ORD 12-728ORDINANCE NO. 12-728
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FEDERAL WAY, WASHINGTON, GRANTING CITY OF TACOMA
DEPARTMENT OF PUBLIC UTILITIES, WATER DIVISION, A
MUNICIPAL CORPORATION AND PUBLIC UTILITY SELLING
AND DISTRIBUTING WATER WITHIN KING COUNTY, A
NONEXCLUSIVE FRANCHISE TO OCCUPY THE RIGHTS-OF-
WAY OF THE CITY OF FEDERAL WAY, WASHINGTON,
THROUGH THE FRANCHISE AREA FOR THE PURPOSES OF
CONSTRUCTING, MAINTAINING, REPAIRING, RENEWING AND
OPERATING A WATER DISTRIBUTION AND TRANSMISSION
SYSTEM AND ACCESSORIES WITHIN AND THROUGH THE CITY
OF FEDERAL WAY AND ADDRESSING HYDRANT COSTS
WITHIN CITY BOUNDARIES.
WHEREAS, the City Council of Federal Way finds that it is in the public interest to specify
the rights and duties of the water utility through a franchise; an�l
WHEREAS, in exercising said authority pursuant to RCW 35A.47.040 relating to franchises
and permits, the City of Federal Way reserves such other powers and authorities held by Washington
code cities; now therefore,
THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1. Definitions
Where used in this Franchise the following terms sha11 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.
1.3 "Director" means the Public Works Director, or designee, of the City of Federal
Way Public Works Department.
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1.4 "Facilities" means water pipes, mains, appurtenances and accessories necessary for
the transmission and distribution of water within the Franchise Area.
1.5 "FWRC" means the Federal Way Revised Code.
1.6. "Franchise Area" means City owned or maintained rights-of-way and the BPA
corridor as set forth in Exhibit A. Exhibit A may be updated by the City upon the City's acquisition
or vacation of right-of-way.
l. 7 "Franchisee" means City of Tacoma, dba Tacoma Public Utilities, a municipal
corporation, and public utility, and its respective successors and assigns.
1.8 "Public Fire Protection" means fire hydrants, the water distribution system to make
the hydrants operational, the necessary hydrant water supply, and related system and administrative
activities.
Section 2. Grant/Acceptance
2.1 Grant of Franchise. The City does hereby grant to Franchisee, subject to the terms
of this Franchise, the right, privilege, authority and franchise to:
(a) Lay, construct, extend, repair, renew, and replace Facilities in the Franchise
Area; and
(b) To charge and collect toIls, rates and compensation for such water service
and such uses.
2.2 Acceptance bv Franchisee. Franchisee shall have no rights under this Franchise,
nor shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee
shaIl, within sixty (60) days after the effective date of this Franchise, file with the City its written
acceptance of this Franchise and a11 of its terms and conditions.
Ordinance No. 12-728 Page 2 of 23
Section 3. Conditions of Use.
3.1 Non-Franchise Area Cit,�Property. The Franchisee shall place Facilities in the
Franchise Area, but not on any other public property owned, in whole or in part, leased, or otherwise
occupied by the City unless an easement is granted.
3.2 Termination of Easements. Easements held by Franchisee over property located in the
existing and/or future Franchise Area shall terminate if the easement area becomes right-of-way. In
the event the azea becomes City owned right-of-way and upon the City's request, Franchisee shall
sign a release terminating such easements.
3.3 Operation costs. Franchisee sha11 be solely responsible for the opera.tion, maintenance
repair and construction of its Facilities.
3.4 Abandonment. When section 6.3 applies or for new Franchisee projects, Franchisee
will notify the City when a Facility has been deemed obsolete and its use discontinued. The Facility
shall be removed by Franchisee, at its expense, within one hundred (180) days of the date the
Facility's use is discontinued or in conjunction with the City's approved project. The City may deem
a Franchisee's Facility obsolete and require that it be removed if the Facility has been replaced with a
new Facility and the old Facility ceases to be operational for more than ninety (90) days. If
Franchisee fails to remove the Facility, the City or its agent may cause the Facility to be removed
pursuant to Section 14 of the Franchise. However, with the express written consent of the City,
Franchisee may leave such Facility in place. The City's consent shall not relieve Franchisee of the
obligation and/or costs to subsequently remove or relocate such Facility at the City's request, in
which case Franchisee shall perform such work at no cost to the City in accordance with Section 15.
The provisions of this Section shall survive the expiration, revocation or termination of this
Ordinance No. 12-728 Page 3 of 23
Franchise.
Section 4. Term.
Subject to Franchisee filing its acceptance pursuant to Subsection 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 the terms of this Franchise or other applicable law. This
Franchise may be renewed for one additional ten (10) year period upon written request of Franchisee
and acceptance by the City not more than two (2) years or less that one hundred eighty (180) days
prior to the expiration of the initial term.
Section 5. Public Fire Protection. Franchise Fee and Utilitv Tax.
Franchisee sha11 bear full responsibility for Public Fire Protection and any associated costs
and shall not assess those costs against the City. In exchange, the City shall forego the imposition of
a Franchise fee or utility tax on Franchisee in addition to the other benefits derived from this
Franchise. The parties agree that the terms of this section are consistent with the Supreme Court's
rulings in Lane v. City of Seattle, 164 Wn.2d 875 (2008) and City of Tacoma v. Citv of Bonney
Lake, 173 Wn.2d 584 (2012) and all claims arising out of or associated with Citv of Tacoma v. Citv
of Bonney Lake. King County Superior Court Cause No. 09-2-45435-3 are hereby resolved. Section
Section 6. Location of Facilities
6.1 Location. The location of existing water pipes, laterals, and appurtenances, their
depths below surface of ground or grade of a right-of-way (if available), shall be submitted to the
City in the form of a map(s) showing the approximate location of Franchisee's existing water
system within the Franchise Area. Upon written request of the City, Franchisee shall update such
map to reflect actual or anticipated improvements to the system. Any such map (or update
Ordinance No. 12-728 Page 4 of 23
thereo� 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 undertalce
any specific improvements.
6.2 GIS Data. The Franchisee shall provide, at such time as Franchisee develops and
employs, Geographic Information System ("GIS") technology for its water utility maps and records
throughout its service area and has such information available in digital GIS format for its Facilities
within the Franchise Area.
6.3 Desi�n Markings. In the event the City desires to design new streets or intersections,
renovate existing streets, or make any other public improvements, Franchisee shall at the City's
reasonable request, provide the location of Franchisee's underground Facilities, and use due diligence
to locate and mark its abandoned 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.
6.4 No Warrantv or Waiver. Nothing herein is intended to relieve the parties of their
respective obligations arising under Chapter 19.122 RCW or other applicable law with respect to
determining the location of utility facilities prior to construction. Further, neither the provisions
of this Franchise nor the absence of any specific provision in this Franchise is intended to limit,
detract from or render ineffective any disclaimer (including, without limitation, any disclaimer as
to accuracy or completeness) placed by Franchisee on any map furnished to the City pursuant to
Section 6.2 of this Franchise.
Section 7. Noninterference of Facilities
Franchisee agrees to maintain its Facilities and perform all work within the Franchise Area:
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(I) 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 ordinances, regulations resolutions and rules, and (3) as required
by the Director.
Section 8. Requirement to Obtain Permits
8.1 Permits. 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. Franchisee permit applications shall
show the position and location of the mains, laterals, and extensions to be constructed, laid, installed,
or erected at that time, show their relative position to existing rights-of-way or property lines upon
prints drawn to scale, designate rights-of-way by their names and improvements, such as, but not
limited to, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to
property lines, turnouts, pazking strips, telephone or electric distribution poles, and water pipes
existing on the ground to be occupied, or as required by the Director. The level of detail for water
services and hydrant laterals shall be commensurate with the complexity of the work to be
performed. The Franchisee shall specify the class and type of materials.to be used, equipment to be
used, and mode of safeguarding and facilitating the public traffic during construction. Materials and
equipment shall be in new or like-new condition for its type and kind. The 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). The Franchisee shall
indicate on the right-of-way use permit application the time needed to complete the work. The time
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needed to complete the work is subject to approval by the City as a condition of the issuance of the
right-of-way permit.
8.2 Emer�cv. 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 such permit is obtained by Franchisee as soon as
practicable thereafter. Franchisee will inform the City of the nature and extent of the emergency and
the work to be performed prior to or at the commencement of the work, if reasonably possible, or
immediately following cessation of the emergency.
8.3 Notice of Entrv. At least forty-eight (48) hours prior to entering right of way adjacent
to or on private property to perform the installation, maintenance, repair, reconstruction, or removal
of Facilities, except those emergency activities exempted from permit requirements or non-permit
work, a written notice describing the nature and location of the work to be performed shall be
communicated to the private property occupant by Franchisee. Examples of accepta.ble notice
include but are not limited to a pre-printed door hanger, mailed letter, and/or sandwich boazds.
Section 9. Standard of Performance
The Franchisee shall not excavate for a distance of more than one hundred feet (100') without
immediately backfilling and compacting to surface grade and permit requirements.
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 right-of-
way, but not in a driving lane must also be patched within the time limits specified by the City on
the right-of-way use permit. Final surface restoration shall be completed within thirty (30) days
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and shall be equal to or better than the surface condition prior to permit issuance.
Any asphalt overlay in the Franchise area within fve (5) years of the date of a permit
application, shall not be open cut by the Franchisee unless in an emergency. Streets that are open cut
will require asphalt overlay for approximately one (1) blocks in length or as determined by the
Director.
Franchisee shall, in carrying out any authorized activities within the Franchise Area,
comply with all applicable laws, ordinances, codes and standards, as now existing or hereafter
adopted or amended, and shall comply with the terms of this Franchise, whether or not the work
is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at
Franchisee's direction. Upon completion of any water main installation of Franchisee's Facilities
within the Franchise Area, the "as-built" location of the Facilities sha11 be within two (2) feet of
the location of the Facilities shown in the plans submitted by Franchisee to the City's Public Works
Department or closer if required by State law. Nothing herein is intended to relieve the parties of
their respective obligations arising under applicable law with respect to determining the
location of utility facilities.
Section 10. Survev 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 a11 costs
associated with such lost, destroyed or disturbed monuments or markers.
Section 11. Surface Markings/Stakes
Prior to Franchisee commencing any excavation work within the Franchise Area,
Ordinance No. 12-728 Page 8 of 23
Franchisee shall reference all monuments and markers relating to subdivisions, plats, highway, 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 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
sha11 be filed with the City. In the event of any conflict or inconsistency between this Section 11
and Chapter 19.122 RCW, as now existing or hereafter amended, Chapter 19.122 RCW will
control.
Section 12. Notification to fire district
If it is necessary to shut down or diminish the water pressure so that fire hydrants may be
affected, the Franchisee shall notify the appropriate fire district by telephone followed by faxed
transmittal or written notification, that water pressure or fire flow conditions have been affected.
In case of a planned shutdown or diminished water flow, at least forty-eight (48) hour prior
notification to the fire district is required. If more than one fire hydrant is affected, Franchisee
must provide a map of the affected area to the appropriate fire district.
Section 13. Ri�ht of Cit�to Undertake Maintenance Work
The laying, construction, maintenance, and operation of Franchisee's system of water
pipe, laterals and appurtenances granted under this franchise shall not preclude the City, its
accredited agents or its contractors from doing necessary maintenance work contiguous to the
Facilities, provided that the Franchisee shall have sufficient notice of blasting or excavating in
Ordinance No. 12-728 Page 9 of 23
order that Franchisee may protect its lines or pipe or property.
Section 14. Right of City to Com�lete Work
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, and such
noncompliance continues for a period of fourteen (14) calendar days after Franchisee receives
written notice from the City regarding the noncompliance, the City may, but in no event is the City
obligated to, order any work completed, including without limitation Franchisee's obligation to repa.ir
pursuant to Section 9 herein and Franchisee's obligation to remove Facilities pursuant to Section 15
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 plumbing work accomplished by any person or entity other than Franchisee.
Section 15. Notice to Franchisee of Work bv Citv
15.1 City Reservation of Rights• The City reserves the right to use, occupy and enjoy
the Franchise Area for any purpose that is not inconsistent with the terms and conditions of this
Franchise. The rights reserved herein include, without limitation, the construction of any
electrical, water, sewer or storm drainage line, installation of traffic signals, street lights, trees,
landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and
other public street improvement projects. This Franchise is not an exclusive franchise. Without
limiting Franchisee's rights under this Franchise, this Franchise shall not in any manner prohibit the
City from granting other and further franchises in, under, over, upon, and along the Franchise Area.
Ordinance No. 12-728 Page 10 of 23
15.2 City's Duties. In the event the City undertakes any work, including necessary
maintenance within a right-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 sha11:
(a) Provide written notice to Franchisee requesting such relocation within a
reasonable time prior to the commencement of such City work; and
(b) Provide Franchisee with copies of pertinent portions of the City's plans and
specifications for such City work so that Franchisee may relocate its Facilities to
accommodate such City work.
15.3 Franchisee's Duties. After receipt of the City notice requesting the relocation of the
Facilities pursuant to Subsection 15.2(a) and receipt of the plans and specifications pursuant to
Subsection 15.2(b), Franchisee shall, within thirty (30) days of notification, or such time as
approved by the Director, raise, lower, or move such Facilities within the Franchise Area at its
sole cost and expense so as to conform to such new grades as may be esta.blished, and place the
pipe in a location or position causing the least interference with the improvement, repair, or
alteration contemplated by the City. If the City improves the Franchise Area, Franchisee shall at its
sole cost and expense, upon receipt of notice, replace the pipe or pipes located in the improved
subgrade of the improvement with pipe or pipes conforming to the specifications for the
improvement of the Franchise Area. For all transmission mains, defined as mains exceeding 24
inches in diameter, within the Franchise Area, whether in rights-of-way or easements, the City will
attempt to design its projects to minimize the need for relocation. In the event the City's design calls
for the relocation of a transmission main, the City and Franchisee will meet to discuss potential
Ordinance No. 12-728 Page 11 of 23
redesign solutions. Before moving forward with the development of a redesign, the City will provide
Franchisee with an estimate of the costs of the redesign and construction. Any additional redesign or
construction costs incurred by the City shall be borne by Franchisee. If a redesign is not reasonably
feasible, then Franchisee shall relocate the transmission main at its sole cost.
15.4 Exclusivitv. This Section 15 shall govern all relocations of Franchisee's Facilities
required in accordance with this Franchise. Nothing in this Section 15 shall require Franchisee to
bear any cost or expense in connection with the location or relocation of any Facilities existing under
benefit of easement on property owned by a person or entity other than the City.
Section 16. Damage Repair
In case of damage by the Franchisee or by the Facilities of the Franchisee to rights-of-way, or
to public and private improvements 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 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 to a right-of-way as required in this section, the City may
repair the damage pursuant to Section 14 of this Agreement.
Section 17. General Maintenance
Franchisee will maintain Facilities located within the Franchise Area in good operating
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condition and repair in a manner consistent with applicable law and prudent utility practice, and
will comply with the following procedures:
(a) Franchisee will provide the City, on an annual basis upon the City's written
request, a proposed schedule of its routine water main replacement or repair activities within the
Franchisee Area. If known at the time of the City's request, Franchisee will include other
proposed activities that aze scheduled to be done in the Franchise Area. Similarly, the City will
provide the Franchisee, on an annual basis, its overlay and other upcoming CIP projects.
(b) The parties will meet, at least annually upon either party's written request, to discuss
concerns regarding the timing, scope, nature or method of such repair or replacement activities and
upcoming CIP projects within the Franchisee Area.
Section 18. Intentionally omitted.
Section 19. Default
19.1 Notice of Default. If Franchisee shall fail to comply with any of the provisions of
this Franchise, the City may serve a written notice to Franchisee ordering such compliance and
Franchisee shall have sixty (60) days from the receipt of such notice in which to comply.
19.2 Revocation of Franchise. If Franchisee is not in compliance with this Franchise
after the expiration of the sixty (60) day period, the City may, by ordinance, declare an immediate
forfeiture of this Franchise.
Section 20. Limited Rights
This Franchise is intended to convey only a limited right and interest to Franchisee in the
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Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest
in or to the Franchise Area to Franchisee.
Section 21. Eminent Domain
The existence of this Franchise sha11 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.
Section 22. Vacation
If at any time the City, by ordinance, vacates all or any portion of public streets, roads
andlor rights-of-way within the Franchise Area, the City will not be liable for any damages or loss to
the Franchisee by reason of such vacation. The City agrees to exert reasonable good faith
efforts to reserve an easement for Franchisee's lines and Facilities when a street, public way, or area
is vacated. The City may, after thirty (30) days written notice to Franchisee, terminate this
Franchise with respect to any such vacated azea.
Section 23. Comnliance with Laws
Franchisee sha11 comply with all applicable federal, state and City laws, ordinances,
resolutions, regulations, standards and procedures, as now existing or hereafter amended or
adopted, including without limitation the State Environmental Protection Act, the Federal
Occupational Safety and Health Act of 1970 (OSHA), and the Washington Safety .and Health Act of
1973 (WISHA); provided, however, that if any term or condition of this Franchise and any
term or condition of any City law, code, ordinance, resolution, regulation, standazd, procedure,
permit or approval are in conflict, the term or condition of this Franchise will control.
Ordinance No. 12-728 Page 14 of 23
Section 24. Guarantee
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of twenty (20) years against settlement or repair.
Section 25. Char�e for Administrative Costs
Franchisee agrees to pay a fee or charge to recover the actual reasonable administrative
expenses incurred by the City in the amount of $3,400.00, which is directly related to preparing and
approving this Franchise. Nothing herein shall preclude the City from recovering any administrative
costs incurred by the City in the approval of permits or in the supervision, inspection or examination
of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable
provisions of the FWRC.
Section 26. Indemnification
Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials,
officers, employees, agents, and volunteers from any and a11 claims, demands, losses, actions and
liabilities (including costs and all attorney 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 officers, partners, shareholders, agents, employees, or by the
Franchisee's breach of any provisions of this Franchise; provided, however, that this section sha11 not
be construed as requiring Franchisee to indemnify, hold harmless or defend the City against claims or
damages arising from the negligence of the City, its agents or employees. In the event any claim,
demand, suit or action is commenced against the City which gives rise to Franchisee's obligation
pursuant to this Section 26, the City shall promptly notify Franchisee thereof, and Franchisee shall
Ordinance No. 12-728 Page 1 S of 23
use attorneys selected by the City. 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 it is determined that RCW 4.24.115 applies
to this Franchise, Franchisee agrees to defend, hold harmless and indemnity the City to the
Maximum extent permitted thereunder, to the full extent of Franchisee's negligence.
Franchisee hereby releases, covenants not to bring suit and agree to indemnify, defend and
hold harmless the City from any and all claims arising against the City by virtue of Franchisee's
exercise of the rights granted herein.
Section 27. Insurance
27.1 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.
(a) Workers compensation and employer's liability insurance in amounts
sufficient pursuant to the laws of the State of Washington;
(b) 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
(c) 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.
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27.2 Mandatory Insurance Provisions. The comprehensive general liability insurance
and automobile liability insurance policies shall be endorsed to contain the following provisions:
(a) The City, its officers, elected officials, employees, and volunteers are to be
named as additional insured;
(b) 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;
(c) Coverage shall not be suspended, canceled, modified or reduced except
after thirty (30) days prior written notice to the City delivered by certified mail, return
receipt requested; and
(d) 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 sha11 be in excess of Franchisee's required insurance.
27.3 Verification of Covera�e. Franchisee shall furnish the City with certificates of
insurance and original endorsements evidencing the coverage 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.
27.4 Self-Insurance. In satisfying the insurance requirements set forth in this
Section, Franchisee may self-insure against such risks in such amounts as are consistent with good
utility practices. Franchisee shall provide the City with sufficient written evidence, upon request, that
such insurance (or self-insurance) is being so maintained by Franchisee. Such written evidence sha11
include, to the extent available from Franchisee's insurance carrier, a written certificate of insurance
Ordinance No. 12-728 Page 17 of 23
with respect to any insurance maintained by Franchisee in compliance with this Section.
Section 28. General Provisions
28.1 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.
28.2 Modification. No provision of this Franchise may be amended or added to except
by agreement in writing signed by both of the Parties.
28.3 Assi�nment. Franchisee sha11 not have the right to transfer or assign, in whole or in
part, any or all of its obligations and rights hereunder without the prior written consent of the
City. Any assignee shall, within thirty (30) days of the date of any approved assignment, file written
notice of the assignment with the City together with its written acceptance of all terms and conditions
of this Franchise. Notwithstanding the foregoing, Franchisee shall have the right,
without such notice or such written contest, to mortgage its rights, benefits and privileges in and
under this Franchise to the Trustee for its bondholders.
28.4 Attornev Fees. In the event the City or the Franchisee defaults on the performance
of any terms in this Franchise, and the Franchisee or the City places the enforcement of the Franchise
or any part thereof or the collection of any monies due, or to become due hereunder, in
the hands of an attorney, or files suit upon the same, the prevailing party shall be entitled to an
award of all reasonable attorneys' fees, costs and expenses. The venue for any dispute related to
this Franchise shall be King County, Washington.
28.5 No Waiver. Failure of either party to declare any breach or default by the other
party immediately upon the occurrence thereof, or delay in taking any action in connection
Ordinance No. 12-728 Page 18 of 23
therewith, shall not waive such breach or default, but such party shall have the right to declare any
such breach or default at any time. Failure of either party to declare one breach or default does not
act as a waiver of such party's right to declare another breach or default.
28.6 Governing Law• This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the Sta.te of Washington.
28.7 Authori . Each individual executing this Franchise on behalf of the City and
Franchisee represents and watrants that such individual is duly authorized to execute and deliver
this Franchise on behalf of the Franchisee or the City.
28.8 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:
Franchisee:
Tacoma Public Utilities
P.O. Box 11007
Tacoma, WA 98411-0007
City:
City of Federal Way
Attn: City Attorney
33325 8�' Ave South
Federal Way, WA 98063
Any notices may be delivered personally to the addressee of the notice or may be deposited in
the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the
United States mail shall be deemed received three (3) days after the date of mailing.
28.9 Captions. The respective captions of the sections of this Franchise are inserted for
convenience of reference only and sha11 not be deemed to modify or otherwise affect in any
respect any of the provisions of this Franchise.
28.10 Remedies Cumulative. Any remedies provided for under the terms of this
Ordinance No. 12-728 Page 19 of 23
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.
Section 29. Severabilitv
Should any section, subsection, paragraph, sentence, clause, or phrase of this chapter, or its
application to any person or situa.tion, be declared unconstitutional or invalid for any reason, such
decision shall not affect the validity of the remaining portions of this chapter or its application to any
other person or situation. The City Council of the City of Federal Way hereby declares that it would
have adopted this chapter and each section, subsection, sentence, clauses, phrase, or portion thereof,
irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or
portions be declared invalid or unconstitutional.
Section 30. Corrections.
The City Clerk and the codifiers of this ordinance are authorized to make necessary
corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors,
references, ordinance numbering, section/subsection numbers and any references thereto.
Section 31. Ratification. Any act consistent with the authority and prior to the effective
date of this ordinance is hereby ratified and affirmed.
Section 32. Effective Date. This ordinance shall take effect and be in force thirty (30)
days from and after its passage and publication, as provided by law.
PASSED by the City Council of the City of Federal Way this 18`� day of September 2012.
CITY OF FEDERAL WAY
MA OR, P PRIEST
Ordinance No. 12-728 Page 20 of 23
ATTEST:
CITY CLERK, CARO MCNE LY, CMC
APPROVED AS TO FORM:
��
CI Y ATTORNEY, PATRICIA A. RICHARDSON
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTTVE DATE:
ORDINANCE NO.:
8/28/2012
9/18/2012
9/21/2012
10/21/2012
12-728
Ordinance No. 12-728 Page 21 of 23
��� � 3628 South 35th Street
� Tacoma, Washington 98409-3192
�
TACOMA WATER TACOMA PUBLIC UTILITIES
November 28, 2012
Peter B. Beckwith
Assistant City Attorney
City of Federal Way
33325 8�' Avenue South
Federal Way, WA 98063
Re: Tacoma Water Acceptance of Federal Way Franchise, Ordinance No. 12-728
Dear Mr. Beckwith,
In accordance with section 2.2 of Ordinance No. 12-728, Tacoma Water is hereby filing
our franchise acceptance with the City of Federal Way. Please find enclosed the
franchise with original acceptance signature on page 22.
Sincerely,
,.. �;a� , _ _- - -'
Heather L: Pennington, P.E.
Deputy Water Superintendent/
Asset and Information Management
Enclosure
ACCEPTANCE:
The undersigned hereby accepts all the rights and privileges of the above ganted Francluse
and acknowledges that such riglits and privileges are subject to and limited by ali of the terms,
canditions and obligations contaitted therein.
DATED this ��day of �D'�-W�b-�/ , 2012.
4� �(�Ct�-
sy: I.i v�d�. �C.ire�
Its: �tOrF�' �/ � ���`� �i Vl,'�/'� '1�
Orrllnm�ce No. 12-728 Page 22 of 23
EXHIBIT A
FRANCHISE AREA
City of Tacoma Water Service Area ':i�y 'peae a a'ap�t i
Federal Way & Second Supply Pipeline ��2A•A'A'CI�o��E���3�-�T
tl
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t S
n
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Legend
j` FranchiseArea
I_ J ',b'ater Sen�ice Area
Federal 'dJay Ciry Limis
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This ma,: �s �n-ende� fcr u�
as a grs;.hicalrepr�.,en:a�c�.
"fhs -y ,-�deral':;ayrnakas '�.
!10 'h'3(i3(1C{ 3S :O I:S 3CCUf3C'y'
Ordrnance No. 12-728 Page 23 of 23