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HomeMy WebLinkAbout2216 ResolutionRESOLUTION NO. aa A RESOLUTION and agreement for a non-exclusive franchise for the delivery of irrigation water WHEREAS, Irrigation Water, Inc. a Washington corporation, formed for the purpose of the private provision of irrigation water in the Pasco area has requested a non-exclusive franchise for a term of twenty-Five (25) years to install, locate, construct, maintain, operate, use, and if necessary, remove a pressurized irrigation water system, and all necessary appurtenances thereto for the purpose of transmitting irrigation water under the City streets, roadways and rights-of-way within the service area shown in Exhibit "A" hereto, which said roads, streets and rights-of-way are physically located within the City of Pasco, State of Washington, and WHEREAS, the City Council having heretofore fixed this time and place for the Hearing of said request, and after hearing all persons interested in the matter of said request, the City Council deeming it for the public interest to grant the franchise and authority so applied for, now, therefore, THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON DO RESOLVE AS FOLLOWS: I. Order. There is hereby granted to Irrigation Water, Inc , a Washington Corporation, its agents, contractors, or assigns, hereinafter called the Grantee, subject to all provisions, conditions, covenants and requirements of this Order and Agreement, the right, privilege, and franchise, for a term of twenty-Five (25) years, from the date hereof, to install, locate, construct, maintain, operate, use, and if necessary, remove a pressurized irrigation water system, and all necessary appurtenances thereto for the purpose of transmitting irrigation water, hereinafter called the irrigation system, under those portions of any and all City roadways, streets, alleys, and other rights-of-way which lie within the City of Pasco, State of Washington, set forth and within the service area shown in Exhibit A attached hereto and by this reference made a part hereof Resolution No. I c Page 1 of 9 II. Agreement. 2.1 Approval By City Engineer. All location, construction, installation, maintenance, relocation or removal of the irrigation water system or any portion thereof within the City of Pasco streets, roads, rights-of-way or other City property shall be subject to the approval of, and at his direction the inspection by, the City Engineer 2.2 Permit Required - Map and Specifications To Be Filed. a. Prior to commencement of any work on or construction of any portion of the irrigation water system, Grantee shall file with the City Engineer, its application for a permit to do such work or construction together with plans and specifications prepared by a registered Civil Engineer in the State of Washington in form and numbers approved by the City Engineer showing the position, depth, or height and location of all lines and facilities sought to be constructed, laid, installed or erected at that time, showing the relative position to existing City roads, streets, right-of-way, or other City property upon plans drawn to scale indicating exact distance hereinafter collectively referred to as the map of definite locations Grantee is hereby authorized to extend its facilities throughout the area authorized hereunder b The Irrigation Water System shall be constructed in exact conformity with said Map Of Definite Location, except in instances in which deviation may be allowed by the prior written consent of the City Engineer pursuant to application by Grantee The plans and specifications as specified, as applicable, to class and type of materials and equipment to be used, manner of excavation, construction, installation, back-fill, erection of temporary structures, erection of permanent structures, traffic control, traffic turn-outs, and road obstructions, and manner and means by which the affected City roads, streets, rights-of-way, or property will be restored to a condition meeting or exceeding City standards No such work or construction shall be commenced until the Grantee has first secured a right-of-way permit from the City Engineer, which shall include approval by the City Engineer endorsed on one set of plans and specifications to be returned to the Grantee All such work or construction shall require the inspection and approval of the City Engineer The Grantee shall pay a fee of two-hundred fifty dollars ($250 00) or five percent (5%) of the construction costs, whichever is greater, for costs and expenses incurred in the examination, inspection, and approval of such work or constructions by the City Engineer as herein provided Resolution No. gc),\ Page 2 of 9 2.3 Approval By City Engineer - Performance Bond a. The City Engineer may require a Performance Bond or a cash deposit in a sum sufficient to guarantee to the City of Pasco that any City roads, streets, or rights-of way, including the surfaces thereof, affected by any work or construction by Grantee, shall be restored to City restoration standards The amount of said bond to be fixed by the City Engineer The City Engineer, upon notice to the Grantee, may at any time do, order or have done any and all work that he considers necessary to restore to a safe condition in compliance with City restoration standards, any portion of City roads, streets, or rights-of- way, the condition of which has been rendered dangerous to the safety of persons or property by reason of any work, construction, or facilities of Grantee, and Grantee, upon demand shall pay to the City all costs of such work, done by order of the City Engineer 2.4 City Roads To Be Restored. a. In any work which required breaking a surface of the City roads, streets, or rights-of-way subject to this franchise for the purpose of locating, constructing, installing, re-locating, removing, maintaining and/or requiring the irrigation water system, and/or making connections between the same to consumers of the irrigation water or making connection to the facilities of the Grantee now in existence or hereinafter constructed, the Grantee shall be governed by and strictly conform to the instructions set forth in the permit issued by the City Engineer for such work, and the Grantee, at its own expense and with all reasonable speed, shall complete the work for which the road, street, or right-of-way surface has been broken and repair and restore the affected City road, street or right-of-way to a safe condition in compliance with City restoration standards b. Except in cases of emergency as hereinafter provided, no breaking of surface of any City road, street or right-of-way shall be done until Grantee has first obtained a permit therefore issued by the City Engineer as specified in Section 2 2 of this agreement Provided, however, that in cases of emergency which occur out of office hours when immediate work may be necessary for the protection of safety persons or property, the emergency shall be immediately reported to the Superintendent of Water Distribution/Street Maintenance and the necessary work may be immediately undertaken upon the express condition that an application for a permit for such work, as hereinabove provided, shall be submitted to the City Engineer on or before noon of the business day next following the commencement of emergency work Resolution No. QAI C Page 3 of 9 c. Application for such a permit shall be accompanied by specifications for the work and restoration of the City road, street or right-of-way or other City property to City's restoration standards, and said specifications must be approved by the City Engineer before such breaking of the surface is commenced The Grantee shall pay those costs and expenses incurred in the examination, inspection and approval of such restoration The City Engineer or his designee, upon notice to the Grantee, may at any time do, order or have done any and all work that he considers necessary to restore to a safe condition and to City standards, any such City road, street, right-of-way or other City property left by the Grantee or its agents in a non-complying condition and the Grantee, upon demand, shall pay to the City all costs of such work 2.5 Transmission Facilities To Conform To Standard Code. All irrigation water delivery lines and facilities constructed, operated and maintained under City roads, streets, rights-of-way or other City property covered by this franchise shall be constructed, operated, and maintained to compliance with the provisions of the American Public Works Association- Washington State Chapter of Standard Specifications for Municipal Public Works Construction and applicable American Water Works Association standards adopted by the City and other applicable City specifications and standards, and the City Cross-Connection Control Plan 2.6 Interference With Existing Facilities. No location, construction, installation, maintenance, repair, removal or relocation of the irrigation water system or any portion thereof, performed along or under any City road, street, right-of-way or other City property shall in any way interfere with the construction and maintenance of any existing utility, public or private, drain, drainage ditch or structure, or irrigation ditch or structure, located along or under such City roads, streets, rights-of-way or other property 2 7 Minimum Interference With Public Travel -Grantee Liable For Damage. All work done under this franchise shall be done in accordance to City standards All construction, installation, maintenance, repair, relocation or removal of the irrigation water system, or any portion thereof shall be conducted in a manner that will interfere as little as possible with public use of and travel upon City roads, streets and rights-of-way and shall include all due and necessary measures and precautions to prevent danger to persons or property Specifically, where such construction installation, maintenance, Resolution No. (/._ I C Page 4 of 9 repair, relocation, or removal involves open trenches, ditches or tunnels which are left open at night, the Grantee shall place sufficient warning lights and barricades in conformance to the MUTCD about such trenches, ditches or tunnels to give adequate warning of such work The Grantee shall assume sole liability for any injury to persons or property which occurs by reason of any trenches, ditches, or tunnels dug or maintained by the Grantee 2.8 City May Change and Improve Roads Without Liability. If the City of Pasco shall at any time improve or change any City road, street, or right-of-way subject to this franchise by grading, re-grading, surfacing, or paving the same or by changing, altering, repairing or relocating the grade thereof or by construction of drainage facilities, the Grantee, upon written notice from the City Engineer, shall at Grantee's sole expense, and with all reasonable speed change the location or readjust the elevation of its irrigation water system and other facilities so that the same shall not interfere with such City work and so that such lines and facilities shall conform to such new grades or routes as may be established The City of Pasco shall m no respect be held liable for any consequential and actual damages, costs, or expenses to said Grantee that may occur by reason of any of the City improvements, changes of work above enumerated, except and insofar such damages, costs or expenses shall be caused by the negligence of the City's employees or officials All work performed by the Grantee under this section shall be under the direction, approval and shall pass the inspection of the City Engineer The Grantee shall pay all reasonable costs of and expenses incurred in the examination, inspection and approval of such work 2.9 Blasting By City On Notice. The laying, construction, operation and maintenance of the Grantee's irrigation water system authorized by this franchise shall not preclude the City of Pasco, its agents or its contractors from blasting, grading, excavating, or doing other necessary road work continuous to said lines or facilities of the Grantee providing the Grantee shall be given forty-eight (48) hours notice of said blasting or other work, except in cases of emergency where such notice will be given as soon as conditions permit 2 10 Vacation Of City Roads - Alternate Route. If at any time, the City shall vacate any city road, street, right-of-way or other City property which is subject to rights granted by this franchise and said vacation shall be for the purpose of acquiring the fee or the property interest in said road, street, right-of-way or other property for use of said City, in either its propriety or governmental capacity, then the City may at its option, by giving thirty (30) days written notice to the Grantee and after granting an Resolution No. Qa I G Page 5 of 9 alternate route, terminate this franchise with reference to said City road, street, right-of-way or other City properties so vacated in said vacation The City shall not be liable for any damages or loss to the Grantee by reason of such termination 2.11 Grantee To Indemnify City - Liability Insurance. a. The Grantee covenants, agrees and promises that it shall fully hold and save harmless and defend and indemnify the City of Pasco from any and all liability, loss, injury, actual and consequential damage, costs, charges, claims, accidents, suits, or expenses of any nature whatsoever, including a reasonable attorney fees occurring to any person, association, corporation or property of any kind by reason of any act, actions, omissions, defaults or neglect of the Grantee, its contractors, sub-contractors or agents of the design, construction, breakage, operation, use, maintenance, relocation or removal of the irrigation water system b. The Grantee further covenants, agrees and promises that in the event that any claim, suit or cause of action shall be brought against the City of Pasco by reason of any acts, actions, omissions, defaults, or neglect of the Grantee its contractors, sub-contractors or agents, of the design, construction, operation, breakage or maintenance of the irrigation water system, it shall, at its own costs and expense defend any such claim, suit or cause of action, and shall pay any and all costs, charges, attorney fees and other expenses therein and any and all judgments that may be incurred by or obtained against the City of Pasco in any such claim, suit or cause of action c The Grantee further covenants, agrees and promises that in order to secure the City full and complete performance of the covenants and conditions of this Section 2 11, it shall, at its own costs and expense, obtain and maintain in effect continually during the term of this franchise, liability insurance, on an occurrence bases, in a company or companies to be approved by the City, such insurance to name the Grantee and the City of Pasco, its officials and employees, as the insured and to have minimum limits of not less than $1,000,000 00 per occurrence for bodily injury and property damage This franchise shall not become effective until the Grantee has provided the City with evidence of such insurance approved by the City Attorney Any such insurance shall not be cancelable without first giving thirty days written notice to the Grantee and to the City Evidence of renewals shall also be sent to the City for the period of this franchise 2.12 Conformity With State and City/Federal Regulation/Highway Commission Rules To Be Followed. a. The City of Pasco expressly reserves the right at any time upon ninety (90) days written notice to the Grantee, to change, amend, modify, or amplify any Resolution No. ifG Page 6 of 9 of the provisions or conditions herein enumerated to conform to any federal or state statute, rule or regulation, or City ordinance, and may terminate this franchise with reference to such City road, street, right-of-way or other city property so vacated and the City of Pasco shall in no respect be liable for any damages, costs, or expenses to the Grantee that may occur by reason of such termination 2.13 City Authority Reserved. a. Nothing in this franchise constitutes a waiver of the City's right to exercise its police power, including, and if necessary, to act from time to time as it is deemed necessary to protect the public health, safety, and welfare of the public, and such legitimate police power regulations now or hereafter adopted shall be applicable to this franchise as if incorporated herein b. There is reserved in the City every right and power which is required to be herein reserved or provided in any law and the Grantee by its acceptance of a franchise, agrees to be bound thereby and to comply with any action or requirements of the City in the exercise of such rights or powers heretofore or hereafter enacted or established c. Any privilege claimed under this franchise by the Grantee in any street, road, right-of-way or other public property shall be subordinate to the City's police powers and to any prior lawful occupancy of the streets or other public property 2.14 Modification. City reserves the right to modify the provisions of this franchise upon thirty (30) days notice to Grantee to provide the application of newly adopted federal, state or local regulations so that such franchise shall be in full compliance with those regulations 2.15 Non -Discrimination. The Grantee shall not discriminate against any employee, applicant for employment, customer, contractor or supplier because of race, religion, creed, color, sex, marital status, national origin or the presence of any sensory, mental or physical handicap unless based on a bona fide occupational qualification Resolution No. ic Page 7 of 9 2.16 Regulation of Franchised Service - Enforcement of Additional Regulations. City reserves the right to enforce such additional rules and regulations as may from time to time be deemed necessary to protect the interest, safety, and welfare of the public in relation to the subject matter of the franchise 2.17 Assignment - Transfer. This agreement shall not be assigned or transferred by the Grantee without the prior written consent of the City Such consent shall not be unreasonably withheld 2.18 Cancellation. - Court Decision. This agreement shall be subject to cancellation in the event a court of competent jurisdiction restricts or limits, directly or indirectly, any of the City's rights to grant a franchise to the company to utilize public rights-of-way 2.19 Right Of First Refusal. The City shall have first right of refusal to purchase all or part of the system, including water rights, owned by the company at the same price and on the same terms and conditions as the company would sell to a third party The Grantee must give the City of Pasco at least ninety (90) days written notice of the Grantee's intention to sell the irrigation water system setting forth the price and all specific terms and conditions before it would sell the same to a third party 2.20 Franchise Fee. The Grantee shall pay annually to the City, a franchise fee in the amount of five hundred dollars ($500 00) Said amount shall be paid to the City on or before the 31st day of the first month of each year of the franchise The first installment for the first year of the franchise shall be paid upon delivery to the City of the Grantee's written acceptance of this franchise agreement 2.21 Utility Tax. The Grantee shall timely pay according to the provisions of the Pasco Municipal Code, the applicable utility tax for the provision of irrigation water in the City The Grantee shall provide the City monthly flow records and revenue records used for the utility tax calculation Resolution No. ia- Page 8 of 9 2.22 Performance Bond - System Maintenance. The City Engineer may require a performance bond in a sum sufficient to guarantee to the City of Pasco that any and all City roads, streets, rights-of-way or other City property including the surfaces thereof, shall not be damaged and that any necessary repairs thereto are made and paid for which may arise from the operation, maintenance or failure to maintain or breakage of the irrigation water system The amount of said bond is to be affixed by the City Engineer The City Engineer, upon notice to the Grantee, may at any time, do, order or have done any and all work that he considers necessary to restore to a safe condition in compliance to City restoration standards any portion of City roads, streets, rights-of-way or other City property, the condition of which has been damaged or rendered dangerous to the safety of persons or property by reason of the operation, maintenance, lack of maintenance, system failure, breakage or improper design or construction of the irrigation water system and Grantee, upon demand, shall pay to the City all costs of such work, done by order of the City Engineer 2.23 Obligation To Comply Promptly. Time shall be of the essence The Grantee shall not be relieved of its obligations to comply promptly with any of the provisions of this franchise by any failure of the City to enforce prompt compliance Passed by the City Council of the City of Pasco, at a regular meeting this 0 day of O efbhar , 1995 City of Pasco. Accepted by, Irrigation Water Inc.: Attest: Approved As To Form: n Catherine D Seaman Leland B Kerr Deputy City Clerk Interim City Attorney Resolution No. &W Page 9 of 9 CITY LIMITS CITY LIMITS IRRIGATION FRANCHIES AGREEMENT BOUNDRY IRRIGATION WATER INC m i ll io11 111 1 1 1 1 1 10 111up SERVICE AREA EXHIBIT A CAD,FILE KID