HomeMy WebLinkAbout4299 ORDINANCE NO. 4299
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting Highline Water
District a non-exclusive 15-year franchise to
construct, maintain, operate, replace and repair a
water system within public rights-of-way of the City
of Kent, imposing a franchise fee in the amount of six
percent on the District's revenues and setting forth
other provisions concerning the relocation of District
facilities to accommodate projects caused by the City
and other projects not caused by the City.
RECITALS
A. Highline Water District, a Washington special purpose
municipal corporation ("District"), owns and operates water facilities
("Facilities") and provides retail utility water 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
Kent, a Washington non-charter municipal code city ("City"), within the
City's right-of-way as hereinafter defined; and
B. The City also owns and operates a water utility system and
provides retail water utility services to customers located with the City's
corporate and approved retail water utility service area boundary.
C. Portions of the District's and the City's corporate and retail
water utility service area boundaries are adjacent.
D. RCW 57.08.005 (3) authorizes the District to conduct water
throughout the District and any city and town therein, and construct and
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lay facilities along and upon public highways, roads and streets within and
without the District; and
E. RCW 35A.47.040 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
F. The City and the District have prepared a Franchise
Agreement ("Franchise" or "Agreement') to provide for the operation of
District Facilities within the City right-of-way, to impose a franchise fee of
six percent on District revenues and to govern the relocation of District
facilities;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. - Definitions. Where used in this Franchise these
terms have the following meanings:
A. "City" means the City of Kent, a Washington municipal corporation,
and its respective successors and assigns.
B. "District' means Highline Water District, a Washington municipal
corporation, and its respective successors and assigns.
C. "Facility" or "Facilities" means tanks, reservoirs, water treatment
facilities, meters, pipes, mains, services, 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, interties, lines, 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 or under ground.
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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 in District's service area within the
present corporate boundaries of the City, and as such corporate boundaries
may be extended within District's service area by annexation or otherwise.
E. "Ordinance" means this Ordinance No. 4299, 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 whose connections to 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); loans; income from legal settlements not related to water
sales 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, tools or vehicles; interest income; penalties;
hydraulic modeling fees; water availability document fees and charges; water
system extension agreement fees and charges; income from street lights;
labor, equipment and materials charges and the Franchise Fee.
SECTION 2. - Franchise.
A. The City does hereby grant to District the right, privilege, authority
and franchise to construct, install, lay, support, attach, maintain, repair,
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renew, replace, remove, enlarge, operate and use Facilities in, upon, over,
under, along, through and across open city right-of-ways within 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, state, and local laws and regulations.
SECTION 3. - Non-interference of Facilities.
A. Survey monuments shall not be removed or destroyed without the
District first obtaining the required Department of Natural Resources (DNR)
permit in accordance with RCW 58.09.130 and WAC 332-120-030, and as
such statute and regulation may be modified and amended. All survey
monuments which have been distributed or displaced by such work shall
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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.
B. If it is determined that the District has failed to restore the right-of-
way in accordance with this Section, 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-of-way 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.
SECTION 4. - Relocation of Facilities.
A. Subject to each Party's prior and consistent compliance with the
Section 6 Planning Coordination requirements below, whenever the City
causes the grading or widening of the Franchise Area or undertakes
construction of storm drainage lines, lighting, signalization, sidewalk
improvement, pedestrian amenities, or other public street improvements
(for purposes other than those described in Section 4(D) below) and such
project requires the relocation of the District's then existing Facilities
within the Franchise Area, the City shall:
1. Pursuant to RCW 35.21.905, or as amended, consult with the
District in the predesign phase of any such project; and
2. After receipt of written notice from the City, the District shall
design and relocate such Facilities within the Franchise Area within ninety
(90) days for a smaller project and two hundred forty (240) days for a
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larger project to accommodate the City project, unless the Parties agree
on a different time; in any event, the City and the District will, in good
faith, use their best efforts to coordinate their project schedules to avoid
delay to the City's project. A smaller project includes but is not limited to
adjusting at minimal time and cost, a water service line or a meter to a
new grade or location, adjustment of a valve box, relocation or extension
of a fire hydrant, or relocation of an air vac assembly or blow off.
Notwithstanding the above, the District may, at any time within thirty (30)
calendar days after receipt of written notice requesting the 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 necessary to assist the City in making such evaluation.
The City shall give each alternative full and fair consideration. In the
event the City reasonably determines there is no other reasonable or
feasible alternative, the City shall provide the District with further written
notice to that effect. In that event, the City shall provide the District with
conceptual plans and specifications for the City project and the District
shall then relocate its Facilities by the date so established.
3. Coordinate and work with the District to minimize conflicts
between existing Facilities and the public improvements where possible,
and to avoid having the District relocate its Facilities whenever possible.
The City and the District agree that coordination under this Section 4 shall
include evaluating the costs of alternative plans that achieve the essential
function of the public improvement most efficiently for both the District
and the City, and to the greatest extent possible, avoid the relocation of
District Facilities.
B. If relocation of District Facilities cannot be avoided through the
coordination requirements in this Section 4 and a city project causes the
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relocation of District Facilities, the cost of relocating such Facilities existing
within the Franchise Area shall be paid as follows:
1. If the relocation occurs within fifteen (15) years after the
District or a third party on the District's behalf initially 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%);
2. If the relocation occurs more than fifteen (15) years after the
District or a third party on the District's behalf initially constructed such
Facility, then the relocation shall be at the District's sole cost.
3. For the purposes of this Section 4, the date of the Facility's
acceptance by the District Board of Commissioners shall determine the age
of the Facility.
C. 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 require the District
to relocate its Facilities. 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.
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D. This Section 4 shall govern all relocations of District's Facilities
required in accordance with this Franchise. Any cost or expense in
connection with the location or relocation of any Facilities existing under
benefit of easement or other right not in the Franchise Area shall be borne
by the City, provided the City obtains the District's prior consent to such
location or relocation.
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
it is permitted by the City and both of the following conditions exist:
1. The City is the lead agency for the project or improvement; and
2. Developer assessments, impact fees, contributions in aid of
construction, and contributions in lieu of construction make up a minority
of the overall costs of the improvement or project.
F. If a City project requires the relocation of then existing Facilities
within the Franchise Area as provided in this Section 4, the District and the
City may agree to include the relocation of any Facilities as part of the
City's public works project under terms and conditions agreed between the
City and the District.
SECTIONS. - 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. No District work shall commence
within any City right-of-way without a permit, except as otherwise
provided in this Franchise and applicable City Ordinance.
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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 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. If it is determined the District has failed to restore the right-of-
way in accordance with this Franchise and other applicable City
regulations, 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.
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-of-way permit to undertake utility work to accommodate a City-
initiated project when the City and the District are jointly undertaking a
project in the Franchise Area and the District work is located within the
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City "work zone" for which the City has already approved a traffic control,
pedestrian safety or other applicable plans.
F. Complete Right-of-Way Permit Applications. If the District is '.
required to obtain any permit from the City to undertake utility work in the '.
Right-of-Way in the Franchise Area, the City shall provide written review '.
comments within twenty-one (21) calendar days of receiving a complete '.
application for such permit. If the permit application requires resubmittal
by the District, the City shall complete all subsequent reviews within
fourteen (14) days of the receipt of such submittal. To be considered
complete for purposes of this section, the application must show existing
utilities, hard surfaces and proposed restoration.
G. City Invoices. The City shall invoice the District for all City fees and
charges relating to the issuance of any City permits to the District, such as
a City right-of-way permit or franchise street use permit, to undertake '
utility work in the Franchise Area, including inspection fees and charges,
on a monthly basis, and the City's final fees and charges within sixty (60)
calendar 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. The District shall pay all such City fees and charges within thirty
(30) calendar days of receipt of the City's invoice for such fees and
charges, except for any disputed fees and charges.
H. Regular Maintenance. The City will not require the District to obtain
a right-of-way permit, or any other City-issued permit, to conduct regular
maintenance of the District's Facilities, including, but not limited to,
flushing mains, video inspecting mains, valve, blow-off or hydrant
adjustments, or repairing surface areas around existing Facilities, unless
such maintenance impacts a traffic lane or a high pedestrian area on SR
99; SR 516; Military Road; South 272nd Street; 30th Avenue South; or
South 259th Place/ South 260th Street.
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SECTION 6. - Plannina Coordination.
A. The Parties agree to participate in the development of, and
reasonable updates to, the other Party's planning documents to the extent
they apply to the District's service area within the City limits as follows:
1. Each Party will participate in a cooperative effort to develop
their respective Comprehensive Plan Utilities Elements that meet the
requirements described in RCW 36.70A.070 (4).
2. Each Party will participate in a cooperative effort with the
other Party to ensure that the Utilities Elements of their Comprehensive
Plans are accurate as they relate to their operations and are updated to
ensure continued relevance at reasonable intervals.
3. Each Party shall submit information related to the general
location, proposed location, and capacity of all existing and proposed
Facilities as requested by the other Party within a reasonable time, not
exceeding sixty (60) days from receipt of a written request for such
information, provided that such information is in the non-requesting
Party's possession, or can be reasonably developed from the information in
the non-requesting Party's possession.
4. Each Party will provide information relevant to their
operations within a reasonable period of written request to assist the other
Party in the development or update of their respective Comprehensive
Plan(s), provided that such information is in the non-requesting Party's
possession, or can be reasonably developed from the information in the
non-requesting Party'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:
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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-of-way for that year.
3. By February 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 for that year 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 should 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
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agents, servants, employees, contractors, subcontractors or assigns 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 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 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 4.24.115, 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. It is further specifically and
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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.
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 using the Franchise Area or affect the jurisdiction of
the City over the same or any part thereof.
SECTION 10. - Franchise Term. This Franchise shall have a term of
fifteen (15) years from its Effective Date as defined in Section 29 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
Franchise term; provided, at the end of the five (5) year term, this
Franchise shall be automatically extended for successive one (1) year
periods unless either Party at least one hundred twenty (120) prior to the
termination date of any one (1) year extension provides written notice to
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the other Party of its intent to terminate the Franchise at the end of the
then current Franchise term.
SECTION 11. - Non-assumption. In consideration of the District's
payment of the Franchise Fee to the City as provided in Section 12 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.
SECTION 12. - Franchise Fee.
A. In consideration of the rights granted the District under this
Franchise, the District shall pay to the City a franchise fee ("Franchise
Fee") in the amount of six percent (6,0%) of the District's Revenue
beginning the first day of the first calendar quarter occurring at least sixty
(60) days after the Effective Date of this Franchise, subject to the
provisions of Section 12(B) herein.
B. Franchise Fees shall be paid to the City in bi-monthly 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 Fees, the District shall be excused from
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paying that portion of the Franchise Fee and this Franchise agreement will
immediately terminate, unless the Parties otherwise agree.
D. In consideration of the District's payment of a Franchise Fee to the
City as provided in Section 12 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. However, 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 to limit any such Excise
Tax on the District's revenues, gross receipts, or gross income, the District
shall have the right and option, at its sole election, to (1) terminate this
Franchise and the payment of Franchise Fees to the City, and if the City
determines to impose an Excise Tax on the District, the District shall have
the right to bring an action to challenge the legal validity of any such
Excise Tax, or (2) if the Parties mutually agree, elect not to terminate this
Franchise and the District may agree to pay any such Excise Tax, provided
the District's Franchise Fees herein to the City shall be credited against any
such Excise Tax the City may impose.
E. In consideration of the District's payment of a Franchise Fee 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 herein.
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F. The District shall have the right to recover the Franchise Fee from
the District's ratepayers residing within the City and may identify the
Franchise Fee as a separate billing item on utility customer billings by
using the following line item:
"Effect of City of Kent Franchise Fee: $X.xx"
SECTION 13. - Cmmnlianra with Cnrlac anrf Rannlafinnc-
Annexations• Service Area Boanda
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. 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.
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.14.900 for whatever period of time is then remaining under
this Franchise for the Franchise Area, unless a longer time period is
required by that statute. Such territory shall then be governed by the
terms and conditions contained herein upon the effective date of such
annexation. The first Franchise Fee for any annexed area shall be
calculated pro rata from the effective date of the annexation to the end of
the next bi-monthly period and paid to the City at the same time as the
fee for the Franchise Area is paid for that quarter.
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C. The District's and the City's exclusive retail water service area
boundaries have been established and approved pursuant to chapter
70.116 RCW, the Public Water System Coordination Act of 1977. In
accordance with the South King County Coordinated Water System Plan
prepared pursuant to the Act, the District and the City have been
designated the exclusive water service purveyors within their respective
authorized water service areas. The District's and the City's retail water
service area boundaries have also been established and approved
pursuant to water system plans approved by the Washington State
Department of Health, King County and other public agencies with
jurisdiction. The water system plans designate the District and the City as
the exclusive water service purveyors within their respective authorized
water service areas. The District and the City have reviewed certain
service areas where their water service areas are adjacent to determine
which Party is the most logical provider of water service to the property
located within such areas based on the sizing and proximity of the Parties'
respective water systems to such property. Based on such review, the
Parties have determined to adjust and confirm the exclusive retail water
service area boundary between the Parties. Therefore, the Parties agree
that their respective exclusive retail water service area boundaries shall be
modified, adjusted and confirmed as described and depicted on Exhibit A
attached hereto and incorporated herein by this reference ("City of Kent-
Highline Water District Retail Water Service Area Boundary" or "Retail
Water Service Area Boundary"). The Parties agree to cooperatively
participate in obtaining any required approvals by public agencies with
jurisdiction to reflect and confirm the exclusive retail water service area
boundary as depicted on Exhibit A. The respective exclusive retail water
service area boundaries as provided herein shall survive any termination
or expiration of this Franchise. Any modification of the exclusive retail
water service area boundary provided herein shall be by written
agreement between the Parties. This provision and the agreed exclusive
18 Franchise -
High/ine Water District
retail water service area boundary between the Parties shall supersede,
rescind, and cancel all prior agreements between the Parties relative to
the Parties' respective retail water service area boundaries.
SECTION 14. - 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 15. - 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 19.122 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
19 Franchise -
Highline Water District
Franchise Area, nor shall such plan be construed as a proposal to
undertake any specific improvements within the Franchise Area.
Available as-built drawings of the location of any Facilities located within
the Franchise Area shall be made available to the requesting Party within a
reasonable time, which should typically not exceed fourteen (14) calendar
days of request.
SECTION 16. - Shared Use of Excavations.
A. District and the City shall exercise best efforts to coordinate
construction work that either Party 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
20 Franchise -
Highline Water District
cooperate with other utilities in the Franchise Area to minimize hindrance
or delay in construction.
SECTION 17. - Insurance. District shall maintain in full force and
effect throughout the term of this Franchise, a minimum of Two Million
Dollars ($2,000,000.00) liability insurance for property damage and bodily
injury. In satisfying the insurance requirement set forth in this Section,
District may self-insure against such risks in such amounts as are
consistent with good utility practice. Upon request, the District shall
provide the City with sufficient written evidence, as determined by the City
in its reasonable discretion, that such insurance (or self-insurance) is being
so maintained by District. Such written evidence shall include, to the
extent available from District's insurance carrier, a written certificate of
insurance with respect to any insurance maintained by District in
compliance with this Section.
SECTION 18. - 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 reasonable or 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
21 Franchise -
Highline Water District
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. Within forty-five (45) calendar days of the District's
permanent cessation of use of any of its Facilities as determined by the
District, or any portion thereof, the District will, in good faith, use its best
efforts to provide as-built drawings locating the abandoned Facilities or if
unable to provide as-built drawings, will provide the most complete and
accurate drawings the District can make available to provide adequate
notice of the location of all abandoned Facilities.
4. District Facilities that are abandoned in-place shall be
abandoned pursuant to City Standards, to the satisfaction of the Public
Works Director.
5. The Parties expressly agree that this section shall survive the
expiration, revocation or termination of this Franchise, unless modified by
separate agreement.
SECTION 19. - 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.
SECTION 20. - 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
22 Franchise -
Highline Water District
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 21. - 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 e-mail 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 email, 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:
City Clerk
City of Kent
220 Fourth Avenue South
Kent, WA 98032
Phone: (253) 856-5725
Fax: (253) 856-6725
23 Franchise -
Highline Water District
To District:
General Manager
Highline Water District
23828 - 30' Ave. S.
Kent, WA 98032
Phone: (206) 824-0375
Fax: (206) 824-0806
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 22. - 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 23. - Alternate Dispute Resolution. If the Parties are
unable to resolve disputes arising from the terms of this Franchise, prior to
resorting to a court of competent jurisdiction, the Parties shall submit the
dispute to 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 24. - (joverning Law I/enue. 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 25. - Entire Agreement. The Recitals set forth above are
hereby incorporated herein in full by this reference. This Franchise
constitutes the entire understanding and agreement between the Parties
as to the subject matter herein and no other agreements or
24 Franchise -
Highline Water District
understandings, written or otherwise, shall be binding upon the Parties
upon execution and acceptance hereof. This Franchise shall supersede,
rescind and cancel any prior franchise or agreement granted by the City to
the District to locate and operate a public water system within the
Franchise Area.
SECTION 26. - 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 foregoing, this Franchise (including, without limitation,
Section 7 "Indemnification" 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, unless such permit,
approval, license, agreement or document specifically:
1. References this Franchise; and
2. States that it supersedes this Franchise to the extent it
contains terms and conditions which change, modify, delete, add to,
supplement or otherwise amend the terms and conditions of this
Franchise.
In the event of any conflict or inconsistency between the provisions of this
Franchise and the provisions of any such permit, approval, license,
agreement or other document that does not comply with Subsections (1)
and (2) referenced immediately above, the provisions of this Franchise
shall control.
SECTION 27. - Directions to City Clerk. The City Clerk is hereby
authorized and directed to forward certified copies of this ordinance to the
25 Franchise -
Highline Water District
District as set forth in this ordinance. The District shall have thirty (30)
days from the date of 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 executed statement of
Acceptance of Franchise, attached hereto as Exhibit B and incorporated
herein by this reference.
SECTION 28. - 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 receipt of the certified copy of this ordinance as addressed in
Section 27 herein, file with the City its written acceptance of this
Franchise.
SECTION 29. - 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
receipt of the certified copy of this ordinance as addressed in Section 27
herein 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.
SECTION 30. - Severabilitv. If any one or more section,
subsection, or sentence of this franchise is held to be unconstitutional or
invalid, such decision shall not affect the validity of the remaining portion
of this franchise and the same shall remain in full force and effect.
SECTION 31. - Corrections by City Clerk or Code Reviser. Upon
approval of the city attorney, the city clerk and the code reviser are
authorized to make necessary corrections to this ordinance, including the
correction of clerical errors; ordinance, section, or subsection numbering;
or references to other local, state, or federal laws, codes, rules, or
regulations.
26 Franchise -
Highline Water District
SECTION 32. - Effective Date of Ordinance. This ordinance, being
an exercise of a power specifically delegated to the City legislative body, is
not subject to referendum, and shall take effect 30 days after its passage
and publication ("Effective Date").
V2, December 11. 2018
DANA RALPH, MAYOR Date Approved
ATTEST:
December 11, 2018.
KIMBERLEY A. OMOTO, CITY CLL K Date Adopted
December 14� 0018.
Date Published
APPROVED AST FORM:
w_WHUR AT' 5ITZPATRICK, C11 Y ATTORNEY
27 Franchise -
Highline Water District
Exhibit A „B ` "` s 1 a sr`
City of Kent - Highline Water District
Retail Water Service Area Boundary Map �' a
May 2018 (f '
— Kent/Highline Water District Boundary
r� s 196 St
+� Kent Citylimits
f
S 268 St
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• IN James Sit Q•• Kent retail water
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service area s W Smith St EISmith S
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aonvflu oei
EXHIBIT B
ACCEPTANCE OF FRANCHISE
The undersigned authorized representative of Highline Water District
(District) hereby declares on the District's behalf the District's acceptance
of the nonexclusive franchise to Highline Water District approved by the
City of Kent City Council on December 11, 2018, by the adoption of City of
Kent Ordinance No. 4299.
DATED this .I ° ' ` day of
Highline Water District
By:
Its: rtn y —
29 Franchise -
Highline Water District
r
94
STATE OF WASHINGTON, COUNTY OF KING }
AFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Polly Shepherd, being first duly sworn on oath that she is the
Publisher of the
Kent Reporter
a weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to, published in the English language
continuously as a weekly newspaper in King County, Washington. The
Kent Reporter has been approved as a Legal Newspaper by order of
the Superior Court of the State of Washington for King County.
The notice in the exact form annexed was published in regular issues of
the Kent Reporter (and not in supplement form) which was regularly
distributed to its subscribers during the below stated period. The annexed
notice, a:
Public Notice
was published on December 14, 2018 .
The full amount of the fee charged for said foregoing publication is the
sum of $259.30 .
4P0;1ly
Aeph fd
Publisher, Kent Reporter
Subscribed and sworn to me this 14' day of December, 2018 .
Jenn" er Tribb t, ary Public for the State of Washington, Residing in
rtnng, Washington
y k)N
Ur
-yv51
CITY OF KENT
NOTICE OF ORDINANCES
PASSED BY THE CITY COUNCIL
The following are summaries of the ordinances passed by the Kent City Council on
December 11, 2018.
ORDINANCE NO. 4297 - AN ORDINANCE amending Chapter 9.36 of the Kent
City Code, entitled "Traffic Code" by adding a new section 9.36.150, entitled
"Stoplight traffic safety cameras," authorizing use of automated traffic cameras to
detect stoplight violations; adopting the statutory standards and restrictions
regarding use of automated traffic safety cameras; and setting the monetary penalty
for infractions detected by an automated traffic safety camera.
This ordinance shall take effect and be in force 30 days from and after its passage,
as provided by law.
ORDINANCE NO. 4298 - AN ORDINANCE Amending Section 9.36.140 of the Kent
City Code, entitled "School Speed Zone Traffic Safety Cameras," to increase the
monetary penalty for an infraction committed in a school speed zone detected by an
automated traffic safety camera.
This ordinance shall take effect and be in force 30 days from and after its passage,
as provided by law.
ORDINANCE NO. 4299 - AN ORDINANCE Granting Highline Water District a non-
exclusive 15-year franchise to construct, maintain, operate, replace and repair a
water system within public rights-of-way of the City of Kent, imposing a franchise
fee in the amount of six percent on the District's revenues and setting forth other
provisions concerning the relocation of District facilities to accommodate projects
caused by the City and other projects not caused by the City.
This ordinance, being an exercise of a power specifically delegated to the City
legislative body, is not subject to referendum, and shall take effect 30 days after its
passage and publication ("Effective Date").
ORDINANCE NO. 4300 - AN ORDINANCE Granting Midway Sewer District a non-
exclusive 15-year franchise to construct, maintain, operate, replace and repair a
sewer system within public rights-of-way of the City of Kent, imposing a franchise
fee in the amount of six percent on the District's revenues and setting forth other
provisions concerning the relocation of District facilities to accommodate projects
caused by the City and other projects not caused by the City.
This ordinance, being an exercise of a power specifically delegated to the City
legislative body, is not subject to referendum, and shall take effect 30 days after its
passage and publication ("Effective Date").
ORDINANCE NO. 4301 - AN ORDINANCE Approving the consolidating budget
adjustments made between July 1, 2018 and November 14, 2018, reflecting an
overall budget increase of $22,989,456.
This ordinance shall take effect and be in force five days after publication, as
provided by law.
ORDINANCE NO. 4302 - AN ORDINANCE Dedicating a portion of City-owned
property located at Morrill Meadows Park and abutting SE 248" Street for right-of-
way and other purposes, authorizing the Mayor to sign all documents necessary to
finalize and define the dedications authorized by this ordinance, and directing the
City Clerk to record a certified copy of this ordinance upon its passage.
This ordinance shall take effect and be in force 30 days from and after its passage as
provided by law.
A copy of the complete text of any ordinance or resolution will be mailed upon
request of the City Clerk.
Kimberley A. Komoto, City Clerk
Kent Reporter Friday,December 14,2018 13
Announcement. Come Notlee• Legal No[lee•
Service Directory
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r GIONAL EVENT slate d y 1 m and after As AN ORDINANCE Dddi-
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calingd.tower at 6 }ll 1tr year Immehlse to con upon request 01 the Clry Pedlars aLadng al Removal, GUae!&
1 Scenic Vig18 lowing she'. 20626 6alh true',
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nilicanl In American his p lads ..used by the FIGOT1O08 tr AND LANDSCAPING
253 520-SB76 to,, aroheeology engl Cry and other projects ecuTMrussowu
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are listed o dtlrsrvnn.d y y g%m a wide i
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f, Paaaago �nnd ubGlaatbp mo SanYODIEEebnl You'll find everything
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lormelien esgwdJngg the pROINANCE NO. 4300 ROUTES gull.,cleaning etc. Y
project Is avalllsMd. by . pod OROWANCE Fence cook bundle, ..belle 24 hours
calling Monies Gambino Grand ng Midway eats AVAILABLE HemiaG lea• Concrete Painting& day 7day.awask-
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amount of 31N percent on n9- Our Irusled local
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PioasevlaaonWpa ORDINANCES evillong concerning oPP^•eunme• 253-334-9564 fmdeyroadverese. unlpue needs at no cost
wXWsebnlpRa,orS PASSED BY THE CRY the relocation of District YdudeTerall. 800-3B8-2527 41 you. Call 955-415
COUNCIL facilities to ...mmo- Real.Enter 414e
77 The following are sum- date projects caused by Earn your.real
made"of fie adlnmesed the CIry and other pro- estate license
passed by the Kent OIry loots not used by the e
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COME CELEBRATE 11.2018. This coal..... being an vgoes ening lahip° b
CHRISTMAS ORDINANCE NO. 4297 actual edge
ppµ ! p Evening dryaaaa" r • 1!
inn O" at - AN ORDINANCE anal,leggled to the Warlike Payments
fJe ./16.0[ St.James Episcopal amending Chapter 936 Cityellve be tly Is Live Instructed. /
y InKen1 of the Kant Clry Code, net subject to
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