans and specifications, District shall relocate such Facilities within the Franchise Area so as to accommodate such street and city utility improvement project; provided, however, District may, after receipt of written notice requesting a relocation of its Facilities, submit to the City written alternatives to such relocations. The City shall within a reasonable time evaluate such alternatives and advise the District in writing whether one or more of the alternatives is suitable to accommodate work that would otherwise necessitate relocation of the Facilities. If so requested by the City, District shall submit such additional information as is reasonably necessary to assist the City in making such evaluation. The City shall give each alternative full and fair consideration. If the City reasonably determines that there is no other feasible alternative, the City shall provide the District with further written notice to that effect, and the District shall then relocate its Facilities by its own

85 Proposed Sewer Franchise Template February 15, 2019 forces, by separate public works contract or by participating in the City s public works project in accordance with Section 4 (G). The City shall cooperate with the District to designate a substitute location for its Facilities within the Franchise Area. The City will establish a date by which Facilities will be relocated, which date will be not less than one hundred eighty (180) days after further written notice to the District as to the Facility to be relocated. District must finish relocation of each such Facility by the date so established. C. The cost of relocating such Facilities existing within the Franchise Area shall be paid as follows: (1) If the relocation occurs less than ten (10) years after the District or a third party on the District s behalf constructed such Facility, then the City shall pay one hundred percent (100%) of the cost of such relocation. (2) If the relocation occurs between ten (10) and twenty (20) years after the District or a third party on the District s behalf constructed such Facility, then the City shall pay fifty percent (50%) of the cost of such relocation and the District shall pay the remaining fifty percent (50%). (3) If the relocation occurs more than twenty (20) years after the District or a third party on the District s behalf constructed such Facility, then the relocation shall be at the District's sole cost. (4) However, if the City requires the relocation of Major Facilities defined as gravity sewer mains of eight (8) inch diameter or greater and appurtenances, lift stations and pump stations and related force mains, siphon lines and boxes, or vault structures ("Major Facilities" or Major Facility ) to accommodate the completion of or as a result of a City project, where such facility cannot reasonably be supported, disconnected, relocated or removed, then the cost of relocating such Major Facilities shall be paid as follows: (a) If the relocation occurs less than ten (10) years after the District or a third party on the District s behalf constructed such Major Facilities or Major Facility, then the City shall pay one hundred percent (100%) of the cost of such relocation. (b) If the relocation occurs ten (10) or more years after the District or a third party on the District s behalf constructed such Major Facilities or Major Facility, then the City shall pay fifty percent (50%) of the cost of such relocation and the District shall pay the remaining fifty percent (50%); provided, the City and District agree to give full and fair consideration to any lower-cost alternatives to relocating the Major Facility meeting the minimum operational requirements of the Parties, and the City and the District shall each pay fifty percent (50%) of the lower-cost alternative

86 86 Proposed Sewer Franchise Template February 15, 2019 (5) For the purposes of this Section 5, the date of the Facility s acceptance by the District Board of Commissioners shall determine the age of the Facility. D. Whenever the City is undertaking a road or City-owned utility project or improvement, the City will not use its authority to require the District to relocate sewer facilities for third party utilities. If conflicts between third party utilities and the District Facilities cannot be resolved, and relocation of District Facilities is necessary, the District shall have the right as a pre-condition of such relocation to require payment from the third party utilities to the District for any and all costs and expenses incurred by the District in the relocation of such District Facilities. E. For the purpose of this Section 4, a project or improvement is considered to be caused by the City (as described in Section 4(A) above) if the project is City-initiated and is part of the City s annually adopted Capital Improvement Project (CIP) Program, and can include projects or improvements where a third party has made an in lieu payment for a portion of the City s capital improvement project, provided, the City is responsible for the majority of the cost of the project or improvement, which, if applicable, includes any grant funding received by the City from any federal or state agency. A project or improvement is not considered to be caused by the City if the project or improvement is constructed by the City on behalf of a third party, where the third party is responsible for the majority of the project or improvement cost, and makes payment to the City in lieu of performing the project or improvement. F. Whenever any person or entity, other than the City, requires the relocation of District Facilities to accommodate the work of such person or entity within the Franchise Area, the City agrees not to use its authority to require the District to relocate the existing facilities. The District shall have the right as a pre-condition of such relocation to require such person or entity to: (1) Make payment to District at a time and upon terms acceptable to the District for any and all costs and expense incurred by the District in the relocation of District Facilities; and (2) Protect, defend, indemnify and save the District harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or in conjunction with the relocation of District Facilities, to the extent such injury or damage is caused by the negligence or willful misconduct of the person or entity requesting the relocation of District Facilities or other negligence or willful misconduct of the agents, servants or employees of the person or entity requesting the relocation of District Facilities

87 Proposed Sewer Franchise Template February 15, 2019 G. If a City project requires the relocation of then existing Facilities within the Franchise Area, the District shall have the right by interlocal agreement with the City to include the relocation of any Facilities as required by the City as part of the City s public works project. Such interlocal agreement shall include and provide for, but not be limited to, the following terms and conditions: (1) The inclusion of the District s work as part of the City s project; (2) The District to provide plans and specifications of the District s work to the City in a timely manner for inclusion as a separate bid schedule in the City project, whether such District plans and specifications are prepared by the District at the District s expense, or the City prepares the plans and specifications for the District s work at the District s expense; (3) The City bidding the project, including the District s work by separate bid schedule, and the District s approval of the contractor s bid for the District s work in the separate bid schedule, or, alternatively, the District s rejection of the contractor s bid for the District work and the District s right to perform the District s work through a District contractor, provided that in so doing the City s project is not unreasonably delayed; (4) The City s contractor to install both the City work and the District work, the City s obligation to pay the City s contractor for both the City work and the District work, and the District s obligation to reimburse the City for the cost of the District work performed by the City contractor (5) The District s obligation to reimburse the City for District project administration and inspection fees and costs based on a time and materials basis, provided the City and the District may negotiate a lump sum payment on a per project basis, or a percentage of the total District project construction cost, and provided the District shall not be required to pay for any City-issued permits related to the City work and the District work. H. The Parties expressly agree that this Section 4 shall not survive the expiration, revocation or termination of this Franchise, unless modified by separate agreement. Section 5. Right-of-Way Management. A. Excavation. Whenever the District excavates in any right-of-way for the purpose of installation, construction, operation, maintenance, repair or relocation of its Facilities, it shall apply to the City for a permit to do so in accordance with the ordinances and regulations of the City requiring permits to operate in City right-of-way. Except for emergencies or Routine Maintenance, no District excavation work shall commence within any City right-of-way without

88 Proposed Sewer Franchise Template February 15, 2019 a permit, except as otherwise provided in this Franchise and applicable City Ordinance. All work shall be done to the City s reasonable satisfaction. B. Restoration after Construction. The District shall, after any installation, construction, relocation, operation, maintenance or repair of Facilities within the Franchise Area, restore the right-of-way to City standards as nearly as reasonably possible to its condition prior to any such work. The District agrees to promptly complete all restoration work and to promptly repair any damage to the right-of-way caused by such work at its sole cost and expense. The District further agrees to repair or replace any defective restoration work occurring within two (2) years of such restoration work. If it is determined the District has failed to restore the right-of-way in accordance with this Franchise and other applicable City regulations or if the District s restoration work is subsequently determined to be defective, the City shall provide the District with written notice including a description of the actions the City believes necessary to restore the right-of-way or repair or replace the work. C. Bonding Requirement. The District, as a public agency, shall not be required to comply with the City's standard bonding requirement for working in the City's right-of-way. D. Emergency Work, Permit Waiver. In the event of an emergency where any District Facilities located in the right-of-way are broken or damaged, or if the District's construction area for the District's Facilities is in a condition as to place health or safety of any person or property in imminent danger, the District shall immediately take any necessary emergency measures to repair, replace or remove its Facilities without first applying for and obtaining a permit as required by this Franchise; provided the District shall notify the City as soon as reasonably possible relative to such emergency activity and shall immediately obtain a permit for such activity if required by this Franchise or City Ordinance. E. City Work Zones. The District shall not be required to obtain a City right-ofway permit to undertake utility work when the District has included its work as part of a City public works project in accordance with Section 4.G. F. Complete Permit Applications. If the District is required to obtain a City right-of-way permit to undertake utility work within City right-of-way, the City shall issue a permit within fourteen (14) calendar days of receiving a complete application for such permit from the District. G. City Invoices. The City shall invoice the District for all City fees and charges relating to the issuance of any City right-of-way permit to the District, including inspection fees and charges, on a monthly basis, and the City s final fees and charges within thirty (30) days of the completion of any District work in City right-of-way subject to a City permit, and the City s final acceptance of any such District work. 88

89 89 Proposed Sewer Franchise Template February 15, 2019 Section 6. Planning Coordination. A. The Parties agree to participate in the development of, and reasonable updates to, the other Party's planning documents as follows: (1) For the District's service area within the City limits, the District will participate in a cooperative effort with the City to develop City's Comprehensive Plan Utilities Element that meets the requirements described in RCW 36.70A.070(4). (2) The District will participate in a cooperative effort with the City to ensure that the Utilities Element of City's Comprehensive Plan is accurate as it relates to the District's operations and is updated to ensure continued relevance at reasonable intervals. (3) The District shall submit information related to the general location, proposed location, and capacity of all existing and proposed Facilities within the City as requested by the City within a reasonable time, not exceeding twenty (20) days from receipt of a written request for such information, provided that such information is in the District's possession, or can be reasonably developed from the information in the District's possession. (4) The City will provide information relevant to the District's operations within a reasonable period of written request to assist the District in the development or update of District's Comprehensive Sewer Comprehensive Plan(s), provided that such information is in the City's possession, or can be reasonably developed from the information in the City's possession. B. District and City shall each assign a representative whose responsibility shall be to coordinate planning for capital improvement plan projects including those that involve undergrounding. At a minimum, such coordination shall include: (1) For the purpose of planning, the District and the City shall provide each other with a copy of their respective current adopted Capital Improvement Plan annually and upon request by the other Party. (2) By February 1st of each year, District shall provide the City with a schedule of the District's planned capital improvements which may affect the rights-ofway for that year. (3) By October 1st of each year, City shall provide the District with a schedule of City's planned capital improvements which may affect the rights-of-way over the next twelve (12) month period including but not limited to street overlays and repairs, storm drainage improvements and construction, and all other rights-of-way activities that could affect District capital improvements and infrastructure

90 90 Proposed Sewer Franchise Template February 15, 2019 (4) The District shall meet with the City, and other franchisees and users of the right-of-way, as necessary, to schedule and coordinate construction activities. (5) All construction locations, activities, and schedules shall be coordinated to minimize public inconvenience, disruption or damages. (6) The City and the District agree to cooperate in the planning and implementation of emergency operations response procedures. (7) Without charge to either Party, both Parties agree to provide each other with as-built plans, maps and records in electronic format as available that show the location of its facilities within rights-of-way. Section 7. Indemnification. A. District shall indemnify, defend and hold the City, its agents, officers, employees, volunteers and assigns harmless from and against any and all claims, demands, liability, loss, cost, damage or expense of any nature whatsoever, including all costs and attorney's fees, made against them on account of injury, sickness, death or damage to persons or property which is caused by or arises out of, in whole or in part, the willful, tortious or negligent acts, failures and/or omissions of District or its agents, servants, employees, contractors, subcontractors or assigns in the construction, operation or maintenance of its Facilities or in exercising the rights granted District in this Franchise; provided, however, such indemnification shall not extend to injury or damage to the extent caused by the negligence or willful misconduct of the City, its agents, officers, employees, volunteers or assigns. B. City shall indemnify, defend and hold the District, its agents, officers, employees, volunteers and assigns harmless from and against any and all claims, demands, liability, loss, cost, damage or expense of any nature whatsoever, including all costs and attorney's fees, made against them on account of injury, sickness, death or damage to persons or property which is caused by or arises out of, in whole or in part, the willful, tortious or negligent acts, failures and/or omissions of City or its agents, servants, employees, contractors, subcontractors or assigns in the City's performance, administration and operation of this Franchise or in exercising the rights granted City in this Franchise; provided, however, such indemnification shall not extend to injury or damage to the extent caused by the negligence or willful misconduct of the District, its agents, officers, employees, volunteers or assigns. C. In the event any such claim or demand be presented to or filed with the District or the City arising out of or relating to the acts or omissions in whole or in part of the other Party, the Party shall promptly notify the other Party thereof, and the notified Party shall have

91 Proposed Sewer Franchise Template February 15, 2019 the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand. D. Should a court of competent jurisdiction determine that this Franchise is subject to RCW , then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of City and District, their officers, employees and agents, District's liability hereunder shall be only to the extent of District's negligence and the City s liability shall be only to the extent of the City s negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the parties' waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. Section 8. Default. If the District fails to comply with any of the provisions of this Franchise, unless otherwise provided for herein, the City may serve upon the District a written order to so comply within thirty (30) days from the date such order is received by the District. If the District is not in compliance with this Franchise after expiration of said thirty (30) day period, the City may act to remedy the violation and may charge the costs and expenses of such action to District. The City may act without the thirty (30) day notice in case of an emergency. The City may in addition, by ordinance adopted no sooner than five (5) days after notice of the City Council hearing (at which District will have an opportunity to be heard) on the impending ordinance, declare an immediate forfeiture of this Franchise, provided, however, if any material failure to comply with this Franchise by District cannot be corrected with due diligence within said thirty (30) day period, the District's obligation to comply and to proceed with due diligence being subject to unavoidable delays and events beyond its control, in which case the time within which the District may so comply shall be extended for such time as may be reasonably necessary and so long as the District commences promptly and diligently to effect such compliance, provided a good faith dispute does not exist concerning such compliance. In addition to other remedies provided herein, if the District is not in compliance with requirements of the Franchise, and if a good faith dispute does not exist concerning such compliance, the City may place a moratorium on issuance of pending District right-of-way use permits until compliance is achieved. Section 9. Non-exclusive Franchise. This Franchise is not and shall not be deemed to be an exclusive Franchise. This Franchise shall not in any manner prohibit the City from granting other and further franchises over, upon, and along the Franchise Area, which do not interfere with District's rights under this Franchise. This Franchise shall not prohibit or prevent the City from constructing, altering, 91

92 Proposed Sewer Franchise Template February 15, 2019 maintaining, or using the Franchise Area or affect the jurisdiction of the City over the same or any part thereof. 92 Section 10. 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. Section 11. Franchise Term. This Franchise shall have a term of twenty (20) years from its Effective Date as defined in Section 35 herein, provided this Franchise shall be automatically extended for one additional five (5) year period unless either Party, at least one hundred eighty (180) days prior to the termination date of the Franchise provides written notice to the other Party of its intent to terminate the Franchise at the end of the then current Franchise term (collectively, the Term ). Section 12. Franchise Fee. As compensation to the City for its costs of creating and administering this Franchise, the District shall pay to the City a one-time franchise fee ("Franchise Fee") of Five Hundred Dollars ($500.00). The Franchise Fee shall be paid by the District to the City within thirty (30) days of the Effective Date of the Franchise. Section 13. Non-assumption. In consideration of the District's payment of the Franchise Fee and Franchise Payment to the City as provided in Sections 12 and 14 herein, and the District's acceptance of the other terms and conditions of this Franchise, the City agrees not to exercise and to forbear its statutory authority pursuant to chapter 35.13A RCW or other statutes to attempt to assume jurisdiction over all or part of the District or any District responsibilities, property, facilities, equipment or utility customers located within or without the City's corporate limits during the term of this Franchise. The City's agreement and forbearance includes not facilitating or cooperating with any other city or town to attempt pursuant to RCW 35.13A.060 or as such statute may be amended or superseded to assume jurisdiction over the District or any District responsibilities, property, facilities, equipment or utility customers located within or without the City's corporate limits during the Term of this Franchise; provided, that this provision shall not be construed to prohibit or prevent the City from responding to requests for public records related to such attempts by other cities or towns

93 93 Proposed Sewer Franchise Template February 15, 2019 Section 14. Franchise Payment. A. In consideration of the rights granted the District under this Franchise, the District shall pay to the City a franchise payment ( Franchise Payment ) beginning the first day of the first month occurring at least thirty (30) days after the Effective Date of this Franchise, subject to the provisions of Section 14(B) herein, as follows: (1) Four percent (4%) of the District s Revenue derived from the provision of retail sewer service in 2020; and (2) Six percent (6%) of the District s Revenue derived from the provision of retail sewer service in 2021 and thereafter until the termination of this Franchise, including any extension of the term of this Franchise. B. Franchise Payments shall be paid to the City in bi-monthly (i.e., every other month) installments due and payable within thirty (30) days following the end of the bi-monthly period. C. Should the District be prevented by judicial or legislative action from paying any or all of the Franchise Payments, the District shall be excused from paying that portion of the Franchise Payment. Should a court of competent jurisdiction declare the Franchise Payment invalid, in whole or in part, then the District's obligation to pay the Franchise Payments to the City under this Section shall be terminated in accordance with and to the degree required to comply with such court action, provided, the Parties agree to meet to discuss alternatives and amendments to this Franchise to retain the essential purposes of this section. If the Parties are unable to agree on appropriate amendments to this Franchise, the City shall have the right to void Section 14.E. of this Agreement and may impose an Excise Tax on the District s Revenue; provided, if any such Excise Tax exceeds six percent (6%), the District shall have the right to terminate this Franchise and shall have the right to bring an action to challenge the legal validity of any such Excise Tax. D. In consideration of the District s payment of a Franchise Fee and Franchise Payment to the City as provided herein, and the District s acceptance of the other terms and conditions of this Franchise, the City agrees not to exercise, and to forbear, any legal authority it may have to impose compensation or a rental fee (collectively, Rental Fee ) upon the District for the District s use of the Franchise Area as provided for in this Franchise. E. In consideration of the District's payment of a Franchise Payment to the City as provided in Section 14 herein, and the District's acceptance of the other terms and conditions of this Franchise, the City agrees not to exercise, and to forbear, any legal authority it may have to impose a utility, business and occupation tax, public utility tax, privilege tax, excise tax or any -14-

94 Proposed Sewer Franchise Template February 15, 2019 other tax (collectively "Excise Tax") upon the District based on the District's revenues, gross receipts, or gross income during the term of this Franchise. F. If a court of competent jurisdiction determines the City may not agree to forbear its statutory authority to impose an Excise Tax upon the District based on the District's revenues, gross receipts, or gross income during the term of this Franchise, or may not agree to limit any such Excise Tax on the District s revenues, gross receipts, or gross income, and thereafter the City imposes an Excise Tax on the District, the District shall have the cumulative rights and options, at its sole election, to (1) terminate this Franchise and the payment of Franchise Payments to the City, or (2) elect not to terminate this Franchise and may elect to pay any such Excise Tax, provided the District s Franchise Payments herein to the City during any period to which the Excise Tax applies shall be credited against any such Excise Tax the City may impose. G. The District shall have the right to recover the Franchise Payments from the District's ratepayers residing within the City and may identify the Franchise Payments as a separate billing item on utility customer billings. H. The District agrees while this Franchise is in effect that it will not pursue or support any legal challenge to the Franchise Payment set forth herein. I. If the District fails to pay any fee required under this Franchise within ninety (90) days after the due date thereof, there shall be added to such fee a penalty of 1.5 percent (1.5%) of the amount of such fee. Section 15. Compliance with Codes and Regulations. A. The rights, privileges and authority herein granted are subject to and governed by this ordinance and all other applicable City ordinances and codes, as they now exist or may hereafter be amended, provided the City shall not unreasonably affect or modify any portion of this Franchise without District's written approval. Nothing in this ordinance limits the City's lawful power to exercise its police power to protect the safety and welfare of the general public or 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. Any location, relocation, erection or excavation by District shall be performed by District in accordance with applicable federal, state and City rules and regulations, including the City public works policies and pre-approved plans, and any required permits, licenses or regulatory fees, and applicable safety standards then in effect or any Memorandum of Understanding with District. B. If any territory served by District is annexed to the City after the Effective Date of this Franchise, this Franchise shall be deemed to be the new agreement required to be granted to a franchisee in annexed territory by RCW 35A for whatever period of time is then

95 Proposed Sewer Franchise Template February 15, 2019 required under that statute or the remaining time left under this Franchise for the Franchise Area, whichever is longer. Such territory shall then be governed by the terms and conditions contained herein upon the effective date of such annexation. The first Franchise Payment for any annexed area shall be calculated pro rata from the effective date of the annexation to the end of the next bi-monthly billing period and paid to the City at the same time as the fee for the Franchise Area is paid for that bi-monthly billing period. Section 16. Location of Facilities and Equipment. With the exception of components that are traditionally installed above ground such as vault lids, risers, manhole covers, pump stations, generators, electrical control panels, power meters, telephone connections, and utility markers, all Facilities and equipment to be installed within the Franchise Area shall be installed underground; provided, however, that such Facilities may be installed above ground if so authorized by the City, which authorization shall not be unreasonably withheld, conditioned or delayed, consistent with the provisions of the City's land use and zoning code and applicable development pre-approved plans. Section 17. Record of Installations and Service. With respect to excavations by District and the City within the Franchise Area, District and the City shall each comply with its respective obligations pursuant to chapter RCW, and as such statute may be modified and amended, and any other applicable state law. Upon written request of the City, District shall provide the City with the most recent update available of any plan of potential improvements to its Facilities within the Franchise Area; provided, however, any such plan so submitted shall only be for informational purposes within the Franchise Area, nor shall such plan be construed as a proposal to undertake any specific improvements within the Franchise Area. Upon written request of District, the City shall provide District with the most recent update available of any plan of potential improvements to its improvements located within the Franchise Area; provided, however, any such plan so submitted shall only be for informational purposes within the Franchise Area, nor shall such plan be construed as a proposal to undertake any specific improvements within the Franchise Area. As-built drawings of the location of any Facilities placed by District in the Franchise Area, shall be made available to the City within twenty (20) working days of request. Section 18. Shared Use of Excavations. A. District and the City shall exercise best efforts to coordinate construction work either may undertake within the Franchise Area so as to promote the orderly and expeditious

96 Proposed Sewer Franchise Template February 15, 2019 performance and completion of such work as a whole. Such efforts shall include, at a minimum, reasonable and diligent efforts to keep the other Party and other utilities within the Franchise Areas informed of its intent to undertake such construction work. District and the City shall further exercise best efforts to minimize any delay or hindrance to any construction work undertaken by themselves or other utilities within the Franchise Area. B. If at any time, or from time to time, either District, the City, or another franchisee, shall cause excavations to be made within the Franchise Area, the Party causing such excavation to be made shall afford the others, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (1) No statutes, laws, regulations, ordinances or District policies prohibit or restrict the proximity of other utilities or facilities to District's Facilities installed or to be installed within the area to be excavated; (2) Such joint use shall not unreasonably delay the work of the Party causing the excavation to be made; (3) Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both Parties. The Parties shall each cooperate with other utilities in the Franchise Area to minimize hindrance or delay in construction. The City reserves the right to not allow open trenching within any City street within five (5) years following a street overlay or improvement project; however, the District may open trench provided it grind and overlay a minimum distance of fifty (50) feet each side of the excavation. District shall be given written notice at least one hundred eighty (180) days prior to the commencement of any street overlay or improvement project. 96 Section 19. Insurance. (1) The District 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. (2) The insurance shall be maintained in full force and effect at the District'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. The District shall provide the City annually with original certificates evidencing insurance as required by this Agreement. (3) The coverage provided by the District's insurance policies shall be primary to any insurance maintained by the City, except as to losses or damages attributable to the

97 Proposed Sewer Franchise Template February 15, 2019 negligence of the City. Any insurance maintained by the City that might relate to this Franchise shall be in excess to the District'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 District's premiums. (4) The District 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 as presently constituted or as may be subsequently amended. The District's attention is directed to the requirements of the Washington Industrial Safety and Health Act, Chapter RCW. The District shall be solely and completely responsible for 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 District's work relating to the Franchise is not intended to include review of the adequacy of the District's work methods, equipment, scaffolding, or trenching, or safety measures in, on or near such Franchise Area or job site. The District shall provide reasonable and appropriate access for the City and its inspectors to adequately inspect the work and its conformance with applicable statutes, ordinances, rules, regulations, and the Franchise. 97 Section 20. Abandonment and/or removal of District Facilities. The Parties agree that the standard practice will be to abandon underground District Facilities in-place whenever practical, subject to the following conditions: (1) The District shall continue to own and be responsible for any such facilities abandoned within the Franchise Area. (2) The City shall have the right to require the District to remove any Facilities abandoned within the Franchise Area if the City reasonably determines the removal of the abandoned Facility is required to facilitate the construction or installation of a City project within the Franchise Area and the City determines there is no other feasible alternative to the removal of the Facility. The City will make reasonable efforts to avoid conflicts with abandoned Facilities whenever possible, however, whenever a conflict cannot be resolved except by removal from the right-of-way of previously abandoned District Facilities, then the District shall, at the District's expense, remove such abandoned Facilities by their own forces or by participating in the City s public works project. When necessary, removal of abandoned Facilities shall be limited to the area of direct conflict. In removing such material, the District shall conform to all local, state, and federal regulations applicable to asbestos abatement, when applicable. (3) The District shall maintain records indicating the location of abandoned Facilities within the Franchise Area. When requested by the City, the District shall

98 Proposed Sewer Franchise Template February 15, 2019 provide record drawings or other available information depicting the location of abandoned Facilities within ninety (90) days. (4) The District shall abandon in-place all Facilities by a method consistent with industry practice to prevent collapse of the abandoned Facilities. (5) The Parties expressly agree that this Section shall survive the expiration, revocation or termination of this Franchise, unless modified by separate agreement. Section 21. Vacation of Franchise Area. If the City determines to vacate any right-of-way which is part of the Franchise Area where District Facilities are located or maintained, any ordinance vacating such right-of-way shall provide and condition such vacation on the District obtaining, at no cost to the District, a permanent easement at least fifteen (15) feet wide in such vacated right-of-way for the construction, operation, maintenance, repair and replacement of its Facilities located and to be located in such vacated right-of-way. The center line of such easement shall to the extent reasonably possible be located over the District Facilities. Section 22. Assignment. All of the provisions, conditions, and requirements herein contained shall be binding upon the District, and no right, privilege, license or authorization granted to the District hereunder may be assigned or otherwise transferred without the prior written authorization and approval of the City, which the City may not unreasonably withhold, condition or delay, provided that a merger or consolidation of District with or into another Title 57 water-sewer district shall not be considered an assignment for the purposes of this provision and shall not be subject to the City's approval. Section 23. Reservation of rights. The City reserves the right, upon thirty (30) days written notice to the District, to amend or modify the provisions or conditions of this Franchise to conform to any state, county, or federal statute, ordinance, rule or regulation. Unless mandated by state or federal law, if any term or condition of this Franchise and any term or condition of any City code, ordinance, resolution, or regulation are in conflict, the terms of this Franchise shall control

99 99 Proposed Sewer Franchise Template February 15, 2019 Section 24. Notice. Unless applicable law requires a different method of giving notice, any and all notices, demands or other communications required or desired to be given hereunder by any Party (collectively, "notices") shall be in writing and shall be validly given or made to another Party if delivered either personally or by Federal Express or other overnight delivery service of recognized standing, or if deposited in the United States Mail, certified, registered, or express mail with postage prepaid, or if sent by with electronic confirmation. If such notice is personally delivered, it shall be conclusively deemed given at the time of such delivery. If such notice is delivered by Federal Express or other overnight delivery service of recognized standing, it shall be deemed given one (1) business day after the deposit thereof with such delivery service. If such notice is mailed as provided herein, such shall be deemed given three (3) business days after the deposit thereof in the United States Mail. If such notice is sent by , it shall be deemed given at the time of the sender's receipt of electronic confirmation. Each such notice shall be deemed given only if properly addressed to the Party to whom such notice is to be given as follows: To City: To District : City Clerk City of Burien 400 SW 152 nd St. Burien, WA Phone: (206) Fax: ( ) General Manager District, WA Phone: (206) Fax: (206) Any Party may change its address for the purpose of receiving notices as herein provided by a written notice given in the manner required by this Section to the other Party. Section 25. Severability. If any term, provision, condition or portion of this Franchise shall be held to be invalid, such invalidity shall not affect the validity of the remaining portions of this Franchise, which shall continue in full force and effect

100 100 Proposed Sewer Franchise Template February 15, 2019 Section 26. Non-Waiver. The failure of either Party to enforce any breach or violation by the other Party or any provision of this Franchise shall not be deemed to be a waiver or a continuing waiver by the non-breaching Party of any subsequent breach or violation of the same or any other provision of this Franchise. Section 27. Alternate Dispute Resolution. If the Parties are unable to resolve disputes arising from the terms of this Franchise, prior to resorting to a court of competent jurisdiction, the Parties may submit the dispute to mediation or other non-binding alternate dispute resolution process agreed to by the Parties. Unless otherwise agreed upon between the Parties or determined herein, the cost of that process shall be shared equally by the Parties. Section 28. Attorney fees. All fees and expenses for mediation or arbitration shall be borne by the parties equally. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's or the District s right to indemnification under Section 7 of this Agreement. Section 29. Governing Law/Venue. This Franchise shall be governed by the laws of the State of Washington. Any suit to enforce or relating to this Agreement shall only be filed in King County Superior Court, King County, Washington. Section 30. Entire Agreement. This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution and acceptance hereof. Section 31. Amendment. This Franchise may be amended only by written instrument, signed by both Parties, which specifically states that it is an amendment to this Franchise, and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the

101 Proposed Sewer Franchise Template February 15, 2019 foregoing, this Franchise (including, without limitation, Section 7 Indemnity above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise) by District of any and all rights, benefits, privileges, obligations, or duties in and under this Franchise. Section 32. Directions to City Clerk. The City Clerk is hereby authorized and directed to forward certified copies of this ordinance to the District as set forth in this ordinance. District shall have thirty (30) days from the receipt of the certified copy of this ordinance to accept in writing the terms of the Franchise granted to the District by this ordinance and file with the City Clerk the Statement of Acceptance, attached hereto as Exhibit A, and incorporated by reference. Section 33. District Acceptance of Franchise. District shall have no rights under this Franchise nor shall District be bound by the terms and conditions of this Franchise unless District shall, within thirty (30) days after the effective date of the ordinance, file with the City its written acceptance of this Franchise. Section 34. Effective Date of Ordinance. This ordinance shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title. Section 35. Effective Date of Franchise. The terms and conditions of this ordinance shall not be binding on the City and the District unless the District Board of Commissioners within thirty (30) days of the effective date of this ordinance adopts a resolution accepting this Franchise, and the date of the adoption of such resolution by the District Board of Commissioners shall be the effective date ("Effective Date") of the Franchise. ADOPTED BY THE CITY COUNCIL OF THE CITY OF BURIEN, WASHINGTON, AT A REGULAR MEETING THEREOF THIS DAY OF, CITY OF BURIEN 101 Jimmy Matta, Mayor

102 102 Proposed Sewer Franchise Template February 15, 2019 ATTEST/AUTHENTICATED Monica Lusk, City Clerk Approved As to form: Lisa Marshall, City Attorney Filed with the City Clerk: Passed by the City Council: Ordinance No.: Date of Publication:

103 103 Proposed Sewer Franchise Template February 15, 2019 SUMMARY OF ORDINANCE NO. of the City of Burien, Washington On the day of, 2019, the City Council of the City of Burien, passed Ordinance No.. A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF BURIEN, WASHINGTON GRANTING DISTRICT A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A SEWER SYSTEM WITHIN PUBLIC RIGHTS-OF-WAY OF THE CITY OF BURIEN, AND FIXING A TIME WHEN THE SAME SHALL BECOME EFFECTIVE. The full text of this Ordinance will be mailed upon request. DATED this day of, CITY CLERK,

104 104 Proposed Sewer Franchise Template February 15, 2019 EXHIBIT A ACCEPTANCE OF FRANCHISE The undersigned authorized representative of District hereby declares on behalf of District the acceptance of the nonexclusive franchise to District approved by the Burien City Council on, 2019, by the adoption of City of Burien Ordinance No.. DATED this day of, District By: Its:

105 105 Proposed Sewer Franchise Template February 15, 2019 EXHIBIT B DEPICTION OF CITY CORPORATE BOUNDARIES

106 106 Active Agenda Item B Claim Notice Resolution Update

107 107 SAMMAMISH PLATEAU WATER & SEWER DISTRICT KING COUNTY, WASHINGTON RESOLUTION NO. A RESOLUTION OF THE BOARD OF COMMISSIONERS OF SAMMAMISH PLATEAU WATER & SEWER DISTRICT, KING COUNTY, WASHINGTON, APPOINTING AN AGENT TO RECEIVE CLAIMS FOR DAMAGES AGAINST THE DISTRICT AND ADOPTING A CLAIMS FORM AND INSTRUCTIONS UNDER CHAPTER 4.96 RCW. WHEREAS, Chapter 4.96 RCW requires that all claims for damages against a local governmental entity arising out of tortious conduct must be filed with the entity before a civil lawsuit is commenced; and WHEREAS, RCW (2) requires the governing body of each local governmental entity to appoint an agent to receive any claim for damages under Chapter 4.96 RCW; and WHEREAS, the Sammamish Plateau Water & Sewer District (District) previously appointed the District General Manager, or manager pro tem in his or her absence, to serve as the District s agent to receive claims for damages by the adoption of Resolution No. 2983; and WHEREAS, RCW (3), which was enacted after the adoption of Resolution No. 2983, requires all claims presented to local governmental entities after July 26, 2009, to be presented on a standard claim form that includes information provided in RCW (3); and WHEREAS, the District Board of Commissioners now desires to adopt the standard claim form and instructions provided in Exhibit A for claims made against the District pursuant to Chapter 4.96 RCW; now therefore, BE IT RESOLVED by the Board of Commissioners of the Sammamish Plateau Water & Sewer District, King County, Washington, as follows: Section 1. Appointment and Address of Agent. The District Manager is appointed as the agent to receive any claim for damages against the Sammamish Plateau Water & Sewer District under Chapter 4.96 RCW. The agent may be reached during the normal business hours of the District at th Avenue S.E., Sammamish, Washington Section 2. Alternate Agent. In the absence of the District Manager the manager pro tem is appointed as the agent to receive any claim for damages against the Sammamish Plateau Water & Sewer District under Chapter 4.96 RCW. Section 3. Adoption of Standard Claim Form. The Standard Claim Form and instructions attached hereto as Exhibit A and incorporated herein by this reference are hereby adopted by the District Board of Commissioners as the standard claim form claimants must use to present their claims for damages to the District pursuant to Chapter 4.96 RCW. A copy of the Standard Claim Form and instructions shall be posted on the District s website and made available at the District s office within five business days of this Resolution s adoption. Resolution No. Page 1

108 108 Section 4. Recording of Resolution. The District Manager is authorized and directed to have a copy of this resolution recorded with the King County Auditor. Section 5. Repealer. All District resolutions, policies and procedures, including Resolution No. 2983, are hereby modified, repealed and superseded to be in accordance with this Resolution. ADOPTED by the Board of Commissioners of the Sammamish Plateau Water & Sewer District, King County, Washington, at a regular open public meeting held on the 8th day of April, Individual Commissioner s Vote on this Resolution: Approved: Opposed: Abstained: Absent: Approved: Opposed: Abstained: Absent: Approved: Opposed: Abstained: Absent: Approved: Opposed: Abstained: Absent: Approved: Opposed: Abstained: Absent: Lloyd Warren, President and Commissioner Ryika Hooshangi, Vice President and Commissioner Mary Shustov, Secretary and Commissioner Tom Harman, Commissioner Mahbubul Islam, Commissioner Resolution No. Page 2

109 109 EXHIBIT A

110 110 CLAIM FOR DAMAGES INSTRUCTIONS FOR COMPLETING THE CLAIM FOR DAMAGES FORM Before filing a Claim, please read these instructions and then complete the Claim Form and other appropriate forms in their entirety. Type or print clearly in ink and sign the Claim Form. Provide all requested information and any available documents or evidence supporting your claim. If the requested information cannot be supplied in the space provided, please use additional blank sheets so your claim can be easily read and understood. The following are examples on how to complete the Claim Form. 1. Smith, Karen, Michelle, 02/02/ Main Street, Sammamish, WA Same (or mailing address, such as PO Box) 4. Same (or residence at the time of incident) 5. (425) karen@ .com 7. 01/01/2019, 8:00 a.m. 8. If the incident that caused the damages occurred over a period of time, please provide the beginning and the ending time. 9. King County, Sammamish, Skyline High School th Ave, SE, near the school parking lot. 11. John Smith st Avenue, Sammamish, WA 98075, (425) Describe the incident that resulted in the injury or damages, specifically answering the questions who, what, where, when, why, and how. 13. If you reported this incident to law enforcement or the District, please provide a copy of the report or the contact information for the person with whom you spoke. 14. Provide the name of your insurance company and the policy number. 15. Provide any supporting documents. 16. Provide the dollar amount for your damages, including your time loss, medical costs, property damage loss, etc. This amount should represent your opinion of the total compensation you are claiming. Sign and date the claim form and send the signed copy to the District at: Sammamish Plateau Water & Sewer District ATTN: General Manager th Avenue S.E. Sammamish, WA

111 111 CLAIM FOR DAMAGES SAMMAMISH PLATEAU WATER & SEWER DISTRICT Pursuant to Ch RCW, this form is for filing a tort claim against the District. Some of the information requested on this form is required by RCW and may be subject to public disclosure. The General Manager is the District s designated agent for receiving claims. PLEASE PRINT CLEARLY IN INK Mail or deliver original claim to: Sammamish Plateau Water & Sewer District ATTN: General Manager th Avenue S.E. Sammamish, WA Business Hours: Monday Friday 8:00 AM to 4:30 PM Telephone Number: (425) Claimant Information 1. Claimant s name: Last First Middle Date of Birth 2. Claimant s current residential address: 3. Mailing address (if different): 4. Residential address at the time of the incident (if different from current address): 5. Claimant s telephone number: 6. Claimant s address: Incident Information 7. Date of incident: Time: a.m. / p.m. 8. If the incident occurred over a period of time, date of first and last occurrences: From: Time: a.m. / p.m. To: Time: a.m. / p.m. 9. Location of incident: County City, if applicable Place where occurred 10. If the incident occurred on a street: Name of street Nearest intersection

112 Name, addresses and telephone numbers of all persons involved in or witnesses to this incident: 12. Describe the cause of the injury or damages. Explain the extent of property loss or medical, physical, or mental injuries (attach additional sheets if necessary): 13. Has this incident been reported to law enforcement or the District? If so, when and to whom? 14. Has this incident been reported to your insurance company? If so, provide the name of the insurance company and the policy number: 15. Attach any documents that support the claim s allegations. 16. I claim damages from the District in the sum of $.. This claim form must be signed by either the Claimant or on behalf of the Claimant by a person who holds a written power of attorney from the Claimant, an attorney in fact for the claimant, an attorney admitted to practice in Washington State on the Claimant s behalf, or a court-approved guardian or guardian ad litem on behalf of the Claimant. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF WASHINGTON THAT THE FOREGOING IS TRUE AND CORRECT. Signature of Claimant OR Signature of Representative Print name of Representative Date and place (address, city and county) Date and place (address, city and county) Bar Number (if applicable) Representative s position (attorney, guardian, etc.)

113 113 CLAIM FOR DAMAGES SAMMAMISH PLATEAU WATER & SEWER DISTRICT *** Additional Information Required for Automobile Claims Only *** License Plate # Driver s License # Auto Type: Year Make Model VIN: Driver: Address: Phone: Owner: Address: Phone: Passengers: Name: Address: Phone: Name: Address: Phone:

114 114 Active Agenda Item C King County Wastewater Treatment - Northern Diversion

115 115 King County Wastewater Treatment - Northern Diversion Sammamish Plateau Water Policy Considerations April, 2019 What is the Northern Diversion? The Northern Diversion is a proposed capital improvement to the King County regional wastewater conveyance system which would extend a second connection to the regional conveyance system to the District to divert flows from Northern areas of the District north to the Brightwater Treatment facility. (Attachment #1: Northern Diversion Location and Alignment Map) What is the history of the Northern Diversion? For over 40 years, the District has aligned its sewage system plans with those of the County depicting the diversion of flows from portions of the District north to a future planned conveyance main commonly referred to as the Northern Diversion. The alignment of the District s plan with the County s is necessary to ensure consistency in local and regional planning. As the District s customer base has grown, generating increasing flows to the County regional wastewater system, the District has placed emphasis on projecting sewage demands which would trigger the need to construct the Northern Diversion. The District s 2013 Wastewater Comprehensive Plan contained analysis and projections specific to the Northern Diversion. Building off the 2013 Wastewater Plan, while recognizing the timing considerations associated with design and construction of the Northern Diversion, in 2016 the District completed a Northern Diversion Interim Improvement Evaluation. The 2016 Evaluation identified a series of interim improvements which could be made to the District s local sewage system which would provide the County time to design and construct the Northern Diversion. The Interim Evaluation was provided to the County, along with a Board position that in light of the County s awareness of the District s needs and its obligation to provide conveyance infrastructure, the District would not fund interim improvements to the District system, but was not opposed to the County making such improvements as part of long range plans to meet the District s conveyance needs. Draft In 2016, the District received notice from the County that the Northern Diversion was included in the County s Conveyance System Improvement Plan. As such, the District felt secure in assuming the project would be designed and constructed to meet the District s sewage conveyance needs. In 2017, without consulting or engaging the District, the County revised its capital plan to defer construction of the Northern

116 116 Diversion. The District was notified of this determination during a meeting with County staff in May The County has requested that the District participate in a second interim evaluation study to evaluate additional interim improvements to the District s local sewage system which could allow the County to delay the Northern Diversion for decades. The County has offered to fund the evaluation and related interim improvements. The scope of the proposed second interim evaluation is currently under review. What is the significance of the Northern Diversion to the District? GEOGRAPHIC EQUITY Compared to other participants in the County Regional wastewater treatment system, the District is at a geographic Disadvantage. While other agencies possess multiple connection points, and access flexibility, the District has one connection point to the regional conveyance system located in the southern portion of the District in Issaquah. The regional conveyance system essentially terminates in Eastern King County at the District. (Attachment #2: King County Regional Wastewater Treatment Conveyance Map) (Attachment #3: King County Regional Conveyance Connection to District Map) Since the District has only one connection point available to the regional system. All District sewage infrastructure has required design to direct flows to this one connection. As such, the District has minimal design options and is constrained by the lack of access to regional conveyance infrastructure. DISTRICT DEMANDS AND GROWTH Draft The District s customer base has grown by approximately 23% since 2008, and is continuing to grow. The District previously projected the Northern Diversion could be needed as early as If the Northern Diversion is not constructed, a moratorium may be required since the District will not be able to service growth without conveyance improvements. Given the history of planning coordination with the County and the District s efforts to engage the County on the District s conveyance needs, the Board has previously stated it would not fund interim improvements to the District s system to relieve the County s obligation to construct the Northern Diversion. COUNTY BASIN STANDARDS The County has established basin standards to provide regional conveyance infrastructure to naturally flowing basins of 1,000 acres or more. The absence of regional conveyance consistent with this county standard constrains the District. If the County were to meet its standard in relation to the District, the District would have

117 117 multiple connections to regional conveyance lines and significantly greater flexibility for local system design. It is likely that the County s failure to plan and implement improvements per its standards, has shifted infrastructure costs from the County at the regional level to the District at a local level. RESILIENCY AND REDUNDANCY Since the District is served by a single connection to the County system, there is no redundancy in the event of a natural disaster or operator error. The current system design poses vulnerability to the District, the County, and our customers. Diverting flows from portions of the District to the Northern Diversion would mitigate a level of vulnerability, and may potentially be designed to pump sewage bi-directionally in the event of an emergency. Policy Considerations: 1. If the County fails to construct the Northern Diversion to meet the District s conveyance needs, will the District fund additional interim improvements to its local system to avoid a moratorium? 2. If the County does not construct the Northern Diversion, will the District grant the County the authority to construct interim improvements to the District s local system to relieve it of the obligation to construct the Northern Diversion? 3. If the Northern Diversion is delayed by the construction of interim improvements, what should the understanding e between the District and County regarding the future construction of the Northern Diversion? 4. What should the District s expectations be in relation to equitable access to the regional conveyance system? Draft Attachments 1. Northern Diversion Location and Alignment Map 2. King County Regional Wastewater Treatment Conveyance Map 3. King County Regional Conveyance Connection to District Map

118 244TH AVE SE NE UNION HILL RD 118 " Terminus (City of Redmond) 208TH AVE NE TRAIL PARKWAY HILLTOP TRAIL PARKWAY 238TH AVE NE NE UNION HILL RD NE REDMOND-FALL CITY RD 204TH PL NE 236TH AVE NE NORTH LAKE SAMMAMISH SEWER BASIN NORTH DIVERSION STUDY AREA EAST LAKE SAMMAMISH PKWY NE 236TH AVE NE 180TH AVE NE WEST LAKE SAMMAMISH PKWY NE NE 24TH ST LAKE SAMMAMISH " NORTH DIVERSION FLOW AREA EAST LAKE SAMMAMISH PKWY SE NE INGLEWOOD HILL RD North Lk Samm LS NORTH LAKE SAMMAMISH 212TH AVE NE TIBURON SAHALEE WAY NE 216TH AVE NE " Tiburon LS (Proposed) SE 4TH ST " Inglewood LS Draft LOUIS THOMPSON RD SE SE 8TH ST 228TH AVE NE INGLEWOOD EAST SE 8TH ST NE 8TH ST 244TH AVE NE BEAVER DAM NORTHEAST PLATEAU SE 20TH ST NORTH SUNNYHILLS ³ Feet 0 1,200 2,400 4,800 1 inch = 2,400 feet CENTRAL LAKE SAMMAMISH " Central Lk Samm LS 212TH AVE SE SOUTH PINE LAKE PINE LAKE 228TH AVE SE SE 24TH ST SE 32ND WAY SE 32ND ST LEGEND: " LIFT STATIONS FORCEMAINS & TIGHTLINES SEWER GRAVITY LINES DISTRICT FUTURE SEWER SERVICE BOUNDARY WATER SEWER BASINS: Central Lake Sammamish Inglewood East North Lake Sammamish North Sunnyhills South Pine Lake Tiburon Hilltop Parkway Trail SOURCE: KING COUNTY AND SAMMAMISH PLATEAU WATER & SEWER DISTRICT SAMMAMISH PLATEAU WATER & SEWER DISTRICT NORTH DIVERSION FIGURE 4-1 M:\SammPlat\11475 WW Comp Plan\GIS\FIG 4-1.mxd

119 A achment 2: 119 King County Regional Wastewater Treatment Conveyance Map May, 2013 Draft

120 Attachment 3: King County Regional Conveyance to District Map 120 SAMMAMISH PLATEAU WATER & SEWER DISTRICT SEWER SERVICE AREA Draft LEGEND Connection to King County System 1. Control Structure 2. SE 43rd Roundabout 3. Freegard Lift Station King County