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HomeMy WebLinkAboutCAG1991-0570 - Original - Federal Way Water & Sewer District - Sewer Service Agreement - 04/09/1991 SEWER SERVICE AGREEMENT CITY OF KENT -- FEDERAL WAY SEWER DISTRICT THIS AGREEMENT, executed this � day of 1991 , by and between the City of Kent, Washington, a municipal corporation (hereinafter the "City") , and the Federal Way Water and Sewer District, a Kv,0,.0 corporation (hereinafter the "District") : WITNESSETH: WHEREAS, the City has determined that a pump station would be required in order to provide sanitary sewer service to an identified area within the incorporated limits of the City; and WHEREAS, the City's existing policy is that pump stations shall not be used to provide sanitary sewer service for less than 250 potential single family residences in areas less than 75 acres, and the identified area to be served under this Agreement is smaller in size; and WHEREAS, pump stations create maintenance problems for the City as well as individual property owners, making gravity sewer service preferable; and WHEREAS, the District has the ability to provide gravity sewer service to this identified area, and the parties desire to authorize service to this area of the City from the District; and WHEREAS, both the City and the District are public agencies authorized by law to engage in furnishing domestic sewer service, and to that end, may, through their legislative authorities, enter into a contract with respect to the rights, powers, duties and obligation of the parties with regard to the use and ownership of property, the providing of services, the maintenance and operation of facilities, the right to promulgate rules and regulations, to levy and collect special assessments, rates, charges, service charges and connection fees, the performance of contractual obligations and any other matters arising out of the provision of District service to areas within the City, all pursuant to and in accordance with RCW 39.34.080, 35.67.020 and 56.08.060; NOW, THEREFORE: 1 z-6 The parties agree as follows: Section 1 . AUTHORIZATION AND TERM FOR THE PROVISION OF SEWER SERVICE. The City does hereby authorize the District to furnish sanitary sewer service to certain property, as specifically described in Exhibit A hereto, within the corporate boundaries of the City of Kent, which area is not economically feasible of being served by the City's sanitary sewer systems, all in accordance with and subject to the provisions, terms and conditions of this Agreement. The District's authorization to provide service shall extend for twenty-five years after the effective date of this Agreement, and shall further include the right and privilege to lay down, construct, relay, connect, replace and/or maintain such and so many pipes, conduits and mains, and all other appurtenances and appendages thereto, in, along, through and under the avenues, streets, lanes, alleys, highways and other public places and ways in that portion of the City of Kent as specifically described in Exhibit A as may be necessary, convenient and/or proper in order to provide sanitary sewerage service and for that purpose to make any and all connections which may be necessary, convenient and/or proper between said pipes, conduits and mains, and the dwellings and other buildings of consumers of such sanitary sewerage service. Section 2. AUTHORITY TO MANAGE, REGULATE AND CONTROL SEWER SYSTEM. After the construction of the sewer facilities as contemplated under this Agreement, the District shall have the sole responsibility to maintain, manage, conduct and operate its system of sewerage as installed within the area described in Exhibit A, together with any additions, extensions and betterments thereto. Section 3. AUTHORITY TO FIX SERVICE RATES. The rates charged the sewer service customers within the area described in Exhibit A shall be fixed, altered, regulated and controlled solely by the District, pursuant to the limitations on such authority as set forth in RCW Chapter 35.67 or Title 56 RCW, or any regulations promulgated thereafter on the subject of rates and charges for sewer service. Section 4. NON-EXCLUSIVE GRANT. This grant or privilege shall not be deemed or held to be exclusive. It shall in no manner prohibit the City from entering into other agreements or franchises of a like nature or franchises for other public or private utilities, in over, along, across, under and upon any of 2 z-6 the streets, avenues, highways, alleys or public places, or ways as herein enumerated, and shall in no way prevent or prohibit the City from using any of said streets, avenues, etc. , or affect its jurisdiction over them or any part of them with full power to make all necessary changes, relocations, repairs, maintenance, etc. , of same as it deems fit. Section 5. APPROVAL OF PLANS. Prior to construction of any of the pipes, conduits, mains, side sewers and appurtenances in the locations described in Section 1 herein, the District shall submit, to the Director of Public Works (hereinafter the "Director") , in triplicate, plans drawn to an accurate scale, showing the exact location, character, position, dimension, depth and height of the work to be done. The plans shall accurately depict the relative position and location of all pipes, conduits, mains, manholes, side sewers and appurtenances to be constructed, laid, relaid, installed, replaced, repaired, connected or disconnected, and the existing street, avenue, alley, highway, right-of-way or property lines. All streets, avenues, highways, alleys, lanes or ways denoted thereon shall be designated by their names and number and the local improvements therein such as roadway pavement, shoulders, sidewalks, curbs, gutters, ditches, driveways, parking strips, telephone or electric distribution poles, conduits, storm, gas or water pipe lines as may exist on the ground or area sought to be occupied shall be outlined. In the construction proposed by the District, all materials and equipment shall be of the first class type and kind. The exact class and type to be used shall be shown on the plans, as will the equipment to be used and the mode of safeguarding and facilitating the public traffic during construction. The manner of excavation, construction installation, backfill , and temporary structures (such as traffic turnouts, road obstructions, etc. ) shall meet with the approval of, pass all requirements of, and be constructed under the supervision of the Director. Prior to approval of any work under this franchise, the Director may require such modifications or changes as he deems necessary to properly protect the public in the use of the public places, and may fix the time or times within and during which such work shall be done. The District shall pay to the City such amounts as, in the judgment of the Director, are reasonably necessary to investigate and process any plans for construction work, to inspect such work, to secure proper field notes for location, to plat such locations on the permanent records of the City Public Works Department, to supervise such work, or to inspect or reinspect as to 3 z-6 maintenance, during the progress of or after the repair of, any of the initial construction authorized by this Agreement. Section 6. PROTECTION OF PUBLIC. Whenever an excavation or fill from the construction, maintenance or repair of the facilities authorized under this Agreement has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public place, or endangers the public, an adjoining public place, street utilities or City property, the Director may direct the District, at its own expense, to take actions to protect the public, adjacent public places, City property and street utilities, including compliance within a prescribed time. In the event that the District fails or refuses to take the actions directed promptly, or fails to fully comply with such directions given by the Director, or if emergency conditions exist which require immediate action, the City may enter upon the property and take such actions as are necessary to protect the public, the adjacent streets, or street utilities, or to maintain the lateral support thereof, including placing of temporary shoring, backfilling, alteration of drainage patterns and any other actions reasonably necessary to decrease the possibility of earth movement, or actions regarded as necessary safety precautions; and the District shall be liable to the City for the costs thereof. Section 7. REPAIR OF STREETS, SIDEWALKS AND PUBLIC PLACES. After construction, maintenance or repair of the facilities authorized by this Agreement, the District shall leave all streets, avenues, highways or public places in as good and safe condition in all respects as they were before the commencement of such work by the District, its agents or contractors. The Director shall have final approval of the condition of such streets and public places after completion of construction. Section 8. INDEMNIFICATION. The District hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person, including claims by the District's own employees to which the District might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of the District, its agents, servants, officers or 4 z-6 employees in performing this Agreement are the proximate cause. The District further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers and employees from any and all claims, costs, judgments, awards or liability to any person (including claims by the District's own employees, including those claims to which the District might otherwise have immunity under Title 51 RCW) arising against the City solely by virtue of the City's ownership or control of the rights-of-way or other public properties, by virtue of the District's exercise of the rights granted herein, or by virtue of the City's permitting the District's use of the City's rights-of- way or other public property, based upon the inspection or lack of inspection of work performed by the District, its agents and servants, officers or employees in connection with work authorized on the City's property or property over which the City has control , pursuant to this Agreement or pursuant to any other permit or approval issued in connection with this Agreement. This covenant of indemnification shall include, but not be limited by this reference to, claims against the City arising as a result of the negligent acts or omissions of the District, its agents, servants, officers or employees in barricading or providing other adequate warnings of any excavation, construction, or work in any public right-of-way or other public place in performance of work or services permitted under this Agreement. Inspection or acceptance by the City of any work performed by the District at the time of completion shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. In the event that the District refuses the tender of defense in any suit or claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter) , to have been a wrongful refusal on the part of the District, then the District shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City, including reasonable attorneys' fees of recovering under this indemnification clause. Should a court of competent jurisdiction determine that this Agreement 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 5 z-6 the concurrent negligence of the District and the City, its officers, employees and agents, the District's liability hereunder shall be only to the extent of the District's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the District's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. Section 9. INSURANCE. The District shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to the District, its agents, representatives or employees. The District shall provide a copy of such insurance policy to the City for its inspection immediately upon the District's execution of this Agreement, and such insurance shall evidence: (a) Automobile liability insurance with limits no less than $1 ,000,000 Combined Single Limit per accident for bodily injury and property damage; and (b) Commercial General Liability insurance policy written on an occurrence basis with limits no less than $1 ,000,000 Combined Single Limit per occurrence and $1 ,000,000 aggregate for personal injury, bodily injury and property damage. Any deductibles or self-insured retentions must be declared to and approved by the City. Payment of deductible or self-insured retention shall be the sole responsibility of the District. The insurance obtained by the District shall name the City, its officers, employees and volunteers as insureds with regard to activities performed by or on behalf of the District. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees or volunteers. In addition, the insurance policy shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The District's insurance shall be primary insurance as respects the City, its officers, officials, employees and volunteers. Any insurance maintained by the City, its officials, officials, employees or volunteers shall be in excess of the District's insurance and shall not contribute with it. The insurance policy or policies required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, 6 I-6 reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail , return receipt requested, has been given to the City. Any failure to comply with the reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. Section 10. RELOCATION OF SEWER LINES AND SEWER FACILITIES. The District agrees and covenants at its sole cost and expense, to protect, support, temporarily disconnect, relocate or remove from any street any of its installations when so required by the City by reason of traffic conditions or public safety, street vacations, dedications or new rights-of-ways and the establishment and improvement thereof, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity, provided that the District shall in all such cases have the privilege to temporarily bypass, in the authorized portion of the same street upon approval by the City, any sewer line or portion thereof required to be temporarily disconnected or removed. The City will make its best effort and attempt to design or redesign streets, avenues, alleys or public places or ways, and other City utilities to minimize the impact thereof on the District's existing sanitary sewer systems, including the need to require the District's facilities to be relocated. PROVIDED, HOWEVER, that the City shall make the final determination on the need for relocation of the District's facilities. Whenever the City determines that any of the above circumstances necessitate the relocation of the District's then existing facilities, the City shall provide the District with at least sixty (60) days written notice requiring such relocation, which shall be completed by the District at no cost and within the time frame set by the City. Upon the District's failure to complete relocation of its installations and facilities as so directed, the City may remove same at the District's expense. Section 11. EXCAVATION. During any period of installation, relocation, maintenance or repair of the District's facilities and installations, all surface structures, if any, shall be erected and used in such places and positions within said public right-of-ways and other public properties so as to interfere as little as possible with the free passage of traffic and the free use of adjoining 7 I-6 property, and the District shall at all times post and maintain proper barricades during such period of construction as required by the laws of the State of Washington or the City's ordinances. Whenever the District shall excavate in any public right-of-way or other public property for the purpose of installation, repair, maintenance or relocation of its facilities, it shall apply to the City for a permit to do so and shall give the City at least three (3) working days notice thereof. During the progress of the work, the District shall not unnecessarily obstruct the passage or proper use of the right-of-way, and shall file maps or plans with the City (as described in Section 3 herein) showing the proposed and final location of the sewer facilities. If either the City or the District shall at any time plan to make excavations in any area covered by this Agreement and as described in this Section, the party planning such excavation shall afford the other, upon receipt of a written request to do so, an opportunity to share such excavation, PROVIDED THAT: (1) such joint use shall not unreasonably delay the work of the party causing the excavation to be made; (2) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and (3) either party may deny such request for safety reasons. Prior to commencement of any construction authorized by this Agreement, the District shall reference all monuments and markers of every nature relating to subdivision plats, highways and all other surveys. The reference points shall be so located that they will not be disturbed during the District's operations under this Agreement. The method of referencing these monuments or other points to be referenced shall be approved by the Director before placement. The replacement of all such monuments or markers disturbed during construction shall be made as expeditiously as conditions permit and as directed by the Director. The costs of monuments or other markers lost, destroyed, or disturbed and the expense of replacement by approved monuments shall be borne by the District. Section 12. COMPLIANCE WITH LAWS. The District, its subcontractors, employees or any person acting on behalf of the District shall keep him/herself fully informed of all federal and state laws, and all municipal ordinances and regulations which in any manner affect the work or performance of the work authorized under this Agreement, and shall at all times observe and comply with such laws, ordinances and regulations, whether or not such laws, ordinances or regulations are mentioned herein, and shall indemnify the City, its officers, 8 I-6 officials, agents, employees or representatives against any claim or liability arising from or based upon the violation of any such laws, ordinances or regulations. Section 13. DISCRIMINATION. The District agrees that it shall not discriminate against any employee or applicant on the grounds of race, creed, color, religion, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap, provided that the prohibition against discrimination in employment because of handicap shall not apply if the particular disability prevents the proper performance of the particular worker involved. The District shall ensure that applicants are employed, and that employees are treated during employment without discrimination because of their race, color, religion, sex, national origin, creed, marital status, age, or the presence of any sensory, mental or physical handicap. The District shall take such action with respect to this Agreement as may be required to ensure full compliance with Chapter 49.60 RCW. Section 14. CITY CONSTRUCTION ADJACENT TO DISTRICT INSTALLATION. The laying, construction, maintenance and operation of the said District's system of sewerage lines, pipes, conduits, mains, side sewers, etc. , authorized under this Agreement shall not preclude the City or its accredited agents and contractors, from blasting, grading, or doing other necessary road work contiguous to the said District's pipe lines, provided that the District shall have twenty-four (24) hours notice of said blasting or excavating in order that the District may protect its line of pipe and property. Section 15. MODIFICATION. The City and the District hereby reserve the right to alter, amend or modify the terms and conditions of this Agreement upon written agreement of both parties to such alteration, amendment or modification. Section 16. TERMINATION; BREACH. If the District willfully violates or fails to comply with any of the provisions of this Agreement, or through willful or unreasonable negligence fails to heed or comply with any notice given the District under the provisions of this Agreement, or persistently disregards laws, ordinances or instructions of the Director, then the City may, without prejudice to any other right or remedy and after giving the District five (5) days written notice, terminate this Agreement. 9 I-6 Section 17. REMEDIES TO ENFORCE COMPLIANCE. In addition to any other remedy provided by law, this Agreement may be specifically enforced at the option of either party, and each consents to the venue and jurisdiction of the King County Superior Court in the event of a dispute. Section 18. CITY ORDINANCES AND REGULATIONS. Nothing herein shall be deemed to direct the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this Agreement, including any reasonable ordinance made in the exercise of its police powers in the interest of the public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations the location, elevation, and manner of construction and maintenance of any sewer facilities by the District, and the District shall promptly conform with all such regulations, unless compliance would cause the District to violate other requirements of law. Section 19. ASSIGNMENT. The District may not assign the rights, duties and obligations under this Agreement without the prior, written consent of the City, which consent shall not be unreasonably withheld. If such consent is given for assignment, acceptance of the assignment shall be filed by the District's successor with the City. Section 20. SUCCESSORS AND ASSIGNS. All the provisions, conditions, regulations and requirements contained in this Agreement shall be binding upon the successors and assigns of the District, and all privileges of the District shall inure to its successors and assigns equally as if they were specifically mentioned herein. Section 21. NOTICE. Any notice or information required or permitted to be given to the parties under this Agreement may be sent to the following addresses unless otherwise specified: THE CITY OF KENT Director of Public Works Don Wickstrom 400 West Gowe Street Kent, Washington 98032 10 z-6 FEDERAL WAY WATER AND SEWER DISTRICT t,o, FvX 4 249 F e,2w1 \-04y . OASkkh oFt, 5 j X-3 --ftl-q� Section 23. EFFECTIVE DATE. This Agreement shall be effective on the date after execution by both of the parties. THE CITY OF KENT FEDE AY WATER AND SEWER DISTRICT By By Its ; Its ATTEST: (�.,pCity Clerk Date: %- �/ APPROVED AS TO FORM: o Lub vic City Attorney SEWSERAG.LAW 11 z-6 EXHIBIT "A" THE EAST HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27 , TOWNSHIP 22 NORTH, RANGE 4 EAST, W.M. , IN KING COUNTY, WASHINGTON; EXCEPT THE SOUTH 30 FEET CONVEYED TO KING COUNTY FOR ROAD PURPOSED BY DEED RECORDED UNDER AUDITOR'S FILE NO. 2669629: AND EXCEPT THAT PORTION CONVEYED TO KING COUNTY FOR ROAD BY DEED RECORDED UNDER AUDITOR'S FILE NO. 7206020442 . THE FOLLOWING DESCRIBED PROPERTIES SHALL ALSO BE SERVICED BY THE FEDERAL WAY SEWER AND WATER DISTRICT: THE WEST HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 27, TOWNSHIP 22 NORTH, RANGE 4 EAST, W.M. LESS THAT PORTION LYING WITHIN THE PLAT OF CAMBRIDGE DIVISION SIX (6) LESS THAT PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 27 DESCRIBED AS FOLLOWS: 1. BEGINNING AT THE NORTHEAST CORNER OF SAID SUBDIVISION, THENCE NORTH 89-30-28 WEST ALONG THE NORTH LINE THEREOF 328 . 34 FEET TO THE TRUE POINT OF BEGINNING, THENCE SOUTH 00-29-32 WEST 80 FEET, THENCE NORTH 89-30-23 WEST 165 .88 FEET, THENCE NORTH PARALLEL WITH THE EAST LINE OF SAID SUBDIVISION 10 FEET, THENCE NORTH 27-24-30 WEST 67 .97 FEET TO THE POINT OF CURVATURE -ANGLE TO THE RIGHT -A RADIUS OF 20 FEET THENCE NORTHERLY ALONG THE ARC OF SAID CURVE- THROUGH A CURVE WITH AN ANGLE OF 29-31-36 HAVING AN ARC DISTANCE OF 10. 31 FEET TO THE NORTH LINE OF SAID SUBDIVISION. SAID POINT BEING THE SOUTHWEST CORNER OF LOT 1 OF SAID PLAT. THENCE SOUTH 89-30- 28- EAST ALONG THE NORTH LINE OF SAID SUBDIVISION AND SOUTH LINE OF SAID PLAT 200 FEET TO THE TRUE POINT OF BEGINNING LESS THE COUNTY ROAD. 2 . LOTS 1, 2 , 3 AND 4 OF SINGH SHORT PLAT (SP-85-6) AS RECORDED UNDER 8601290312 . 3 . LOT 2 OF CAMBRIDGE SOUTH SHORT PLAT (SP-78-39) AS RECORDED UNDER 7903220530. I-6