HomeMy WebLinkAbout4693 Ordinance - Reciprocal Franchise Agreement - Pasco - Franklin County Irrigation District & FCID Res 2023-003ORDINANCE NO. 4693
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON, GRANTING TO AND RECEIVING
FROM THE FRANKLIN COUNTY IRRIGATION DISTRICT NO. 1
MUTUAL, RECIPROCAL FRANCHISES FOR EASEMENT AND
RIGHT-OF-WAY USE.
WHEREAS, Franklin County Irrigation District No. 1 (hereinafter the "District")
operates an irrigation district both inside and outside the corporate boundaries of the City
of Pasco (hereinafter the "City"), all within Franklin County, Washington; and
WHEREAS, the City is a Municipal Corporation providing utility services and
other services to residents inside and outside the City of Pasco but also located in Franklin
County, State of Washington; and
WHEREAS, the District and the City each have rights -of -way and easements
through which they provide their respective services; and
WHEREAS, the District and the City have facilities located in and/or needing to
be located in one another's easements and rights -of -way; and
WHEREAS, the District and the City are desirous of providing the best services
that each can provide to the public and of coordinating their efforts of such at the least cost
to each the City and the District and thus to the general public whom they serve; and
WHEREAS, with the City Council's approval of this Ordinance and with the
District's approval of its Resolution Number 2023-003, the District and the City evidence
their entry into reciprocal franchise agreements set forth hereinbelow.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Grant of Reciprocal Right to Use Franchise. For valuable
consideration, the sufficiency of which is hereby acknowledged, and for the mutual
benefits, covenants and promises contained herein, the City and the District hereby agree
and grant reciprocal franchises to one another as follows:
A. The City grants to the District and the District grants to the City, reciprocal
franchises to operate their respective utility(ies) and infrastructure in, over, across, under
and through the roads, rights -of -way and easements of the other. In the case of the City,
utilities include, but are not limited to, sewer collection and treatment, water distributions,
irrigation distribution systems, not owned by the District, and other utilities, such as
stormwater, in, over, across, under and through its own roads, rights -of -way and easements,
Ordinance — FCID Reciprocal Franchise - I
and in, over, across, under and through the rights -of -way and easements of the District.
With regard to the District, utilities include the operation of irrigation facilities for purposes
of delivering irrigation water in, over and across the City roads, rights -of -way and
easements, and in, over and across the Districts rights -of -way and easements. It is
understood by the Parties that nothing contained in this agreement shall in any way alter or
amend the terms of the previous agreement concerning Burns Road originally entered into
on January 8, 2012 (generally referred to as the "Burns Road agreement") and subsequent
amendments thereto, without mutual agreement of the parties in writing.
B. The Franchises include the right to locate, construct, install, maintain,
relocate, and remove any of said systems or utilities by the party owning or providing for
the same. Each Party is authorized to install, remove, construct, erect, operate, maintain,
relocate and repair its facilities and all necessary appurtenances thereto in, on, over and
under the roads, rights -of -way, and easements of the other, consistent with the plans,
specifications, details and schedules approved in advance by the Party in whose roads,
rights -of -way, easements the facilities are to be located in, on, over and/or under. The plans,
specifications, details, and schedules referenced in this sub -section shall include the details
and schedules for approved, satisfactory repair and replacement of the said roads, rights -
of -way, and easements.
C. The Parties each agree that if any of its actions under this Franchise
Agreement impair or damage any of the other Party's property, roads, easements, rights -
of -way, or property owned by a third -party, such Party shall give the other Party notice of
damage as soon as practical and restore, at its own cost and expense, said impaired or
damaged property to the reasonable satisfaction of the other Party or Third -party owner.
D. This Franchise is non-exclusive, and the Parties are not prohibited from
entering into other agreements, including Franchises, covering their same roads, rights -of -
way or easements.
E. The Parties agree that their use of Franchise Area shall at all times be
subordinated to and subject to the rights and interests of the Party who owns and/or or
controls the roads, easements, rights -of -way, or any portions thereof. Notwithstanding the
foregoing, the Parties agree to work together to facilitate an agreeable solution to allow the
other Party to use the controlling Party's roads, easements, rights -of -way, or any portion
thereof. Said solutions are to be reasonable and include reasonable engineering
recommendations. Where the Parties both have a mutual ownership interest in the roads,
easements, rights -of -way, and/or property, the Parties will work together to determine the
best alternatives to maintain the rights of the Parties. It is the intent of the Parties to work
for public safety and reliable work without excess requirements or over building. This
agreement applies only to utility and irrigation facilities and does not apply to recreational
use of district right of way.
F. The Parties each reserve the right to change, regrade, relocate, abandon, or
vacate any of the Party's roads, easements and/or rights -of -way within the Franchise Area.
If, at any time during the term of this Franchise, such Party vacates any portion of the
Ordinance — FCID Reciprocal Franchise - 2
Franchise Area containing the other Party's Facilities, the vacating Party shall reserve an
easement for public utilities and/or facilities within that vacated portion, pursuant to state
law, within which the non -vacating Party may continue to operate any existing Facilities
of said non -vacating Party under the terms of this Franchise for the remaining period set
forth herein.
G. Except as explicitly set forth herein, this Franchise Agreement does not
waive any rights that the Parties have or may hereafter acquire with respect to the Franchise
Area or any other roads, easements, rights -of -way, property, or any portions thereof.
H. The parties acknowledge that conflicts may arise between the District and
the City regarding their respective provision of utility services within the same locations:
1. If the District's use of City roads, rights -of -way and/or easements
for District utility facilities impairs or impedes the City's use of its roads, rights -of -
way and/or easements, or impairs or impedes the City's operation of its utilities or
utility facilities, the District will be responsible for moving or changing its utility
facilities to enable to District to provide its services without impairing City roads,
rights -of -way and/or easements or City utility facilities.
2. If the City's use of District rights -of -way and/or easements for City
utility facilities impairs or impedes the District's use of its rights -of -way and/or
easements, or impairs or impedes the District's operation of its utilities or utility
facilities, the City will be responsible for moving or changing its utility facilities to
enable to City to provide it's services without impairing District rights -of -way
and/or easements or District utility facilities.
I. With regard to any installation, relocation, removal or change of the facilities
by one party being removed from, located, or to be located, in, over, across, under and
through the roads, easements and/or rights -of -way of the other, the party initiating such
installation, relocation, removal or change shall be required to submit appropriate
applications, plans and specifications to the other party's engineer or other official
responsible for receiving and processing applications, plans and specifications relative to
the proposed changes for approval. Said applications, plans and specifications shall be
submitted to the appropriate engineer or official not less than 30 days prior to the proposed
construction or action and the respective engineer shall reply to said plans and
specifications within 14 days indicating approval or any changes as are necessitated. Any
changes that are necessitated shall be accommodated with an addition 14 days to the end
result that final plans and approval will be in place 30 days prior to the construction or
modification of any of the facilities, except in the case of emergency repairs. All plans as
specified shall incorporate reasonable engineering and construction standards for the
proposed work and neither party shall be required to overbuild facilities. Parties agree to
work together diligently to reduce review times as much as possible.
Ordinance — FCID Reciprocal Franchise - 3
J. It is acknowledged by the parties that, in certain cases, relocation of the
other parties' facilities may be required to accomplish the revision or installation proposed
by either the City or the District, being whoever is proposing the revision:
1. Any revisions or installations as are approved shall be built
according to the approved plans and specifications and as built drawings shall be
provided to the party whose facilities were moved or revised. Plans and
specifications shall be in form as approved by the respective engineers or officials
which show the position, depth or height and location of all lines and facilities
sought to be constructed, laid, installed or revised, all of which shall be on maps
showing the relative position of existing roads, rights -of -way or easements and all
of which shall be drawn to scale.
K. Upon completion of any construction, the site of construction shall be
returned to as good of condition as existed prior to the construction. With regard to any
construction, the party not doing the construction shall be authorized to inspect and approve
the construction on behalf of the party whose facilities are being altered. The Parties
acknowledge and agree that all work within roads, rights -of -way, or easements shall be
required to follow all permitting, design, and construction standards as is typical of similar
work within the City of Pasco or the Franklin County Irrigation District.
L. Any work to be performed by the parties shall be in accordance with the
plans and specifications provided by each party to the other with regard to the facilities.
The plans and specifications provided shall be consistent with typical industry or municipal
standards appropriate for the area and must be consistent. Provided further, if an existing
pipe is being replaced in its existing location and that location is within ten (10) feet of
other utility's pipeline, the new pipeline shall be grandfathered in to be placed in the same
location unless affirmatively prohibited in writing by the Department of Health,
Department of Ecology, or other controlling State of Federal governmental agency or
department, or by a court of competent jurisdiction.
Section 2. Notice.
A. Written notices to the parties shall be in writing and shall be deemed to have
been duly given if personally delivered, sent by confirmed electronic mail to the addresses
below, or by certified mail to the following addresses, unless a different address shall be
designated in writing and delivered to the other party.
City: City of Pasco Public Works Director
525 N. 3rd Avenue
Pasco, WA 99301
Email:
with a copy to: Pasco City Manager
(Same Address)
Email:
Ordinance — FCID Reciprocal Franchise - 4
And a copy to: Kerr Ferguson Law, PLLC
1950 Keene Road, Suite F-100
Richland, WA 99352
Email: eferguson@kerrlawgroup.net
District: Franklin County Irrigation District No
4320 Rd 111
Pasco, WA 99301
P.O. Box 3907
Pasco, WA 99302
Email:
With a Copy to: Leavy, Schultz and Davis, P.S.
2415 West Falls Avenue
Kennewick, WA 99336
Email:
B. Any changes to the above -stated Party information shall be sent, as soon as
practicable to the other Party.
Section 3. Term of Agreement.
A. The reciprocal franchise agreement rights granted herein shall continue
until such time as either the City or the District notifies the other, with a minimum of one
year in advance of termination, that the notifying party is withdrawing from and
terminating this Franchise Agreement.
B. Additionally, this agreement and its reciprocal Franchises shall terminate at
such time as it would be in violation of the laws of the State of Washington governing the
City and/or the District.
Section 4. Amendment or Modification. This Agreement and any of its
provisions may be modified or amended in any manner consistent with state law upon the
prior written consent of both Parties.
Section 5. Repair and Emergency Work. In the event of an emergency
affecting one or both of the Parties' facilities, the Party affected by the emergency may
commence such repair and emergency response work as required under the circumstances
to rectify and ameliorate the emergency, provided that said Party shall notify the
appropriate engineering/construction official in writing, which includes email, as promptly
as possible, before such repair or emergency work commences, or as soon thereafter as
possible, if advance notice is not practical.
Section 6. Public Information.
Ordinance — FCID Reciprocal Franchise - 5
A. The Parties understand and recognize that Washington state law limits the
ability of public agencies to shield from public disclosure any information given to them.
Accordingly, the Parties each agree to notify the other Party of any requests for public
records related to the other Party.
B. The Parties each agree to indemnify and hold harmless the other Party for
any loss or liability for fines, penalties, and costs (including attorneys' fees) imposed on
the one Party because of non -disclosures requested by the other Party.
Section 7. Indemnification and Hold Harmless. The Parties each agree to
defend, indemnify, and hold the other Party and its officers, officials, agents, employees,
and representatives harmless from any and all costs, claims, injuries, damages, losses, suits,
or liabilities of any nature including attorneys' fees arising out of or in connection with the
Party's performance under this Franchise Agreement, except to the extent such costs,
claims, injuries, damages, losses, suits, or liabilities are caused by the negligence of the
second Party.
Section 8. Insurance.
A. The Parties shall procure and maintain for the duration of this Franchise,
insurance against claims for injuries to persons or damage to property which may arise
from or in connection with the performance of the work hereunder by the Party, its agents,
representatives, or employees in the amounts and types set forth below:
1. Automobile Liability insurance covering all owned, non -owned,
hired, and leased vehicles with a minimum combined single limit for bodily injury
and property damage of $1,000,000.00 per accident. Coverage shall be written on
Insurance Services Office (ISO) form CA 00 01 or a substitute form providing
equivalent liability coverage. If necessary, the policy shall be endorsed to provide
contractual liability coverage.
2. General Liability insurance with limits of not less than
$1,000,000.00 each occurrence, $2,000,000.00 general aggregate and a
$2,000,000.00 products -completed operations aggregate limit. Coverage shall be
written on ISO occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors, products -completed operations, stop
gap liability, and personal injury and advertising injury and liability assumed under
an insured contract. The General Liability insurance shall be endorsed to provide
the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. There shall be
no endorsement or modification of the General Liability insurance for liability
arising from explosion, collapse, or underground property damage. Each of the
Parties shall name the other Party as an additional insured under the Party's General
Liability insurance policy with respect to the work performed under this Franchise
using ISO Additional Insured Endorsement CG 20 10 10 01 and Additional
Ordinance — FCID Reciprocal Franchise - 6
Insured -Completed Operations endorsement CG 20 37 10 01 or substitute
endorsements providing equivalent coverage.
3. Workers' Compensation coverage as required by the Industrial Insurance
laws of the State of Washington.
B. The insurance policies are to contain, or be endorsed to contain, the
following provisions for Automobile Liability, Professional Liability, and Commercial
General Liability insurance:
1. Each Party's insurance coverage shall be primary insurance. Any
insurance, self-insurance, or insurance pool coverage maintained by the other Party
shall be in excess of the Party's insurance and shall not contribute with it.
2. The said insurance policies shall be endorsed to state that coverage
shall not be cancelled by either parry except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best rating of not less than A:VII.
D. Each Party shall furnish the other Party with documentation of insurer's
A.M. Best rating and with original certificates and a copy of amendatory endorsements,
including but not necessarily limited to the additional insured endorsement, evidencing the
insurance requirements of the Consultant before commencement of the work.
E. Each Party shall have the right to self -insure any or all of the above -required
insurance. Either Party may satisfy these insurance requirements through their respective
coverage and membership in self-insurance pools.
F. Each Party's maintenance of insurance as required by this Franchise shall
not be construed to limit the liability of the other Party to the coverage provided by such
insurance, or otherwise limit the Parties' recourse to any remedy to which the Parties are
otherwise entitled at law or in equity.
Section 9. Dispute Resolution.
A. In the event of a dispute between the Parties arising by reason of this
Agreement, the dispute shall first be referred to the operational officers or representatives
designated by Parties to have oversight over the administration of this Agreement. The
officers or representatives shall meet within thirty (30) calendar days of either party's
request for a meeting, whichever request is first, and the parties shall make a good faith
effort to achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this manner, then
the remaining dispute shall be resolved by arbitration pursuant to RCW 7.04A, as amended,
Ordinance — FCID Reciprocal Franchise - 7
the Mandatory Rules of Arbitration (MAR), with all parties waiving the right of a jury trial
upon de novo review, with the substantially prevailing party being awarded its reasonable
attorney fees and costs against the other as awarded by the arbitrator.
Section 10. Jurisdiction and Venue. The Parties agree that this agreement shall
be governed by the laws of the State of Washington and venue for any action between the
parties shall lie in the Superior Court of Franklin County, State of Washington.
Section 11. Severability. If any section, subsection, sentence, clause, phrase or
word of this Ordinance is held to be invalid or unconstitutional by a court of competent
jurisdiction, such invalidity or unconstitutionality thereof shall not affect the validity or
constitutionality of any other section, subsection, sentence, clause, phrase or word of this
Ordinance.
Section 12. Corrections. Upon approval by the city attorney, the city clerk or
the code reviser are authorized to make necessary corrections to this Ordinance, including
scrivener's errors or clerical mistakes; reference to other local, state, or federal laws, rules,
or regulations; or numbering or referencing of Ordinances or their sections and subsections.
Section 13. This Ordinance shall take full force and effect five (5) days after
approval, passage and publication as required by law.
PASSED b the City Council of the City of Pasco, this 61h day of November, 2023.
Blanche Barad
Mayor
ATTEST:
)/0 4f t,
Debra Barham, CMC
City Clerk
Published: 6ZZ
Ordinance — FCID Reciprocal Franchise - 8
APPROVED AS TO FORM:
Kerr son Law, PLLC
Attorneys
FRANNKLIN COUNTY IRRIGATION DISTRICT NO. 1
RESOLUTION NO.2023-03
Brought before the regular meeting of the FRANKLIN COUNTY IRRIGATION
DISTRICT NO. 1, on November 7, 2023, was the matter of a Franchise Agreement between the
District and the City of Pasco.
Upon motion made b ��c�i d f L4-- Cc VV)
p y _ � _ ., and seconded by 1 ���-�- @��
and unanimously passed for the following resolution to accept the Franchise
Agreement in the form attached hereto and incorporated herein.
BE IT RESOLVED that the FRANKLIN COUNTY IRRIGATION DISTRICT NO. 1
hereby declares that the attached Franchise Agreement be accepted.
BE IT FURTHER RESOLVED that the Board Chairman and the Secretary are authorized
to execute said Franchise Agreement on behalf of the District.
DATED effective the day of 1l buem, , 2023.
GARY OLS N, Chairman/Director
MARK BRAINY, Director
t
`DAAVVID HARRIS, Director
d
TERESA PEGRA ,Director
GENEVIEVE (Genni) CURRIE, Secretary
Resolution 2023-03
Page 1
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON, GRANTING TO AND RECEIVING
FROM THE FRANKLIN COUNTY IRRIGATION DISTRICT NO. 1
MUTUAL, RECIPROCAL FRANCHISES FOR EASEMENT AND
RIGHT-OF-WAY USE.
WHEREAS, Franklin County Irrigation District No. 1 (hereinafter the "District")
operates an irrigation district both inside and outside the corporate boundaries of the City
of Pasco (hereinafter the "City"), all within Franklin County, Washington; and
WHEREAS, the City is a Municipal Corporation providing utility services and
other services to residents inside and outside the City of Pasco but also located in
Franklin County, State of Washington; and
WHEREAS, the District and the City each have rights -of -way and easements
through which they provide their respective services; and
WHEREAS, the District and the City have facilities located in and/or needing to
be located in one another's easements and rights -of -way; and
WHEREAS, the District and the City are desirous of providing the best services
that each can provide to the public and of coordinating their efforts of such at the least
cost to each the City and the District and thus to the general public whom they serve; and
WHEREAS, with the City Council's approval of this Ordinance and with the
District's approval of its Resolution Number , the District and the City evidence
their entry into reciprocal franchise agreements set forth hereinbelow.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PASCO
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Grant of Reciprocal Right to Use Franchise. For valuable
consideration, the sufficiency of which is hereby acknowledged, and for the mutual
benefits, covenants and promises contained herein, the City and the District hereby agree
and grant reciprocal franchises to one another as follows:
A. The City grants to the District and the District grants to the City,
reciprocal franchises to operate their respective utility(ies) and infrastructure in, over,
across, under and through the roads, rights -of -way and easements of the other. In the case
of the City, utilities include, but are not limited to, sewer collection and treatment, water
distributions, irrigation distribution systems, not owned by the District, and other utilities,
such as stormwater, in, over, across, under and through its own roads, rights -of -way and
Ordinance — FCID Reciprocal Franchise - 1
easements, and in, over, across, under and through the rights -of -way and easements of the
District. With regard to the District, utilities include the operation of irrigation facilities
for purposes of delivering irrigation water in, over and across the City roads, rights -of -
way and easements, and in, over and across the Districts rights -of -way and easements. It
is understood by the Parties that nothing contained in this agreement shall in any way
alter or amend the terms of the previous agreement concerning Burns Road originally
entered into on January 8, 2012 (generally referred to as the "Burns Road agreement")
and subsequent amendments thereto, without mutual agreement of the parties in writing.
B. The Franchises include the right to locate, construct, install, maintain,
relocate, and remove any of said systems or utilities by the party owning or providing for
the same. Each Party is authorized to install, remove, construct, erect, operate, maintain,
relocate and repair its facilities and all necessary appurtenances thereto in, on, over and
under the roads, rights -of -way, and easements of the other, consistent with the plans,
specifications, details and schedules approved in advance by the Parry in whose roads,
rights -of -way, easements the facilities are to be located in, on, over and/or under. The
plans, specifications, details, and schedules referenced in this sub -section shall include
the details and schedules for approved, satisfactory repair and replacement of the said
roads, rights -of -way, and easements.
C. The Parties each agree that if any of its actions under this Franchise
Agreement impair or damage any of the other Parry's property, roads, easements, rights -
of -way, or property owned by a third -party, such Party shall give the other Party notice of
damage as soon as practical and restore, at its own cost and expense, said impaired or
damaged property to the reasonable satisfaction of the other Party or Third -party owner.
D. This Franchise is non-exclusive, and the Parties are not prohibited from
entering into other agreements, including Franchises, covering their same roads, rights -
of -way or easements.
E. The Parties agree that their use of Franchise Area shall at all times be
subordinated to and subject to the rights and interests of the Party who owns and/or or
controls the roads, easements, rights -of -way, or any portions thereof. Notwithstanding
the foregoing, the Parties agree to work together to facilitate an agreeable solution to
allow the other Party to use the controlling Party's roads, easements, rights -of -way, or
any portion thereof. Said solutions are to be reasonable and include reasonable
engineering recommendations. Where the Parties both have a mutual ownership interest
in the roads, easements, rights -of -way, and/or property, the Parties will work together to
determine the best alternatives to maintain the rights of the Parties. It is the intent of the
Parties to work for public safety and reliable work without excess requirements or over
building. This agreement applies only to utility and irrigation facilities and does not
apply to recreational use of district right of way.
F. The Parties each reserve the right to change, regrade, relocate, abandon, or
vacate any of the Party's roads, easements and/or rights -of -way within the Franchise
Area. If, at any time during the term of this Franchise, such Party vacates any portion of
Ordinance — FCID Reciprocal Franchise - 2
the Franchise Area containing the other Parry's Facilities, the vacating Party shall reserve
an easement for public utilities and/or facilities within that vacated portion, pursuant to
state law, within which the non -vacating Party may continue to operate any existing
Facilities of said non -vacating Party under the terms of this Franchise for the remaining
period set forth herein.
G. Except as explicitly set forth herein, this Franchise Agreement does not
waive any rights that the Parties have or may hereafter acquire with respect to the
Franchise Area or any other roads, easements, rights -of -way, property, or any portions
thereof.
H. The parties acknowledge that conflicts may arise between the District and
the City regarding their respective provision of utility services within the same locations:
1. If the District's use of City roads, rights -of -way and/or easements
for District utility facilities impairs or impedes the City's use of its roads, rights -
of -way and/or easements, or impairs or impedes the City's operation of its utilities
or utility facilities, the District will be responsible for moving or changing its
utility facilities to enable to District to provide its services without impairing City
roads, rights -of -way and/or easements or City utility facilities.
2. If the City's use of District rights -of -way and/or easements for City
utility facilities impairs or impedes the District's use of its rights -of -way and/or
easements, or impairs or impedes the District's operation of its utilities or utility
facilities, the City will be responsible for moving or changing its utility facilities
to enable to City to provide it's services without impairing District rights -of -way
and/or easements or District utility facilities.
I. With regard to any installation, relocation, removal or change of the facilities
by one party being removed from, located, or to be located, in, over, across, under and
through the roads, easements and/or rights -of -way of the other, the party initiating such
installation, relocation, removal or change shall be required to submit appropriate
applications, plans and specifications to the other party's engineer or other official
responsible for receiving and processing applications, plans and specifications relative to
the proposed changes for approval. Said applications, plans and specifications shall be
submitted to the appropriate engineer or official not less than 30 days prior to the
proposed construction or action and the respective engineer shall reply to said plans and
specifications within 14 days indicating approval or any changes as are necessitated. Any
changes that are necessitated shall be accommodated with an addition 14 days to the end
result that final plans and approval will be in place 30 days prior to the construction or
modification of any of the facilities, except in the case of emergency repairs. All plans as
specified shall incorporate reasonable engineering and construction standards for the
proposed work and neither party shall be required to overbuild facilities. Parties agree to
work together diligently to reduce review times as much as possible.
Ordinance — FCID Reciprocal Franchise - 3
J. It is acknowledged by the parties that, in certain cases, relocation of the
other parties' facilities may be required to accomplish the revision or installation
proposed by either the City or the District, being whoever is proposing the revision:
1. Any revisions or installations as are approved shall be built
according to the approved plans and specifications and as built drawings shall be
provided to the party whose facilities were moved or revised. Plans and
specifications shall be in form as approved by the respective engineers or officials
which show the position, depth or height and location of all lines and facilities
sought to be constructed, laid, installed or revised, all of which shall be on maps
showing the relative position of existing roads, rights -of -way or easements and all
of which shall be drawn to scale.
K. Upon completion of any construction, the site of construction shall be
returned to as good of condition as existed prior to the construction. With regard to any
construction, the party not doing the construction shall be authorized to inspect and
approve the construction on behalf of the party whose facilities are being altered. The
Parties acknowledge and agree that all work within roads, rights -of -way, or easements
shall be required to follow all permitting, design, and construction standards as is typical
of similar work within the City of Pasco or the Franklin County Irrigation District.
L. Any work to be performed by the parties shall be in accordance with the
plans and specifications provided by each party to the other with regard to the facilities.
The plans and specifications provided shall be consistent with typical industry or
municipal standards appropriate for the area and must be consistent. Provided further, if
an existing pipe is being replaced in its existing location and that location is within ten
(10) feet of other utility's pipeline, the new pipeline shall be grandfathered in to be placed
in the same location unless affirmatively prohibited in writing by the Department of
Health, Department of Ecology, or other controlling State of Federal governmental
agency or department, or by a court of competent jurisdiction.
Section 2. Notice.
A. Written notices to the parties shall be in writing and shall be deemed to
have been duly given if personally delivered, sent by confirmed electronic mail to the
addresses below, or by certified mail to the following addresses, unless a different
address shall be designated in writing and delivered to the other party.
City: City of Pasco Public Works Director
525 N. 31d Avenue
Pasco, WA 99301
Email:
with a copy to: Pasco City Manager
(Same Address)
Email:
Ordinance — FCID Reciprocal Franchise - 4
And a copy to: Kerr Ferguson Law, PLLC
1950 Keene Road, Suite F-100
Richland, WA 99352
Email: eferguson@kerrlawgroup.net
District: Franklin County Irrigation District No
4320 Rd 111
Pasco, WA 99301
P.O. Box 3907
Pasco, WA 99302
Email:
With a Copy to: Leavy, Schultz and Davis, P.S.
2415 West Falls Avenue
Kennewick, WA 99336
Email:
B. Any changes to the above -stated Party information shall be sent, as soon
as practicable to the other Party.
Section 3. Term of A reement.
A. The reciprocal franchise agreement rights granted herein shall continue
until such time as either the City or the District notifies the other, with a minimum of one
year in advance of termination, that the notifying party is withdrawing from and
terminating this Franchise Agreement.
B. Additionally, this agreement and its reciprocal Franchises shall terminate
at such time as it would be in violation of the laws of the State of Washington governing
the City and/or the District.
Section 4. Amendment or Modification. This Agreement and any of its
provisions may be modified or amended in any manner consistent with state law upon the
prior written consent of both Parties.
Section 5. Repair and Emergency Work. In the event of an emergency
affecting one or both of the Parties' facilities, the Party affected by the emergency may
commence such repair and emergency response work as required under the circumstances
to rectify and ameliorate the emergency, provided that said Party shall notify the
appropriate engineering/construction official in writing, which includes email, as
promptly as possible, before such repair or emergency work commences, or as soon
thereafter as possible, if advance notice is not practical.
Section 6. Public Information.
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A. The Parties understand and recognize that Washington state law limits the
ability of public agencies to shield from public disclosure any information given to them.
Accordingly, the Parties each agree to notify the other Party of any requests for public
records related to the other Party.
B. The Parties each agree to indemnify and hold harmless the other Party for
any loss or liability for fines, penalties, and costs (including attorneys' fees) imposed on
the one Party because of non -disclosures requested by the other Party.
Section 7. Indemnification and Hold Harmless. The Parties each agree to
defend, indemnify, and hold the other Party and its officers, officials, agents, employees,
and representatives harmless from any and all costs, claims, injuries, damages, losses,
suits, or liabilities of any nature including attorneys' fees arising out of or in connection
with the Party's performance under this Franchise Agreement, except to the extent such
costs, claims, injuries, damages, losses, suits, or liabilities are caused by the negligence of
the second Party.
Section 8. Insurance.
A. The Parties shall procure and maintain for the duration of this Franchise,
insurance against claims for injuries to persons or damage to property which may arise
from or in connection with the performance of the work hereunder by the Party, its
agents, representatives, or employees in the amounts and types set forth below:
1. Automobile Liability insurance covering all owned, non -owned,
hired, and leased vehicles with a minimum combined single limit for bodily injury
and property damage of $1,000,000.00 per accident. Coverage shall be written on
Insurance Services Office (ISO) form CA 00 01 or a substitute form providing
equivalent liability coverage. If necessary, the policy shall be endorsed to provide
contractual liability coverage.
2. General Liability insurance with limits of not less than
$1,000,000.00 each occurrence, $2,000,000.00 general aggregate and a
$2,000,000.00 products -completed operations aggregate limit. Coverage shall be
written on ISO occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors, products -completed operations,
stop gap liability, and personal injury and advertising injury and liability assumed
under an insured contract. The General Liability insurance shall be endorsed to
provide the Aggregate Per Project Endorsement ISO form CG 25 03 1185. There
shall be no endorsement or modification of the General Liability insurance for
liability arising from explosion, collapse, or underground property damage. Each
of the Parties shall name the other Party as an additional insured under the Parry's
General Liability insurance policy with respect to the work performed under this
Franchise using ISO Additional Insured Endorsement CG 20 10 10 01 and
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Additional Insured -Completed Operations endorsement CG 20 37 10 01 or
substitute endorsements providing equivalent coverage.
3. Workers' Compensation coverage as required by the Industrial
Insurance laws of the State of Washington.
B. The insurance policies are to contain, or be endorsed to contain, the
following provisions for Automobile Liability, Professional Liability, and Commercial
General Liability insurance:
1. Each Party's insurance coverage shall be primary insurance. Any
insurance, self-insurance, or insurance pool coverage maintained by the other
Party shall be in excess of the Party's insurance and shall not contribute with it.
2. The said insurance policies shall be endorsed to state that coverage
shall not be cancelled by either party except after thirty (30) days' prior written
notice by certified mail, return receipt requested, has been given to the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers with a
current A.M. Best rating of not less than ANII.
D. Each Party shall furnish the other Party with documentation of insurer's
A.M. Best rating and with original certificates and a copy of amendatory endorsements,
including but not necessarily limited to the additional insured endorsement, evidencing
the insurance requirements of the Consultant before commencement of the work.
E. Each Party shall have the right to self -insure any or all of the above -
required insurance. Either Party may satisfy these insurance requirements through their
respective coverage and membership in self-insurance pools.
F. Each Party's maintenance of insurance as required by this Franchise shall
not be construed to limit the liability of the other Party to the coverage provided by such
insurance, or otherwise limit the Parties' recourse to any remedy to which the Parties are
otherwise entitled at law or in equity.
Section 9. Dispute Resolution.
A. In the event of a dispute between the Parties arising by reason of this
Agreement, the dispute shall first be referred to the operational officers or representatives
designated by Parties to have oversight over the administration of this Agreement. The
officers or representatives shall meet within thirty (30) calendar days of either party's
request for a meeting, whichever request is first, and the parties shall make a good faith
effort to achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this manner, then
the remaining dispute shall be resolved by arbitration pursuant to RCW 7.04A, as
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amended, the Mandatory Rules of Arbitration (MAR), with all parties waiving the right
of a jury trial upon de novo review, with the substantially prevailing party being awarded
its reasonable attorney fees and costs against the other as awarded by the arbitrator.
Section 10. Jurisdiction and Venue. The Parties agree that this agreement shall
be governed by the laws of the State of Washington and venue for any action between the
parties shall lie in the Superior Court of Franklin County, State of Washington.
Section 11. Severabilii. If any section, subsection, sentence, clause, phrase or
word of this Ordinance is held to be invalid or unconstitutional by a court of competent
jurisdiction, such invalidity or unconstitutionality thereof shall not affect the validity or
constitutionality of any other section, subsection, sentence, clause, phrase or word of this
Ordinance.
Section 12. Corrections. Upon approval by the city attorney, the city clerk or
the code reviser are authorized to make necessary corrections to this Ordinance, including
scrivener's errors or clerical mistakes; reference to other local, state, or federal laws,
rules, or regulations; or numbering or referencing of Ordinances or their sections and
subsections.
Section 13. This Ordinance shall take full force and effect five (5) days after
approval, passage and publication as required by law.
PASSED by the City Council of the City of Pasco, this day of
2023.
Blanche Barajas
Mayor
ATTEST:
Debra Barham, CMC
City Clerk
Published:
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APPROVED AS TO FORM:
Kerr Ferguson Law, PLLC
City Attorneys