ORD 23-970 - Granting Franchise to Highline Water DistrictORDINANCE NO.23-970
AN ORDINANCE of the City of Federal Way, Washington, granting
Highline Water District, a nonexclusive franchise to occupy rights -of -
way in the City of Federal Way, Washington, within the specified
franchise area for the purposes of constructing, maintaining, operating,
replacing, and repairing a public water system within and throughout
the City of Federal Way.
WHEREAS, the City of Federal Way requires Highline Water District to obtain a franchise in
order to operate and maintain a water service distribution system within the rights -of -way; and
WHEREAS, the City Council of Federal Way finds it is in the public interest to grant such a
franchise, which will specify the rights and duties of Highline Water District; and
WHEREAS, RCW 35A.47.040 permits the City of Federal Way to grant nonexclusive
franchises for the use of public streets, bridges or other public ways for utilities, inter alia, pipes,
hydrants, services and appurtenances thereof for water service; and for other publicly and privately
owned and operated facilities for public services; and
WHEREAS, in granting such a nonexclusive franchise, the City of Federal Way reserves
such other powers and authorities granted to Washington code cities by general law and specifically
reserves its right to adopt further regulations under its police powers.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Definitions
Where used in this Franchise the following terms shall be defined as follows:
1.1 "City" means the City of Federal Way, Washington, a municipal corporation of the
State of Washington, and its respective successors and assigns.
1.2 "Council" means the City of Federal Way Council acting in its official capacity.
Ordinance No. 23-970 Page 1 of 36
1.3 "Director" means the Public Works Director, or designee, of the City of Federal Way
Public Works Department.
1.4 "Facilities" means Franchisee's water distribution system and appurtenances located
or to be located within the public right-of-way.
1.5 "Franchise Area" means that portion of the rights -of -way located in the City of
Federal Way and shown in Exhibit A attached hereto, and/or any other areas approved by the Federal
Way City Council and incorporated into this Ordinance via amendment.
1.6 "Franchisee" means Highline Water District, a Washington special purpose
municipal corporation, and its respective successors and assigns if consented to by the City of
Federal Way as provided in Section 27.3 herein.
1.7 "FWRC" means the Federal Way Revised Code.
1.8 "Public Project" means City initiated capital improvement project as listed in the
City's Capital Improvement Plan, including, but not limited to, roadway improvement, pedestrian
improvement projects, and City -owned utility, that is undertaken by or on behalf of the City and is
funded by the City (either directly with its own funds or with other public funds obtained by the
City).
1.9 "Rights -of -way" means the surface of and space along, above, and below any street,
road, highway, freeway, lane, sidewalk, alley, court, boulevard, parkway, drive, and/or unimproved
right-of-way now or hereafter be laid out, platted, dedicated, acquired, or improved within the
present or extended limits of the City.
1.10 "Services" means public service business (as such term is defined in RCW
82.16.010), gas, steam, liquid fuels, water, sewer, and private and public owned and operated
facilities for public services.
Ordinance No. 23-970 Page 2 of 36
1.11 "Utility Easement", means a property right concerning a designated parcel(s) of land
giving utility companies the permitted use of all or a portion of the private property for the good of
the community.
Section 2. Grant/Acceptance
2.1 Grant of Franchise. The City hereby grants to Franchisee the nonexclusive right to
enter upon the Franchise Area for the limited purpose of constructing, excavating, installing,
maintaining, restoring, and repairing Facilities within the Franchise Area. This Franchise is
specifically limited to the right for Franchisee to install and maintain Facilities owned and operated
by Franchisee. Nothing contained within this Franchise shall be construed to grant or convey any
right, title, or interest in the Rights -of -Way of the City to Franchisee other than for the purpose of
providing the Services, nor to subordinate the primary use of the Rights -of -Way as a public
thoroughfare. If Franchisee desires to expand the Services provided within the City, it shall provide
written notification of the addition of such services prior to the addition of the service. This Section
does not restrict the Franchisee's ability to utilize telemetric devices to monitor and operate its water
distribution system or to monitor and control the usage.
2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor
shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee shall,
within thirty (30) days after the effective date of this Franchise, file with the City its written
acceptance of this Franchise and all of its terms and conditions. In addition, Franchisee shall submit
proof of insurance obtained and additional insured endorsement pursuant to Section 24. The
administrative fee authorized in Section 22.1 is due within thirty (30) days of receipt of the invoice
from the City.
Ordinance No. 23-970 Page 3 of 36
Section 3. City Proper /Non -Exclusive Franchise
3.1 City Property. This Franchise does not and shall not convey any right to Franchisee
to install its Facilities on, under, over, across, or to otherwise use City -owned or leased properties of
any kind outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use
any City -owned or leased property within the Franchise Area other than the Rights -of -Way unless an
easement is granted.
3.2 Non -Exclusive Franchise. This Franchise is not an exclusive Franchise and shall not
be construed to in any manner prohibit the City from granting other and further Franchises in, under,
over, upon, and along the Franchise Area, nor from exercising such other powers and authorities
granted to the City by the Washington State Constitution and general law, including the City's right
to adopt future regulations under its police powers. Such Franchise shall in no way prevent or
prohibit the City from using any of said roads, streets, or other public properties or affect its
jurisdiction over them or any part of them, and the City shall retain power to make all necessary
changes, relocations, repairs, maintenance, establishment, improvement, dedication of same as the
City may deem fit, including the dedication, establishment, maintenance, and improvement of all
new Rights -of -Way, thoroughfares, and other public properties of every type and description.
3.3 No Impairment of Easement Rights. The terms of this Franchise shall not impair or
interfere with Franchisee's rights under any Utility Easements that cover areas within any existing or
future City Rights -of -Way. The Franchisee's easement rights shall remain in effect unless formally
relinquished by the Franchisee or condemned by the City.
3.4 Relinquishment of Easements. The City may request that Franchisee relinquish its
easements on current or formerly private property that has or will become City property pursuant to a
public or private project. Within fourteen (14) days of such request, the City and Franchisee shall
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meet, confer, and negotiate with respect to the appropriate relocation or adjustment costs to be paid
to Franchisee by City in exchange for relinquishment of said easements. If, following the
negotiation, the City and Franchisee are able to agree to the appropriate relocation or adjustment
costs, then the Franchisee shall relinquish said easements and the City shall pay Franchisee the
negotiated relocation or adjustment costs.
3.5 Operation Costs. To the extent permitted by law and as otherwise expressed in this
Franchise, Franchisee shall be solely responsible for the operation, maintenance, repair, and
construction of its Facilities.
Section 4. Term
Subject to Franchisee filing its acceptance pursuant to Section 2.2, the term of this Franchise
shall be for a period of ten (10) years commencing on the effective date of this Franchise, unless
terminated earlier pursuant to this Franchise or other applicable law. The Franchise will
automatically extend for up to two (2), five (5) year periods, unless either party, not less than one
hundred eighty (180) days prior to the expiration of the Franchise, provides the other party of its
intent to terminate the Franchise at the end of the current Franchise term.
Section 5. Hydrants and Fire Suppression S sty em Costs
In exchange for other good and valuable considerations in the Franchise, the parties agree that
during the term of the Franchise, Franchisee shall be responsible for costs to operate and maintain all
portions of the water system, including fire hydrants and those components of the water system that
provide fire suppression benefits (collectively the Fire Suppression System) within Franchisee's
corporate boundary inside the Franchise Area.
Ordinance No. 23-970 Page 5 of 36
Section 6. Location of Facilities
6.1 Location. The Facilities permitted by this Franchise shall be installed underground,
except for features required to be above ground (e.g. hydrants, air releases, valve boxes, meter
boxes). The location of the Facilities, their depths below the surface of ground or grade of a right-of-
way, if available, and any related existing equipment to which the Facilities are connected shall be
depicted on a map and submitted within fifteen (15) days upon written request of the City. Franchisee
shall update such map to reflect actual or anticipated improvements to the water system. Any such
map (or update thereof) so submitted shall be for informational purposes only and shall not obligate
Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to
undertake any specific improvements.
6.2 WSDOT. To the extent that any Rights -of -Way within the Franchise Area are part of
the state highway system ("State Highways") these parts of the Franchise Area are considered
managed access by the City and are governed by the provisions of Chapter 47.24 RCW and
applicable Washington State Department of Transportation ("WSDOT") regulations, Franchisee shall
comply fully with said WSDOT requirements in addition to this Franchise, local ordinances and
other applicable regulations. Without limitation of the foregoing, Franchisee specifically agrees that:
6.2.1 Any pavement trenching and restoration performed by Franchisee
within State Highways shall meet or exceed applicable WSDOT requirements;
6.2.2 Any portion of a State Highway damaged or injured by Franchisee
shall be restored, repaired, and/or replaced by Franchisee to a condition that meets or exceeds
applicable WSDOT requirements; and
Ordinance No. 23-970 Page 6 of 36
6.2.3 Without prejudice to any right or privilege of the City, WSDOT is
authorized to enforce in an action brought in the name of the State of Washington any condition
of this Franchise with respect to any portion of a State Highway.
6.3 GIS Data. At such time as Franchisee develops or employs Geographic Information
System ("GIS") technology, Franchisee shall submit the information required in Section 6.1 above in
digital GIS format, showing the location of its Facilities within the Franchise Area.
6.4 DesigLi Markings. In the event the City desires to design a Public Project, Franchisee
shall at the City's request, provide the location of Franchisee's underground Facilities within the
Franchise Area by either field markings or by locating the Facilities on the City's design drawings,
and shall provide all other reasonable cooperation and assistance to the City.
6.5 One Call Locator Service. Prior to doing any work in the Franchise Area, the
Franchisee shall follow established procedures, including contacting the Utility Notification Center
in Washington and comply with all applicable State statutes regarding the One Call Locator Service
pursuant to Chapter 19.122 RCW. Further, upon request from a third party or the City, Franchisee
shall locate its Facilities consistent with the requirements of Chapter 19.122 RCW. The City shall not
be liable for any damages to Franchisee's Facilities or for interruptions in service to Franchisee's
customers that are a direct result of Franchisee's failure to locate its Facilities within the prescribed
time limits and guidelines established by the One Call Locator Service regardless of whether the City
issued a permit.
Section 7. Noninterference of Facilities
7.1 Maintenance of Facilities. Franchisee agrees to maintain its Facilities and perform
any and all activities authorized by this Franchise: (1) so as not to unreasonably interfere with the
free passage of traffic; (2) in accordance with the laws of the State of Washington and City Code
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requirements, Franchise provisions, regulations, resolutions and rules, as now existing or as hereafter
amended; and (3) as required by the Director. This requirement applies whether the work is
performed by the Franchisee, its agents, employees, subcontractors, or other third parties at
Franchisee's direction.
7.2 Franchisee shall provide routine maintenance a minimum of three (3) feet in all
directions to ensure visibility of above ground Facilities. Any damage to the Franchisee facilities due
to the inability of the City to reasonably "see" such facilities during the course of City shoulder
maintenance work shall be the responsibility of the Franchisee. The Franchisee shall not be
responsible for damages caused by the negligent, willful acts or by a failure of the City to utilize
reasonable care in their maintenance work.
7.3 Interference with Use of the Streets. When installing, locating, laying, or maintaining
Facilities, apparatus, or improvement, Franchisee shall not interfere with the use of any street to any
greater extent than is necessary, and shall leave the surface of any such street in as good condition as
it was prior to performance by Franchisee of such work. Any Facility, apparatus, or improvement
shall be laid, installed, located, or maintained in conformance with instructions given by, and to the
satisfaction of the City. In any event, Franchisee shall, at its own expense, and to the satisfaction of
the City in accordance with the terms of the right-of-way permit, restore to City standards and
specifications any damage or disturbance caused to streets as a result of Franchisee's construction or
operations.
Section 8. Requirement to Obtain Permits & Work in the Rights -of -War
8.1 Permits and Permit A lications. Franchisee shall, at its expense, obtain all permits,
including rights -of -way permits, and pay all permit fees required by applicable City ordinances,
regulations, resolutions, and rules prior to commencing any work within the Franchise Area. The
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manner of excavation, construction, installation, backfill, and temporary structures such as, but not
limited to, traffic turnouts and road obstructions shall meet the standards of the FWRC and be
satisfactory to the Director. All traffic control shall be in accordance with the right-of-way permit,
and shall be in accordance with the Manual on Uniform Traffic Control Devices ("MUTCD")
8.2 Emergency Exce tion to Permit R uirement. In the event of an emergency in which
Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger the
property, life, health, or safety of any individual, Franchisee may take action immediately to correct
the dangerous condition without first obtaining any required permit so long as: (1) Franchisee
informs the City of the nature and extent of the emergency, and the work to be performed, as soon as
reasonably possible relative to such emergency activity; and (2) such permit is obtained by
Franchisee as soon as practicable following cessation of the emergency.
8.3 Routine Maintenance. Franchisee shall have the right to conduct routine maintenance
to repair, modify, supplement, replace or upgrade Franchisee's Facilities, provided the Franchisee
shall obtain any necessary right-of-way use permit and any other permits or authorizations required
by all applicable federal, state and local laws, rules, and regulations prior to performance of any said
routine maintenance. The following non -emergency related activities such as water main flushing,
valve exercising, fire hydrant exercising and other activities as approved shall be allowed to occur
under the annual maintenance blanket permit.
8.4 Work in the Rights -of -Way. During any period of relocation, construction or
maintenance, all work performed by Franchisee or its contractors and subcontractors shall be
accomplished in a safe and workmanlike manner, so to minimize interference with the free passage
of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all
times post and maintain proper barricades, flags, flaggers, lights, flares and other measures as
Ordinance No. 23-970 Page 9 of 36
required for the safety of all members of the general public and comply with all applicable safety
regulations during such period of construction as required by the ordinances of the City or the laws
of the State of Washington, including RCW 39.04.180 for the construction of trench safety systems.
8.5 Coordination of Activities. Franchisee shall meet with the City and other franchise
holders and users of the Rights -of -Way upon written notice as determined by the City, to schedule
and coordinate construction in the Rights -of -Way. All construction locations, activities, and
schedules shall be coordinated, as ordered by the City to minimize public inconvenience, disruption
or damages.
8.6 Public Notification of Activities. At least three (3) days prior to its intended
construction of Facilities, except those activities that impact the use of the adjacent property for less
than an eight, (8) hour period, Franchisee shall inform all residents in the immediately affected area
that a construction project will commence, the dates and nature of the project, and provide a toll -free
or local phone number which the resident may call for further information. A pre-printed door
hanger may be used for this purpose.
Section 9. Standard of Performance
9.1 Backfilling Requirements. The Franchisee shall not excavate for a distance of more
than one hundred feet (100') without immediately backfilling and compacting to surface grade and
City standards. Backfilled trench areas within a driving lane must be patched, either temporarily or
permanently, before the end of the workday in which they have been opened. Trench areas within the
Rights -of -Way, but not within a driving lane, must also be patched within the time limits specified by
the City on the right-of-way use permit.
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9.2 Restoration Standards. Final surface restoration shall be completed within thirty (30)
days after completion of the work and shall be equal to or better than the surface condition prior to
permit issuance in accordance with the City of Federal Way Development Guidelines.
9.3 Asphalt Overlay. Any asphalt overlay completed within the Franchise Area
performed by the City or other third -parry during the five (5) year -period immediately prior to the
date of permit issuance shall not be open cut by Franchisee unless required by an emergency and
subject to the provisions of Section 9.2 above. Franchisee shall install new asphalt overlay on any
street that is open cut, whether in an emergency or otherwise, for a minimum of one (1) block
(approximately 500 feet) in length from the open cut, unless determined otherwise by the Director.
9.4 As -Built Maps. Within fifteen (15) days of a written request by the City, Franchisee
shall submit to the Director plans, stamped by a Professional Engineer licensed by the State of
Washington, showing the "as -built" location of the Facilities.
9.5 Joint Trench. If Franchisee shall at any time plan to make excavations in any area
covered by this Franchise, Franchisee shall afford the City, upon receipt of a written request to do so,
an opportunity to share such excavation, PROVIDED THAT:
9.5.1 Such joint use shall not unreasonably delay the work of the
Franchisee causing the excavation to be made;
9.5.2 Such joint use shall be arranged and accomplished on terms and
conditions satisfactory to both parties; and
9.5.3 Franchisee may deny such request for safety reasons.
9.6 Open Utility Trenches. Franchisee shall be entitled to reasonable access to open
utility trenches when the City is constructing new utility trenches, provided that such access does not
Ordinance No. 23-970 Page 11 of 36
interfere with the City's placement of utilities or increase the City's costs. Franchisee shall pay to the
City the actual cost to the City resulting from providing Franchisee access to an open trench,
including without limitation the pro rata share of the costs of access to an open trench, additional
costs, as determined by the City, attributed to Franchisee due to Franchisee's request to access the
utility trenches, and any costs associated with the delay of the completion of a Public Project.
Further, the City may deny such requests if:
9.6.1 Such joint use unreasonably delays the work of the City;
9.6.2 . The parties cannot agree on terms and conditions; or
9.6.3 Granting access to the utility trench creates a safety concern.
9.7 Safety. Franchisee shall, at all times, employ professional care and shall install and
maintain and use industry -standard methods for preventing failures and accidents that are likely to
cause damage, injuries, or. nuisances to the public. All structures and all lines, equipment, and
connections in, over, under, and upon the Rights -of -Ways, wherever situated or located, shall at all
times be kept and maintained in a safe condition. Franchisee shall comply with all federal, state, and
City safety requirements, rules, regulations, laws, and practices, and employ all necessary devices as
required by applicable law during the construction, operation, maintenance, upgrade, repair, or
removal of its Facilities. Upon reasonable notice to Franchisee, the City reserves the general right to
inspect the Facilities to evaluate if they are constructed and maintained in a safe condition.
9.8 Additional Safety Standards.
9.8.1 Franchisee shall endeavor to maintain all equipment and Facilities
in an orderly manner, including, but not limited to, the removal of all unused pipe and,
appurtenances within Rights -of -Way.
Ordinance No. 23-970 Page 12 of 36
9.8.2 All installations of equipment, and Facilities shall be installed in
accordance with industry -standard engineering practices and shall comply with all federal, state,
and local regulations, ordinances, and laws.
9.8.3 Any opening or obstruction in the Rights -of -Way or other public
places made by Franchisee in the course of its operations shall be protected by Franchisee at all
times by the placement of adequate barriers, fences, or boarding, the bounds of which, during
periods of dusk and darkness, shall be clearly marked and visible.
9.9 Stop Work Order. On notice from the City that any work is being performed contrary
to the provisions of this Franchise, or in an unsafe or dangerous manner as determined by the City, or
in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the
work may immediately be stopped by the City. The stop work order shall:
9.9.1 Be in writing;
9.9.2 Be given to the person doing the work or posted on the work site;
9.9.3 Be sent to Franchisee by overnight delivery;
9.9.4 Indicate the nature of the alleged violation or unsafe condition; and
9.9.5 Establish conditions under which work may be resumed.
Section 10. Survey Markers and Monuments
10.1 Survey Markers and Monuments. Franchisee shall, using a licensed surveyor,
immediately replace all markers or monuments disturbed during any work by Franchisee within the
Franchise Area. Franchisee shall pay all costs associated with such lost, destroyed or disturbed
monuments or markers.
Ordinance No. 23-970 Page 13 of 36
10.2 Surface Markings/Stakes. Prior to Franchisee commencing any excavation work
within the Franchise Area, Franchisee shall reference all monuments and markers relating to
subdivisions, plats, highways, and other surveys. The reference points shall be located so that they
shall not be disturbed during the Franchisee's operations under this Franchise. The method of
referencing these monuments or other points shall be approved by the City before placement. The
construction shall be made as expeditiously as conditions permit, and as directed by the City. The
cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement of
the monuments, shall be borne solely by the Franchisee. A complete set of reference notes for
monuments and other ties shall be filed with the City.
Section 11. Work of Subcontractors and Contractors
Franchisee's contractors and subcontractors shall be licensed and bonded in accordance with
State law and the City's ordinances, regulations, and requirements. Work by contractors and
subcontractors are subject to the same restrictions, limitations, and conditions as if the work were
performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors
and subcontractors and others performing work on its behalf as if the work were performed by
Franchisee and shall ensure that all such work is performed in compliance with this Franchise and
applicable law.
Section 12. Ri ht of City to Complete Work
12.1 Non-CompliancelWork Performed by City. In the event Franchisee fails to comply
with any applicable federal, state or City laws, ordinances, rules, regulations, or standards or with
any of the terms of this Franchise, or if such work by Franchisee endangers property or the public
and such noncompliance continues for a period of ten (10) days after Franchisee receives written
notice from the City regarding the noncompliance, the City may, but in no event is the City obligated
Ordinance No. 23-970 Page 14 of 36
to, order any work completed, including without limitation Franchisee's obligation to repair pursuant
to Section 14 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section
13 herein. If the City causes such work to be done by its own employees or by any person or entity
other than Franchisee, Franchisee shall, upon the City's written request, immediately reimburse the
City for all reasonable costs and expenses incurred by the City in having such work performed,
which costs may include the City's reasonable overhead expenses and attorneys' fees; however, the
City shall not have any water work accomplished by any person or entity other than Franchisee or a
qualified and licensed water utility contractor.
12.2 EmergencyErnggengy Work Performed b Ci . The City retains the right and privilege to cut or
move any Facilities located within the Rights -of -Way of the City, as the City may determine to be
necessary, appropriate, or useful in response to any public health or safety emergency. Consistent
with Section 22.2, Franchisee shall reimburse the City for the costs associated with the repair.
12.3 No Liability for Damage. The City shall not be liable for any damage to or loss of
Facilities within the Rights -of -Way as a result of or in connection with any public works, public
improvements, construction, grading, excavation, filling, or work of any kind in the Rights -of -Way
by or on behalf of the City, except to the extent directly and proximately caused by the negligence or
willful acts of the City, its employees, contractors, or agents. The City shall further not be liable to
Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any
type as a direct or indirect result of the City's actions under this Section 12 except to the extent
caused by the negligence or willful acts of the City, its employees, contractors, or agents.
Section 13. Required Relocation of Facilities
13.1 City Reservation ofRiglits. The City reserves the right to use, occupy and enjoy all
or any part of the Franchise Area, either above, below, or adjacent to the Facilities, for any purpose
Ordinance No. 23-970 Page 15 of 36
that is not inconsistent with the terms and conditions of this Franchise. The rights reserved herein
include, without limitation, the construction, installation, and/or maintenance of any electrical, sewer
or storm drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes,
equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects.
13.2 City's Duties. In the event the City undertakes any work, Public Project, or necessary
maintenance within the Rights -of -Way in which Franchisee's facilities are located, and such work
necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, the City
shalt
13.2.1 Pursuant to RCW 35.21.905, or as amended, consult with the
Franchisee in the predesign phase of any such Public Project in order to coordinate the
project's design with Franchisee's Facilities within the project area.
13.2.2 Provide the Franchisee, at least one hundred twenty (120) days prior to
the advertisement for bid of construction of such Public Project, written notice that a project is
expected to require the relocation of Franchisee's 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 Franchisee's Facilities.
13.2.3 Coordinate and work diligently with the Franchisee to minimize
conflicts between existing Facilities and the project improvements where possible, and to avoid
having the Franchisee relocate its Facilities, whenever possible. The Franchisee acknowledges that
there may be situations and circumstances where no other feasible alternatives are available.
13.2.4 Nothing in this section shall be construed as to relieve Franchisee of its
duty and obligation to relocate its Facilities, at Franchisee's sole cost, for any improvement project
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undertaken by, or on behalf of, the City in the interest of public health, safety, welfare, or necessity,
as adjudged in the sole discretion of the City.
13.3 Franchisee's Duties. Within one hundred twenty (120) days of receipt of the City
notice under Section 13.2.2 requiring relocation and receipt of the plans and specifications pursuant
to Section 13.2.2, Franchisee shall raise, lower, or move such Facilities within the Franchise Area at
its sole cost and expense to the location or position directed by the City, to cause the least
interference with the improvement, repair, or alteration contemplated by the City and to conform to
such new grades as may be established. If the City improves a Right -of -Way, Franchisee shall, at its
sole cost and expense, upon receipt of notice, replace the Facilities located in the improved subgrade
of the improvement with substitute Facilities conforming to the specifications for the improvement
of the Right -of -Way.
13.4 Relocation Alternatives. After receipt of such notice and such plans and
specifications, Franchisee may submit to the City written alternatives to such relocations within
thirty (30) days. The City shall within a reasonable time evaluate such alternatives and advise the
Franchisee 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, Franchisee 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 none of the alternatives is suitable, the City shall provide the Franchisee with further
written notice to that effect, and the Franchisee shall then relocate its Facilities by its own forces, by
separate public works contract or by participating in the City's Public Project. The City shall
cooperate with the Franchisee 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
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than one hundred twenty (120) days after further written notice to the Franchisee as to the Facilities
to be relocated. Franchisee must finish relocation of each such Facility by the date so established.
13.5 Delay. Upon a notification of a relocation delay due to Franchisee, Franchisee agrees
to work cooperatively with the City, other franchisees and utilities and the City's third -party
contractor to resolve any such issues. If the Franchisee is unable to informally resolve the claims of
a City contractor, subcontractor, and/or a third -party claim that arises from Franchisee's relocation
delays, the Franchisee shall indemnify, defend and hold harmless the City pursuant to Section 23
from costs, claims or liability arising from such delay. The delay claim of a City utility whose
funding and operations are required by Washington state law to be kept separate from those of the
City's general fund shall be considered a third party claim for the purposes of this resolution process
and the indemnity. The parties acknowledge and agree that Franchisee shall not be responsible for
these indemnifications, defense or hold harmless requirements and/or costs, claims, liability and/or
damages due to delays caused by circumstances beyond the control of Franchisee; the negligence,
willful misconduct, unreasonable delay of the City, or failure of the City to give timely notice(s); or
the negligence, willful misconduct or delay of any unrelated third party. In the event that the acts of
a third party as set forth in the preceding sentence contribute to the delay, the Franchisee may be
liable for its proportionate share of the costs, claims or liability. Circumstances beyond the control of
Franchisee is defined for purposes of this Franchise as strikes, lockouts, sit-down strike, unusual
transportation delays, riots, floods, washouts, - explosions, earthquakes, .fire, storms, weather
(including inclement weather which prevents construction), acts of the public enemy, wars, terrorism,
insurrections, pandemics, government orders or mandates, and any other similar act of God event.
13.6 Locate. Upon request of the City and in order to facilitate the design of City street
and Rights -of -Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and if
Ordinance No. 23-970 Page 18 of 36
reasonably determined necessary by the City, to excavate and expose its Facilities for inspection so
that the Facilities' location maybe taken into account in the improvement design. The decision as to
whether any Facilities need to be relocated in order to accommodate the City's improvements shall
be made by the City upon review of the location and construction of Franchisee's Facilities; and in
compliance with Section 13.3 The City shall provide Franchisee at least fourteen (14) days' written
notice prior to any request for excavation or exposure of Facilities. The City will issue to the
Franchisee any required permits to locate the Franchisee's Facilities at no cost to the Franchisee.
13.7 Third Party Relocations. Whenever any person or entity, other than the City, requires
the relocation of Franchisee's 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 Franchisee to relocate the
existing Facilities.
Section 14. DarnaU Repair
In case of damage caused by the Franchisee, its agents or employees, or by the Franchisee's
Facilities to Rights -of -Way, or to public and private improvements within or adjacent to Rights -of -
Way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall,
upon discovery of any such damage, immediately notify the City. The City will inspect the damage
and set a time limit for completion of the repair. If the City discovers damage caused by the
Franchisee to Rights -of -Way, or to public and private improvements within or adjacent to Rights -of -
Way, the City shall give the Franchisee notice of the damage and set a time limit in which the
Franchisee must repair the damage. In the event the Franchisee does not repair a right-of-way or an
improvement as required in this section, the City may repair the damage pursuant to Section 12 of
this Agreement. Notwithstanding the foregoing, Franchisee shall not be responsible for damages
caused by third parties or resulting from other utility facilities or conditions.
Ordinance No. 23-970 Page 19 of 36
Section 15. Default
15.1 Remedies. The City may elect, without any prejudice to any of its other legal rights
and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to
comply with the provisions of the Franchise and to recover damages and costs incurred by the City
by reason of Franchisee's failure to comply. In addition to any other remedy provided herein, the City
reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and
assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not
prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions
herein. Provided, further, that by entering into this Franchise, it is not the intention of the City or
Franchisee to waive any other rights, remedies, or obligations as otherwise provided bylaw equity, or
otherwise, and nothing contained herein shall be deemed or construed to effect any such waiver.
15.2 Notice and Cure; Darnages. If. Franchisee shall violate, or fail to comply with any of
the provisions of this Franchise, or should it fail to heed or comply with any notice given to
Franchisee under the provisions of this Franchise, the City shall provide Franchisee with written
notice specifying with reasonable particularity the nature of any such breach and Franchisee shall
undertake commercially reasonable efforts to cure such breach within thirty (30) days of receipt of
notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days,
the City may specify a longer cure period, and condition the extension of time on Franchisee's
submittal of a plan to cure the breach within the specified period, commencement of work within the
original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach
is not cured within the specified time, or Franchisee does not comply with the specified conditions,
City may, at its discretion, (1) commence revocation proceedings pursuant to Section 15.3, or (2)
pursue other remedies as described in Section 15.1 above.
Ordinance No. 23-970 Page 20 of 36
15.3 Revocation of Franchise. If Franchisee willfully violates or fails to comply with any
of the provisions of this Franchise, or through willful misconduct or gross negligence fails to heed
or comply with any notice given Franchisee by the City under the provisions of this Franchise, then
Franchisee shall, at the election of the Federal Way City Council, forfeit all rights conferred
hereunder and this Franchise may be revoked or annulled by the Council after a hearing held upon
notice to Franchisee.
Section 16. Limited Rights
This Franchise is intended to convey only a limited right and interest to Franchisee in the
Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest in
or to the Franchise Area to Franchisee. The City reserves the right to limit or exclude Franchisee's
access to a specific route, public Rights -of -Way or other location when, in the judgment of the
Director there is inadequate space (including but not limited to compliance with ADA clearance
requirements and maintaining a clear and safe passage through the Rights -of -Way); a pavement
cutting moratorium, unnecessary damage to public property, public expense, inconvenience, or
interference with City utilities; provided that Franchisee shall be granted reasonable access to
existing Facilities.
Section 17. Eminent Domain
The existence of this Franchise shall not preclude the City from acquiring by condemnation,
in accordance with applicable law, all or a portion of Franchisee's Facilities within the Franchise
Area for the fair market value thereof. In determining the value of such Facilities, no value shall be
attributed to the right to occupy the Franchise Area conferred by this Franchise.
Ordinance No. 23-970 Page 21 of 36
Section 18. Non -Assumption
In consideration of the Franchisee bearing all costs for Fire Suppression Systems as described
in Section 5, and for 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 Franchisee or any Franchisee's 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 Franchisee or any Franchisee's
responsibilities, property, facilities, equipment or utility customers located within or without the
City's corporate limits during the term of this Franchise.
Section 19. Vacation
If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City
shall notify Franchisee in writing not less than thirty (30) days before vacating all or any portion of
the Franchise Area, if Franchisee has Facilities within such area planned for vacation. The City may,
after thirty (30) days written notice to Franchisee, terminate this Franchise with respect to any such
vacated area. At Franchisee's request, the City will, if practicable, reserve an easement for
Franchisee's existing facilities to continue to use the vacated area. Franchisee must provide to the
City information necessary for the City to reserve such easement within the thirty (30) day period.
The City will not be liable for any damages or loss to the Franchisee by reason of such vacation
provided notice was properly given in accordance with this Section.
Ordinance No. 23-970 Page 22 of 36
Section 20. Compliance with Laws
20.1 General. Franchisee shall comply with all applicable federal, state and City laws,
franchises, resolutions, regulations, standards, policies and procedures, as now existing or hereafter
amended or adopted, including without limitation the State Environmental Policy Act; provided,
however, that if any term or condition of this Franchise and any term or condition of any City law,
code, franchise, resolution, regulation, standard, procedure, permit, or approval are in conflict, the
term or condition of this Franchise will control.
20.2 Future City of Federal Way Re lgu ation. Franchisee acknowledges that the City may
pursuant to the City's legitimate police power to protect the safety and welfare of the general public,
develop rules, regulations, ordinances, and specifications for the use of the Rights -of -Way which
shall govern Franchisee's Facilities and activities hereunder, provided that the City shall not
unreasonably affect or modify any portion of this Franchise without the Franchisee's written
approval.
Section 21. Guarantee
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of ten (10) years after completion by the Franchisee against settlement or repair including
Facilities and Rights -of -Way restoration, except for settlement and repairs caused by the actions of
the City or third parties, or conditions beyond the control of the Franchisee.
Section 22. Charge for Administrative Costs
22.1 Administrative Fee. Franchisee shall pay a one-time fee for the actual administrative
expenses incurred by the City that are directly related to receiving and approving this Franchise,
including the costs associated with the City's legal costs incurred in drafting and processing this
Franchise. Such administrative fee shall be offset against the fee deposit required pursuant to FWRC
Ordinance No. 23-970 Page 23 of 36
4.22.040; provided, however, if the administrative fee exceeds the fee deposit, then the Franchisee
shall remit such additional amounts within thirty (30) days of receipt of an invoice from the City. No
construction permits shall be issued for the installation of Facilities authorized until such time as the
City has received payment of this fee. Franchisee shall further be subject to all permit fees associated
with activities undertaken through the authority granted in this Franchise or under the laws of the
City. Where the City incurs costs and expenses for review, inspection, or supervision of activities,
including but not limited to reasonable fees associated with attorneys, consultants, City Staff and
City Attorney time, undertaken through the authority granted in this Franchise or any ordinances
relating to the subject for which a permit fee is not established, Franchisee shall pay such costs and
expenses directly to the City in accordance with the provisions of Section 22.3.
22.2 Emergency Repair Costs. In addition to Section 22.1, Franchisee shall promptly
reimburse the City in accordance with the provisions of Section 22.3 and Section 22.4 for any and all
costs the City reasonably incurs in response to any emergency situation involving Franchisee's
Facilities, to the extent said emergency is not the fault of the City or other third party.
22.3 Reimbursement of Expenses. Franchisee shall reimburse the City within sixty (60)
days of submittal by the City of an itemized billing for reasonably incurred costs, itemized by
project, for Franchisee's proportionate share of all actual, identified expenses incurred by the City in
planning, constructing, installing, repairing, altering, or maintaining any City facility as the result of
the presence of Franchisee's Facilities in the Rights -of -Way. Such costs and expenses shall include
but not be limited to Franchisee's proportionate cost of City personnel assigned to oversee or engage
in any work in the Rights -of -Way as the result of the presence of Franchisee's Facilities in the
Rights -of -Way. Such costs and expenses shall also include Franchisee's proportionate share of any
time spent reviewing construction plans in order to either accomplish the relocation of Franchisee's
Ordinance No. 23-970 Page 24 of 36
Facilities or the routing or rerouting of any City utilities so as not to interfere with Franchisee's
Facilities.
22.4 Calculation of Costs. The time of City employees shall be charged at their respective
rate of salary, including overtime if applicable, plus benefits and reasonable overhead. Any other
costs will be billed proportionately on an actual cost basis. All billings will be itemized so as to
specifically identify the costs and expenses for each project for which the City claims
reimbursement. A charge for the actual costs incurred in preparing the billing may also be included in
said billing. At the City's option, the billing may be on an annual basis, but the City shall provide the
Franchisee with the City's itemization of costs, in writing, at the conclusion of each project for
information purposes.
Section 23. Indemnification
23.1 General. Franchisee agrees to indemnify and hold harmless and defend the City, its
elected officials, officers, employees, agents, and volunteers from any and all claims, demands,
losses, actions, and liabilities (including costs and all attorneys' fees) to or by any and all persons or
entities, including; without limitation, their respective agents, licensees, or representatives, arising
from, resulting from, or connected with this Franchise to the extent caused in part or in whole by the
acts, errors or omissions of the Franchisee, its officials, agents, or employees, or by the Franchisee's
breach of any provisions of this Franchise; provided, however, that this section shall not be construed
as requiring Franchisee to indemnify, hold harmless or defend the City against claims or damages
arising from the negligence or intentional misconduct of the City, its agents or employees. These
indemnification obligations shall extend to claims that are not reduced to a suit and any claims that
may be compromised, with Franchisee's prior written consent, prior to the culmination of any
litigation or the institution of any litigation.
Ordinance No. 23-970 Page 25 of 36
23.2 Notification. In the event any claim, demand, suit or action is commenced against the
City that gives rise to Franchisee's obligation pursuant to this Section 23, the City shall promptly
notify Franchisee thereof. The City's failure to so notify and request indemnification shall not relieve
Franchisee of any liability that Franchisee might have, except to the extent that such failure
prejudices Franchisee's ability to defend such claim or suit. Franchisee's selection of an attorney to
defend any such claim, demand, suit, or action shall be subject to the City's approval, which shall not
be unreasonably withheld. Franchisee shall not settle or compromise any such suit or action except
with prior written consent of the City, which shall not be unreasonably withheld. The City shall have
the right at all times to participate through its own attorney in any suit or action which arises
pursuant to this Franchise when the City determines that such participation is required to protect the
interest of the City or the public. In the event that Franchisee refuses the tender of defense in any suit
or any claim, as required pursuant to the indemnification provisions within this Franchise, 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 Franchisee,
Franchisee shall pay all of the City's reasonable costs for defense of the action, including all expert
witness fees, costs, and attorney's fees, and including costs and fees incurred in recovering under this
indemnification provision.
23.3 Limits on Indemnit An the event it is determined that RCW 4.24.115 applies to this
Franchise, Franchisee agrees to defend, hold harmless and indemnify the City to the maximum extent
permitted thereunder, to the full extent of Franchisee's negligence. It is further specifically and
expressly understood that the indemnification provided constitutes Franchisee's waiver of immunity
under Title 51 RCW, solely for the purposes of this indemnification, relating solely to indemnity
Ordinance No. 23=970 Page 26 of 36
claims made by the City directly against the Franchisee for claims made against the City by
Franchisee's employees. This waiver has been mutually negotiated by the parties.
23.4 Inspection or Acceptance of Work. Inspection or acceptance by the City of any work
performed by Franchisee at the time of completion of construction shall not be grounds for avoidance
by Franchisee of any of its obligations under this Section 23. Notwithstanding any other provisions
of this Section 23, Franchisee assumes the risk of damage to its Facilities located in the Rights -of -
Way and upon City -owned property from activities conducted by the City, its officers, agents,
employees, volunteers, elected and appointed officials, and contractors, except to the extent any such
damage or destruction is caused by or arises from any negligent, willful, or criminal actions on the
part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or
contractors. Franchisee further agrees to indemnify, hold harmless and defend the City against any
claims for damages, including, but not limited to, business interruption damages, lost profits and
consequential damages, brought by or under users of Franchisee's Facilities as the result of any
interruption of service due to damage or destruction of Franchisee's Facilities caused by or arising
out of activities conducted by the City, its officers, agents, employees or contractors, except to the
extent any such damage or destruction is caused by or arises from the negligence or any willful, or
criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or
appointed officials, or contractors.
Section 24. Insurance
24.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following
insurance, in such forms and with such carriers as are satisfactory to the City.
24.1.1 Workers' compensation and employer's liability insurance in
amounts sufficient pursuant to the laws of the State of Washington;
Ordinance No. 23-970 Page 27 of 36
24.1.2 Commercial general liability insurance with combined single limits
of liability not less than $5,000,000 for bodily injury, including personal injury or death, products
liability, contractual coverage, operations, explosion, collapse, underground and property
damage; and
24.1.3 Automobile liability insurance with combined single limits of
liability not less than $5,000,000 for bodily injury, including personal injury or death, and
property damage.
24.1.4 Umbrella liability policy with limits not less than $1,000,000 per
occurrence and $5,000,000 in the aggregate.
24.1.5 If Franchisee maintains umbrella insurance (primary, excess, or a
combination thereof) that exceeds the above insurance limits, such insurance shall constitute
compliance with this Section.
24.2 MandatoKy Insurance Provisions. The comprehensive general liability insurance and
automobile liability insurance policies shall be endorsed to contain the following provisions:
24.2.1 The City, its officers, elected officials, employees, and volunteers are to
be named as additional insured;
24.2.2 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; coverage shall be
primary as to the City, its officers, officials, employees, and volunteers. Any insurance or self-
insurance by the City, its officers, officials, employees, or volunteers shall be in excess of
Franchisee's required insurance.
Ordinance No. 23-970 Page 28 of 36
24.3 Verification of Coverage. Franchisee shall furnish the City with certificates of
insurance and original endorsements evidencing the coverages required by this Section. The
certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage
on its behalf and must be received and approved by the City prior to the commencement of any work.
At the City's request, Franchisee shall deliver certified copies of all required insurance policies.
24.4 Cancellation of Policy. Upon receipt of notice from its insurer(s) Franchisee shall use
commercially reasonable efforts to provide the City with thirty (30) days prior written notice of any
such cancellation. Within fifteen (15) days prior to said cancellation or intent not to renew,
Franchisee shall obtain and furnish to the City replacement insurance policies meeting the
requirements of this Section 24. Failure to provide the insurance cancellation notice and to furnish to
the City replacement insurance policies meeting the requirements of this Section 24 shall be
considered a material breach of this Franchise and subject to the City's election of remedies
described in Section 15.1 and above. Notwithstanding the cure period described in Section 15.2, the
City may pursue its remedies immediately upon a failure to furnish replacement insurance.
24.5 No Limitation on Liability. Franchisee's maintenance of insurance as required by this
Section 24 shall not be construed to limit the liability of Franchisee to the coverage provided by such
insurance, or otherwise limit the City's recourse to any remedy available at law or equity. Further,
Franchisee's maintenance of insurance policies required by this Franchise shall not be construed to
excuse unfaithful performance by Franchisee.
24.6 Self -Insurance. As of the effective date of this Franchise, Franchisee is not self -
insured. Should Franchisee wish to become self -insured at the levels outlined in this Franchise at a
later date, Franchisee must provide the City with thirty (30) days advanced written notice of its intent
to self -insure. In order to self -insure, Franchisee shall comply with the following: (i) provide a
Ordinance No. 23-970 Page 29 of 36
written attestation that Franchisee possesses the necessary amount of unencumbered financial assets
to support the financial exposure of self: insurance, as evidenced by an outside auditor's review of
Franchisee's financial statements;.(ii) the City, upon request, may review Franchisee's financial
statements; (iii) Franchisee is responsible for all payments within the self -insured retention; and (iv)
Franchisee assumes all defense and indemnity obligations as outlined in the indemnification section
of this Franchise. These requirements. may be modified by written amendment executed by both
parties.
Section 25. Bond
The Franchisee, as a public agency, shall not be required to comply with the City's standard
bonding requirement for working in the City's Rights -of -Way.
Section 26. Abandonment
26.1 In the event that the use of any part of the Facilities are discontinued for any reason
for a continuous period of six (6) months or more, or in the event such system or property has been
installed in any Rights -of -Way or other public place without complying with the requirements of this
Franchise or other City ordinances, Franchisee shall, upon being given thirty (30) days' notice,
remove at its expense all such discontinued Facilities other than any which the City may permit to be
abandoned in place, with approval not to be unreasonably withheld. In the event of such removal,
Franchisee shall promptly restore the Rights -of -Way or other areas from which such property has
been removed to a condition satisfactory to the City.
26.2 Any property of Franchisee remaining in place ninety (90) days after such notice,
termination or expiration of this Franchise shall be considered permanently abandoned. The City may
extend such time not to exceed an additional ninety (9.0) days. Any costs incurred by the City in
safeguarding such Facilities or removing the Facilities shall be reimbursed by Franchisee. Nothing
Ordinance No. 23-970 Page 30 of 36
contained within this Section 26 shall prevent the City from compelling Franchisee to remove any
such Facilities through judicial action when the City has not permitted Franchisee to abandon said
Facilities in place.
26.3 Any property of Franchisee to be abandoned in place shall be abandoned in such
manner as the City shall prescribe. Upon permanent abandonment of the property of Franchisee in
place, the property shall become that of the City, and Franchisee shall submit to the City Clerk an
instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of
such property.
26.4 The provisions of this Section 26 shall survive the expiration, revocation, or
termination of this Franchise.
Section 27. General Provisions
27.1 Entire Agreement. This Franchise contains all of the agreements of the Parties with
respect to any matter covered or mentioned in this Franchise and no prior agreements or
understandings pertaining to any such matters shall be effective for any purpose.
27.2 Modification. No provision of this Franchise maybe amended or added to except by
agreement in writing signed by both of the Parties.
27.3 Assignment. All of the provisions, conditions, and requirements herein contained
shall be binding upon the Franchisee, and no right, privilege, license or authorization granted to the
Franchisee 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 Franchisee 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.
Ordinance No. 23-970 Page 31 of 36
27.4 Governing Law. This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington. Venue for any dispute related to
this Franchise shall be the United States District Court for the Western District of Washington, or
King County Superior Court.
27.5 Authoritv+. Each individual executing this Franchise on behalf of the City and
Franchisee represents and warrants that such individual is duly authorized to execute and deliver this
Franchise on behalf of the Franchisee or the City.
27.6 Notices. Any notices required to be given by the City to Franchisee or by Franchisee
to the City shall be delivered to the parties at the following addresses:
CITY OF FEDERAL WAY
Attn: Public Works Director
33325 8th Avenue South
Federal Way, WA 98003
with a copy to:
CITY OF FEDERAL WAY
Attn: City Attorney
33325 8th Avenue South
Federal Way, WA 98003
HIGHLINE WATER DISTRICT
Attn: General Manager
23828 30th Ave S
Kent, WA 98032
Any notices shall be delivered personally to the addressee of the notice or sent by United
States certified mail, postage prepaid, to the address set forth herein. Any notice so sent shall be
deemed received three (3) business days after the date of mailing.
27.7 Captions. The respective captions of the sections of this Franchise are inserted for
convenience of reference only and shall not be deemed to modify or otherwise affect in any respect
any of the provisions of this Franchise.
Ordinance No. 23-970 Page 32 of 36
27.8 Remedies Cumulative. Any remedies provided for under the terms of this Franchise
are not intended to be exclusive but shall be cumulative with all other remedies available to the City
at law, in equity or by statute.
27.9 Hazardous Substances. Franchisee shall not introduce or use any hazardous
substances (chemical or waste), in violation of any applicable law or regulation, nor shall Franchisee
allow any of its agents, contractors or any person under its control to do the same. Franchisee will be
solely responsible for and will defend, indemnify and hold the City, its officers, officials, employees,
agents and volunteers harmless from and against any and all claims, costs and liabilities including
reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of
the property associated with Franchisee's use, storage, or disposal of hazardous substances, whether
or not intentional, and the use, storage, or disposal of such substances -by Franchisee's agents,
contractors or other persons acting under Franchisee's control, intentional or not.
Section 28. Severability
If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or
unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not
affect the validity or constitutionality of any other section, sentence, clause, or phrase of this
Franchise.
Section 29. Ratification
Any act consistent with the authority and prior to the effective date of this Franchise is hereby
ratified and affirmed.
Section 30. Effective Date
This Franchise shall take effect and be in full force five (5) days after its passage and
publication, according to law (see Effective Date below).
Ordinance No. 23-970 Page 33 of 36
PASSED by the City Council of the City of Federal Way this 8th day of November, 2023.
CITY OF FEDERAL WAY:
ATTEST:
SVPHIkNIE COURTNEY, C C, ITY CLERK
APPROVED AS TO FORM:
J. RYAN CALL, CITY ATTORNEY
FILED WITH THE CITY CLERK: 10/11/2023
PASSED BY THE CITY COUNCIL: 11/08/2023
PUBLISHED: 11/17/2023
EFFECTIVE DATE: 11/22/2023
ORDINANCE NO.: 23-970
Ordinance No. 23-970 Page 34 of 36
ACCEPTANCE:
The undersigned hereby accepts all the rights and privileges of the above granted License and
acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions
and obligations contained therein.
DATED this 2t> day of 1���"t�C—�� , 20.
HIGHLINE WATER DISTRICT:
By; �-
Its: M
Ordinance No. 23-970 Page 35 of 36
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Ordinance No. 23-970 Page 36 of 36